The Kashmir Dispute and The Role of the United Nations

When the Kashmir dispute erupted in 1947-1948, the world powers championed the stand that the future status of Kashmir must be ascertained in accordance with the wishes and aspirations of the people of the territory. The United States, Great Britain and France were principal sponsors of the resolution which was adopted by the Security Council on April 21, 1948 and which was based on that unchallenged principle. The basic formula for settlement was incorporated in the resolutions of the U.N. Commission adopted on August 13, 1948 and January 5, 1949.

The Security Council discussed the question exhaustively from January to April 1948. Since both India and Pakistan desired that the question of final settlement should be decided through an impartial plebiscite, the Council developed proposals based on the common ground between them. The Indian point of view was unambiguously clarified by its Prime Minister, Pandit Nehru when he said: “If, after a proper plebiscite, the people of Kashmir said, ‘we do not want to be with India’; we are committed to accept it though it might pain us. We will not send an army against them. We will accept that however hurt we might feel about it. W e will change the constitution, if necessary.”

These were not resolutions in the routine sense of the term. Their provisions were negotiated in detail by the Commission with India and Pakistan and it was only after the consent of both Governments was explicitly obtained that they were endorsed by the Security Council. They thus constitute a binding and solemn international agreement about the settlement of the Kashmir dispute.

Much is being made of the fact that six decades have passed since the principled solution was formulated by the United Nations with almost universal support. Mere passage of time or the flight from realities cannot alter the fact that these resolutions remain unimplemented until today. The United Nations resolutions can never become obsolete, or over taken by events or changed circumstances. The passage of time cannot invalidate an enduring and irreplaceable principle – the right of self-determination of the people of Kashmir. If passage of time were allowed to extinguish solemn international agreements, then the United Nations Charter should suffer the same fate as the resolutions on Kashmir. If non-implementation were to render an agreement defunct, then the Geneva Convention in twenty-first century in many countries is in no better state than these resolutions.

The right of self-determination, by definition, is an unrestricted right. By entering into the agreement, India and Pakistan excluded, and rendered inadmissible, each other’s claim to the State until that claim was accepted by the people through a vote taken under an impartial authority. They did not, as they could not, decide what options the people would wish to consider. They could not tell the people of Kashmir that they can choose independently but they cannot choose independence. It would make a mockery of democratic norms. No agreement between two parties can affect the rights of a third: this is an elementary principle of law and justice which no international agreement, if legitimate, can possibly flout.

It is not the inherent difficulties of a solution, but the lack of the will to implement a solution, that has caused the prolonged deadlock over the Kashmir dispute. The deadlock has meant indescribable agony for the people of Kashmir and incalculable loss for both India and Pakistan. If the new world order is not to be an order of unreason, injustice and terror and thus a permitted anarchy, that agony should be brought to an end and that loss repaired. The peace that has eluded the South Asian subcontinent, should be made secure.

The persistence of this problem has been a source of weakness for both India and Pakistan. It has diminished both these neighboring countries. The world powers draw great satisfaction from India’s striking economic progress which will enable India to play its rightful role as a great power. That kind of role can only be hobbled by a festering problem. India’s adversaries — if there are none, whoever does not wish India to play the role of a major power in one context or another – will try their utmost to take advantage of it. A great power cannot afford disputed boundaries if it wishes to maintain or enhance its prestige and influence; a small or even a medium power can live with them indefinitely.

One of the indications of the passivity of the people of Kashmir is that the world powers remain content with urging India and Pakistan to enter into a dialogue. Nobody would suggest that they should not do so but when a basis for talks is not defined and the two parties remain entrenched in their respective positions, to call upon them to enter into dialogue is as good as asking them to square the circle. In effect, it has proved to be a formula for endless stalemate.

The contention that Kashmir is a bilateral matter between India and Pakistan is designed to negate the jurisdiction of the Untied Nations over the dispute, on the one hand, and, on the other, to eliminate the party most concerned and most deeply affected, i.e., the people of Kashmir.

There is no way Kashmir dispute can be settled once and for all except in harmony with the people’s will, and there is no way the people’s will can be ascertained except through an impartial vote. Secondly, there are no insuperable obstacles to the setting up of a plebiscite administration in Kashmir under the aegis of the United Nations. The world organization has proved its ability, even in the most forbidding circumstances, to institute an electoral process under its supervision and control and with the help of a neutral peace‑keeping force. The striking example of this is Namibia and East Timor, which were peacefully brought to independence after decades of occupation and control by South Africa and Indonesia respectively. Thirdly, as Sir Owen Dixon, the United Nations Representative, envisaged six decades ago, the plebiscite can be so regionalized that none of the different zones of the state will be forced to accept an outcome contrary to its wishes.

It is high time that we try to make a constructive departure. The best point for doing so is to restore the focus where it originally belonged and where it still rests logically viz: the rights and interests of the people of Kashmir itself.

What should be the procedure for putting the dispute on the road to a settlement? The better way would be to ask the Secretary General of the United Nations, with the concurrence of the Security Council, to engage himself, directly or through a representative of high international standing, in a sustained effort of facilitation which should (a) ensure that the position of the people of Kashmir is fully taken into account and (b) aim at a settlement within a reasonable time-frame, providing for a transitional period, if necessary, for a calming effect.

No sleight of hand is required, no subtle concepts are to be deployed, and no ingenious deal needs to be struck between an Indian and a Pakistani leader with the endorsement of the more pliable Kashmiri figure. All that is needed is going back — yes, going back — to the point of agreement which historically existed beyond doubt between India and Pakistan and jointly resolving to retrieve it with such modifications as proposed by the Kashmir leadership – the tripartite negotiations between India & Pakistan and the genuine leadership of the people of Kashmir.

If sincerity is brought to the process in place of cheap trickery, the dawn of peace will glow as never before over the subcontinent – the home to one-fifth of total human race.

Dr. Fai can be reached at: Tel: 1-202-607-6435
ghulamnabifai@gmail.com OR gnfai2003@yahoo.com