K.N. Pandita
Slavishly succumbing to dictation from their mentors across the border, Kashmir separatists-secessionists have been brandishing Security Council Resolutions of 1948 and 1949, less as an instrument for solving Kashmir issue but more as antics to tell the world of India’s defiance of the United Nations. This has become their habit. Does a fluid resolution, passed by the Security Council sixty-four years ago, still enjoy validity, especially in the light of wide and deep changes in international relations ever since the day. In our opinion these resolutions are redundant; they are neither valid, nor legal nor sanctimonious. Let us debate the proposition.
New Delhi telegraphed a complaint to the President of Security Council (SC/628) on January 1, 1948 under Article 35 of the UN Charter which inter alia says, “Any member may bring any situation whose continuance is likely to endanger the maintenance of international peace and security to the attention of the Security Council.” India asserted,” Such a situation now exists between India and Pakistan owing to the aid which invaders are drawing from Pakistan for operations against J&K, a State which has acceded to the Dominion of India and is part of India.”
Explaining the broad details of aggression and circumstances of State’s accession, the Government of India requested the SC in Para 13 of her application (a) to prevent Pakistan Government personnel, military and civil from participating or assisting in the invasion of J&K State, (b) to call upon other Pakistani nationals to desist from taking any part in the fighting in J&K State, and (c) to deny to the invades access to any use of its territory for operations against Kashmir, military and their supplies and all other kinds of aid that might tend to prolong the present struggle.
But in total disregard of the stipulations of Article 35 of the UN Charter, and the precise nature of the complaint, the SC, in a bid to politicize the issue, treated the aggressor at par with the aggressed. It was blatant violation of the UN Charter by none other than it most potent organ, namely the Security Council.
This was the technical flaw in the SC’s Resolutions of 1948 and 1949 to which the then UN Secretary General, Kofi Annan referred to during his official visit to Pakistan. He publicly said that these resolutions were un-implementable owing to their technical flaw. Kofi Annan’s comment was carried by the reputed Pakistani newspaper Dawn on the next day. In fact it was late Abdul Ghani Lone of Kashmir, then on a visit to Pakistan, who had commented on Kofi Annan’s statement as a debacle of Kashmir struggle.
In order to avoid any possible suggestion that India had utilized the State’s immediate peril for her own political advantage, the Government of India in its application to the Security Council cited above made it clear that “once the soil of the State had been cleared of the invader and normal conditions restored, its people would be free to decide their future by the recognized democratic methods of plebiscite or referendum which, in order to ensure complete impartiality, might be held under international auspices.”
This was the first time when terms like “plebiscite” and “referendum under international auspices” were heard in the context of Kashmir issue. Kashmiri separatists and their handlers across the border are never tired of quoting Nehru but carefully avoiding the conditional part of his statement. They jump at plebiscite but skip the condition. Before going to SC on January 1, 1948, Prime Minister Nehru had on 22 December 1947 handed over personally to the Prime Minister of Pakistan a letter detailing various forms of aid given by Pakistan to the invaders and implored the Government of Pakistan to put an end to such aid promptly. Four days later, on 26 December, Nehru sent a telegraphic reminder Pakistan did not reply.
Two clauses of the SC Resolution of 1949 have to be mentioned specifically. First it stipulated that present position would not be altered and second that Pakistan would withdraw all troops and fighting personnel from the part of the State under its control. The rest of the recommendations would follow.
Pakistan never withdrew troops from illegally occupied parts. It particularly replaced the tribesmen them with her regulars. This was blatant violation of both stipulations, namely maintaining status quo and vacating the aggression. Pakistan violated the resolution and acted in reverse direction thus nullifying the Resolutions in question. Therefore it is in fitness of things to consider these resolutions as invalid and dead.
Secondly, in 1953, Pakistan detached the Northern Areas from the illegally occupied part of the J&K State. This was in brazen violation of the stipulations of the Security Council Resolutions under reference. It was an arbitrary and a clandestine act of getting a treaty signed by two Azad Kashmir political leaders under duress in Karachi. None of them belonged to the Northern Areas and none had the mandate of representing them. This was to throw the UN Resolutions to wind. Kashmiri separatist leaders should ask the nationalists of Gilgit and Baltistan how they have been treated ever since Northern Areas were separated from the J&K State and integrated in to Pakistan. In a historic decision the High Court of Azad Jammu and Kashmir has declared Northern Areas as part of the Jammu and Kashmir State of Dogra rulers.
Many more steps taken by Pakistan in course of time eroded ad finally invalidated the Security Council Resolutions. Pakistan first joined Baghdad Pact and then CENTO and SEATO, all military pacts with strategic concerns for India. The U-2, a spying aircraft of the US took off from Peshawar base and was shot down by the Soviet fighters over the Soviet territory over which it was spying. Pakistan had given land and naval bases to the US and her allies.
India notified the Security Council that since Pakistan had entered into military pacts, the strategic situation and balance of power had changed in the region. As such, Resolutions of 1948 and 1949 on Kashmir, a strategic region, were un-implementable. From Indian point of view there was another strong reason that invalidated the resolutions under discussion.
Joseph Korbel, once Czechoslovakia’s Ambassador to India, was nominated by the Government of India as its recommended member of United Nations Commission for India and Pakistan (UNCIP). While being an acting member of the Commission, this person defected to the US and severed his connections with his country. India demanded that he be discarded as India’s nominated member. The SC did not agree. Therefore any Resolution of the SC based on the recommendations of the UNCIP of which Korbel continued to be a member against the wishes of one of the disputing party are invalid. It may be added as a footnote that Madeline Albright, the US Secretary of Sate under President Bush the elder happens to be the daughter of Joseph Korbel.
The SC, under Article 34 (not 35) of the Charter adopted Resolution 38 and 39 wherein UNCIP was constituted with the terms of reference as (1) to investigate the facts giving rise to exercise mediatory influence and to report on the progress of executing the advice. But before the UNCIP reached the region to take up the mandate, the SC passed Resolution 47 in April 1948 which remains SC outlined structure for a recommended permanent solution, namely demilitarization and plebiscite.
By not waiting for the ground study and factual report of the UNCIP, a body constituted by the SC, and superseding its earlier decision, the SC took a quick step that undid its own decision. This is precisely one of the technical flaws which Kofi Annan had pointed out.
The Resolutions under discussion have become obsolete and toothless in view of the commitment which India had made to the people of Jammu and Kashmir and fulfilled by holding five/six-yearly fair and free elections to the State Legislative Assembly. India could not delay empowering people of the state with their democratic, civil and political rights.
The entanglement of demilitarization and plebiscite thus remained unresolved. Since no return to normalcy had occurred by 1951, India constitutionally integrated into the Indian Union the portion of Kashmir that it held relying on the idea that it had the legality of the Instrument of Accession’s text on its side. By 1965, largely because of the political realities of the Cold War and likely because of the repeated failure to demilitarize Kashmir, the Security Council disengaged from its mediatory effort by conspicuously not assuming its previous mediatory role. Thus it let the Resolutions of 1948 and 1949 on Kashmir die their natural death.
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