What is the UNSC’s stand on Kashmir?

India hails United Nations’ Security Council for having accepted its view that Kashmir dispute is a bilateral dispute. And, as such, Pakistan is barred from agitating it at international fora. Pakistan, for its part, hails UNSC for having picked up the dormant issue from the backburner after such a long time. India erects superstructure of its stand on Article 1(ii) of the Simla Accord which states `That the two countries are resolved to settle their differences by peaceful means through bilateral negotiations or by any other peaceful means mutually agreed upon between them. Pending the final settlement of any of the problems between the two countries, neither side shall unilaterally alter the situation and both shall prevent the organization, assistance or encouragement of any acts detrimental to the maintenance of peaceful and harmonious relations.

By revoking Special Status of Kashmir, did India not `unilaterally alter the situation’ `detrimental to the maintenance of peaceful and harmonious relations’What about the words `pending the final settlement’. What about Article 1(i) which states `That the principles and purposes of the Charter of the United Nations shall govern the relations between the two countries’..

The UNSC held a closed-door meeting because Kashmir is a multilateral dispute. There is United Nations’ Military Observers’ Group that monitors the LoC. Then there is India Pakistan Question still unresolved on General Assembly’s agenda.

Secret understanding on Kashmir?

It appears that India regards the LoC as International Boundary, in accordance with unsubstantiated `secret understanding’ about Simla. The misconception became popular when PN Dhar, in his article titled Kashmir: The Simla Solution’ (The Times of India 4 April 1995) said, ` “Bhutto agreed not only to change the ceasefire line into a line of control…but also agreed that the line would be gradually endowed with the characteristics of an international border”. “This was the understanding between the leaders of the two countries and this was the Simla solution of the Kashmir problem”.. It was agreed that the understanding would not be a written one. The insertion of secret clauses in the Agreement was considered inconsistent with the desire to build a structure of durable peace”.

I think Avtar Singh Bhasin’s book, based on Nehru Papers, India Pakistan: Neighbours at Odds should set all controversies about Simla Accord at rest. Bhasin clarifies (page 256), `It may also be added in parentheses that soon after PN Dhār’s article was published in the Times of India, Pakistan’s Foreign Office Spokesman rejected any suggestion that there was any secret understanding at Simla. Since Benazir Bhutto, now herself the prime minister, was present at Simla with her father, and was in the loop on the daily proceedings. PN Dhar specifically in his article said that there was no written understanding (Bhasin Document No. 1348 in India-Pakistan Relations 1947-2007), but the Simla Agreement was written in a manner that this understanding would be seen between the lines’. Dhar, of course, did not own up to his lapse for not recording what Mrs. Gandhi had told him after the one-to-one meeting. Whatever the understanding, it remained conjectural’. (Bhasin pages 256-257).

Bhasin says (p. 256), `At the end, Bhutto the “dramatist” carried the day at Simla. The Agreement signed in Simla did no more than call for `respecting the Line of Control emerging from the ceasefire of 17 December 1971. As the Foreign Secretary TN Kaul [of India] said at briefing of the heads of foreign mission in New Delhi on 4 July 1972, the recognition of the new ceasefire line ended the UNMOGIPs role in Kashmir, created specifically for the supervision of the UN sponsored ceasefire line of 1949, since that line existed no more. Having said that India once again faltered for not asking UN to withdraw its team from Kashmir, or withdrawing its own recognition to it and its privileges (Document No. 0712 in Bhasin’s India-Pakistan Relations 1947-207). Bhasin says (p.257-259), `The Pakistan Radio broadcasts and…commentators however took special pains to highlight …the fact: (i) That India has accepted Kashmir to be a disputed territory and Pakistan a party to the dispute. (ii) That the UNSC resolutions had not been nullified and countries (iii) Kashmir remained the core issue between the two countries and that there could not be permanent peace without a just solution based on the principle of self-determination for the people of Kashmir. And Pakistan was right in its assessment. It lost the war won the peace. At the end India was left askance at its own wisdom’.

India should answer, with deadlocked talks, and Kashmir under lockdown and curfew, will war not be a choice to settle the `bilateral’ issue? Will UNOI not then b forced to mediate?

India’s history is that it itself rushes to the UNO and the world for hep when under pressure. Take 1947 Indo-Pak War, India, not Pakistan begged Un for intervention. Again, Pakistan had occupied the Kargil heights, including Tiger Hill, when shivering Indian soldiers vacated them and went down into warmer rest-houses. Indian army could not dislodge Pakistani soldiers from the heights. India fell back upon its air force. Pakistan air force was about to do tit for tat when India SOS-ed Bill Clinton for intervention. Clinton `ordered’ Pakistan’s then prime minister hold up PAF from retaliation. As a result, Pakistani soldiers, sticking to their guns, died like sitting ducks.

Pakistan not weak

India is used to telling lies. It celebrates each year its mythical army strikes into Azad Kashmir. Then it celebrates Kargil victory. There is nothing to celebrate at all.

Accession question: Two options

India and Pakistan are bound to UN under UNCIP Resolution dated January 5, 1949 Para 51 (Serial 1196). It states ‘The question of accession of the State of Jammu and Kashmir to India or Pakistan will be decided through the democratic method of a free and impartial plebiscite’.

Third option under Pakistan’s 1973 Constitution

Contrary to India’s atoot-ang (inseparable limb) rhetoric, Article 257 of Constitution of Pakistan envisions even the so-called third option for the Kashmiri. The provision states `When the people of the State of Jammu and Kashmir decide to accede to Pakistan, the relationship between Pakistan and that state shall be determined in accordance with the wishes of that State’. This is an iron-clad guarantee that the Kashmiri is the ultimate arbiter of his fate.

Myth of Kashmir’s accession by `assembly’

Aware of India’s intention to get the ‘Instrument of Accession’ rubber-stamped by the puppet assembly, the Security Council passed two resolutions to forestall the `foreseeable accession’ by the puppet assembly. Security Council’s Resolution No 9 of March 30, 1951 and affirmative Resolution No 122 of March 24, 1957 outlaws accession or any other action to change status of the Jammu and Kashmir state

Till 1953, India remained committed to the plebiscite. No UNO’s resolution incorporates India’s view that India-occupied Kashmir has acceded to India by virtue of the puppet assembly’s resolution concerning accession to India.Both India and Pakistan accepted ceasefire from January 1, 1949 onwards, and supervision by UN observers.

Kashmir question still on agenda

India could not get the dormant `India-Pakistan Question’ deleted from the UN agenda (as informally decided by the Security Council on July 30, 1996).

India took the Kashmir issue to the UN in 1948 under article 35 of Chapter VI which outlines the means for a peaceful settlement of disputes. India avoiding presenting the Kashmir case under the UN Chapter VII which relates to acts of aggression. Obviously, it did so because it knew that the Kashmir was a disputed state. And, issue of its integration with India or Pakistan remained to be resolved.

Does Simla Accord supersedes UN resolutions

India contends that the Simla Accord of 1972 supersedes the United Nations call for a plebiscite. But, even Simla Accord accepts the UN resolutions. The UN observers are still on duty on the line of actual control. They submit annual report to the UN’s secretary gen¬eral. This report identifies Kashmir as an international problem.

India could not get the dormant `India-Pakistan Question’ deleted from the UN agenda (as informally decided by the Security Council on July 30, 1996).

Both India and Pakistan accepted ceasefire from January 1, 1949 onwards, and supervision by UN observers. Till 1953, India remained committed to the plebiscite. No UNO’s resolution incorporates India’s view that India-occupied Kashmir has acceded to India by virtue of the puppet assembly’s resolution concerning accession to India.

The main resolutions on Kashmir are: (a) UNCIP Resolution dated August 13, 1948. Para 75 (Serial110) in Part III of this resolution states ` The Government of India and the Government of Pakistan reaffirm their wish that the future status of the State of Jammu and Kashmir shall be determined in accordance with the will of the people and to that end, upon acceptance of the truce agreement, both Governments agree to enter into consultations with the Commission to determine fair and equitable conditions whereby such free expression will be assured. (b) UNCIP Resolution dated January 5, 1949 Para 51 (Serial 1196) states ‘The question of accession of the State of Jammu and Kashmir to India or Pakistan will be decided through the democratic method of a free and impartial plebiscite’.

India’s attitude negates the cardinal principles in inter-state relations, that is, pacta sunt servanda `treaties are to be observed’ and are binding upon signatories. If disinterested, India should wriggle out of bilateral and multilateral agreements by pleading that the UNO resolutions stand antiquated under another principle clasula rebus sic stantibus _In the case of a `fundamental change of circumstances’, that existed when a treaty was concluded, a party to that treaty may invoke this fact as a ground for termination or suspending operation of a treaty.

The principle stands codified in Article 62 of the Vienna Convention on the Law of Treaties. Para 3 of the Convention, codifying the principle of rebus sic stantibus, states `If, under the foregoing paragraphs, a party may invoke a fundamental change of circumstances as a ground for terminating or withdrawing from a treaty, it may also invoke the change as a ground for suspending the operation of the treaty’.

India should tell the International Court of Justice that the Simla Agreement of 1972 has superseded the UNO Resolution of 1948 (envisioning exercise of the right of self-determination) on the basis of the principle `lex posterior derogat priori, later treaty abrogates the earlier one’. The principle is enshrined in Article 59 of the Vienna Convention on the Law of Treaties, which provides as follows: ‘TERMINATION OR SUSPENSION OF THE OPERATION OF A TREATY IMPLIED BY CONCLUSION OF A LATER TREATY. 1. A treaty shall be considered as terminated if all the parties to it conclude a later treaty relating to the same subject-matter and: It appears from the later treaty or is otherwise established that the parties intended that the matter should be governed by that treaty: or a) The provisions of the later treaty are so far incompatible with those of the earlier one that the two treaties are not capable of being applied at the same time…’.

India understands that she has a weak legal case. Paragraph 1(i) of the Simla Agreement provides, `the principles and purposes of the Charter of the United Nations shall govern the relations between the two countries’. Right of self-determination is a recognised right under the UNO charter and conventions. It is now not only a political but also a legal right.

Obviously, plebiscite is still the best solution of the Kashmir issue.

Lahore Declaration

The Lahore Declaration of Feb 21, 1999, signed by Atal Behari Vajpayee and Nawaz Sharif bound them to “intensify their efforts to resolve all issues including the issue of Jammu and Kashmir”. The Islamabad charter of a composite dialogue listed, on June 23, 1997, “outstanding issues of concern to both sides”. Jammu and Kashmir was at the top of the list. Since then, we have had the aborted Agra Declaration and the Manmohan Singh understanding on the four points — albeit yet to be finalised — on Kashmir.

Are Kashmiri a party to India-Pakistan Question?

Are the people of Kashmir, who are directly affected, to have no say in the matter? The constitution of India provides the answer. A proviso to Article 253 says: “No decision affecting the disposition” of Jammu and Kashmir “shall be made by the government of India without the consent of the [Srinagar] government”. This implies two things; a decision on the “disposition” of Kashmir is yet to be made, and the consent of its freely elected governments representing the people is indispensable.

The former foreign minister Jaswant Singh once asked, “Why is Pakistan concerned with Kashmir?” One might ask why India supported the Liberation Tigers of Tamil Eelam in Sri Lanka, or why it concerns itself with Indians in Fiji?

No settlement is possible within the limits of India’s constitution alone. That was rejected in 1953. The people yearn for azadi (freedom) — it is possible if all the three sides agree. Kashmiris cannot secure it by force. Nor can India crush them by force.

Popular revolt against India-sponsored terror

Kashmir governor Satya Pal Malik asks the Hurriyat to “abandon Pakistan” and the political parties to “tell the boys to avoid encounter sites and stone-pelting”. Kashmiris mothers are now used to seeing funeral processions of slain militants pass by, while thousands, including wanted militants, throng to their graves. It is a whole people in revolt.

On May 21, 2010, Ghulam Rasool Kar, a veteran Congress leader in Jammu and Kashmir, pleaded for acceptance of the “harsh” reality of Kashmiri sentiment. “Every Kashmiri is emotionally attached to Pakistan whether they are in Congress or National Conference.”

On Nov 4 2007, the former Jammu and Kashmir chief minister Mehbooba Mufti said, “Naturally we are concerned. We have a sentimental and geographical affinity with Pakistan.” There were jubilant celebrations on Pervez Musharraf’s re-election as president. Activists burst firecrackers and danced in the streets of Srinagar. Why? Because he worked for a settlement. In 2019, all Kashmiri leaders are unanimous it was a blunder not to side with Pakistan in 1947.

Kashmir is a simmering cauldron, a veritable nuclear tinderbox. The earlier it is resolved the better.

Indian foreign secretary’s advice

Aside from legal rigmarole, India should listen to its own foreign secretary JN Dixit. He says, ‘it is no use splitting legal hair. Everybody who has a sense of history knows that legality only has relevance up to the threshold of transcending political realities. And especially in inter-state relations… so to quibble about points of law and hope that by proving a legal point you can reverse the process of history is living in a somewhat contrived utopia. It won’t work.’(Quoted from Victoria Schofield’s book, Kashmir in the Crossfire).

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Bio-page

Mr. Amjed Jaaved has been contributing free-lance for over five decades. His contributions stand published in the leading dailies and magazines at home and abroad (Nepal. Bangladesh, et. al.). He is author of seven e-books including Terrorism, Jihad, Nukes and other Issues in Focus and India’s Democracy, at smashwords.com. He holds degrees in economics, business administration, and law. His article `Rampant corruption in India’ is archived with Transparency International, `Belt-Road initiative moderndiplomacy.eu‘, with Kennedy Centre, USA, `Chanakya’s Misprint on India’s foreign policy’‘ with People’s Review Nepal. He specialises on India, Kashmir, peripheral states and some political flash-points.