Ahmad SAFFEE^

Abstract. The following paper reviews the dispute of Jammu and Kashmir (J&K) in light of the United Nations Security Council (UNSC) Resolutions, conducting content analysis of these resolutions in a chronological order. It has been found that certain themes, patterns and legal terminologies are found repeated in these documents. For instance, the emphasis of UN over free and impartial plebiscite under the auspices of UN, both countries are prescribed to create an atmosphere conducive to negotiations, fundamental rights of the people, the supremacy of UN Charter as a relationship governing mechanism. It has been observed that UN Resolutions provide a comprehensive solution to the dispute to which India agrees, yet fails to implement. The reason being, the non-binding nature of Resolutions under Chapter 6 and little pressure from international community with a forced impact having a binding nature.

Key words: Jammu & Kashmir; United Nation Security Council Resolutions; India; Pakistan

HISTORICAL PERSPECTIVE TO J&K DISPUTE

On the departure of British colonial presence from the sub-continent, the question of paramount power over the princely states was disposed of under article 7 of the Independence Act 1947 which stipulated that “the suzerainty of Her Majesty over the Indian States (lapses)”, legally meaning complete independence and sovereignty of princely states under the Maharaja¹. However, Lord Listowel, Secretary of State for India announced in British House of Lords that “We do not, of course, propose to recognize any states as separate international entities.”² Therefore, under the convention at practice, these princely states were supposed to choose between the new dominions of Pakistan and India.

Under the Radcliff Award and generally, the criteria for deciding which of the two newly independent dominions to join included the princely states to consider geographical situation, communal interests and other factors. Interestingly, the legal position under the Article 7 of the Independence Act 1947 and the conventional wisdom sought by the British under Radcliff Award were different. Later considered socio-political reasons and former takes a legal interpretation, which was to later set the trajectory and tone of this dispute and difference of opinion on the future of J&K. The cases of other two princely states are different and if studied together, there is a paradoxical approach under which these states were disposed off or their dispute being argued.

The demographic and communal makeup, with respect to the State of J&K constituted Muslims about 78% of the entire population³. Its geographical location also

favored road and rail links with West Pakistan. However, the Maharaja of J&K was a Hindu and subsequent events in his State led to a controversial accession to India, which till date is challenged and remains a bone of contention between India and Pakistan.

On 15 August 1947, Maharaja’s regime had concluded a Standstill agreement – a precursor to accession – with government of Pakistan.⁴ Under this agreement, the princely state of J&K alleged Pakistan for non-cooperation, especially in ensuring supply of necessity items and other matters of State⁵. In reply on October 20, 1947, Jinnah expressed his mistrust on these claims and intent of the letter from the Prime Minister of Kashmir saying that “why was it released to the media before reaching him”.⁶ Moreover, soon the situation became worse when an uprising against Maharaja erupted in Poonch, which took a bloody turn causing communal tensions⁷. The resultant exodus of innocent Kashmiris from J&K towards Pakistani territory served as a precursor for the tribal invasions into J&K.

It was in these circumstances that as per Indian claims, the Maharaja signed the Instrument of Accession with India (The veracity of this Instrument has however always remained questionable). Interestingly, Article 7 of the Instrument of Accession executed under Maharaja states that “nothing in this instrument shall be deemed to commit me in any way to acceptance of any future constitution of India.” This article paved the way for Article 370 of the Indian constitution, which is now being contested by political parties in India.

The following day, on October 27, Mountbatten accepted the accession and first airborne Indian units landed at Srinagar. The line dividing the AJK and Indian Held J&K came to be known as ceasefire line (CFL) – later to be renamed as Line of Control (LOC).Thus the Kashmir conflict has been born.

On January 1, 1948, India filed a formal complaint in the United Nation Security Council (UNSC) against Pakistan⁸. It is noteworthy that this complaint was lodged under article 35 of Chapter VI of the UN Charter which relates to “pacific settlement of dispute” rather than under Chapter VII which deals with acts of aggression. However, later, India pleaded its case against Pakistan’s so-called act of aggression in J&K, refusing to believe it as a territorial dispute between the two concerned parties.

Lord Mountbatten, while accepting letter of accession mentions the question of dispute and hints towards the difference of opinion of all stakeholders on the issue of J&K. He emphasized the matter to be resolved according to the wishes of the people of J&K.⁹ Indian Prime Minister Nehru also accepted the nature of dispute and assured on withdrawing Indian troops once peace was restored in J&K. Moreover, when Pakistani government presented her side of the story to the Indian government, Mr. Nehru replied by arguing that the Indian side had not been consulted by the Kashmir Government about any steps that they might have taken or of any correspondence with Pakistan.”¹⁰

The early communication between Pakistan, Kashmir and Indian governments indicates not only difference of opinion that caused dispute but also lack of coordi-nation among themselves to communicate effectively and mutually come up with a joint effort for conflict resolution. Arguably the emotional-psychological condition of the stakeholders was distinct, varied and contradictory at times, which ultimately changed the context-data relation with respect to understanding and interpretation of this dispute.

In the UNSC resolutions and hearings, we see certain themes to be recurring and some to be cross-cutting. For example, equating international peace and stability to the dispute of J&K is a re-occurring theme. Also themes like implementation of fundamental human rights including that of right of self-determination are cross-cutting in nature and were also agreed upon by all stakeholders. However, ever since its occupation by India, Indian–occupied J&K has clearly been the victim to authoritarian policies of recurrent Indian governments.

A clear example of implementation of authoritarian policies is the constitution passed by hand-picked Constituent Assembly of Indian Occupied Kashmir in October-November 1956, which had no legal position in lieu of UNSC resolutions. This consti-tution proclaims Kashmir as atootang (inseparable part) of Union of India.¹¹ Such an attitude of Indian state over such a long period has changed the relationship between Indian and IOK and further radicalized people. It can be argued that once a legal territorial dispute has now turned into a humanitarian disaster due to hard-handed approach and attitude of Indians.

Subsequently, from the very beginning of the partition and soon after, the diverging narratives of accession and interpretation of subsequent events created a diverging path on which the Government of Pakistan, Kashmir and India were to set afoot. The historical interpretation of these incidents is a contested case. Rather than going into this debate, the following paper will focus on areas or themes emerging from the resolutions on the dispute of J&K in the United Nations Security Council.

With the passage of time the legal case of disputed J&K has taken the hard beating of time. With the changing international situation, Kashmir case law has been overshadowed by power politics and plagued by domestic politics. More than a legal solution, the dispute of J&K requires a political resolve from the leadership of India and Pakistan. Old narratives have been replaced with new. New terminologies defining the dispute have replaced the old ones. However, the only constant in this scenario is the suffering of people of J&K and the unfulfilled promise of right to self determination.

THEORETICAL FRAMEWORK AND RESEARCH METHODOLOGY

CONTENT ANALYSIS OF UNSC RESOLUTIONS

Content analysis is formally described as a research technique for making replicable and valid inferences from data to their context. This definition encompasses those of Bernard Berelson, which equates content analysis with scientific “description of the… content of communication,” and of Harold D. Lasswell, which emphasizes the quantification of the “what” that message communicate. Ole R. Holsti adds such antecedents as the “who” (the source), the “why” (the encoding process), the “how” (the channel), and the consequences or “effects” they have “on whom”. The formal definition encompasses other communicative circumstances and contexts, such as the psychological conditions that explain a particular statement.¹²

For the purpose of this study of UNSC Resolutions on Kashmir, Bernard Berelson approach of defining the content of communication is highlighted and applied in the historical context of partition of sub-continent. The content of the resolution will provide us an insight into its thematic structure, and the historical understanding of the events gives us an insight into the communicative circumstances.

For the purpose of conducting content analysis certain procedural steps are required to be followed by the researcher. Firstly, these include a design framework under which the researchers define their context to explore data – context relationship. This paper has highlighted the above element in the first part which adheres to the historical context of the legal dispute. Moreover, the socio-political conditions of the British partition of the sub-continent provide us with origins of the observational conditions of the dispute of Jammu and Kashmir. Second step entails defining and ultimately identifying units of analysis as represented in the different themes of this paper. The process of sampling and coding is used to keep statistical bias at a minimum. It has been one of the limitations of the analysis undertaken in this paper mainly due to the descriptive nature of the data. Finally drawing inference from these involve some bias due to cultural background and the very varied circumstantial contexts which set this divergent course which has resulted in the lingering of this historical dispute. However, a conscious attempt is made to keep this inference and analysis neutral and merit an argument on rational grounds.

It is also noteworthy that an overarching pattern of mistrust is evident from the very beginning of this dispute and this pattern continues. Therefore, it is important to keep in sight the fact that a varied interpretation of the above UNSC Resolutions by Indian and Pakistani jurists is by itself a by-product of the varied and different understanding of these historical events and the emotional and psychological values attached with them.

Jeffrey Alexander, in his book “Trauma: A Social Theory”, argues that traumas are not merely psychological but collective experiences, and that trauma plays a key role in defining the origins and outcomes of critical social conflicts.¹³ The dispute of Jammu and Kashmir, therefore can be argued as an outcome of the collective psycho-logical experience of the partition of the sub-continent, and herein lies the origins of the difference of India and Pakistan over the question of Jammu and Kashmir.

In The colors of violence, Sudhir Kakar asserts that “partition violence is commonly agreed to have been the momentous event in the shaping of Hindu-Muslim relations in independent India”.¹⁴ Similarly, India and Pakistan have fought three wars over the dispute of Jammu and Kashmir and it still remains a threat to international peace and stability.

THEMATIC REVIEW OF UNSC RESOLUTIONS ON THE DISPUTE OF J&K

The following section will present a critical review and content analysis of the original text of a number of resolutions passed by UNSC on the question of J&K and highlight different variations in the legal language and the case law on Kashmir.

International Peace and Stability

Special Circumstances

The mounting situation in Kashmir was debated under UNSC resolution 38 recognizing the urgency of the situation based on the statements of Indian and Pakistani representatives. The resolution called upon both parties to “refrain from making any statements and from doing or causing to be done or permitting any acts which might aggravate the situation”¹⁵. The language of these resolutions set boundaries and limitations on both parties to make conditions conducive to peace. Most importantly, an environment in which dialogue and peaceful resolution of a dispute can take its due course. International peace and stability demand from both India and Pakistan to responsibly create an environment conducive to peaceful resolution of their disputes.

Conforming to UN Charter

It is also a moral responsibility and international obligation for India and Pakistan to cooperate and not engage in confrontation with each other. The leadership of both countries had affirmed their intention to conform to UN Charter. As witnessed later, Pakistan has stressed these fundamental principles under UN Charter in bilateral discussions on the dispute with India, while India has neither accepted nor rejected them in true letter and spirit.

However, due to lack of such conducive environment, India – Pakistan relations cast a shadow on international peace and stability, especially over the dispute of Jammu and Kashmir. The International community needs to understand and prioritize under UN, a mediating role for a peaceful resolution of conflict. This role demands binding authority and transparency for conducting the rightful plebiscite in Jammu and Kashmir under the auspices of UN.

For this purpose, UNSC resolution 47 “instructs” the commission “to place its good offices and mediation…. for the restoration of peace and order and to the holding of plebiscite”¹⁶. Essentially, the UNSC through the means of its Commission is playing the role of a mediator between Pakistan and India, as enshrined in the UN Charter.

With respect to ensuring this peace and stability, resolution 39 establishes a commission whose immediate function under article 34 of the Charter was to investigate and report back to the Council on the emerging situation in J&K¹⁷. For this purpose, the commission was asked to station itself in the region, especially in areas where “theatre of events” had staged.

However, it is interesting to note that this function of commission is held conditional to the “co-operation by the two governments with one another and with the commission.”¹⁸ Hence, another fundamental principle of “co-operation” is missing in present day context among the two governments, which had consequently aggravated the peace and order situation in J&K.

Therefore, very early on, UNSC had set the precedent of sending fact finding mission to J&K. Unfortunately, today when human right violations in J&K are of much more intensity and the situation much worse, India does not accept and entertain any such mission or any observers from international organizations.

Holding Free and Impartial Plebiscite

Holding Instrument of Accession to Question

The UNSC resolution 47 is of much importance, especially in terms of its content. It lays out a detailed framework prescribed to India, Pakistan and the UNSC Commission for conducting free and impartial plebiscite. The resolution opens with the “strong opinion” of the council that early restoration of peace and order in J&K is essential, and “noting with satisfaction that both India and Pakistan desire that the question of accession of J&K to India or Pakistan should be decided through the democratic method of free and impartial plebiscite.”¹⁹

It is noteworthy that the legality of Instrument of Accession J&K is challenged by Pakistan. However, the same accession is the basis of India’s claim over Kashmir. Had this accession not taken place, legally speaking the Standstill agreement would have governed the relation between India and Pakistan over J&K before any final disposition of its status. Pakistan has always raised doubts over this instrument and in its response has presented the letter of Lord Mountbatten as an argument in favor of the reference made to “question of State’s accession should be settled by a reference to the people” of J&K²⁰.

Furthermore, the UNSC prescribes certain measures to both India and Pakistan which in its “opinion” will bring cessation to fighting and lead towards the ultimate objective of holding plebiscite. The choice of word “opinion” indicates the non-binding nature of UNSC resolution.

Withdrawal of Forces and Full Freedom to People

Pre-requisites to plebiscite involved the government of Pakistan to undertake to use its best endeavors to, “secure the withdrawal from the State of J&K of tribesmen and Pakistani nationals not normally resident therein who have entered the State for the purpose of fighting and to prevent any intrusion into the State of such elements and any furnishing of material aid to those fighting in the State. Secondly, “to make known to all concerned that the measures indicated in this and the following paragraphs provide full freedom to all subjects of the State regardless of creed, caste, or party, to express their views and to vote on the question of the accession of the State, and that therefore they should co-operate in the maintenance of peace and order.”²¹

Similarly, when it is established to the satisfaction of the Commission set up in accordance with the Council’s resolution 39 (1948) that the tribesmen are withdrawing and that arrangements for the cessation of the fighting have become effective, the Government of India should put into operation in consultation with the Commission a plan for withdrawing their own forces from Jammu and Kashmir and reducing them progressively to the minimum strength required for the support of the civil power in the maintenance of law and order. Pakistan alleges India for wrongly using these forces now and then for human rights violations.

The resolution adopted by the UN Commission for India and Pakistan on 13 August 1948 lays out a detailed proposal for cessation of fight and cease-fire arrange-ment between India and Pakistan in J&K territory. The emphasis is laid on the “correction of conditions, the continuance of which is likely to endanger international peace and security.” International peace and stability, therefore, emerges as cross-cutting thematic area which demands conducive environment as a pre-requisite to peace.

Moreover, the resolution 47 prescribes certain principles according to which the stationed forces shall function. These guiding principles for military men do not adhere to the draconian laws in Indian Occupied Kashmir, which makes a strong case for Pakistan. These principles include, firstly, that “the presence of troops should not afford any intimidation or appearance of intimidation to the inhabitants of State”²². Secondly, to retain “as small a number as possible” in forward areas and finally that “any reserve troops which may be included in the total strength should be located within their present base area.”²³

It is under these guiding principles that India can and should maintain force in the State of J&K. As evident from the human rights violations and stationing of a massive number of troops are clear violation of not only international human rights but also of the fundamental principles to which the government of India agreed. The rationale for India maintaining forces for law and order is also questionable. However since India was the complainant and had arguably challenged Pakistan for its claim to the State of J&K, the UNSC laid the burden of administrative and local management functions on her, which are held conditional till the time Plebiscite Administrator finds it necessary.

The clause 11 of UNSC Resolution 47 of 21 April 1948 says “the Government of India should undertake to prevent, and to give full support to the Administrator and his staff in preventing, any threat, coercion or intimidation, bribery or other undue influence on the voters in the plebiscite, and the Government of India should publicly announce and should cause the Government of the State to announce this undertaking as an international obligation binding on all public authorities and officials in J&K.”²⁴

Transitory Administration

Furthermore, the resolution prescribes “local recruitment” in forces and also mentions protection of minorities. It also mentions that in-case the local force is inadequate then the forces of either dominion shall be provided. Such a case never occurred, and never was the local recruitment and forces utilized to the utmost. Hence, even today, the Indian occupying forces are considered an alien occupational force by the local residents.

The Part B of the UNSC resolution 47 lays down the framework under which the plebiscite is to be held. Interestingly, it is the Government of India as highlighted above that has been entrusted with administrative preparations and responsibility for holding plebiscite. In doing so, it has been asked to ensure that the Government of the State invites all political groups “to designate responsible representatives to share equitably and fully in the conduct of the administration at the ministerial level, while the plebiscite is being prepared and carried out” Rest, the Plebiscite Administrator will have all necessary powers deemed suitable for the exercise of his/her duty. His appointment will be done by Secretary-General of United Nations (SGUN). The terms of service of Plebiscite Administrator shall be held between India and the SGUN. It is noteworthy here that India and the SGUN are the principal parties entrusted with holding plebiscite. The question raises that why aren’t the people of Kashmir or Pakistan involved in this key task? The local resident of the State are only used for performing administrative functions in service to the Plebiscite Administrator, hence are not a part of decision-making process. This exclusion of the people of J&K from the decision-making process has continued till date.

UN Commission for India and Pakistan’s Resolution dated January 5, 1949 opens its reiteration of its promise of holding “free and impartial plebiscite” which is made conditional to the arrangements laid out in the earlier resolutions. Also the legitimacy and certification of these resides with the Commission and UNSC. Moreover, an emphasis is being reiterated on the inclusion of local authorities, now also in consultations on disposal of Indian and State forces. Fundamental rights are held in high esteem and are to be respected despite the aggravating situation.²⁵

Therefore, these two resolutions of the UN Commission for India and Pakistan dated January 5, 1949 and August 13, 1948 respectively have laid down pre-conditions required before the exercise of plebiscite is undertaken. The irony is that none of these conditions was ensured, as the UNSC lacked the binding power under Chapter Six in which the following resolutions were issued. India has exploited this in its favor by not agreeing to any of the proposals made later by UN Representatives.

United Nations Representatives and Their Proposals

According to Sir Owen Dixon, main points of differences between India and Pakistan adhered to the “procedure for and the extent of demilitarization” and “degree of control over the exercise of functions of government.”²⁶ As explained above, the clause pertaining to demilitarization was open to interpretation and also the extent of inclusion of locals in exercising functions of the government was the duty of Indian Government and the Commission. It is evident that both points of difference adhere to those functions and clauses which are the responsibility of the Government of India. Also when compared the number of agreements and rejections, Pakistan has been very cooperative and flexible in agreeing to UNSC terms. On the other hand, India has been apprehensive in terms of rejecting UNSC proposals and being adamant on its rigid positions. Despite all, the Government of India has failed to implement its accepted and agreed duty of holding a plebiscite under the UN auspices in J&K. Anything short of it will not be accepted by Pakistan or United Nations.

The UNSC resolution 80 dated 14 March 1950 lays out mandates of the UN Representative for carrying out administrative functions for the ultimate realization of a plebiscite.²⁷ This resolution lays out the functions of the above new mechanism under UN Representative which includes foremost the preparation and supervision of demilitarization plan. Mc Naughton was chosen for this position. He in his proposal presented at the UNSC on December 22, 1949 mainly reiterated previous principles agreed under UN resolutions. What is of importance is that the duty of interpreting agreements was now assigned to the UN Representative.

UNSC Resolution 91 dated 30 March 1951 states the commitment of both the Government of India and Pakistan to “free and impartial plebiscite conducted under the auspices of United Nations.” Most importantly, it declares the constituent Assembly of J&K null and void by “affirming that the convening of a Constituent Assembly as recommended by the General Council of the “All Jammu and Kashmir National Conference” and any action that Assembly might attempt to take to determine the future shape and affiliation of the entire State or any part thereof would not constitute a disposition of the State in accordance with the above principle” (i.e. “that the final disposition of the State of Jammu and Kashmir will be made in accordance with the will of the people expressed through the democratic method of a free and impartial plebiscite conducted under the auspices of the United Nations).

Therefore, the Indian claim over and of the constituent assembly stands no legal value. Similarly, this also clarifies that India cannot hold independently a plebiscite which deviates from the mechanism and framework agreed in previous resolutions. The fundamental principle of a free and impartial plebiscite under the auspices of United Nations is to be implemented in letter and spirit. However, this core principle in light of its significance as if not implemented can endanger international peace and security stands unfulfilled. The threat still looms large and is rather magnified with nuclear capable Pakistan and India.

Despite the “satisfactory assurances of the Representative of India that any constituent assembly that may be established in Srinagar is not intended to prejudice the issue before the UNSC or to come in its way”, quite opposite has been witnessed. Moreover, India’s assurances and repeated resolutions of UN emphasizing “an atom-sphere favorable to the promotion of further negotiations”, India has often backed out of bilateral dialogues; undertaken violation of cease-fire line and human rights in J&K and in recent has started covert activities in Pakistan, thereby, destabilizing the peace process and ultimate settlement of J&K dispute.

CONCLUSION

Despite several repeated resolutions of the UNSC, the dispute of J&K remains unresolved. The importance of the issue in maintaining international peace and stability can be gauged from the fact that it can be a flash point of a nuclear war in South Asia, as already three wars have been fought between India and Pakistan over this issue. However, despite all efforts and diplomacy, the question of J&K remains unaddressed. The possible reasons may include the non-binding nature of UNSC resolutions under Chapter 6 and the lack of international pressure. More importantly, the varied emotional and socio-psychological condition of people due to partition of the subcontinent along communal lines created two contradictory legal-political positions of India and Pakistan on Kashmir.

Pakistan’s complaint against India in the UN entails the following allegations, of whom most importantly is that India has not accepted the partition of subcontinent from heart. It preplanned an extensive campaign of Muslim genocide (one of the major reasons why Muslim tribesmen invaded Kashmir) and Muslims were considered under threat.²⁸ Pakistan, therefore, felt that its very identity was being threatened by India. The context of partition has therefore made a huge impact, especially on Muslim India who felt threatened and many lost their lives in this course.

The content analysis of the UNSC resolutions on the dispute of J&K highlights the following themes which are repeated in these resolutions:

• International Peace and Security

• Right of Self-Determination Recognized under Free and Impartial Plebiscite

• Sanctity of Fundamental Human Rights

• Guidance under UN Charter

• Co-operation between India and Pakistan

• Principle of good neighborly relations

• Plan of De-militarization and conducting Plebiscite

• UN Representative and their Proposals

Hence, Pakistan needs to view each of these thematic areas and devise a strategy of how to compel India and international community towards the peaceful settlement of the dispute of J&K. For that purpose, Pakistan Foreign Office will need to fight the case for the people of J&K at bilateral and multi-lateral diplomatic forums. There is a need for the international community to take cognizance of the situation of the dispute and its possible threats to international peace and stability. In order to make environmental conditions and circumstances favorable to conflict resolution, all stake-holders need to cooperate under the UN Charter. For Pakistan and India, resumption of dialogue and a change of course in domestic public opinion is necessary. Until the wishes of the people are respected there cannot be a durable peace.

Most importantly, a strategic shift in India – Pakistan policy is required which addresses Pakistani’s concerns regarding the perpetual nature of threat occurring from India and vice versa. The 70 year old dispute of J&K still revolves around same themes. The nature and intensity of dispute has varied with time, as of now more indigenous forces have attached themselves with it. However, the very nature of historic partition and emotional values attached to it, still continue on holding J&K a hostage to India – Pakistan rivalry and mistrust. History cannot be undone but altered in such a way that ensures fundamental rights to the people of J&K. All stakeholders, including the UN need to set a sail now, as sailing in rough waters later won’t be advisable.