Pakistan has approached the United Nations to investigate the recent attack on a United Nations’ Military Observers’ Group vehicle. This is not the first time India has done so to harass the UNMOGIP.
Since Narendra Modi’s cataclysmic rise to the helm of affairs, India took many daredevil steps to shore up his strongman image. Pakistan’s recourse to the UN is India’s, Achilles Heel. So it is as India’s stand on disputed Kashmir is a rigmarole of inconsistent myths.
To avoid the internationalization of the Kashmir issue, India’s own former foreign secretary offered proposals (rebranded by Parvez Musharaff) inter alia to soften the LOC in exchange for non-internationalization of the Kashmir dispute for 10 years.
Kashmir is a simmering nuclear tinderbox. There is no UNO resolution abolishing UNMOGIP role.
Mehta presented his ideas in an article, ‘Resolving Kashmir in the International Context of the 1990s’ (Hindustan Times editor Verghese also gave similar proposals).
Mehta understood that plebiscite, the real solution, was anathema to India. As such, he proposed ‘requirements’ for the solution, not a solution. Some points of his quasi-solution are
(a) Conversion of the LoC into “a soft border permitting free movement and facilitating free exchanges…”
(b) Immediate demilitarisation of the LoC to a depth of five to 10 miles with agreed methods of verifying compliance.
(c) Pending final settlement, there must be no continuing insistence by Pakistan “on internationalization, and for the implementation of a parallel or statewide plebiscite to be imposed under the peacekeeping auspices of the United Nations”.
(d) Final settlement of the dispute between India and Pakistan can be suspended (kept in a ‘cold freeze’) for an agreed period.
(e) Conducting parallel democratic elections in both Pakistani and Indian sectors of Kashmir.
(f) Restoration of an autonomous Kashmiriyat.
(g) Pacification of the valley until a political solution is reached. Voracious readers may refer for detail to Robert G. Wirsing, India, Pakistan, and the Kashmir Dispute (1994, St Martin’s Press). Let intellectual credit go where it belongs.
A basic flaw in India’s stand on Kashmir
India had no consistent stand on Kashmir. There was a time when Sardar Patel presented Kashmir to Pakistan in exchange for Hyderabad and Junagadh. Reportedly, the offer was declined as Pakistan’s prime minister Liaquat Ali Khan thought that it could retain not only Kashmir but also the other princely states. India kept changing its stand on Kashmir. Nehru approached the United Nations for mediation. He kept harping his commitment to the plebiscite. And, then Lo! He announced.
At heart, Nehru did not care a fig for the disputed state’s constituent assembly, Indian parliament, or the United Nations. Bhasin documents Nehru’s perfidy on Kashmir in Chapter 5 titled Kashmir, India’s Constitution, and Nehru’s Vacillation (pages 51-64). Let us look at a few of Nehru’s somersaults.
Nehru discarded Maharajah’s and Kashmir assembly’s ‘accession’; in a letter dated October 31, 1947, addressed to the disputed state’s prime minister, he shrugged off ‘accession’ (p. 28 ibid..). He reiterated in New Delhi on November 3, 1951, that ‘we have made it perfectly clear before the Security Council that the Kashmir Constituent Assembly does not [insofar] as we are concerned come in the way of a decision by the Security Council, or the United Nations’(SWJ: Volume 4: page 292, Bhasin p.228). Again, at a press conference on June 11, 1951, he was asked if the proposed the constituent assembly of Kashmir ‘decides in favour of acceding to Pakistan, what will be the position?’ he reiterated, ‘We have made it perfectly clear that the Constituent Assembly of Kashmir was not meant to decide finally any such question, and it is not in the way of any decision which may ultimately flow from the Security Council proceedings’.
Since Narendra Modi’s cataclysmic rise to the helm of affairs, India took many daredevil steps to shore up his strongman image. Pakistan’s recourse to the UN is India’s, Achilles Heel.
He re-emphasized his view once again at a press conference in New Delhi On November 3, 1951. He said ‘we have made it perfectly clear before the Security Council that the Kashmir Constituent Assembly does not [insofar as] we are concerned come in the way of a decision by the Security Council or the United Nations’. Bhasin points out, ‘at a press conference on July 24, 1952, when asked what the necessity of plebiscite was now that he had got [accession by] the Constituent Assembly, he replied “Maybe theoretically you may be right. But we have given them assurance and we stand by it. Bhasin points out Nehru made a ‘tactical error’, one ‘of committing himself to the UN’. Accession documents are un-registered with the UN.
Post-Nehru equivocal rhetoric
The Kashmir Question is intact on General Assembly’s agenda, with United Nations’ Military Observers’ Military Group on duty. It is eerie that the disputed state’s assembly erects the whole architecture of India’s stand on Kashmir on the mythical ‘instrument of accession’ and its endorsement. UN charter and the right to self-determination are supreme. India’s repression and reign of terror in Kashmir is an effort to gag the voice of truth.
Instead of approaching the UN for mediation, India should have appealed to the ICJ, as suggested (Wikipedia) by Josef Korbel (author of The Danger in Kashmir).
Following the Simla Accord (1972), India stopped reporting ceasefire skirmishes to the UN. But, Pakistan has been consistently reporting all such violations to the UN. India feigns it does not recognize the UNMOGIP. But, then it provides logistic support to the UMOGIP on its side of the LOC for reporting mostly on basis of newspaper reports.
India keeps harassing the UNMOGIP vehicles occasionally. Not long ago, three members of the UNMOGIP had a close call along the restive LoC in Azad Jammu and Kashmir after Indian troops shot at and injured two locals who were briefing them on the situation prevailing in the wake of ceasefire violations.
India even asked them to vacate their residence at 1/AB, Purina Lila Road, Connaught Place, Delhi –11000; from where it has been functioning since 1949. The UN Secretary-General has clarified that the UNMOGIP can’t be terminated unilaterally with the approval of the Security Council. The UNMOGIP is financed through the UN regular budget.
Locus standi of the UNMOGIP
The UNMOGIP derives its authority from the Security Council Resolution of April 21, 1948 that empowered the United Nations Commission for India and Pakistan to establish “such observers as it may require.” AG Noorani is of the view that India-Pakistan accords merely fortified it. Professor Rosalyn Higgins, later a Judge of the International Court of Justice, said in 1970 that “this resolution would seem clearly to fall within the terms of Article 40 of the U.N.’s Charter even though that Article was not specifically mentioned.
The authority for establishing UNMOGIP thus emanates from Chapter VII rather than Chapter VI.” Article 40 authorizes the Council to “call upon the parties to comply with such provincial measures as it deems necessary.” Chapter VI pertains to disputes on which the Council can make “recommendations.” Chapter VII deals with acts of aggression on which it “decides.”
India had no consistent stand on Kashmir. There was a time when Sardar Patel presented Kashmir to Pakistan in exchange for Hyderabad and Junagadh.
The UNMOGIP authority was confirmed when the UNCIP was replaced by a Special Representative, Sir Owen Dixon, on March 30, 1951, by declaring that the “Group shall continue to supervise the cease-fire in the State”. It functions under the control and supervision of the Secretary-General. After the 1965 war, India-Pakistan Observation Mission soon vanished; UNMOGIP survived. The Tashkent Declaration of January 10, 1966, also bound the parties to withdraw “to the positions they held prior to August 5, 1965, and “observe the ceasefire terms on the ceasefire line.”
On October 13, 1972, C.V. Narasimhan, the Under-Secretary-General of the U.N., said in New Delhi: “there has been no written request from New Delhi to withdraw U.N. Observers from the Indian side of the old ceasefire line in Jammu and Kashmir.” He added that they were there under a Security Council resolution followed by an India-Pakistan agreement. They could not be withdrawn as long as the resolution remained. This was said after the Simla pact of July 3, 1972, which simply stated that “in Jammu and Kashmir, the line of control resulting from the ceasefire of December 17, 1971, shall be respected by both sides without prejudice to the recognized position of either side” .
Given the discord between both countries over UNMOGIP’s mandate and functions, the secretary-general has said in the past that the group could be terminated but only through a decision of the Security Council (Dawn October 15, 2014).
Getting rid of the UN role is India’s policy
Till 1953, India was, at least verbally, committed to the plebiscite. But, in a subsequent period, it had been making frantic efforts to warp the United Nations Organization and woo the United States of America in her favour. For instance, during the temporary absence of Pakistan’s representative India tried to get the ‘India-Pakistan Question’ deleted from the UN agenda.
India based her plea on Security Council’s informal decision, dated July 30, 1996, about deleting dormant questions. The Question was deleted during the Pak rep’s absence but was restored to the agenda upon his arrival.
Again, at India’s behest, US Congressman Stephen Solarz elicited the statement from Bush-administration high-level diplomat, John H. Kelly, that plebiscite was no longer possible in Kashmir.
At heart, Nehru did not care a fig for the disputed state’s constituent assembly, Indian parliament, or the United Nations.
Here is an extract of Solarz’s grilling questions and the gullible answers thereto.
Mr. Solarz: What is the position of the United States with respect to whether there should be a plebiscite?
Mr. Kelly: First of all we believe that Kashmir is disputed territory…
Mr. Solarz: Well, how did we vote upon that resolution at the U.N. back in 1949?
Mr. Kelly: In favor, Mr. Chairman.
Mr. Solarz: Right. So at that time, we favored a plebiscite. Do we still favor a plebiscite, or not? Or is it our position now that whether or not there should be a plebiscite is a matter, which should be determined bilaterally between India and Pakistan?
Mr. Kelly: Basically, that’s right, Mr. Chairman.
Mr. Solarz: So we are no longer urging a plebiscite be held?
Mr. Kelly: That’s right.
To India’s chagrin, John R. Mallot, the US State Department’s point man for South Asia in 1993, corrected Kelly’s faux pas. He told the House Foreign Affairs Sub-Committee on Asia and the Pacific on April 28, 1993, that John Kelly ‘misspoke’ in 1990 when he said that the United States no longer believed a plebiscite was necessary in South Asia. Mallot clarified that Kelly made his comment after ‘continued grilling’ by the panel’s (pro-India) chairman, Stephen J. Solarz of New York.
Simmering nuclear tinder box
Avid readers may refer to Solarz-Kelly’s conversation and corrective policy action taken by the US State Department in Robert G. Wirsing’s book India, Pakistan, and the Kashmir Dispute, published by Macmillan Press Limited, London in 1994. They may also see Mushtaqur Rehman’s Divided Kashmir: Old Problems, New Opportunities for India, Pakistan and the Kashmiri People (London, Lynne Reinner Publishers, London, 1996, pp. 162-163).
Kashmir is a simmering nuclear tinderbox. There is no UNO resolution abolishing UNMOGIP role. Similarly, there is no resolution incorporating India’s volte-face that India-occupied Kashmir has acceded to India through the so-called state assembly’s resolution. The UN’s admonition on ‘accession’ farce: Subsequent accession resolution, passed by the occupied Kashmir’s ‘constituent assembly’ is also void. This resolution violates the Security Council’s resolutions forbidding India from going ahead with the accession farce.
It is eerie that the disputed state’s assembly erects the whole architecture of India’s stand on Kashmir on the mythical ‘instrument of accession’ and its endorsement.
Aware of India’s intention to get the ‘Instrument of Accession’ rubber-stamped by the puppet assembly, the Security Council passed two resolutions to forestall the ‘foreseeable accession’ by the puppet assembly. Security Council’s Resolution No 9 of March 30, 1951 and affirmative Resolution No 122 of March 24, 1957 outlaws accession or any other action to change the status of the Jammu and Kashmir state. Sans UNintervention or third-party mediation, India’s belligerence is an open invitation to war, perhaps a nuclear Armageddon.
Till recently, the USA viewed Kashmir as a disputed state and offered mediation. Aside from Trump’s mumbo-jumbo, there appears to be not an iota of change in US official policy on Kashmir.
Despite lapse of over 70 years, India has not fulfilled its promise of a plebiscite in Kashmir. India’s attitude negates the cardinal principles in inter-state relations, that is, pacta sunt servanda ‘treaties are to be observed’ and are binding upon signatories. India qualifies as a rogue state (Noam Chomsky, rogue States). It should be shunned as a pariah and subjected to sanctions.
The UN observers submit an annual report to the UN’s secretary-general. This report identifies Kashmir as an international problem.
Mr. Amjed Jaaved has been writing free-lance for over five decades. He has served federal and provincial governments of Pakistan for 39 years. His contributions stand published in the leading dailies and magazines at home and abroad (Nepal. Bangladesh, et. al.). He is author of eight e-books including The Myth of Accession. He knows many languages including French and Arabic. The views expressed in this article are the author’s own and do not necessarily reflect the editorial policy of Global Village Space.