Kashmir and the UN template
THE UN Security Council has considered Jammu and Kashmir as a dispute that would endanger international peace and security.
It has been referred as “the greatest and gravest single issue in international affairs”, (United Kingdom at 284th meeting of UN Security Council held on 17 April 1948).
The character of State’s agreement of 26 October 1947 with India changed on 15 January 1948 when India surrendered the contested Accession for a UN supervised vote.
Pakistan had contested the Accession as illegal and secured through the use of violence and fraud.
The letter of the President of UN Security Council of 6 January 1948 addressed to India and Pakistan and the “prayer” by India on 15 January 1948 to have a UN organised Plebiscite in Kashmir, has disabled the instrument of accession.
We have a UN template on Kashmir. According to this template “The ultimate objective of a fair and impartial plebiscite under the auspices of the United Nations ….has been written into solemn agreements by the two Governments and endorsed by this Security Council. These agreements have been affirmed and reaffirmed by the two governments many times.”
(UK representative Sir Gladwyn Jebb at the 606 meeting of the UN Security Council on 6 November 1952).
The UN template on Kashmir is based on the two UNCIP Resolutions of 13 August 1948 and 5 January 1949.
UN template has made it clear that “Resolutions of 13 August 1948 and 5 January, to which we must always return because they won the express agreement of both India and Pakistan.
If the parties are unable to reach agreement on the plan submitted to them, provision is made for arbitration, and, to make assurance doubly sure, arbitration is to be carried out by an arbitrator or panel of arbitrators appointed not by a political body but by the President of International Court of Justice.” (France at the 539th meeting of the UN Security Council).
It is a gross misunderstanding that there is any kind of disagreement between India and Pakistan on the right of self-determination.
In fact India and Pakistan have agreed before going to UN Security Council that there was a need to seek a UN interference in the matter.
The UN template has further clarified, “The lack of agreement therefore, does not concern this 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.” (Netherlands 566th Meeting of UN Security Council held on 10 November 1951).
There have been problems in the interpretation of the two UNCIP Resolutions of 13 August 1948 and 5 January 1949, while seeking a demilitarization of the State.
However, there is no ambiguity in the UN template, “The issue should, in the last analysis, be decided by the people of the State of Jammu and Kashmir themselves, and not the rulers heretofore placed over them, and that no prearranged political organization in any part of the State concerned, and set up under the auspices of authorities which had already made their, choice should interfere with their complete freedom of choice.” (Netherlands 566th meeting of UN Security Council held on 10 November 1951).
The Government of India has maintained, “the question of the withdrawal of the bulk of its forces from the State of Jammu and Kashmir was a question between the Government of India and the UNCIP or the United Nations Representative”.
The Government of Pakistan has maintained, “the UNCIP or the United Nations Representative, after hearing India and Pakistan, should determine the strength of the Indian forces to remain on the Indian side of the ceasefire-line.
For Pakistan the remainder of the Indian forces constituted the “bulk” and should be withdrawn during the truce stage”.
Pakistan has contested that there should be a balance between the Indian forces and the State armed forces on the one hand, and the Azad Kashmir forces on the other”. The demilitarization process is overwhelming.
The Indian Government has maintained that the final disposal of Indian and State armed forces should be determined by the UNCIP or the UN Representative and the Plebiscite Administrator, in consultation with the Government of India, such disposal to be with due regard to the security of the State and the freedom of the plebiscite”.
Indian forces according to the agreement of 26 October 1947 were temporary and had to be withdrawn voluntarily.
Their presence has been considered around the question of State’s security and freedom of plebiscite.
UN template has taken a different view and does not accept the State’s security and freedom of plebiscite as an exclusive responsibility of India.
UN template recognises the role of Pakistan and states, “there shall be, on the Pakistan side, the minimum number of forces required for the maintenance of law and order and of the ceasefire agreement, with due regard to the freedom of the plebiscite; on the Indian side, in addition to these two criteria, the stipulation “with due regard to the security of the State” must be taken into account – although that does not mean that India has the exclusive responsibility in this respect.” (Netherlands at the 611th meeting of the Security Council held on 23 December 1952.
UN template has addressed the role of Pakistan with equity and has pointed out, “I have mentioned earlier that at no stage should demilitarization involve a threat to the ceasefire agreement.
This would mean that the forces of each side of the cease-fire line should be, broadly speaking of the same kind.
I should make it dear that the United Kingdom Government has never thought that the proposal to limit the forces on the Pakistan side of the ceasefire-line to an armed civil force while leaving a military force on the other side of the ceasefire line was consistent with a really free plebiscite.
I hope that representatives will join me in urging that the parties should resolve any differences they may still have on this point in the way which I have suggested.”(UK at the 606 meeting of the UN Security Council on 6 November 1952).
UN template is on the side of the people of Jammu and Kashmir and there is an urgent need that we take steps to activate it.
—The author is President of London based Jammu and Kashmir Council for Human Rights – NGO in Special Consultative Status with the United Nations.
