UN Mission: A Minaret of Hope

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 Indian demand was based on the ground that the Cease Fire Line which it was supposed to monitor has been replaced by the Line of Control (LoC) and the parties have agreed to resolve all their mutual issues including Jammu and Kashmir bilaterally.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.