Presence of the mission symbolizes the commitment of the
international community that it will not allow India and Pakistan to
divide Kashmir among themselves
DR. SHEIKH SHOWKAT HUSSAIN
India and Pakistan clashed on Tuesday, 22nd January 2013 in UN on the
relevance and mandate of United Nations Military observer group in
Kashmir. It is not for the first time that India and Pakistan have
clashed on the relevance and mandate of the UN observers group. Same
type of clashes occurred soon after Shimla Agreement of 1972. After the
agreement India formally requested UN to withdraw its observer’s mission
from Kashmir. Indian demand was based on the ground that the Cease Fire
Line which it was supposed to monitor has been replaced by the Line of
Control (LoC) and the parties have agreed to resolve all their mutual
issues including Jammu and Kashmir bilaterally. United Nations refused
to oblige India and made it clear that the decision to depute military
observers’ group in Kashmir has been taken by the Security Council and
it’s only the Security Council which can decide about the future of this
group. Since India is against any discussions on Kashmir issue in
United Nations it didn’t wish the issue to be raised within the council
thus the observers’ mission continues to be in Kashmir. India however
refused to cooperate with the group since 1972 while Pakistan continues
to facilitate the monitoring activities of the group on its side of the
LoC. Since the issue has cropped up at this juncture it will not be out
of place to have a look on United Nations observer group’s activities
and its implications on Kashmir issue as such.
After securing
instrument of accession from Maharaja in October 1947 India proceeded to
United Nations in January 1948 on account of the perception it will be
impossible for it to sustain a military operation in Kashmir which
remained inaccessible for 6 months because of snow and cold weather.
India approached the United Nations under Chapter VI of the UN charter.
United Nations adopted a resolution establishing United Nations’
Commission for India and Pakistan to investigate and mediate the
dispute. In April 1948 by its resolution the Security Council decided to
enlarge the membership of UNCIP and to recommend various measures
including use of observers to stop fighting. In 1949 as a result of
mediation of the group India and Pakistan signed Karachi agreement
establishing a Cease Fire Line to be supervised by the observers. In
1949 following the termination of UNCIP the Security Council through its
resolution decided that United Nations observer group should continue
to supervise and monitor the ceasefire in Kashmir. Its assignments
included observance, reporting, investigation and submission of its
findings to the Secretary General. Presence of UN observers group in
Kashmir has invoked a lot of interest not only because of its functions
but also because of certain legal issues which are associated with its
presence. First and foremost among these issues remains the nature of UN
involvement in Kashmir. No doubt United Nations was approached by India
under Chapter VI. Under this chapter, however, United Nations does not
have any mandate to depute military observers’ mission at any place.
It’s only Chapter VII of the UN charter which authorizes United Nations
to depute military observers’ mission. So it’s obvious that UN
engagement in Kashmir have not been confined to Chapter VI of the
Charter under which it was approached by India but also other portions
of the UN charter including Chapter VII. This is in line with the
perception that once a forum whether judicial or non-judicial is
approached by a party for certain remedies the forum itself can award
any other remedies relevant to the case at its disposal. No doubt it was
Karachi agreement between India and Pakistan that brought into
existence the Cease Fire Line. The agreement however could not create an
obligation of deputation of military observers’ mission for United
Nations. The United Nations once approached did act in accordance with
its charter which under Chapter VII provided for deputation of a
military mission anywhere. This opinion is not a fiction of imagination
of author of this piece but an opinion which has been held by Higgins
& Roselyn, and Bowett, two renowned authorities on the subject of
peacekeeping by United Nations. Those who have been arguing that United
Nations couldn’t act decisively in context of Kashmir because the Issue
was referred to it under Chapter VI by India forget that the United
Nations on several occasions tried to act decisively on the issue but
couldn’t do so because of the Veto of the Soviet Union. Since 1972
India has been demanding withdrawal of United Nations Observers’ Group
from Kashmir on the ground that Shimla agreement has made the issue
bilateral. Given the fact that power of withdrawal exclusively remains
vested with the UN Security Council where India doesn’t wish the Kashmir
issue to be debated it was obvious that new efforts of India to get the
mission out of Kashmir were destined to fail. Clarification of the
Secretary General has confirmed it. Insistence of India on this account
will surely lead to a renewed discourse of Kashmir issue in United
Nations. United Nation Observers Group has thus stuck within the throat
of India same way as they depict the situation of a small snake who
wishes to digest a prey without being able to swallow it or vomit it
back. For ordinary Kashmiris the observers’ mission in Srinagar
symbolizes a minaret of hope towards which they rush whenever they are
in acute distress with the hope that world community has not abandoned
them. Presence of the mission also symbolizes commitment of the
international community that it will not allow India and Pakistan to
divide Kashmir among themselves irrespective of the wishes of its
people. Presence of the Observers Mission with its offices in Delhi,
Rawalpindi, Muzzafarabad and Srinagar remain a reminder to the parties
concerned that Kashmir is yet been disposed off in accordance with the
wishes of its people and United Nations is fully authorized to take an
action in this regard even under Chapter VII of its Charter. Such a
decisive action could not be possible in past because of cold war and
rivalry between Veto holders within Security Council. Our leadership
however has failed to pursue for enhancement of mandate of the mission
to the monitoring of human rights abuses which it could have done.
No comments:
Post a Comment