Image Source: UNSC set to hold Kashmir meeting after 50 years, (16 Auguest 2019, Dawn) UNSC set to hold Kashmir meeting after 50 years – World – DAWN.COM accessed 26.02.2024.
Background
Under British colonial rule, the South Asian subcontinent was governed in part by directly-administered British territories and in part by Princely States that were quasi-independent.[1] Jammu and Kashmir was one of the largest Princely States,[2] consisting of Hindu maharajah governing a majority Muslim population.[3] When the British withdrew, they tried to draw lines roughly following the sectarian divide, thus creating Hindu-majority India and Muslim-majority Pakistan,[4] and each Princely State was given a choice to accede to either India or Pakistan. Kashmir was the only State that chose to remain independent.[5] Conflict swiftly ensued following the 1947 partition when Pakistani tribesmen crossed the northern border of Kashmir and began occupying one third of the region.[6] Kashmir’s Maharaja Hari Singh appealed to India for military assistance, but India conditioned their aid upon Singh’s signing of an Instrument of Accession, which made Kashmir legally accede to India.[7] Singh signed, and fighting continued.
Prime Minister Jawaharlal Nehru wrote a letter[8] to the UN Security Council (“UNSC”) in January of 1948 arguing that the UN should call upon Pakistan to stop aggressions in Kashmir[9] and accusing Pakistan of aiding the tribesmen in their invasion.[10] Nehru proposed that the UN invoke Article 35 of the UN Charter, which stipulates that any matter likely to endanger maintenance of international peace can be brought to the UNSC’s attention.[11] Pakistan responded by filing its own complaint,[12] claiming that Kashmir’s accession had occurred under “fraud and violence” and was thus illegitimate.[13] While the UNSC did not immediately order the tribesmen’s withdrawal,[14] it passed Resolution 39[15] that same month to create the UN Commission for India and Pakistan (“UNCIP”).[16] UNCIP was established with two express goals: 1) to investigate the facts leading to the Kashmir dispute, and 2) to mediate differences between the two countries and report to the UNSC.[17]
The UNSC subsequently passed Resolution 47[18] in April of 1948 to implement UNCIP’s recommended two-pronged solution of demilitarization and plebiscite.[19] The conditions were as follows: Pakistan had to secure the withdrawal of tribesmen and Pakistani nationals from the region; then, India had to withdraw all military except what was minimally necessary to maintain law and order; finally, after military withdrawal, a UN-appointed Plebiscite Administrator would facilitate a plebiscite on whether Kashmir should join India or Pakistan.[20] Resolution 47 made no mention of the Instrument of Accession.[21] India accepted the Resolution, but Pakistan accepted it with so many qualifications – namely, the inclusion of more details regarding the plebiscite and a synchronized military withdrawal – that UNCIP said it was “tantamount to rejection.”[22]
Despite the lack of agreement on Resolution 47, India and Pakistan agreed to a ceasefire in 1949 via the Karachi Agreement,[23] which established a border that gave India two-thirds control over Kashmir and Pakistan one-third control.[24] They did not reach an agreement on demilitarization. Two years later, UNCIP was dissolved and the UN Military Observer Group in India and Pakistan (“UNMOGIP”) took over supervision of the ceasefire.[25] The two countries have since attempted to reconcile the conflict bilaterally with no UN involvement.[26] The ceasefire line, created by the Simla Accord of 1972, acts as a de facto border (“Line of Control”).[27] While Pakistan repeatedly tried to raise conflict to an international level, India remains resistant to international mediation,[28] and the Simla Accord remains the cornerstone of bilateral discussions.[29]
Most recently, in August 2019, the Indian government placed Kashmiri political leaders under house arrest and revoked Article 370 of Indian Constitution, the provision guaranteeing Kashmir’s independence.[30] Pakistan requested a UNSC meeting and convinced China, an ally and permanent member, to call one immediately.[31] Chinese Ambassador Zhang Jun urged India and Pakistan to “refrain from taking any unilateral action which might further aggravate” a “tense and very dangerous” situation.[32] Pakistan Ambassador Maleeha Lodhi stated that the fact the meeting took place is a sign that this dispute is an international one, not purely for India’s internal affairs, and the world is concerned with “the voice of the people of the occupied Kashmir,” pushing back against the Indian Ambassador’s, Syed Akbaruddin, statement that their national position was that “matters related to Article 370 of the Indian Constitution are entirely an internal matter of India.”[33]
In January of 2022, Pakistan called on the UN to increase efforts to resolve the Kashmir dispute in light of Indian atrocities in the disputed territory.[34] UN Secretary General Antonio Guterres said that the UN still regards Jammu and Kashmir as disputed territory and that the dispute needs to be resolved in accordance with past UN resolutions.[35] Secretary General Guterres reiterated support for the peacekeeping mission there but has not indicated any concrete steps towards demilitarization or plebiscite.[36] It has become increasingly clear over the course of the 75 year old dispute that the UN’s true objective has always been to stop hostilities between India and Pakistan rather than facilitate the self-determination of the Kashmiri people.[37]
The UNSC deals with disputes politically and does not have capacity to adjudicate conflicts in legal terms.[38] That said, the UN could have taken a stronger stance on Kashmir’s right to self-determination.[39] By ignoring the Instrument of Accession, which was at the center of the dispute, UNCIP undermined its own policy recommendations and weakened their rationale.[40]
Argument
The UNSC Resolution 47, stipulated that both India and Pakistan should withdraw their military forces and arrange a plebiscite in order to provide the people of Kashmir the choice of which State to join. The resolution was the UN’s first effort to put the right to self-determination into practice, however, when it limited the people of Kashmir’s choice to accede to either India or Pakistan, it brought about another norm: State sovereignty. Since the UN Charter calls for the equal rights and self-determination of peoples in Article 1, and Article 2 states ‘nothing contracted in the present [UN Charter] shall authorize the UN to intervene in matters that are essentially within the jurisdiction of any [S]tate; the UN could only formally advocate for the right self-determination while in practice it has to uphold the principle of State sovereignty and non-intervention. This is where the UN is ineffective of its dispute settlement mechanisms. In the UN’s early years, there were several cases of non-self-governing territories that the UNGA or UNSC could have sought to apply the principle of self-determination, rather than defer it to any existing State’s interests. The Indian – Pakistan dispute over Kashmir is one of the most prominent cases. The question of self-determination was succeeded by concerns of international peace, and this is where the UN’s dispute settlement mechanism became ineffective.[41]
When Pakistan disregarded Resolution 47 calls for a ceasefire and withdrawal of its military. At that point, the UN considered its first duty was to broker a truce between India and Pakistan, rather than make any efforts to determine Kashmir’s desire for independence or to determine the grounds for arranging a plebiscite. India had also taken the position that the Instrument of Accession made the Kashmir legally part of India. Hence, why India considered that the UN’s role was to force Pakistan to withdraw because its territorial sovereignty was in jeopardy. The UNCIP did at least attempt to uphold the right of self-determination by continuing to insist upon a plebiscite. However, the UNCIP made multiple efforts to implement a plebiscite in Kashmir, but ultimately deferred it to the norm of State sovereignty whenever it clashed with the right to self-determination. The UN’s decisions stemmed from its view that its mandate within the UN Charter was to mediate between the two governments of India and Pakistan, rather than identity the preferences of Kashmir through a plebiscite. The UN chose to recognize India and Pakistan as the only parties to the dispute, and not Kashmir, and deferred to the norm of State sovereignty again and again, rather than engage in any genuine effort to advance the Kashmir people’s right to self-determination.[42]
The UN clearly considered the Kashmir issue to be a territorial dispute between the two States. Hence why there was no mention in any of the UNCIP reports of an option for independence for Kashmir. This was a stark contrast to the wishes of Sheikh Abdullah, the political leader in Kashmir at this time. Abdullah preferred to achieve Kashmir’s independence, rather than accede to any existing State but the UN disregarding such sentiments, and intentionally or not, accepted that India and Pakistan were the sole successors. The UNSC did respond with Resolution 132 in 1957, which expressed its frustrations and restated its position again for a plebiscite to be held. However, the UN remained unwilling to force the issue upon India or Pakistan through sanctions or any other dispute settlement mechanism because it would undermine their State sovereignty. Over time, the UN gradually gave up on trying to enact the principle of self-determination for Kashmir.[43]
Conclusion
The UN stance is clear when dealing with issues of self-determination in Kashmir. The UN has an inherent preference to uphold State sovereignty than to pressure any existing sovereign State over issues of self-determination. The UN was effective in helping maintain international peace by establishing the State’s post-colonial borders as a clear and workable template for resolving inter-state disputes. However, it was not effective in its handling of the Kashmir issue by ignoring the Instrument of Accession and the wishes of the Kashmir people, which was at the center of the dispute. The UN is committed to non-interference which means the UN is far from being a friend of the Kashmir people’s right to self-determination as such. The UN’s position now ensures that any aspirant self-determination movement’s demands need to be accepted by existing sovereign State(s) before the international community can formally engage in the issue. Which is why, the most contemporary self-determination movements now develop an antagonistic and combative relationship with the State(s) they reside in, which the case of Kashmir demonstrates. Therefore, without any changes from India and Pakistan, the people of Kashmir are unlikely to see an end in sight or any genuine effort to allow them to choose their own destiny.[44]
[1] Stephen P. Westcott, “The Case of UN Involvement in Jammu and Kashmir” The United Nations: Friend or Foe of Self-Determination? (2020). Westcott.
[2] Westcott (n. 1).
[3] Kashmir’s population was 77% Muslim at the time, but the Muslim population was not homogenous – some followed traditional Sufi practices, some Shia, and some were orthodox Sunni – and there were also several religious minorities that favored India, namely the Buddhist Ladakis, Sikhs, and Hindu Dogras. Sumathi Subbiah, “Security Council Mediation and the Kashmir Dispute: Reflections on Its Failures and Possibilities for Renewal,” 27 B.C. Int’l & Comp. L. Rev. 173 (2004).
[4] India was governed by the All India National Congress of Mahatma Gandhi and Jawaharlal Nehru, and Pakistan by the Muslim League of Muhammad Ali Jinnah. Westcott (n. 1).
[5] Subbiah (n. 3).
[6] Subbiah (n. 3).
[7] Ibid.
[8] S/628.
[9] Westcott (n. 1).
[10] Subbiah (n. 3).
[11] Westcott (n. 1).
[12] S/646.
[13] Subbiah (n. 3).
[14] Westcott (n. 1).
[15] S/RES/39.
[16] Subbiah (n. 3).
[17] Ibid.
[18] S/RES/47.
[19] Subbiah (n. 3).
[20] Ibid.
[21] Ibid.
[22] Ibid.
[23] UN Military Observer Group in India and Pakistan,“India-Pakistan: Background,” (UN Peacekeeping) <https://peacekeeping.un.org/mission/past/unipombackgr.html> accessed 27 July 2022. UN Peacekeeping.
[24] Subbiah (n. 3).
[25] UN Peacekeeping (n. 23).
[26] Subbiah (n. 3).
[27] Ibid.
[28] Ibid.
[29] “Behind the Kashmir Conflict: Abuses by Indian Security Forces and Militant Groups Continue,” (HRW, 1999) <https://www.hrw.org/reports/1999/kashmir/back.htm> accessed 27 July 2022.
[30] Westcott (n. 1).
[31] Ibid.
[32] “UN Security Council discusses Kashmir, China urges India and Pakistan to ease tensions,” (UN News, 16 August 2019) <https://news.un.org/en/story/2019/08/1044401> accessed 27 July 2022. UN News.
[33] Ibid.
[34] “Resolve Kashmir dispute on urgent basis, Pakistan tells UN,” (Dawn, 22 January 2022) <https://www.dawn.com/news/1670902> accessed 27 July 2022.
[35] Anwar Iqbal, “Pakistan urges UNSC to note India’s crimes in occupied Kashmir,” (Dawn, 27 January 2022) <https://www.dawn.com/news/1671698> accessed 28 July 2022.
[36] Ibid.
[37] Following Resolution 47, UNCIP did not attempt to hold a plebiscite. UNCIP actors neglected to consult with political actors within Kashmir and primarily considered Kashmir to be a territorial dispute between two sovereign states. Westcott (n. 1).
[38] Subbiah (n. 3).
[39] Ibid.
[40] Ibid.
[41] Stephen P. Westcott, “The Case of UN Involvement in Jammu and Kashmir” The United Nations: Friend or Foe of Self-Determination? (2020).
[42] Ibid.
[43] Ibid.
[44] Ibid.
Bibliography
Anwar Iqbal, “Pakistan urges UNSC to note India’s crimes in occupied Kashmir,” (Dawn, 27 January 2022) <https://www.dawn.com/news/1671698> accessed 28 July 2022.
“Behind the Kashmir Conflict: Abuses by Indian Security Forces and Militant Groups Continue,” (HRW, 1999) <https://www.hrw.org/reports/1999/kashmir/back.htm> accessed 27 July 2022.
“Resolve Kashmir dispute on urgent basis, Pakistan tells UN,” (Dawn, 22 January 2022) <https://www.dawn.com/news/1670902> accessed 27 July 2022.
Sumathi Subbiah, “Security Council Mediation and the Kashmir Dispute: Reflections on Its Failures and Possibilities for Renewal,” 27 B.C. Int’l & Comp. L. Rev. 173 (2004).
UN Military Observer Group in India and Pakistan,“India-Pakistan: Background,” (UN Peacekeeping) <https://peacekeeping.un.org/mission/past/unipombackgr.html> accessed 27 July 2022.
“UN Security Council discusses Kashmir, China urges India and Pakistan to ease tensions,” (UN News, 16 August 2019) <https://news.un.org/en/story/2019/08/1044401> accessed 27 July 2022.
Stephen P. Westcott, “The Case of UN Involvement in Jammu and Kashmir” The United Nations: Friend or Foe of Self-Determination? (2020).
Authors
Kirsten O’Connell, Team Lead & Coordinator (kirstenjeanoconnell@gmail.com)
Kate Maguire,Research Assistant (kmaguire12@fordham.edu)