Daily Times

In the backdrop of killing of Kashmiris and blatant violation of human rights by the Indian security forces, Pakistan has decided to raise the Kashmir issue at the ensuing session of the UN General Assembly. The decision was taken at a high level meeting presided by Prime Minister Nawaz Sharif on Tuesday. The prime minister plans to urge the UN to fulfill its obligations towards the people of Kashmir, as well as ask the world community to pay attention to violation of human rights in the valley. It has also been decided to launch a worldwide diplomatic offensive to sensitise the international fraternity about what is going on in the Indian-occupied Kashmir.

It is the right and pro-active approach that is very much needed for keeping the Kashmir issue in the radar of the international community, reminding them of their commitment to the people of Kashmir, putting pressure on India to end the wave of oppression in the valley, and the resolution of the Kashmir dispute. In this regard the efforts of the Pakistan government should be focused on getting the Kashmir issue back on the UN agenda. It may be pointed out that the UN excluded Jammu and Kashmir from its list of unresolved international disputes under the observation of the UN Security Council in November 2010. This development took place due to the passive attitude of successive regimes in Pakistan, and probably also due to the signing of the Simla Agreement between Pakistan and India that emphasised the need for settling all disputes between the two countries, including Kashmir, through bilateral negotiations. The Indian argument that Pakistan cannot internationalise the Kashmir issue after signing the Simla Agreement probably also stems from the same development.

The UN action and the Indian stance, both are wrong notions. The resolution of Kashmir issue in conformity with the UN Security Council and UNCIP resolutions remains the moral obligation of the UN if not legal and binding. During his visit to Pakistan and India in 2001, former secretary general of United Nations Kofi Annan had remarked that Kashmir resolutions were only advisory recommendations and comparing them with those on East Timor and Iraq was like comparing apples and oranges, since those resolutions were passed under Chapter VII, which make them enforceable by the UNSC. According to the UN Charter, resolutions passed under chapter VI, like the resolutions on Kashmir, are considered non-binding. Only the resolutions passed under Chapter VII can be enforced by the United Nations through force or other means.

Granted that the UN resolutions on Kashmir are non-binding, but that in no way change the status of the dispute or nullify the right of self-determination of the people of Kashmir recommended in the UN resolutions, and the commitment given by India to fulfil her obligations in this regard. Jawaharlal Nehru in a telegram to Mohammad Ali Jinnah wrote: “We have declared that the fate of Kashmir is ultimately to be decided by the people. That pledge we have given (and Maharaja has supported it) not only to the people of Kashmir but also to the world. We will not and cannot back out of it. We are prepared, when peace and order have been established, to have referendum held under international auspices like the UN. We want it to be a fair and just reference to the people and we shall accept their verdict.”

Speaking in the Indian parliament on June 16, 1948, Nehru said: “If after a proper plebiscite the people of Kashmir said we do not want to be with India, we are committed to accept it even though it might pain us. We will not send an army against them. We might feel about it, we will change the constitution if necessary.”

Lord Mountbatten addressing the Chamber of Princes — rulers of princely states — on June 25, 1947 said: “The Indian Independence Act releases the states from all their obligations to the Crown. The states will have complete freedom — technically and legally they have become independent and they were free to join any of the dominion but while so must keep in mind the geographical proximity and the demographic features of the population.” That is how Mountbatten perceived the accession of the states to either of the two countries should take place, giving overriding consideration to geographical proximity and demographic realities. Going by that yardstick, Kashmir was a strong case for accession to Pakistan.

Kashmir is not a territorial dispute between Pakistan and India. It is about the right of self-determination of the people of Kashmir, which is one of the universally recognised fundamental human rights. It is quite evident from the foregoing facts that it is both obligatory on India as well as the UN to have the Kashmir issue settled in line with the commitments made to the people of Kashmir. The UN may not be in a position to enforce its resolutions, but it certainly is in a position to exert moral pressure on India for the resolution of the Kashmir dispute.

Pakistan being a party to the Kashmir dispute and frustrated by the Indian intransigence to have the dispute settled through bilateral arrangement, is very much entitled to re-raise the issue at the United Nations. The Simla Agreement does not exclude that possibility. It says that the principles and purposes of the UN Charter shall govern the relations between the two countries. Article 103 of UN Charter says: “In the event of a conflict between the obligations of the members of the UN under the present charter and their obligations under any other international agreement, their obligations under the present charter will prevail.” What it means is that the UN resolutions on Kashmir are to take precedence over all other international agreements on the
same issue.

It is pertinent to point out that it was India that took the matter to the United Nations Security Council in the backdrop of rebellion of the people of Kashmir against the so-called Instrument of Accession signed by the Maharaja of Kashmir, and the consequent war between Pakistan and India. The world community and India committed to allow the people of Kashmir to exercise their right of self-determination. However, India later tried to wriggle out of its commitment by claiming that the question of accession of Kashmir had been resolved by the constituent assembly of Kashmir. The UN through its resolutions 91 and 122 repudiated the Indian stance that the issue of accession of Kashmir had been resolved by the constituent assembly of Kashmir. These resolutions reiterated that the question of accession could not be resolved by any means other than the one enunciated in the UN resolutions on the subject. This proves beyond any doubt that the Indian claims of Kashmir being an integral part of India represent travesty of the facts and lack any legal basis.

The writer is a retired diplomat, a freelance columnist and a member of the visiting faculty of the Riphah Institute of Media Sciences, Riphah International University, Islamabad. He can be reached at ashpak10@gmail.com