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| Indian profile of Jammu and Kashmir at the UN | | | Dr. Rajkumar Singh | 10/31/2019 9:42:23 PM |
| With the start of the current dispute over abolition of Articles 370 and 35A, several experts of international law have also expressed the view that Pakistan will get nothing except insult and humiliation if it moves in the International Court of Justice. In addition, as the issue of Kashmir's plebiscite is pending at the United Nations and no solution to the satisfaction of India, Pakistan and people of the state is in sight, three arguments are usually cited by the Indian side. The first, that Pakistani forces failed to fulfil the pre-conditions mentioned in the United Nations' resolution to vacate those parts of Jammu and Kashmir under their control. The second, that the territory's lawful ruler had acceded to India, thereby automatically confirming the validity of such accession. The third contention is that Kashmir is 'an integral part of India'. This holds the argument that the people of Jammu and Kashmir acting through their democratically elected representatives, have repeatedly and freely ratified the moral and legal validity of accession to India.
Background of move at the UN
Having initial attempts of India failed to settle the disputes through negotiations it decided, on the suggestion of Lord Mountbatten, to place the issue before the Security Council and Pakistan was conveyed accordingly.. On 1 January 1948, P.P. Pillai, the representative of India to the UN, in a letter addressed to the President of the Security Council under Article 35 of the Charter, which clearly stipulates that any member of the United Nations may bring any dispute, or any situation of the nature referred to in Article 34 to the attention of the Security Council or the General Assembly. In his letter, pillai, stating the situation existed between India and Pakistan as a result of the raids by Pakistani nationals and tribesmen, requested : 01.To prevent Pakistan Government Personnel, military and civil, from participating in or assisting in the invasion of Jammu and Kashmir; 02. to call upon other Pakistan nationals to desist from taking any part in the fighting in the Jammu and Kashmir state ; 03. to deny the invaders i. access to and use of its territory for operations against Kashmir, ii. military and other supplies; iii. all other kinds of aid that might tend to prolong the present struggle (Security Council Official Records, 1948). The Security Council met to discuss the issue on January 15, 1948, and Gopalaswami Ayyangar, the Indian representative, explained the circumstances under which the troops were sent to Kashmir after the Instrument of Accession was signed by the Maharaja in favour of the Government of India. He also laid down that the Government of India has accepted the accession on the understanding that the will of the people regarding it could be made clear in a plebiscite or referendum when law and order had been restored.
UN resolution favours India
In May 1948, a UN Commission on Jammu and Kashmir was formed. A series of mediators were appointed one after the other during 1949-51 - General Mc Naughton of Canada, Owen Dixon of Australia and Frank Graham of the United States. The thrust of the proposals of all mediators was the demilitarization of the state, to be followed by a plebiscite. The most important among the recommendations of the Security Council was one prepared by a United Nations Commission for India and Pakistan (UNCIP) constituted in accordance with the resolution of the Council of April 21, 1948. Its resolution was adopted by the Security Council on August 13, 1948, which was divided into three parts - covering wide range of the subject concerned. Part I of the resolution called for a cease-fire order to apply to all forces under the control of India and Pakistan. Part II has three sub-paras A. B & C. They clearly spell out that the entire portion occupied by Pakistan, called by whatever name, organised or unorganised, must be totally vacated. Part II B specifies that on this vacation the territory must be passed on to the local administration as prevailed before. It also specifies that it shall be the duty of the Government of India to restore normalcy. And only when the conditions of these two parts I & II are satisfied can the opinion of the people be ascertained in the manner agreed upon by the UN Commission.
In Part III the resolution, finally, called upon India and Pakistan to reaffirm their wish that the future status of the state of Jammu and Kashmir would be determined in accordance with the will of the people. It also provided that the Pakistani forces should be withdrawn first from the state. It clearly meant that the entry of Pakistani forces in the state was illegal. Indian forces were to be withdrawn subsequently after the Commission had notified that the withdrawal of the Pakistani forces had begun. Hence, in terms of the UN resolution, Pakistan has no right to even talk about Kashmir till it first vacates the Pak-occupied Kashmir (PoK) and hand it over to India, who is its rightful owner.
Indian side explained
At a later stage it appeared that India had committed a mistake in referring the Kashmir issue before the Security Council under Article 35 of the UN Charter. Rather India should have taken measures as provided under Article 51 of the Charter. The said Article provides to the states to exercise the 'inherent right' of self-defence. This right can be exercised by a state under provisions of the Charter only when armed attack occurs on it. To defend the state of Jammu and Kashmir was a right which India had acquired immediately after the state was acceded to it. If Pakistan had attacked the state with its armed forces, India legally could have used its armed force to thwart the Pakistani aggression and should have taken back the part of territory of Kashmir occupied by Pakistan. This action, it appears, would have solved the Kashmir dispute for ever. But India did not exercise the right of self-defence, presumably, because it just did not occur to the then Indian leaders. They were also totally unaware of the political rivalry between the two blocs which prevented the Security Council on arriving any decision. |
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