India’s attack on the UNMOGIP vehicle reflects its untenable policy on the UNMOGIP as also on Kashmir

4 weeks ago

8 min

Amjed Jaaved

Pakistan has approached the United Nations to investigate the recent attack on a United Nations’ Military Observers’ Group vehicle. This is not the first time India has done so to harass the UNMOGIP.

Pakistan’s recourse to the UN is India’s Achilles Heel. So it is as India’s stand on disputed Kashmir is a rigmarole of inconsistent myths.

To avoid internationalization of the Kashmir issue, India’s own former foreign secretary offered proposals (rebranded by Parvez Musharaff) inter alia to soften the LOC in exchange for non-internationalisation of the Kashmir dispute for 10 years. Mehta presented his ideas in an article, ‘Resolving Kashmir in the International Context of the 1990s’ (Hindustan Times editor Verghese also gave similar proposals).

Basic flaw in India’s stand on Kashmir

India had no consistent stand on Kashmir. There was a time when Sardar Patel presented Kashmir to Pakistan in exchange for Hyderabad and Junagadh. Reportedly, the offer was declined as Pakistan’s prime minister Liaquat Ali Khan thought that it could retain not only Kashmir but also the other princely states.

India kept changing its stand on Kashmir. Nehru approached the United Nations’ for mediation. He kept harping his commitment to the plebiscite. And, then Lo! He announced.

Nehru’s somersaults

At heart, Nehru did not care a fig for the disputed state’s constituent assembly, Indian parliament or the United Nations. Bhasin documents Nehru’s perfidy on Kashmir in Chapter 5 titled Kashmir, India’s Constitution and Nehru’s Vacillation (pages 51-64). Let us look at a few of Nehru’s somersaults.

Nehru discarded Maharajah’s and Kashmir assembly’s ‘accession’; in a letter dated October 31, 1947, addressed to the disputed state’s prime minister, he shrugged off ‘accession’ (p. 28 ibid..). He reiterated in New Delhi on November 3, 1951, that ‘we have made it perfectly clear before the Security Council that the Kashmir Constituent Assembly does not [insofar] as we are concerned come in the way of a decision by the Security Council, or the United Nations’(SWJ: Volume 4: page 292, Bhasin p.228). Again, at a press conference on June 11, 1951, he was asked if the proposed the constituent assembly of Kashmir ‘decides in favour of acceding to Pakistan, what will be the position?’ he reiterated, ‘We have made it perfectly clear that the Constituent Assembly of Kashmir was not meant to decide finally any such question, and it is not in the way of any decision which may ultimately flow from the Security Council proceedings’. He re-emphasised his view once again at a press conference in New Delhi On November 3, 1951. He said ‘we have made it perfectly clear before the Security Council that the Kashmir Constituent Assembly does not [insofar as] we are concerned come in the way of a decision by the Security Council or the United Nations’. Bhasin points out, ‘at a press conference on July 24, 1952, when asked what the necessity of plebiscite was now that he had got [accession by] the Constituent Assembly, he replied “Maybe theoretically you may be right. But we have given them assurance and we stand by it. Bhasin points out Nehru made a ‘tactical error’, one ‘of committing himself to the UN’. Accession documents are un-registered with the UN.

No recourse to the International Court of Justice

Instead of approaching the UN for mediation, India should have appealed to the ICJ, as suggested (Wikipedia) by Josef Korbel (author of The Danger in Kashmir).

India’s view of the UNMOGIP

Following Simla Accord (1972), India stopped reporting ceasefire skirmishes to the UN. But, Pakistan has been consistently reporting all such violations to the UN. India feigns it does not recognise the UNMOGIP. But, then it provides logistic support to the UMOGIP on its side of the LOC for reporting mostly on basis of newspaper reports.

Pakistan gives full access to the UNMOGIP on the LOC.  

India keeps harassing the UNMOGIP vehicles occasionally. Not long ago, three members of the UNMOGIP had a close call along the restive LoC in Azad Jammu and Kashmir after Indian troops shot at and injured two locals who were briefing them on the situation prevailing in the wake of ceasefire violations.

India even  asked them to vacate their residence at 1/AB, Purina Lila Road, Connaught Place, Delhi – 11000; from where it has been functioning since 1949.

Given the discord between both countries over UNMOGIP’s mandate and functions, the secretary general has said in the past that the group could be terminated but only through a decision of the Security Council (Dawn October 15, 2014).

The UNMOGIP are financed through the UN regular budget.

 Locus standi of the UNMOGIP

The UNMOGIP derives its authority from the Security Council Resolution of April 21, 1948 that empowered the United Nations Commission for India and Pakistan to establish “such observers as it may require.”

AG Noorani is of the view that India-Pakistan accords merely fortified it. Professor Rosalyn Higgins, later a Judge of the International Court of Justice, said in 1970 that “this resolution would seem clearly to fall within the terms of Article 40 of the U.N.’s Charter even though that Article was not specifically mentioned.

The authority for establishing UNMOGIP thus emanates from Chapter VII rather than Chapter VI.” Article 40 authorises the Council to “call upon the parties to comply with such provincial measures as it deems necessary.” Chapter VI pertains to disputes on which the Council can make “recommendations.” Chapter VII deals with acts of aggression on which it “decides.”

The  UNMOGIP authority was  confirmed when the UNCIP was replaced by a Special Representative, Sir Owen Dixon, on March 30, 1951 by declaring that the “Group shall continue to supervise the cease-fire in the State”. It functions under the control and supervision of the Secretary-General. After the 1965 war, India-Pakistan Observation Mission soon vanished; UNMOGIP survived. The Tashkent Declaration of January 10, 1966 also bound the parties to withdraw “to the positions they held prior to August 5, 1965, and “observe the ceasefire terms on the ceasefire line.”

On October 13, 1972, C.V. Narasimhan, the Under-Secretary General of the U.N., said in New Delhi: “there has been no written request from New Delhi to withdraw U.N. Observers from the Indian side of the old ceasefire line in Jammu and Kashmir.” He added that they were there under a Security Council resolution followed by an India-Pakistan agreement. They could not be withdrawn as long as the resolution remained. This was said after the Simla pact of July 3, 1972 which simply stated that “in Jammu and Kashmir, the line of control resulting from the ceasefire of December 17, 1971 shall be respected by both sides without prejudice to the recognised position of either side” .

Getting rid of UN role is India’s policy

Till 1953, India was, at least verbally, committed to the plebiscite. But, in subsequent period, it had been making frantic efforts to warp the United Nation Organization and woo the United States of America in her favour. For instance, during temporary absence of Pakistan’s representative India tried to get the `India-Pakistan Question’ deleted from the UN agenda.

India based her plea on the Security Council’s informal decision, dated July 30, 1996, about deleting dormant questions. The Question was deleted during the Pak rep’s absence, but was restored to agenda upon his arrival.

Again, at India’s behest, US Congressman Stephen Solarz elicited the statement from Bush-administration high-level diplomat, John H. Kelly, that plebiscite was no longer possible in Kashmir.

To India’s chagrin, John R. Mallot, the US State Department’s point man for South Asia in 1993, corrected Kelly’s faux pas. He told the House Foreign Affairs Sub-Committee on Asia and the Pacific on April 28, 1993 that John Kelly ‘misspoke’ in 1990 when he said that the United States no longer believed a plebiscite was necessary for South Asia. Mallot clarified that Kelly made his ( Robert G. Wirsing’s book India, Pakistan, and the Kashmir Dispute, published by Macmillan Press Limited, London in 1994. Also, Mushtaqur Rehman, Divided Kashmir: Old Problems, New Opportunities for India, Pakistan and the Kashmiri People (London, Lynne Reinner Publishers, London, 1996, pp. 162-163).

Inferences

There is no UNO resolution abolishing the UNMOGIP role. Similarly, there is no resolution incorporating India’s volte-face that India-occupied Kashmir had acceded to India through the so-called state assembly’s resolution.

The  UN’s admonition on `accession’ farce:  Subsequent accession resolution, passed by the occupied Kashmir’s ‘constituent assembly’ is also void. This resolution violates the Security Council’s resolutions forbidding India from going ahead with the accession farce.

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 the status of the Jammu and Kashmir state. Sans intervention or third-party mediation, India’s belligerence is an open invitation to war, perhaps a nuclear Armageddon. 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. India qualifies as a rogue state (Noam Chomsky, Rogue States). It should be shunned as a pariah and subjected to sanctions.

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Bio-page

Mr. Amjed Jaaved has been writing freelance for over five decades. He has served the federal and provincial governments of Pakistan for 39 years. His contributions stand published in the leading dailies and magazines at home and abroad (Nepal. Bangladesh, et. al.). He is the author of eight e-books including The Myth of Accession.

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