According to media reports, the Indian government has told the United Nations Observers Group in India and Pakistan (UNMOGIP) that it had no role in Kashmir after the signing of the Simla agreement, meaning that the UN resolutions on the issue had also become irrelevant. The position taken by the Modi government is simply the reiteration of the stance taken by all Indian governments after signing the Simla Agreement between the two countries. But the legal status of Kashmir is unchanged as is the relevance of the UN role in resolving the dispute.

To put things in perspective, perhaps it would not be out of place to delve into the events in their legal perspective right from the emergence of the dispute. The instrument of accession signed by the Maharaja of Kashmir was a provisional arrangement as was manifest from the letter that Lord Mountbatten wrote to the Maharaja in October 1947 accepting the accession provisionally and making it clear that the state would only be incorporated into the Indian Union after a reference had been made to the people of Kashmir. It thus clearly acknowledged ascertaining the will of the people, which was never done.

According to the Indian Independence Act, the rulers of princely states were given the choice to freely accede to either India or Pakistan, or to remain independent. They were, however, advised to accede to the contiguous dominion, taking into consideration geographical and ethnic issues. It is quite clear that in the so-called instrument of accession as well as the partition plan, two elements were of paramount importance i.e. the will of the people and geographical contiguity.

In the case of Kashmir, both these elements were negated. The revolt of Kahmiris against their ruler’s pretensions to join India and the resultant war between India and Pakistan is also testimony to the fact that the people of Kashmir wanted to join Pakistan. Kashmir was contiguous to Pakistan and a majority of its population was Muslim. It had cultural and historic links with Pakistan and had remained under Muslim rule for centuries before Ranjit Singh annexed it.

With regards to the UN resolution on Kashmir it is relevant to point out that in the wake of the war that broke out between the two countries after the landing of Indian forces in Kashmir on 27th October 1947, it was India who took the matter to the United Nations, which facilitated an immediate ceasefire. The UN during the course of its deliberations on the subject passed twenty three resolutions, including two UNICEP resolutions calling for a plebiscite in Kashmir under the auspices of the United Nations. It is quite evident that like the supposed instrument of accession and the partition plan, the UN resolutions also vividly recognized the right of the people to decide their own future through a process of self-determination. It is also pertinent to mention that the UN through its resolutions 91 and 122 repudiated the Indian stance that the issue of the accession of Kashmir had been resolved by the constituent assembly of Kashmir. These resolutions reiterated that the question of accession could not be resolved by any means other than enunciated in the UN resolutions on the subject. This proves beyond any doubt that the Indian claims of Kashmir being an integral part of India represented travesty of the facts and lacked legal basis.

In the wake of the ‘71 war between India and Pakistan, the Simla Agreement was signed and clause 6 of the agreement emphasized the resolution of all disputes between the two countries including Kashmir through peaceful means, bilaterally. The very fact that India acknowledged Kashmir as a disputed territory in the Simla Agreement, negated its claims of Kashmir being its integral part. But unfortunately, the Indians have never shown honesty of purpose in resolving this issue. They also took the position that in view of the Simla Agreement, Pakistan could not internationalize the Kashmir dispute; an utterly wrong notion.

The bilateral agreement did not change the status of the dispute. It also did not preclude the possibility of raising it again at the UN in case the bilateral agreement failed to deliver. Article 103 of the UN Charter says “ In the event of a conflict between the obligations of the members of the UN under the present charter and their obligations under any other international agreement, their obligations under the present charter will prevail.” What this means is that the UN resolutions on Kashmir will take precedence over all other bilateral agreements on the same issue. Therefore, Pakistan is very much within its right to invoke UN resolutions, after having been frustrated in finding solutions through the bilateral arrangement. The UN resolutions on Kashmir adopted under Chapter VII of the UN Charter remain legally binding on the parties. Article 25 also reiterates their obligatory nature. The Security Council under the UN Charter has the power to enforce its decisions and resolutions militarily or by any other means necessary; power that it has used during the Korean war in 1950 and in Iraq and Kuwait in 1991. It is abundantly clear from the foregoing that the legal status and obligations of the parties to the dispute under UN resolutions and that of the Security Council to have its resolutions implemented, remains unaffected and Pakistan has the right to invoke UN intervention.

The writer is a freelance columnist.

ashpak10@gmail.com