Discussions regarding Kashmir have once again started. This is the biggest legacy of the partition of India. After the attack in Pahalgam, the government finds itself in a position of what to do and what not to do. However, a solution must be found. The big question is, what options do we have? If we think about military action, there are all kinds of risks involved. The other pathway is related to increasing diplomatic activities. It will take time, but it will create possibilities. The terrorist attack in Pahalgam has once again drawn our attention to the core issue of Kashmir. This is the biggest legacy of the partition of India, which has led to unrest in South Asia and today it is counted among the most backward regions of the world. The question is, why has the United Nations Security Council failed to resolve this issue?
By Pramod Joshi
The terrorist attack in Pahalgam has once again drawn our attention to the fundamental issue of Kashmir. This is the biggest legacy of the partition of India, which has caused turmoil in South Asia and today it is counted among the most backward regions of the world. The question is, why has the United Nations Security Council failed to resolve this issue?
The Birth of the Problem
In undivided India, there were 562 princely states. Kashmir was also under British rule, but its status was like a direct colony, and it too became independent on August 15, 1947. Jammu and Kashmir was a princely state under the leadership of Maharaja Hari Singh. The princely states had the option to choose between India and Pakistan. The India Act under which the country gained independence intended that no princely state remain an independent nation. However, there was confusion in the mind of the Kashmir kingdom.
Under the Indian Independence Act of 1947, the British government’s sovereignty over Jammu and Kashmir also ended on August 15, 1947. The Maharaja was apprehensive that if he joined India, the majority Muslim population of the state would not like it, and if he merged with Pakistan, the Hindu and Sikh citizens would face difficulties.
Standstill Agreement
Pakistan made several attempts to persuade the Maharaja of Kashmir to accept merger with Pakistan. Just before independence, in July 1947, Muhammad Ali Jinnah wrote a letter to Maharaja stating that all kinds of facilities would be provided to him. Maharaja offered a ‘Standstill Agreement’ with both India and Pakistan. This meant that the status quo would remain. India did not make any decision on this proposal, but Pakistan accepted the ‘Standstill Agreement’.
Despite this, he did not honor the agreement, but instead went on to blockade Kashmir and stopped the supply of rations coming from Pakistan. Many sources confirm that Pakistan had already been planning military action in Kashmir since the months of August-September. On September 12, Prime Minister Liaquat Ali Khan approved a plan based on the proposals of Colonel Akbar Khan and Sardar Shaukat Hayat Khan.
Under this, there was a need to create conditions for rebellion in the western districts of Kashmir and then to launch an attack on Kashmir with the help of Pashtun tribesmen. In fact, Pakistan had prepared ‘Operation Gulmarg’ on August 20, just a week after independence, which was planned to create 20 militias of one thousand Pathans each. They were trained at brigade headquarters in Bannu, Wana, Peshawar, Kohat, and Nowshera.
In October 1947, after tribal attacks under the protection of the Pakistani army, Maharaja Hari Singh signed the Instrument of Accession to India on October 26, and the very next day it was approved by the Governor-General of India. The Indian army was sent to Kashmir and the fighting lasted for about a year. Following the intervention of the Indian army, the Pakistani army officially engaged in this fight in November.
India had brought this matter to the Security Council under Article 35 of the UN Charter. India agreed with the proposals that were passed, but they were not binding. However, two points still need to be considered: why was there no solution at that time and what role did the Security Council play in this matter?
Resolutions after resolutions
From 1948 to 1971, the Security Council passed 18 resolutions regarding the relations between India and Pakistan. Among these, resolutions number 303 and 307 were passed in the context of the 1971 war. Prior to that, five resolutions 209, 210, 211, 214, and 215 related to the 1965 war. Resolutions 123 and 126 are from 1956-57 and are related to efforts to maintain peace in the region. In fact, resolutions 38, 39, and 47 are the most significant, with resolution 47 being the most important, which outlined the arrangements for a referendum.
An arrangement for the first three phases of the referendum under proposal 47 was to be established. It was to start with the withdrawal of the Pakistani army and tribal warriors from the Pakistan-occupied area. If Pakistan did not accept it, how could it be implemented? Pakistan was fundamentally not in favour of the referendum either. In November 1947, Jinnah rejected this proposal.
When India brought this matter to the UN Security Council, it argued that the Maharaja of Kashmir had signed the proposal for merger with India, therefore Kashmir is now a part of our sovereignty, which has been attacked by Pakistan. Pakistan stated that we are not providing any assistance to the tribesmen. India claimed that the Maharaja’s letter of merger was obtained through ‘deception and violence.’
The chaos of the referendum
After the applications and reports from India and Pakistan, the Security Council decided to investigate the matter on the basis of Article 34 of the UN Charter and then passed resolutions 38 and 39. Resolution 38 of January 17, 1948 was a general resolution, requesting both parties to prevent the situation from deteriorating.
After this, on January 20, Resolution 39 was passed, which established the UN Commission for India and Pakistan (UNCIP), tasked with investigating two matters: 1. What are the causes behind the emergence of this issue, and 2. To mediate in order to improve the situation and to provide the Security Council with information about the progress made in this regard.
This commission of the Security Council studied the area, but before that, the council passed resolution 47 on April 21, 1948. This is the resolution that is repeatedly mentioned in the direction of a permanent solution to the Kashmir issue. Two main tasks were to be carried out: 1. Demilitarization of the area and 2. Referendum. It was said to Pakistan that it should call back the tribesmen and other Pakistani citizens from this area.
After this, it was India’s responsibility to withdraw its remaining troops while maintaining the necessary minimum presence to ensure law and order. In this way, there was to be a process for a free and impartial referendum under the direction of the referendum administrator appointed by the UN after demilitarization.
There is no mention of the merger letter
It is important to note that the proposal of the Supreme Court did not mention Maharaja Hari Singh’s merger letter. By May 1948, when the UN Commission came to investigate in Indian territory, the regular Pakistani army had already entered Kashmir. This army was assisting the tribal invaders who were fighting against the Indian army. Even in the guise of civilians, there were Pakistani soldiers.
On June 3, 1948, the Supreme Court passed proposal 51, urging the commission to go to Kashmir as soon as possible. UN resolution 47 mentioned the removal of ‘Pakistani citizens’, while by that time, the Pakistani army had officially arrived there. When the UN commission arrived in Kashmir in July, they were astonished to see the Pakistani army there. Subsequently, on August 13, 1948, the first proposal of the UN commission referred to this fact!
It is stated that due to the presence of the Pakistani army, there has been a ‘material change’ in the fundamental conditions. Despite this, there is no mention of the ‘merger letter’ in this proposal or in any of the previous proposals. This means that while the presence of the Pakistani army has been ignored, there is also no mention of the ‘merger letter.’ It is noteworthy that the merger letter has not been rejected either.
The Role of the British
If the merger document was mentioned, the presence of the Pakistani army would be considered an ‘invasion of Indian territory’. Pakistan did not accept either the ‘merger document’ or the sovereignty of the Maharaja, even though it had also made a ‘standstill agreement’ with the Maharaja. Pakistan claimed that the rule of the Maharaja ended due to the Azad Kashmir movement. Despite all this, the UN Commission did not condemn the presence of the Pakistani army. It kept India and Pakistan on the same level. Questions about the legality and morality of Kashmir’s merger were not raised.
The biggest hand behind the political role of the Security Council was that of Britain, which is a permanent member of the Security Council. With independence, Britain had concerns regarding India’s future roles. Despite granting freedom to India, Britain was interested in maintaining its dominance over this region. Britain viewed Kashmir through the lens of its future role and also influenced American policies. Their joint strategy worked in many matters. This perspective is not only applicable to Kashmir. It can also be seen in Greece (1947), Palestine (1948), Korea (1950), Indonesia (1949), and Vietnam (1954).
Pakistani maneuvers Apart from the failure of UN proposals and the politics behind it, Pakistan had started refusing to accept the UN proposals. After this proposal, Pakistan stated on one hand that there was not enough information available about the referendum. On the other hand, it made a significant claim that when the army withdraws, the Indian army should also withdraw simultaneously and completely. The entire focus of the UN shifted towards stopping the war, and ultimately, a ceasefire agreement was reached on January 1, 1949.
Thereafter, practically the UN formally recognized Pakistan-occupied Kashmir (POK) in January 1949, although Pakistan had no legal or any other claim to it. The Security Council began appointing a single member mediator instead of a UN commission. This started with Resolution 80 on March 14, 1950. Earlier, on December 17, 1949, the Security Council requested mediation from its chairman, General McNaughton. The proposal he made in February 1950 included the withdrawal of troops from both countries, although it advised maintaining a minimum Indian military presence to ensure peace.
India did not accept this offer because it placed both sides on an equal footing. Ultimately, the UN Commission was dissolved in 1950. After that, there were several rounds of personal mediation, but no success was achieved. After the proposal 126 in 1957, discussions about a permanent solution to the problem also ended, and after the war of 1965, proposals 210 and 211 suggest to seek mediation from someone else.
The question of PoK
On August 5, 2019, India ended a long-standing obstacle by abrogating Articles 370 and 35 concerning Kashmir. The reorganization of the state has also taken place, with Ladakh being separated from Jammu and Kashmir. However, the issue of Pakistan-occupied Kashmir remains unresolved. Kashmir is an integral part of our country, so we should also try to reclaim the part that is under Pakistani occupation. Is this possible? How can this be done?
Home Minister Amit Shah said in a program in November 2019 that for Pakistan-occupied Kashmir and Jammu and Kashmir, we are ready to give our lives, and there are millions of people in the country who share this sentiment. He also mentioned that any ‘plan of action’ that the government has in this regard cannot be announced in a TV debate. These are all sensitive issues related to the country’s security, which should be handled in the same way as Article 370 was abrogated. It’s better not to ask about the timing.
Before this statement by the Home Minister, External Affairs Minister S. Jaishankar had stated in a media conference in September 2019 that the Kashmir under Pakistan’s occupation is a part of India, and we hope that one day we will have our rights over it. In January 2020, Indian Army Chief General Manoj Mukund Naravane mentioned in a press conference before Army Day that if the Parliament of the country orders the reclaiming of Pakistan-occupied Kashmir, we can take action.
Parliament’s Resolution
Both houses of the Indian Parliament unanimously passed a resolution on February 22, 1994, emphasizing that the entire Jammu and Kashmir is an integral part of India. Therefore, Pakistan must vacate the parts of the state it occupies. This resolution was necessary because during that period, terrorist activities in Kashmir were at their peak. At that time, the Pakistani government was pressuring India, with the help of the United States, to reach an agreement regarding Kashmir.
At that time, America was helping Pakistan in Afghanistan, while Pakistan’s goal was Kashmir. Nevertheless, that proposal from the Indian Parliament made it clear to the world that India considers this issue to be of utmost importance.
The entire Kashmir includes Jammu and Kashmir and Pakistan-occupied Kashmir (POK), as well as Gilgit-Baltistan. Apart from the rest of the area connected to Muzaffarabad, it also includes Gilgit-Baltistan and the Shaksgam Valley, which Pakistan gifted to China. Pakistan did not have ownership of this land, so by what right did it give this land to China? What relation does Pakistan have to this dispute? Many such questions will be answered with time.
If India wants to protect its interests in Afghanistan, it is essential to bring Gilgit-Baltistan under its control. In the 1962 war, Pakistan recognized India’s weak position against China and ceded 5,189 km of land to China in 1963. Meanwhile, China had already occupied Aksai Chin in Ladakh. In this way, Pakistan has achieved two targets with one arrow.
China in GwadarChina wants to have a grip on this area. It takes 16 to 25 days for Chinese vessels to reach Pakistan’s Gwadar naval base by sea route. With the construction of the road from Gilgit, this route is reduced to just 48 hours. In addition, a railway line is also being laid. This railway line is part of CPEC. According to a report by the South China Morning Post, China has opened a section of the road from Islamabad to Kashgar in the Xinjiang province for the general public.
The idea of the China-Pakistan Economic Corridor (CPEC) was conceived in the 1950s, but due to years of political instability in Pakistan, this goal could not be achieved. China officially announced this economic corridor in 2014. Through this, China announced an investment of about 46 billion dollars for various development projects in Pakistan. India deemed the construction of this corridor illegal under international law, as it passes through Pakistan-occupied Kashmir, which is our territory.
What should we do? Now there are two questions. Would it be right for India to adopt a defensive stance on this issue for a long time? Secondly, what are our options? If we think about military action, there are various risks involved. The other course is related to increasing diplomatic activities. It will take time, but it will create opportunities. Therefore, we should now devise a long-term program. What could be a diplomatic program?
We should emphasize the legality of the merger document. We should formally create any arrangement, even if it is symbolic, that proves that Pakistan’s occupation is illegal. We have allowed the Tibetan government in exile, so why should we lag behind regarding Kashmir? Certainly, consider the legal aspects of the exile administration in the Pakistan-occupied area. If it requires constitutional arrangements, then let it be done.
There is discontent regarding Pakistan in POK and Gilgit-Baltistan. Many of them reside in Europe and America. They should be given a place in India. We have expressed our opposition to China, but through some formal proposal, even if it is a parliamentary proposal, we should clearly tell China that its activities on our land are illegal.
We should clarify our stance on the UN resolutions on Kashmir and the Shimla Agreement, that it will be the proposal of our parliament, not the United Nations. The United Nations has not viewed this from the perspective of justice and law. Due to the calculations of the Cold War and politics, Britain and America made this a purely political issue.
(Writer was the Associate Editor of Hindustan Hindi)