Indian action of 5 August 2019 is unlawful
GOVERNMENT of India conferred upon itself powers to take actions in the part of Kashmir on its side of cease-fire line.
India cannot do so and the action is unlawful. India remains under a UN Security Council caution from 6 January 1948 in respect of taking any action in Kashmir. The UN template on Kashmir has insulated Kashmir for a UN-supervised Plebiscite.
UN had appointed a Representative (US national) to arrange a demilitarisation and an Administrator (US national) to conduct a free and secure Plebiscite. The Plebiscite should have taken place before 01 November 1950.
But it did not. Indian action on 5 August 2019 is a ‘grave offence’ under the UN Template on Kashmir. It has been argued at the 611 meeting of Security Council held on 23 December 1952 that “The party that would dare to violate an agreement thus reached would load upon itself a very grave offence against the other party, against the United Nations and against the right of the people of Jammu and Kashmir to self-determination, a right which, in other contexts, both parties have so often and so eloquently defended.” India without doubt has “loaded upon itself a very grave offence.”
The offence committed by India has to be addressed under the UN Template and many other options available.
Locally the leadership of India-occupied Jammu and Kashmir (and even the leadership of Azad Kashmir and GB) could challenge the Indian action as a breach of the terms of ‘provisional accession’.
These terms have been fully examined in the Maghar Singh case by Janki Nath Wazir CJ and Shahmiri J of the J & K High Court in May 1953.
The most recent examination of the terms of a relationship with India has been carried out in the State Autonomy Committee report published in July 2000.
It has made clear that Jammu and Kashmir had agreed to a limited relationship on three subjects and the State has never merged with the Union of India.
Government of Pakistan is also under the identical caution of UN Security Council from 6 January 1948.
Pakistan has entered into a constitutional arrangement with the Government of Azad Kashmir to discharge responsibilities under UNCIP Resolutions and help AJK to further the cause of Plebiscite.
In fact Pakistan has taken over the major part of work to advance the cause of self-determination of the people of Jammu and Kashmir.
Pakistan has argued in document II submitted at the UN Security Council on 15 January 1948, that accession to India would be tantamount to “people of Kashmir signing their death warrant”.
It has been made clear at the 773rd meeting of the Security Council held on 20 February 1957 that “pending the holding of a plebiscite, neither India nor Pakistan can claim sovereignty over the State of Jammu and Kashmir”.
India has admitted at the 553rd meeting of UN Security Council on 01 March that, “The authority of the Government of India over the Government of Kashmir is limited to certain subjects; outside that sphere, it can only advise and cannot impose any decision”. There are different schools of opinion on the Indian action of 5 August 2019.
Those who maintain and propagate that it is the end of Kashmir issue, are terribly mistaken and need to be dismissed outright. Occupation and colonization has no merit and no future.
India itself has been through a long history of colonial occupation. It had to end. The Indian occupation and colonization of Kashmir is no exception and has to end one day.
Kashmir case has many peculiarities. The first most important peculiarity is that Indian forces have conditionally entered into Kashmir to assist the local administration and carry out four duties.
It is a sub-ordinate force and the Government of Kashmir could terminate its presence on its soil anytime.
The other peculiarity is that Indian citizens needed a visa (entry permit) to enter into the State until 31 March 1959.
The entry permit requirement was rescinded by the Prime Minister of Kashmir Bakhshi Ghulam Mohammad on 31 March 1959.
It was an irregular decision because he was elected from only a part of the territory.
The third peculiarity is that India has accepted that Kashmir was the core issue with Pakistan.
India submitted at the 230th meeting of UN Security Council on 20 January 1948 that “We hope to be able to convince the Security Council that once we have dealt with the Kashmir question, there will probably not be anything of substance which will divide India and Pakistan to the extent of endangering international peace and security”.
This position has been supported by the United Kingdom at the 284th meeting of the UN Security Council held on 17 April 1948.
The United Kingdom has said that Kashmir was, “the greatest and gravest single issue in international affairs”.
The fourth peculiarity is that British Prime Minister proposed to the Prime Minister of Pakistan on 22 November 1947, that a reference could be made to International Court of Justice.
It was after 3 years and 9 months that on 27 August 1951 Office of South Asian Affairs and Office of United Nations Political and Security Affairs of United States prepared a document on Kashmir titled, “Kashmir Dispute: Future Action”.
The document stated, “At some time in the course of our efforts, we might consider asking the Security Council to request the International Court of Justice to render an advisory opinion regarding the legality of the act of the Maharaja of Kashmir in signing an instrument of accession to India.
If the ICJ finds the accession was invalid, this would knock out one of the principal Indian arguments supporting their occupation of Kashmir.”
United States of America put her plans to move to ICJ on hold, fearing that it might take longer than a decision in the Security Council.
The fifth peculiarity is that at the 235th meeting of the Security Council held on 24 January 1948 Canada has proposed, “to afford security to the peoples of Jammu and Kashmir under some authority which will be recognised by everyone concerned as strictly impartial”.
This proposal was reinforced by Pakistan at the 761st meeting of Security Council held on 16 January 1957.
Australia, Cuba, United Kingdom and Northern Ireland and United States of America moved a resolution on this issue of sending a UN Force into Kashmir on 14 February 1957. This was to be a temporary force within the framework of the resolutions.
The most important and not the final one, is the argument advanced by Netherlands at the 566th meeting of Security Council held on 10 November 1951. Netherlands has argued that “lack of agreement does not concern right of self-determination.
It concerns the ways and means and procedures to establish the conditions for a fair expression of the will of the people of the State of Jammu and Kashmir who want to make their choice free from any kind of fear or intimidation”. The UN template has not left any exit ramp for India on Kashmir.
France has categorically said at the 539th meeting of the Security Council that Security Council and the parties shall have to return to “resolutions of 13 August 1948 and 5 January 1949”.
The character of provisional accession has changed on 15 January 1948 when India surrendered it for a UN-supervised referendum. Continued….
—The author is President of London based Jammu and Kashmir Council for Human Rights – NGO in Special Consultative Status with the United Nations. From now on, his column will appear every Tuesday.
