Pakistan's ruler, General Pervez Musharraf, keeps harping on plebiscite in Jammu & Kashmir on the bases of the UN Resolutions on Kashmir. It is important to go back to these resolutions and see if these are applicable in the present context or not. Have all the prerequisites been honoured by Pakistan for it to be in a position to talk about their implementation?
On January 1, 1948, India submitted a formal complaint to the Security Council under Chapter VVI of the Charter, as India was anxious to avoid a direct conflict with Pakistan. It stated: "In order that the objective of expelling the invader from Indian territory and preventing him from launching fresh attacks should be quickly achieved, Indian troops would have to enter Pakistan territory; only thus could the invaders be denied the use of bases and cut off from their sources of supplies, and reinforcements, in Pakistan. Since the aid which the invaders are receiving from Pakistan is an act of aggression against India, the Government of India are entitled, in international law, to send their armed forces across Pakistan territory for dealing effectively with the invaders. However, as such action might involve armed conflict with Pakistan, the Government of India, ever anxious to proceed according to the spirit of the Charter of the United Nations, desire to report the situation to the Security Council in accordance with the provisions of Article 35 of the Charter. They feel justified in requesting the Council to ask the Government of Pakistan. To prevent Pakistan Government personnel, military and civil, participating in or assisting the invasion of Jammu & Kashmir State; To call upon other Pakistan nationals to desist from taking any part in the fighting in Jammu & Kashmir State; To deny to the invaders; Access to and use of its territory for operations against Kashmir; Military and other supplies; All other kinds of aid that might tend to prolong the present struggle."
In its resolution dated January 17, 1948, which was accepted by Pakistan and India, the Security Council called upon Pakistan and India: "To take immediately all measures within their power (including public appeals to their people) calculated to improve the situation and to refrain from making any statements and from doing or causing to be done or permitting any acts which might aggravate the situation; and to inform the Security Council immediately of any material change in the situation which occurs or appears to either of them to be about to occur which the matter is under consideration by the Council and consult with the Council thereon."
The United Nations Commission, after careful consideration, adopted a resolution on the August 13, 1948. The Government of India accepted this resolution while Pakistan declined. Thus, in addition to having violated and continuing to violate the Security Council resolution of January 17, 1948, Pakistan, by declining to accept the August 13 resolution, became directly responsible for postponing the cease-fire and for prolonging hostilities.
Negotiations continued and the UN Commission formulated a further resolution of January 5, 1949, to supplement the earlier resolution of August 13, 1948 (App.l). India accepted this further resolution on the December 23, 1948, and by Pakistan on December 25, 1948. In this manner, eventually, both the resolutions were accepted by Pakistan and India. India accepted the two resolutions, subject to the assurances contained in the correspondence between India and the commission.
The assurances given to the Prime Minister of India by the commission were public and known to Pakistan. These assurances, on the basis of which alone India accepted the two resolutions, and which form part of the reports of the Commission and are official records of the Security Council, included the following: Responsibility for the security of the State of Jammu & Kashmir rests with the Government of India. The sovereignty of Jammu & Kashmir Government over the entire territory of the State shall not be brought into question. There shall be no recognition of the so-called Azad Kashmir government.
The territory occupied by Pakistan shall not be consolidated to the disadvantage of the State of Jammu & Kashmir. The administration of the evacuated areas in the north shall revert to the Government of Jammu & Kashmir and its defence to the Government of India which will, if necessary, maintain garrisons for preventing the incursion of tribesmen, and for guarding the main trade routes. Pakistan shall be excluded from all affairs, of Jammu & Kashmir in particular in the plebiscite, if one should be held. If a plebiscite is found to be impossible for technical or practical reasons, the commission will consider other methods of determining fair and equitable conditions for ensuring a free expression of the people's will. Plebiscite proposals shall not be binding on India if Pakistan does not implement Parts I and II of the resolution of August 13, 1948.
The Security Council or the Commission never questioned the legality of the State's accession to India. In fact, on February 4, 1948, the US Representative in the Security Council said: "The external sovereignty of Kashmir is no longer under the control of the Maharaja Hari Singh... with the accession of Jammu & Kashmir to India, this foreign sovereignty went over to India and is exercised by India, and that is how India happens to be here as a petitioner." The Legal Adviser to the UN Commission came to the conclusion that accession was legal and could not be questioned. The Commission recognised this position in its report and its two resolutions of August 13, 1948, and January 5, 1949, as also the consequential position that Pakistan had no locus standi in the State except that of an aggressor.
The basic resolution of August 13, 1948, is in three parts. Part I required a cease-fire, non-augmentation of military potential on either side, and the maintenance of a peaceful atmosphere. Under Part II Pakistan had to withdraw its forces, regular or irregular, from Kashmir, while India was required to keep sufficient troops for the security of the State including the observance of law and order. Part III provided as follows: "The Government of India and the Government of Pakistan reaffirm their wish that the future status of Jammu & Kashmir shall be determined in accordance with the will of the people and to that end, upon acceptance of the Truce Agreement, both Governments agree to enter into consultation with the Commission to determine fair and equitable conditions whereby such free expression of will be assured."
Much as General Musharraf would like to convince us that it is India which has held up the plebiscite, the fact is that it is Pakistan which has done so. It is important to understand that Part III of the resolution could come into focus only after Parts I and II had been fully implemented. The resolution of January, 5, 1949, being subsidiary and supplementary to the resolution of August 13, 1948, was merely an elaboration of the principle contained in Part III, and had no practical significance till the resolution of August 13, 1948, was fully implemented. The word "plebiscite" does not occur in Part III of the resolution of August 13. As recorded by the UN Commission, Pakistan violated Part I and continues to do so even today; Pakistan also refused to implement Part II by going back on the obligation of vacating the aggression.
By refusing to vacate the aggression, Pakistan is preventing the people of Kashmir from exercising their right to self-determination. The Kashmiri people under Pakistan have never been given an opportunity to express their political convictions. There is no legislature, no representative government and hardly any economic development in "Azad Kashmir". The administration of the area is controlled from Rawalpindi. The military dictatorship, which does not consider political freedom good enough for its own people, cannot be expected to offer it those under its subjugation since 1948.
This article was published in the dailypioneer.com site under opened section.