UN mediation of Kashmir

Overview

Following the outbreak of the Indo-Pakistani War of 1947, India's Governor General Mountbatten flew to Lahore On 1 November 1947 for a conference with Muhammad Ali Jinnah, proposing that, in all the princely States where the ruler did not accede to a Dominion corresponding to the majority population (which would have included Junagadh, Hyderabad as well Kashmir), the accession should be decided by an `impartial reference to the will of the people'. Jinnah rejected the offer. The Prime Ministers Jawaharlal Nehru and Liaquat Ali Khan met again in December, where Nehru informed Khan of India's intention to refer the dispute to the United Nations under article 35 of the UN Charter, which allows the member states to bring to the Security Council attention situations `likely to endanger the maintenance of international peace'.

India sought resolution of the issue at the UN Security Council on 1 January 1948. Following the set-up of the United Nations Commission for India and Pakistan (UNCIP), the UN Security Council passed Resolution 47 on 21 April 1948. The measure imposed an immediate cease-fire and called on the Government of Pakistan 'to secure the withdrawal from the state of Jammu and Kashmir of tribesmen and Pakistani nationals not normally resident therein who have entered the state for the purpose of fighting.' It also asked Government of India to reduce its forces to minimum strength, after which the circumstances for holding a plebiscite should be put into effect 'on the question of Accession of the state to India or Pakistan.' However, it was not until 1 January 1949 that the ceasefire could be put into effect, signed by General Gracey on behalf of Pakistan and General Roy Bucher on behalf of India. However, both India and Pakistan failed to arrive at a truce agreement due to differences over interpretation of the procedure for and the extent of demilitarisation. One sticking point was whether the Azad Kashmiri army was to be disbanded during the truce stage or at the plebiscite stage.

The UNCIP made three visits to the subcontinent between 1948 and 1949, trying to find a solution agreeable to both India and Pakistan. It reported to the Security Council in August 1948 that "the presence of troops of Pakistan" inside Kashmir represented a "material change" in the situation. A two-part process was proposed for the withdrawal of forces. In the first part, Pakistan was to withdraw its forces as well as other Pakistani nationals from the state. In the second part, "when the Commission shall have notified the Government of India" that Pakistani withdrawal has been completed, India was to withdraw the bulk of its forces. After both the withdrawals were completed, a plebiscite would be held. The resolution was accepted by India but effectively rejected by Pakistan.

The Indian government considered itself to be under legal possession of Jammu and Kashmir by virtue of the accession of the state. The assistance given by Pakistan to the rebel forces and the Pakhtoon tribes was held to be a hostile act and the further involvement of the Pakistan army was taken to be an invasion of Indian territory. From the Indian perspective, the plebiscite was meant to confirm the accession, which was in all respects already complete, and Pakistan could not aspire to an equal footing with India in the contest.

The Pakistan government held that the state of Jammu and Kashmir had executed a Standstill Agreement with Pakistan which precluded it from entering into agreements with other countries. It also held that the Maharaja had no authority left to execute accession because his people had revolted and he had to flee the capital. It believed that the Azad Kashmir movement as well as the tribal incursions were indigenous and spontaneous, and Pakistan's assistance to them was not open to criticism.

In short, India required an asymmetric treatment of the two countries in the withdrawal arrangements regarding Pakistan as an `aggressor', whereas Pakistan insisted on parity. The UN mediators tended towards parity, which was not to India's satisfaction. In the end, no withdrawal was ever carried out, India insisting that Pakistan had to withdraw first, and Pakistan contending that there was no guarantee that India would withdraw afterwards. No agreement could be reached between the two countries on the process of demilitarisation.

Scholars have commented that the failure of the Security Council efforts of mediation owed to the fact that the Council regarded the issue as a purely political dispute without investigating its legal underpinnings. Declassified British papers indicate that Britain and US have let their cold war calculations inlfuence their policy in the UN disregarding the merits of the case.

UN Security Council plebiscite resolution

The Security Council of United Nations on the complaint of Government of India concerning the dispute over the State of Jammu and Kashmir passed United Nations Security Council Resolution 47 (1948).

Status of Indian controlled territory of Jammu & Kashmir

Meanwhile, elections were held in Indian territory of Jammu & Kashmir, which brought up the popular Muslim leader Sheikh Abdullah, who with his party National Conference, generally supported India. The elected Constituent Assembly met for the first time in Srinagar on October 31, 1951. Then The State Constituent Assembly ratified the accession of the State to the Union of India on February 6, 1954 and the President of India subsequently issued the Constitution (Application to J&K) Order under Article 370 of the Indian Constitution extending the Union Constitution to the State with some exceptions and modifications. The State’s own Constitution came into force on January 26, 1957 under which the elections to the State Legislative Assembly were held for the first time on the basis of adult franchise the same year. This Constitution further reiterated the ratification of the State’s accession to Union of India. New Delhi: The Government of India states that "the external artificial boundaries of the Republic of India, especially concerning the international borders under its jurisdiction created by a foreign body are neither correct nor authenticated".

Status of Pakistani territory of Kashmir

However, these tidings were not recognized by Pakistan, which asks for a plebiscite to ascertain the wishes of the people. The people there set up, now called Azad Jammu and Kashmir in the West help by Pakistan that it controls. The much larger region of Pakistani Kashmir in the North-West, which was a special dependent territory named Northern Areas in the erstwhile state, generally bore no mention in Pakistani laws and Constitution as being of any status, until in 1982 the Pakistani President General Zia ul Haq proclaimed that the people of the Northern Areas were Pakistanis and had nothing to do with the State of Jammu and Kashmir. Islamabad: The Government of Pakistan maintains un-provisionally and unconditionally stating that the formal "Accession of Jammu and Kashmir" to Pakistan or even to the Republic of India remains to be decided by UN plebiscite and a formal referendum for a final settlement of the dispute. It accepts UN's map of the territory. It also states that the designations and the presentation of the Kashmir's regional map based on UN practice, do not imply the expression of any opinion whatsoever on the part of the Commonwealth Secretariat or the publishers concerning the legal status of any country, territory or area, or of its authorities, or concerning the delimitation of its frontiers or boundaries. There is no intention to define the status of Jammu and Kashmir, which has not yet been agreed upon by the parties. It further says that boundaries must be based on religious, cultural, racial, historical, geographical and not political orientated.

Status of Aksai Chin in China

Beijing: The Communist government of the People's Republic of China maintains its control over what is known as the Chinese Kashmir of Ladakh plateau, China states that Aksai Chin is a part of Chinese provincial region the Xinjiang Autonomous Region and does not recognise the addition of Aksai Chin to the Kashmir region.

United Nations Military Observer Group in India and Pakistan

The Security Council Resolution 47 (1948) also enlarged the membership of the UNCIP to 5 members. India and Pakistan signed the Karachi Agreement in March 1951 and established a ceasefire line to be supervised by observers. After the termination of the UNCIP, the Security Council passed Resolution 91 (1951) and established a United Nations Military Observer Group in India and Pakistan (UNMOGIP) to observe and report violations of ceasefire.

After the Indo-Pakistani War of 1971, the two countries signed the Simla Agreement in 1972 to define the Line of Control in Kashmir. India and Pakistan disagree on UNMOGIP’s mandate in Kashmir because India argued that the mandate of UNMOGIP has lapsed after the Simla agreement because it was specifically established to observe ceasefire according to the Karachi Agreement.

However, The Secretary General of the United Nations maintained that the UNMOGIP should continue to function because no resolution has been passed to terminate it. The military authorities of Pakistan have continued to lodge complaints with the UNMOGIP about ceasefire violations. The military authorities of India have lodged no complaints since January 1972 and have restricted the activities of the UN observers on the Indian side of the Line of Control.

As with other disputed territories, each government issues maps depicting their claims in Kashmir as part of their territory, regardless of actual control. It is illegal in India to exclude all or part of Kashmir in a map. It is also illegal in Pakistan not to include the state of Jammu and Kashmir as disputed territory, as permitted by the U.N. Non-participants often use the Line of Control and the Line of Actual Control as the depicted boundaries, as is done in the CIA World Factbook, and the region is often marked out in hashmarks, although the Indian government strictly opposes such practices. When Microsoft released a map in Windows 95 and MapPoint 2002, a controversy was raised because it did not show all of Kashmir as part of India as per Indian claim. However, all the neutral and Pakistani companies claim to follow UN's map and over 90% of all maps containing the territory of Kashmir show it as disputed territory.[1]