UN and Kashmir’s right to self-determination | By Prof Dr Muhammad Khan


UN and Kashmir’s right to self-determination

WORLD War-II ended with an estimated killing of 70–85 million people all over the globe. Historians estimate that 50–56 million people died due to direct fighting between opposing forces and another 19–28 million deaths took place because of war-related diseases and famine.

At this deadly end of WW-II, the war victors thought of having an organization which could stop occurrence of another world war. In the same perspective the United Nations Organisation (UNO) was established as regulating body to regulate the international conflicts.

Unlike the League of Nations, the Charter of UNO was further distinguished and refined with the inclusion of an exceptional humanitarian clause; the ‘right of self-determination’ which was unique in nature and became a cause for the decolonization of the colonial world.

Establishment of India and Pakistan were also the result of this decolonization process in August 1947.

Unfortunately, ever since the decolonisation of subcontinent, the people of Jammu and Kashmir are demanding their right of self-determination.

Kashmiris trace back this prized right from the resolutions of United Nations which was accredited from the UN Charter.

Owing to its paramount significance, the right of self-determination was secured in article 1 of the UN Charter with a universal application, where Kashmiris cannot be made as an exception.

The global decolonization started immediately after establishment of the UNO mainly because of the right of self-determination. Right of self-determination is the legal right of the people for deciding their future destination.

It is the essence of international law, arising from customary international law, secured in a number of international treaties and agreements. Kashmiris’ right of self-determination is also secured in UN resolutions, treaties and commitments of Indian leadership.

In the light of UN-mandated right to self-determination, the people of Jammu and Kashmir too had a right to determine their own destiny, their own political status and their own economic, cultural and social developmental model.

The United Nations Commission for India and Pakistan (UNCIP) through its Resolution of January 5, 1949 guaranteed a free and fair plebiscite in Jammu and Kashmir with the sole objective of granting the people of Jammu and Kashmir their right to self-determination.

This is the inalienable right; the people of Jammu and Kashmir had in 1947 and valid today in 2022 as well.

The only obstacle in the exercise of this right is Indian obduracy, which has constantly caused a barrier since the passage of UNCIP Resolution on 05 January 1949. Since its establishment in 1945, the United Nations has ensured grant of this right to over 100 states.

This is clear from UN membership; it had 51 countries as its members in October 1945 and today in 2022, there are 193 countries form the member states of this international organization.

In all cases, the right of self-determination formed the basis of such a large international community.

The only question, people of Jammu and Kashmir ask today from the UN and its 193 member States that after all why they have been deprived of this inalienable right of self-determination, enshrined in the UN Charter and UN resolutions.

UNCIP Resolution of 05 January, 1949 was corollary to UNCIP Resolution dated 13 August 1948. Indeed, after passage of this resolution (13 August 1948), India and Pakistan gave their recommendations for the smooth conduct of plebiscite in the entire state of Jammu and Kashmir which were incorporated in the resolution of 05 January 1949.

This UNCIP resolution was unanimously adopted by members of the Commission thus had no confusion in implementation.

Since India took the Kashmir dispute to UN on 01 January 1948 on the sole plea that Maharaja of the Princely State of Jammu and Kashmir had acceded to India on 26 October 1947 through an Instrument of Accession.

The truth is quite different, since Maharaja did not sign the instrument before 27 October 1947, the day India invaded the state in the early hours. India was sure to just have a walk-over upon presentation of this so-called instrument of accession at the UN.

But, during the debate over the dispute between Pakistani and Indian representative, UN came to know about the reality of Indian occupation of the former Princely State and consent of the people of the state, which run counter to Indian narrative and claim.

Moreover, even in the so-called instrument of accession, the will of the people was to be kept as the supreme about their future status.

The UNCIP resolutions (13 August 1948 and 05 January 1949) were indeed the rejection of the Indian stance over Kashmir.

Through these resolutions, United Nations made Kashmiris as the basic and principal party; the real decision makers for their future political status.

The so-called instrument of accession, India presented and used to justify its invasion into the Princely state of Jammu and Kashmir was not accepted by UN.

At the UN two concurrent happenings took place as a result of Indian reference to Kashmir case; one, Indian efforts to get UN authenticity of its military invasion into Kashmir was overruled and two, instrument of accession was not accepted as the legal document for the accession of the state with the Indian Union.

This happened despite Lord Mountbatten was still the Governor General of Independent India. Lord Louis Mountbatten remained Governor General of India from 15 August 1947 to 21 June 1948.

Despite unlawful annexation of IIOJK by India in August 2019, Kashmiris are determined to get their right of self-determination.

In order to suppress their struggle for their right of self-determination, India is carrying out systematic genocide of Kashmiris through; fake encounters, custodial killings, shoot to kill, arrest and torture, rape of women folk and targeting the Kashmiri youth.

Besides, India is undertaking massive demographic changes in IIOJK which is yet another violation of the UN Charter, UN resolutions on Kashmir, Fourth Geneva Convention and International Law.

— The writer is Professor of Politics and IR at International Islamic University, Islamabad.

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