India’s Supreme Court sanctioned annexation of the disputed Jammu and Kashmir State into the Indian Union. India has a `fascinating’ history of devouring princely states. including Junagadh, Hyderabad and, lastly, Kashmir. India annexed Kalapani and adjoining areas of Nepal, a tiny State. Though heavily dependent on India, the Nepalese parliament passed a resolution to assert its sovereignty over the areas annexed by india. It amended its official maps also and distributed them widely.
Kashmir remains an international conflict as per the United nations’ resolutions. It is a maleficent inheritance from the British raj. India and Pakistan went to war to settle this dispute.
Besides being a geographical dispute, the Kashmir dispute has a human rights dimension. If no solution is hammered out, then, still, there are two solutions: a nuclear holocaust or, perhaps, divine intervention
Following their first war on Kashmir, both India and Pakistan accepted a ceasefire from 1 January 1949 under supervision of UN observers. No UN resolution incorporates India’s view that the maharaja had acceded to India.
It is said that the accession instrument stands ‘stolen’. There is a United Nations’ resolution that forbids the India-occupied Kashmir assembly from acceding to India (authenticating royal accession). The main resolutions on Kashmir are: (a) United Nations’ Commission for India Pakistan Resolution dated 13 August 1948. Para 75 (Serial110) in Part III of this resolution states ‘The Government of India and the Government of Pakistan reaffirm their wish that the future status of the State of Jammu and 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 consultations with the Commission to determine fair and equitable conditions whereby such free expression will be assured.’ (b) UNCIP Resolution dated January 5, 1949 Para 51 (Serial 1196) states ‘The question of accession of the State of Jammu and Kashmir to India or Pakistan will be decided through the democratic method of a free and impartial plebiscite’.
Since both parties agreed to a plebiscite, the question of sanctions on India never arose. Besides, India approached the United Nations under Chapter VI (Pacific Settlement of Disputes), not Chapter VII (Acts of Aggression).On 2 November 1947, Nehru declared in a radio broadcast that the government of India was “prepared, when peace and order have been established in Kashmir, to have a referendum held under international auspices like the United Nations.” I am quoting from Chaudhri Mohammad Ali’s The Emergence of Pakistan. Till 1953, India was, at least verbally, committed to the plebiscite. But, in subsequent periods, she had been making frantic efforts to warp the UNO and woo the USA in her favour. For instance, during the temporary absence of Pakistan’s representative, India tried to get the ‘India-Pakistan Question’ deleted from the UN agenda. India based her plea on the Security Council’s informal decision, dated July 30, 1996, about deleting dormant questions. The Question was deleted during the Pakistan representative’s absence, but was restored to agenda upon his arrival.
Again, at India’s behest, US Congressman Stephen Solarz elicited the statement from Bush Administration high-level diplomat, John H. Kelly, that a plebiscite was no longer possible in Kashmir.
To India’s chagrin, John R. Mallot, the US State Department’s pointman for South Asia in 1993, corrected Kelly’s faux pas. He told the House Foreign Affairs Sub-Committee on Asia and the Pacific on 28 April 1993 that John Kelly ‘misspoke’ in 1990 when he said that the USA no longer believed a plebiscite was necessary in South Asia. Mallot clarified that Kelly made his comment after ‘continued grilling’ by the panel’s (pro-India) chairman, Stephen J. Solarz of New York.
Avid readers may refer to Solarz-Kelly conversation and corrective policy action taken by the US State Department in Robert G. Wirsing’s book India, Pakistan, and the Kashmir Dispute. They may also see Mushtaqur Rehman’s Divided Kashmir: Old Problems, New Opportunities for India, Pakistan and the Kashmiri People (pp 162-163).
Kashmir is a simmering nuclear tinderbox. There is no UNO resolution incorporating India’s volte face that India-occupied Kashmir has acceded to India through the so-called state assembly’s resolution. Despite a lapse of over 75 years, India did not fulfil its promise of a plebiscite in Kashmir.
India’s attitude negates the cardinal principles in inter-state relations, that is, pacta sunt servanda `treaties are to be observed’ and are binding upon signatories. If disinterested, India should wriggle out of bilateral and multilateral agreements by pleading that the UNO resolutions stand antiquated under another principle clasula rebus sic stantibus _In the case of a `fundamental change of circumstances’, that existed when a treaty was concluded, a party to that treaty may invoke this fact as a ground for termination or suspending operation of a treaty.
India should tell the International Court of Justice that the Simla Agreement of 1972 has superseded the UNO Resolution of 1948 (envisioning exercise of the right of self-determination) on the basis of the principle `lex posterior derogat priori, later treaty abrogates the earlier one’. The principle is enshrined in Article 59 of the Vienna Convention on the Law of Treaties, which provides as follows: ‘TERMINATION OR SUSPENSION OF THE OPERATION OF A TREATY IMPLIED BY CONCLUSION OF A LATER TREATY. But, to India’s chagrin, even the Simla Accord accepts the UN resolutions. The UN observers are still on duty on the line of actual control. They submit an annual report to the UN’s secretary general. This report identifies Kashmir as an international problem. India could not get the dormant `India-Pakistan Question’ deleted from the UN agenda (as informally decided by the Security Council on 30 July 1996).
Paragraph 1(i) of the Simla Agreement provides, `the principles and purposes of the Charter of the United Nations shall govern the relations between the two countries’. Right of self-determination is a recognised right under the UNO charter and conventions. It is now not only a political but also a legal right.
The United Nations’ Military Observers’ Group on India Pakistan came into existence between 1949 and 1951 to maintain the sanctity of the ceasefire line drawn between India and Pakistan after the war of 1947-48. The first group of United Nations military observers arrived on 24 January of 1949 to supervise the ceasefire.
Besides being a geographical dispute, the Kashmir dispute has a human rights dimension. If no solution is hammered out, then, still, there are two solutions: a nuclear holocaust or, perhaps, divine intervention.
