Has the UN failed Kashmir?

Nilesh Kunwar
January 11, 2017 OPINION 874 Views
Has the UN failed Kashmir?

Separatist leaders have been using the Kashmir resolutions as a ‘stick’ to ‘beat’ the UN so often that it has stopped evoking any response. That could be the reason why Hurriyat leader Syed Ali Shah Geelani’s recent statement terming the UN’s inability to implement its own resolutions on Kashmir “painful” didn’t attract much attention. But what’s amazing is that even though various UN spokespersons and at least on one occasion the Secretary General himself has clarified the factual position relating to the UNSC resolutions on Kashmir, the separatists continue belabouring the same repeatedly.
In his statement Geelani has basically raised four issues related to the UN resolutions on Kashmir, viz. (1) they are still viable, (2) UN resolution of January 5, 1949 clearly binds India and Pakistan to hold plebiscite (3) the UN has resolved disputes in Croatia, East Timor and South Sudan through plebiscites but is not doing so in Kashmir (4) people in Kashmir are “forced to adopt other means of resistance” due to the UN’s inability to implement its resolutions.
I would like to begin with the disclaimer that this piece is not intended to be an attack on Geelani whom I respect and clarify my stand by borrowing Evelyn Beatrice Hall’s famous line, “I don’t agree with what you say but I will defend to death your right to say so.”
I have no doubt in my mind that the erudite Geelani would have definitely studied and evaluated the implications of every single word, phrase and sentence in the UN resolutions on Kashmir with great care. Furthermore, he is fully conversant with the ground realities of J&K including the state of affairs in Pakistan administered Kashmir (PaK). But there appear to be some fundamental inaccuracies in his observations and this is perplexing since he has a deep knowledge of all Kashmir related issues!
Holding plebiscite in J&K is not at all as easy as Geelani makes it appear to be and the reasons why plebiscite has eluded Kashmir are all in public domain. Clause 6 (b) of the January 5, 1949 UN resolution which Geelani has referred to so passionately maintains that prior to holding plebiscite, “All person (other than citizens of the State) who on or since 15 August 1947 have entered it for other than lawful purpose, shall be required to leave the State.” From this stipulation it is clear that anyone who has acquired citizenship of J&K after 15 August 1947 is ineligible to participate in the plebiscite.
Everyone knows how Pakistan has discreetly been following the policy of settling non Kashmiris in PaK and this has made the identification of genuine ‘state subjects’ well nigh impossible. It is often said that the issue concerning unabated influx of non Kashmiris into PaK is a fallacy created by the Indian propaganda machinery but the truth is that this problem is real. In fact it has assumed such massive proportions that in 2014 the Central Bar Association Muzaffarabad (CBAM) demanded constitution of a one-member commission comprising a High Court judge to scrutinize the ‘state subject’ certificates issued over the past 10 years. Speaking on the occasion, Raza Ali Khan, President of CBAM had remarked “This is the tip of the iceberg. Across Pakistan, there might be thousands of non-Kashmiris who have acquired state subjects with the help of the people having vested interest.”
The issue of fake ‘subject certificates’ in PaK is not only existent but it also really big!
Clause 2 of the January 5, 1949 UN resolution states “A plebiscite will be held when it shall be found by the Commission that the cease-fire and truce arrangements set forth in Parts I and II of the Commission’s resolution of 13 August 1948 have been carried out and arrangements for the plebiscite have been completed.” This is where the problem lies because the most important arrangement that has to be completed before a plebiscite can be held in J&K is mentioned in Clause A. 1 (a) of UN resolution of 13 August 1948 (also referred to as UNSC resolution 47). This clause requires the Government of Pakistan “To secure the withdrawal from the State of Jammu and Kashmir of tribesmen and Pakistani nationals not normally resident therein who have entered the State for the purpose of fighting, and to prevent any intrusion into the State of such elements and any furnishing of material aid to those fighting in the State.”
Though Pakistan has also been demanding that a plebiscite be held in J&K, it has never shown any inclination to fulfill this precondition. Till this happens, the question of holding a plebiscite in J&K doesn’t even arise and it is highly improbable that the separatist leadership is not aware of this. Therefore instead of accusing the UN of inaction, it would be more prudent for them to ask Islamabad to abide by the 13 August 1948 resolution and withdraw all ‘non state subjects’ from PaK!
When everyone knows that Pakistan has violated the basic precondition for plebiscite by willfully manipulating the demography in PaK and is remaining silent on the requirement of withdrawing non Kashmiris from PaK, one wonders what makes Geelani and the separatist camp believe that the UN resolutions on Kashmir are still “viable”!
Geelani’s assertion that the UN resolution Kashmir is binding on India and Pakistan is also not correct. UNSC Resolution 47 on Kashmir has been passed by the United Nations Security Council (UNSC) under Chapter VI of UN charter. All resolutions passed under this chapter are non-binding and as such his contention to the contrary is erroneous. UNSC resolution 47 clearly mentions holding of plebiscite but there is the catch as it is amongst the measures that the UNSC “Recommends to the Governments of India and Pakistan.” By using the word “recommends” in resolution 47, the UN has left no doubt that the measures for resolving the Kashmir issue (including plebiscite) are advisory in nature and not directives. This is why the UN does not have any authority to compel India or Pakistan to implement the same.
The UN has resolved various disputes worldwide by holding plebiscites but it cannot be accused of inaction for not doing the same in Kashmir. The UN has held plebiscites where its related resolutions were passed under Chapter VII of UN charter which are binding and have mandatory enforceability. But UN resolution 47 on Kashmir is non-binding and has no mandatory enforceability as it has been passed under Chapter VI of UN charter. Therefore it is no big surprise that during his visit to India in 2001, the then UN Secretary General Kofi Annan had remarked that comparing resolutions on Kashmir with those on East Timor and Iraq was like comparing apples and oranges!
Lastly, having seen the legal position of the UN resolutions on Kashmir, if people in Kashmir are still “forced to adopt other means of resistance” then it is definitely not due to the UN’s inability to implement its resolutions as Geelani says: the reason obviously lies elsewhere!
Email:nileshkunwar.56@gmail.com

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