On 5th January 1949, the United Nations Commis-sion for India and Pakistan adopted a resolution that guaranteed Kashmir’s right to self-determination through an impartial plebiscite.
Pakistan observes Kashmir Solidarity Day on this day to show support to Kashmiri brethren and remind the international community regarding their commitments made to the people of IIOJ&K.
Despite the UN guarantees, India has not carried out a free and fair plebiscite in Kashmir even after 75 years, which is an utter viola-tion of international law.
Instead, the people of Kashmir are suffering systematic persecution at the hands of Indian occupational forces for demanding right to self-determination. While the international community, especially the UN, has failed to imple-ment its resolutions.
The world community must stand up against Indian tyranny and its rouge behav-iouar.
Background of the Kashmir Dispute
• The State of Jammu and Kashmir has historically remained independent, except in the anarchical con-ditions of the late 18th and first half of the 19th century, or when incorporated in the vast empires set up by the Mauryas (3rd century BC), the Mughals (16th to 18th century) and the British (mid-19th to mid-20th century).i
• All these empires included not only present-day Pakistan and India but some other countries of the region as well.ii
• Until 1846, Kashmir was part of the Sikh empire. In that year, the British defeated the Sikhs and sold Kashmir to Gulab Singh of Jammu for Rs. 7.5 million under the Treaty of Amritsar.
• Gulab Singh, the Maharaja, signed a sepa-rate treaty with the British which gave him the status of an independent princely ruler of Kashmir.
• Gulab Singh died in 1857 and was replaced by Rambir Singh (18571885). Two other Marajas, Partab Singh (1885-1925) and Hari Singh (1925-1949) ruled in succession.
• Gulab Singh and his successors ruled Kashmir in a tyrannical and Maharaja Gulab Singh repressive way. The people of Kashmir, nearly 80 per cent of who were Muslims, rose against Maharaja Hari Singh’s rule. He ruthlessly crushed a mass uprising in 1931.
• In 1932, Sheikh Abdullah formed Kashmir’s first political party, the All Jammu & Kashmir Mus-lim Conference (renamed as National Conference in 1939).
• In 1934, the Maharaja gave way and allowed limited democracy in the form of a Legislative As-sembly. However, unease with the Maharaja’s rule continued.
• According to the instruments of partition of India, the rulers of princely states were given the choice to freely accede to either India or Pakistan, or to remain independent. They were, however, advised to accede to the contiguous dominion, taking into consideration the geographical and ethnic issues.
• In Kashmir, however, the Maharaja hesitated. The principally Muslim population, having seen the early and covert arrival of Indian troops, rebelled and things got out of the Maharaja’s hands.
• The people of Kashmir were demanding to join Pakistan. The Maharaja, Maharaja Hari Singh fearing tribal warfare, eventually gave way to the Indian pressure and agreed to join India by, as India claims, signing’ the controversial Instrument of Accession on 26 October 1947.iii
• Kashmir was provisionally accepted into the Indian Union pending a free and impartial plebiscite. This was spelled out in a letter from the Governor General of India, Lord Mountbatten, to the Maharaja on 27 October 1947.
• In the letter, accepting the accession, Mountbat-ten made it clear that the State would only be incor-porated into the Indian Union after a reference had been made to the people of Kashmir. Having accepted the principle of a plebiscite, India has since obstructed all attempts at holding a plebiscite.iv
• In 1947, India and Pakistan went to war over Kashmir. During the war, it was India which first took the Kashmir dispute to the United Nations on 1 January 1948.v
• The following year, on 1 January 1949, the UN helped enforce ceasefire between the two countries. The ceasefire line is called the Line of Control. It was an outcome of a mutual consent by India and Pakistan that the UN Security Council (UNSC) and UN Commission for India and Pakistan (UNCIP) passed several resolutions in years following the 1947-48 war.
• The UNSC Resolution of 21 April 1948 – one of the principal UN resolutions on Kashmir stated that both India and Pakistan desire that the question of the accession of Jammu and Kashmir to India or Pakistan should be decided through the democratic method of a free and impartial plebiscite.
• Subsequent UNSC Resolutions reiterated the same stand. UNCIP Resolutions of 3 August 1948 and 5 January 1949 reinforced UNSC resolutions.
Resolution adopted at the meeting of the United Nations Commission for India and Pakistan on 5 January, 1949
• Salient of Resolution adopted on 5 January 1949:vi o Article 1: The question of the 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; o Article 2: A plebiscite will be held when it shall be found by the Commission that the ceasefire and truce ar-rangements set forth in Parts I and II of the Com-mission’s resolution of 13 August 1948, have been carried out and arrangements for the plebiscite have been completed;
o Article 3(a): The Secretary-General of the United Nations will, in agreement with the Com-mission, nominate a Plebiscite Administrator who shall be a personality of high international standing and commanding general confidence. He will be formally appointed to office by the Government of Jammu and Kashmir.
o Article 3(b): The Plebiscite Administrator shall derive from the State of Jammu and Kashmir the powers he considers necessary for organizing and conducting the plebiscite and for ensuring the free-dom and impartiality of the plebiscite.
o Article 3(c): The Plebiscite Administrator shall have authority to appoint such staff or assistants and observers as he may require.
Right to Self-determination in International Law • Self-determination denotes the legal right of people to decide their own destiny in the international order. • Self-determination is a core principle of inter-national law, arising from customary international law, but also recognized as a general principle of law, and enshrined in a number of international treaties. For instance, self-determination is protected in the United Nations Charter and the International Covenant on Civil and Political Rights as a right of “all peoples.”
• The United Nations Universal Declaration of Human Rights (Article 15) states that everyone has the right to a nationality and that no one should be arbitrarily deprived of a nationality or denied the right to change nationality.
• Right of Self Determination has particular im-portance in ICCPR (International Covenant on civil and Political Rights). The most important feature is that the covenants define the right of self-determination widely to all the peoples not only the people of colonized or oppressed people. If we fur-ther interpret the common Article 1 of the covenants, it gives the right of free determination of political status to all the people along with free enjoyment and exploitation of their natural economic resources and wealth.
Analyzing Kashmir Dispute under International Law with Special Reference to Right to SelfDeter-mination
• As noticed above, the basic points about the UN resolution are that:
o The complaint relating to Kashmir was initi-ated by India in the Security Council; o The Council explicitly and by implications, rejected India’s claim that Kashmir is legally
Indian territory; o The resolutions established self-determination as the governing principal for the settlement of the Kashmir dispute. This is the world body’s commitment to the people of Kashmir;
