Kashmir Back at UN Security Council Table

It was 1st January,1948, when India took the question of Kashmir to the United Nation by instituting a formal complaint against Pakistan in the Security Council. The Indian and Pakistani delegates traded charges against each other in the council.

To begin with, Government of India alleged that the invaders from Pakistan have reached to Kashmir and are operating against the territory, which had acceded to India. The complaint filed by India requested the council to call upon Pakistan to put an end immediately to the giving of assistance to the invaders. In addition, the Indian representative charged Pakistan with committing aggression against India in these words;

“It should be clear that the Government of Pakistan are unwilling to stop the assistance in material and man which the invaders are receiving from Pakistan territory and from Pakistan nationals including Pakistan government personal both military and civil. This attitude in not only unnatural but constitutes active aggression against India of which the state of Jammu and Kashmir forms a part”

The Government of Pakistan in its reply denied the charge leveled by Indian representative in a complaint of assisting the raiders on the contrary, the Government of Pakistan filed a counter complaint under Article 35 of UN charter claiming that Government of India is involved in the genocide of Muslim population; of attempts to undo Pakistan; of the forcible occupation of Junagarh; of securing the accession of Kashmir by fraud and violence; of the numerous attacks on its territory by the royal Indian air force and by armed bands from the Indian union etc. the government of Pakistan requested the council to make India desist from these activities where by the Kashmirs could without pressure from any side express their free choice of the accession to India or Pakistan.

At the conclusion of a lengthy debate in the matter, the United Nation Security Council adopted two resolution by virtue of first resolution dated 17th January 1948 it asked the two government;

“Refrain from aggravating the situation and to do everything within their power to improve the situation. It also requested them to immediately apprise the council of any material change in the situation”

By virtue of second resolution adopted on 20th January 1948 it established the United Nations commission for India and Pakistan (UNCIP). Composed of three members (later increased to five), one each nominated by Pakistan and India and the third by the two of them, the commission was mandated to play a mediatory role .

  • On 28th January 1948 the president of UNCIP presented draft of resolution submitted by the both delegations of India and Pakistan. The Pakistani draft called upon the commission to arrange for
  • Withdrawal from Kashmir of India armed forces and the tribes man and as well as trespassers weather belonging to Pakistan or India.
  • The reparation of all resident of Kashmir who left on their own are who were compelled to leave as a result of this unfortunate event.
  • The establishment in Kashmir often impartial interim administration;
  • The holding of a plebiscite to ascertain the free, fair and un-fettered will of Kashmiris as to whether the state wished to exceed to India or Pakistan.

The government of India on contrary presented a draft before the council and promised repeatedly or holding of plebiscite in Kashmir, focused on “promoting the cessation of act of hostility and violence”   the Indian draft also put a clause for “convocation of National assembly based on adult suffrage and the establishment of natural government.

The reaction of the members of the Security Council was quite unfavorable to the Indian draft e.g., commenting on the draft the United Kingdom representative Mr. Noel-Barker observed;

“The settlement arrived at quickly in the Security Council is a real way to stop fighting. He viewed the whole episode staring form the preliminary measure as to be fighting right up to the eventual plebiscite as one problem”.

Mr. Austin from United States was of the view;

“That a machinery would be free from any kind of suspicion and was actually an unbiased and impartial administration for the plebiscite, which could be backed by all “

Mr. Tsang from china was of the opinion that;

“Principle of free and impartial plebiscite should be conducted for deciding the question of accession, so that much of the incentive to violence and to the use of force should be removed”

The debate on Kashmir dispute resumed on 10th March, following another lengthy discussion in United Nation Security Council. On 21st April, 1948 the Security Council adopted a resolution by virtue of which the Pakistan government was asked to try to secure the withdrawal of tribesman and India was allowed to retain the minimum force for assistance in the civil administration for maintenance of law and order. The resolution also stipulated that the United Nation Secretary General would appoint at plebiscite administrative who was to act as an officer of the state of Jammu and Kashmir.

Around the time the above mentioned resolution was being adopted, the Indian army did not honor the resolution and started offensive military action in Kashmir, which created a big refugee problem for Pakistan from adjacent side of Bhimber, Mirpur, Poonch and Kohala. The Security Council met at the 312th meeting of Security Council on 3rd June 1948 and direct the United Nation Commission for India and Pakistan to proceed without delay to the area of dispute with a view to accomplishing in priority the duties assigned to it by the previous resolution.

The commission conducted the negotiation with the leaders of both countries and on the spot study of situation, based on same the commission adopted two resolutions dated 13th August, 1948 and 5th January, 1949.

The first resolution dated 13th August, 1948 consisted of three part. According to part I, The government of Pakistan and India were to observe cease fire in the state of Jammu and Kashmir and according to part II, a truce agreement was executed between the parties part III, reaffirmed that the future status of the state will be determine by will of people of Jammu and Kashmir.

The resolution dated 5th January 1949 adopted by Security Council was meant to supplement the early one of 13th August 1948. The part II, of the resolution of 13th August 1948. The commission’s proposal was strongly supported by Prime Minister Atlee and President Truman it was accepted by Pakistan and rejected by India

Following the failure of commission to get its arbitration accepted, the later suggested that other arrangement be made for further negotiation in the matter.  In pursuant of this suggestion, the United Nation Security Council asked its president General McNaughton of Canada to undertake the task. The General proposed that the reduction of Armed forces of both Pakistan and India be made in stage so that it does not cause fear to the people on either side of the cease fire line. Pakistan accepted these proposal and India rejected them. The McNaughton proposal is annexed below;

The Security Council passed resolution 80(1950) of United Nation security council March 14th, 1950. UNSC commended that government of India and Pakistan for their statesman action in reaching the agreement embodied in the United Nations commissions of 13th August, 1948 and 5th January 1949 for cease fire, for the delimitation of the state Jammu and Kashmir and for the determination of its final disposition in accordance with the will of people of thorough the democratic method of free and impartial plebiscite.

Following this development on 14th March 1950 the Security Council adopted a resolution by virtue of which it wound up the united nation commission for India and Pakistan and it is placed created the office of United Nations representative for the purpose of demilitarization of state. The Security Council appointed Sir Owen Dixon, a Judge of Australia High Court and subsequently he was elevated as chief justice of Australia. He made strenuous efforts to get the two countries to agree to his program of demilitarization but failed to do so because of India’s refusal who corporate with him and he himself stated in his report to the Security Council,

“…In the end I became convinced that India agreement would never be obtained to demilitarization in any such form or to the provision governing the period of the plebiscite of any such character as would in my opinion permit of the plebiscite being conducted in conditions sufficiently guarding against intimidation and other form of influence and abuse by which the freedom and fairness of plebiscite might be imperiled”

When on 21st February, 1951 the Dixon report came up for consideration, the Security Council accepted the resignation of Sir Owen and in his place decided to appoint another united nation representative.

In the mean while the question of the convening of Kashmir constitutional assembly was called, which was supposedly meeting to decide the future of Jammu And Kashmir State.

The Security Council passed the resolution 91(1951) of United Nation dated March 13, 1951. The council adopted resolution as;

“Reaffirming the principle that the final disposal of the state would be through a free and impartial plebiscite, it declare that…… any action that the assembly might attempt to take to determine the future shape and affiliation of the entire state or any part thereof would not constitute act disposition of in accordance of the above principle”.

Statement was also issued by permanent representative of India, Sir Bengal Rau in the Security Council, 1st march 1951;

“The Kashmir constituent assembly was not intended to prejudice the issue before Security Council. A few days later on 9th march the Indian representative stated his government’s view that though the constituent assembly was free to express its opinion on the question of the future of the state, it can take no decision on it.”

A similar assurance is given by the then prime minister of India PT Jawahar Lal Nehru in the Indian parliament on 28th march 1951 and in the course of press conference on 11 June 1951. On 30th April 1951 the council appointed the former senator Frank. P Graham as the new UN representative. The security council adopted the resolution 96(1951) of UN Security Council November 10 1951 reaffirming “their determination to work for peacefully settlement, there will to observe cease fire agreement and their acceptance of the principle that the accession of the state Jammu and Kashmir should be determined by a free and impartial plebiscite under the auspices of the united nation. He further instructs to put efforts for the demilitarization of state of Jammu and Kashmir”.

Mr. Graham submitted 6 reports on the demilitarization of the state to the council but his mission was no different from that of Sir Owen’s as before, Pakistan accept all the different proposal made by Graham but India rejected them all. On 24th December 1952 the security council adopted a resolution which urged India and Pakistan to enter into the negotiations for the purpose of reaching agreement on the size of the force of the parties to remain on either side of cease fire line after demilitarization

Around this period the Kashmir constitute assembly was established and 73 out of 75 of its members, all of whom who were man of Sheikh Abdullah were elected unopposed which prompted Joseph Korbel (Author of Danger in Kashmir) to comment “No dictator could do better”.

After the making of Indian constitution the assembly adopted a constitution by virtue of which autonomy of Kashmir in all matters except foreign affairs, defense and communication was recognized. In January 1957 the UN security council again took up the Kashmir question on January 24 1957 the council adopted a 5 power resolution which affirming the right of self-determination of Kashmirs to decide their own future, through the UN held plebiscite as embodied among others in the UNCIP resolution of 13th August 1948 and 5 January 1949 and endorsing it is resolution of 30 march 1951, declared that any action taken by the constituent assembly or by the parties concerned to determine the future shape and affiliation of the state would not constitute at this position of the state in accordance with principle of self-determination.

The security council adopted another resolution on 2nd December 1957 which requested the UN representative Frank. P Graham to propose further appropriate action for implementation of resolution of 13th august 1948 and 5th January 1949

The Kashmir dispute was next taken up by United Nation security council in February 1962 , the debate on this matter went on intermittently  till 22nd June when a resolution tabled by Ireland urging the parties to enter into the fresh negotiations which was vetoed by soviet union. In between a statement was issued by the president of Security Council on 18th May 1964 which summarize the conclusion of the debate on Kashmir as the Indo-Pak question remains on the agenda of the Security Council.

The next milestone on the question of the Kashmir came in September 1965 when two countries fought a war with each other. A cease fire was later arranged between them through the auspicious of the united nation and by virtue of mediator effort of Soviet Union Tashkent declaration was signed.

In 1971 international armed conflict again broke out between India and Pakistan and the United Nation Security Council 307(1971) December 21 1971, it demands that the durable cease fire and the cessation of all hostilities in all areas of the conflict be strictly observed and remain in effect until withdrawal take place as soon as practical and the position which free respect the cease fire line in Jammu and Kashmir supervised by united nation military observer group in India and Pakistan. The council further calls to take measures necessary to present the human lives and observe the Geneva Convention 1949.

In 1972 President Bhutto and Prime Minister Indira Gandhi met in Shimla and concluded a peace agreement called a “Shimla Agreement”. The most important provision of this agreement which has been subject to differing interpretation reads as;

“That the countries are resolved to settle their differences by peaceful means through bilateral negotiation or by any other peaceful means mutually agreed upon between them”.

The government of Pakistan and the stakeholders of Kashmir made several attempts to pursuit India to enter into any bilateral dialogue with Pakistan so that the non-pending dispute of Kashmir would be settled but India while interpreting the bilateral agreement narrowly contends that the Pakistan cannot raise the question of Kashmir. In 1989 a new development took place as a guerrilla movement started with the aim to liberate Kashmir from the barbaric rule of Indian army who are involved in the worst Human Rights violation in disputer territory military. The security council adopted a resolution 1172(98) of UN security council June 6th 1998 urging India and Pakistan to resume the dialogue between them on all outstanding issues particularly on all matters pertaining to peace and security in order to remove the tension between them and encourage them to find mutual acceptance solutions that address the root cause of those tensions including Kashmir.

Pakistan has again approached the UN security council on 13th August 2019 requesting to hold a urgent session on disputed Kashmir, amid the Indian parliament unilaterally revoked the special status of the Kashmir guaranteed under the constitution of India which came to be incorporated in-light of the disputed character. The government of Pakistan has build the case on the ground that Jammu and Kashmir being disputer territory is already on the agenda of UN security council since January 1948 further, the Pakistan enunciate that the people of other colonial territories, notably East Timor, have been enabled to exercise their right of self-determination, the struggle of the people of disputed Jammu and Kashmir has been denied despite the resolutions of the United Nation security council.

By: Nasir Qadri Advocate J&K High Court, Srinagar

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