Relevance of UN Resolutions on Kashmir has been subject of debate for a long time. Previously it was Indian State which disputed their applicability. Recent postures of Pakistani president have created doubts about commitment of Pakistan to these. Some Kashmiri leaders by endorsing General Musharaff policies have also depicted their non-seriousness with regard to United Nations role regarding Kashmir. This has been done despite the fact that the UN resolutions are the only internationally valid instruments which provide basis for recognition of J&K as a disputed territory under International law. India after securing a scandalous deed of accession proceeded to United Nations Security Council alleging Pakistan of intervention. United Nations Security Council while admitting Indian complaint refused to acknowledge Kashmir as its legitimate Part. It recognised people of Kashmir as the principal party to this dispute who should be given a chance to decide their future through exercise of the Right of Self Determination .This right was supposed to be exercised under United Nations supervision thus making it a legitimate guarantor of self determination. Involvement of United Nations transformed Kashmir dispute into a multilateral problem involving people of Kashmir, United Nations, Pakistan and India. United Nations Resolutions also provided for cease fire & withdrawal of troops. For this purpose a military observers group was deputed to supervise adherence to cease fire. Although United Nations was approached under chapter VI yet the decision taken by it reflected that its resolutions were not exclusively based on this chapter. While adopting the resolutions it relied upon chapter I which provides that the purpose of the United Nations is “To develop friendly relations among nations based on respect for the principle of equal rights and self determination of peoples (Article 1(2))”.United Nations Security Council also kept in view Article 55 of chapter IX which imposes an obligation upon member states to pursue for peaceful and friendly relations among nations based on respect for principle of equal rights and self determination of peoples. The interim measures which included cease fire and deputation of United Nations Military Observers Group is based upon Article 40 of chapter VII of United Nations. The view is confirmed by International authorities on UN Peace keeping Higgins & Roselyn . The fact that there does not exist any provision for deputing of United Nations peace keeping mission under chapter VI makes it obvious that the dispute of J&K although referred to United Nations under this chapter didn’t get deliberated exclusively under this chapter. The resolutions apart from Chapter VI are based upon other portions of the UN Charter including chapter VII. Views to the contrary expressed by the UN Secretary General Kofi Anan in this regard had more to do with involvement of his son in sharing the bounties from oil for food programme of Iraq in association with the son of Natwar Singh rather than UN Charter or nature of UN resolutions.
After adoption of the United Nations Resolution so many developments took place at practical as well as normative level. India did cooperate with United Nations for sometime. Later on however, it conducted a fake election and portrayed it as a substitute for the exercise of right of self determination. United Nations through several resolutions rejected this contention and made it clear that creation of constituent assembly in Indian administered part of Kashmir or conducting of elections will not be deemed to be exercise of right of self determination in accordance with United Nations Resolutions. UN Security Council declared 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 may have taken or might attempt to take to determine the future shape and affiliation of the entire state or any part thereof, or action by the parties concerned in support of any such action by the Assembly, would not constitute a disposition of the state in accordance with the above principle” (UN Security Council Resolution 24 January 1957).
Another significant development was Shimla Agreement signed by India and Pakistan where in the parties agreed to resolve all the disputes between them including that of Kashmir mutually. After this agreement India proceeded to United Nations and asked it to withdraw its observer’s mission from the state. United Nations refused to accept the Indian plea. Although United Nations Charter (Article 52, para 1) allowed regional arrangements for dealing with matters relating to maintenance of international peace and security these measures however, have to be consistent with the purposes and principles of United Nations Charter. In case there is a conflict between regional arrangements and obligations of States under United Nations Charter, their duties under United Nations Charter will prevail. In this case Indian interpretation of Shimla Agreement amounted to denial of the objectives of United Nations as laid down in Article 1(2) i.e fostering friendly relations between nations based on respect for Right of Self Determination.
The development on the normative front were more significant and in favour of right of self determination. The right found place within The Covenant on Civil and Political Rights (1966) and The Covenant on Economic, Social and Cultural Rights (1966). It was enumerated as a human right in their very first Articles. Besides these instruments importance of this right was asserted in various resolutions of UN General Assembly. Among these the most important ones are 1514 of 14 December 1960, titled as “Declaration on Granting of Independence to Colonial Countries and Peoples” Resolution 2625 of 24th October 1970 relating to “PRINCIPLES OF INTERNATIONAL LAW CONCERNING FRIENDLY RELATIONS AND COOPERATION AMONG STATES”. In both these resolutions the right of self determination was identified with people of colonized territories, whereas there was no such mention within The Covenant on Civil and Political Rights and The Covenant on Economic Social and Cultural Rights.
For a long time there was a debate throughout the world relating to applicability of this right. The third world countries were vocal for this right for the colonies and non-self governing territories in traditional sense of the term. They were not ready to concede it to groups which wanted to secede from the existing states. The third world countries were not ready for fragmentation of any state on the basis of use of right of self determination because people to them only meant the people of colonies and non self governing territories. This reservation has become obsolete after recognition of this right for all peoples within the Covenants. After the end of cold war applicability of right of self determination has been practically extended to so many areas and territories of the world which were not colonies in traditional sense of the term. Examples of such territories are Central Asian Republics, Ukraine, Baltic States, Czech and Slovakian Republics, Croatia, Macedonia, Bosnia, East Timor, Eritrea, Cubec province of Canada and Montenegro. People of these areas were allowed to exercise right of self determination and given choice of separation from existing sovereign states
India while ratifying The Covenant on Civil and Political Rights made a reservation with respect to right of self determination. Such a reservation is of little importance now in view of the fact that several authorities including Prof. Gros Espiell special rapporteur of the United Nations Sub-commission on Minorities have made it clear that the right of self determination has achieved the status of jus-cogens i.e. pre-emptory norm of general international law. It must be remembered that treaties and reservation to norms of jus-cogens are not allowed under international law.
It is obvious from the preceding discussion that right of self determination is strongly rooted in international law. Its recognition as human right does not allow any one to deviate from this right or use it on behalf of the people who are entitled to it. Human rights are inalienable. The statements to the contrary on the part of remote controlled politicians do not carry any weight. These statements reflect their interests. Any solution reached after compromising right of self determination is destined to face the same fate as was that of Shimla Agreement. Failure of Kashmiris to secure the right of self determination is the result of incapability of those who plead it for them. From New York to Srinagar role of representation of Kashmiris has been assumed by those who are bereft of any understanding of International Law and commitment to Kashmir cause. They are bereft of any appreciation of legal and political dimensions of the Kashmir problem and unfit for any serious discourse and deliberation. Pakistan too has kept the issue hostage to American strategic interests.
Problem of minorities has not been an impediment to exercise of this right anywhere in the world. Twenty two percent dissenters to independence of East Timor were made to go along with the majority. In case of Montenegro, the decision was taken in favor of secession with fifty five percent votes in favor and forty five percent against. In case of Cubec, province of Canada, decision for status quo was taken with a margin of just one percent votes. Forty Nine percent voters favored secession whereas fifty one percent supported continuation of status quo. In Kashmir the problem can be addressed by granting minority dominated areas right of secession from the entity to which majority decides to join through a UN sponsored plebiscite. Absence of third option is an issue which relates to modus-operandi rather than the principle. Once there is an agreement on the principle even third option can be accommodated.
After adoption of the United Nations Resolution so many developments took place at practical as well as normative level. India did cooperate with United Nations for sometime. Later on however, it conducted a fake election and portrayed it as a substitute for the exercise of right of self determination. United Nations through several resolutions rejected this contention and made it clear that creation of constituent assembly in Indian administered part of Kashmir or conducting of elections will not be deemed to be exercise of right of self determination in accordance with United Nations Resolutions. UN Security Council declared 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 may have taken or might attempt to take to determine the future shape and affiliation of the entire state or any part thereof, or action by the parties concerned in support of any such action by the Assembly, would not constitute a disposition of the state in accordance with the above principle” (UN Security Council Resolution 24 January 1957).
Another significant development was Shimla Agreement signed by India and Pakistan where in the parties agreed to resolve all the disputes between them including that of Kashmir mutually. After this agreement India proceeded to United Nations and asked it to withdraw its observer’s mission from the state. United Nations refused to accept the Indian plea. Although United Nations Charter (Article 52, para 1) allowed regional arrangements for dealing with matters relating to maintenance of international peace and security these measures however, have to be consistent with the purposes and principles of United Nations Charter. In case there is a conflict between regional arrangements and obligations of States under United Nations Charter, their duties under United Nations Charter will prevail. In this case Indian interpretation of Shimla Agreement amounted to denial of the objectives of United Nations as laid down in Article 1(2) i.e fostering friendly relations between nations based on respect for Right of Self Determination.
The development on the normative front were more significant and in favour of right of self determination. The right found place within The Covenant on Civil and Political Rights (1966) and The Covenant on Economic, Social and Cultural Rights (1966). It was enumerated as a human right in their very first Articles. Besides these instruments importance of this right was asserted in various resolutions of UN General Assembly. Among these the most important ones are 1514 of 14 December 1960, titled as “Declaration on Granting of Independence to Colonial Countries and Peoples” Resolution 2625 of 24th October 1970 relating to “PRINCIPLES OF INTERNATIONAL LAW CONCERNING FRIENDLY RELATIONS AND COOPERATION AMONG STATES”. In both these resolutions the right of self determination was identified with people of colonized territories, whereas there was no such mention within The Covenant on Civil and Political Rights and The Covenant on Economic Social and Cultural Rights.
For a long time there was a debate throughout the world relating to applicability of this right. The third world countries were vocal for this right for the colonies and non-self governing territories in traditional sense of the term. They were not ready to concede it to groups which wanted to secede from the existing states. The third world countries were not ready for fragmentation of any state on the basis of use of right of self determination because people to them only meant the people of colonies and non self governing territories. This reservation has become obsolete after recognition of this right for all peoples within the Covenants. After the end of cold war applicability of right of self determination has been practically extended to so many areas and territories of the world which were not colonies in traditional sense of the term. Examples of such territories are Central Asian Republics, Ukraine, Baltic States, Czech and Slovakian Republics, Croatia, Macedonia, Bosnia, East Timor, Eritrea, Cubec province of Canada and Montenegro. People of these areas were allowed to exercise right of self determination and given choice of separation from existing sovereign states
India while ratifying The Covenant on Civil and Political Rights made a reservation with respect to right of self determination. Such a reservation is of little importance now in view of the fact that several authorities including Prof. Gros Espiell special rapporteur of the United Nations Sub-commission on Minorities have made it clear that the right of self determination has achieved the status of jus-cogens i.e. pre-emptory norm of general international law. It must be remembered that treaties and reservation to norms of jus-cogens are not allowed under international law.
It is obvious from the preceding discussion that right of self determination is strongly rooted in international law. Its recognition as human right does not allow any one to deviate from this right or use it on behalf of the people who are entitled to it. Human rights are inalienable. The statements to the contrary on the part of remote controlled politicians do not carry any weight. These statements reflect their interests. Any solution reached after compromising right of self determination is destined to face the same fate as was that of Shimla Agreement. Failure of Kashmiris to secure the right of self determination is the result of incapability of those who plead it for them. From New York to Srinagar role of representation of Kashmiris has been assumed by those who are bereft of any understanding of International Law and commitment to Kashmir cause. They are bereft of any appreciation of legal and political dimensions of the Kashmir problem and unfit for any serious discourse and deliberation. Pakistan too has kept the issue hostage to American strategic interests.
Problem of minorities has not been an impediment to exercise of this right anywhere in the world. Twenty two percent dissenters to independence of East Timor were made to go along with the majority. In case of Montenegro, the decision was taken in favor of secession with fifty five percent votes in favor and forty five percent against. In case of Cubec, province of Canada, decision for status quo was taken with a margin of just one percent votes. Forty Nine percent voters favored secession whereas fifty one percent supported continuation of status quo. In Kashmir the problem can be addressed by granting minority dominated areas right of secession from the entity to which majority decides to join through a UN sponsored plebiscite. Absence of third option is an issue which relates to modus-operandi rather than the principle. Once there is an agreement on the principle even third option can be accommodated.
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