and demographic realities in view while deciding about the accession. It is also recorded history that Lord Mountbatten in his address to the special full meeting of the Chamber of Princes in New Delhi on July 25, 1947 told the princes that they were free to join any one of the dominions, India or Pakistan but that they should take into account geographical contiguity and the wishes of their people.
It is thus quite evident that in the so-called instrument of accession as well as the partition plan, two elements were of paramount importance – the will of the people and geographical contiguity. In case of Kashmir both these elements were neglected. The revolt of the people of Kashmir against their ruler’s pretensions to join India and the resultant war between India and Pakistan was also a strong testimony to the fact that the people of Kashmir wanted to join Pakistan.
Kashmir was contiguous to Pakistan and the majority of its population was also Muslim. It had cultural and historic links with Pakistan and had remained under Muslim rule for centuries before Ranjit Singh annexed it. Encyclopaedia Britannica also highlighted this reality in these words: “Although there was a clear Muslim majority in Kashmir before the 1947 partition and its economic, cultural, and geographic contiguity with the Muslim-majority area of the Punjab (in Pakistan) could be convincingly demonstrated, the political developments during and after the partition resulted in a division of the region.
“Pakistan was left with territory that, although basically Muslim in character, was thinly populated, relatively inaccessible, and economically underdeveloped. The largest Muslim group, situated in the Vale of Kashmir and estimated to number more than half the population of the entire region, lay in Indian-administered territory, with its former outlets via the Jhelum valley route blocked.”
When it comes to the UN resolution on Kashmir it is relevant to point out that in the wake of the war that broke out between the two countries after the landing of Indian forces in Kashmir, it was India who took the matter to the United Nations, which facilitated an immediate ceasefire. The UN during the course of its deliberations on the subject passed 23 resolutions, including two Unicep resolutions of August 13, 1948 and January 5, 1949 calling for a plebiscite in Kashmir under the auspices of the United Nations.
It is quite evident that like the supposed instrument of accession and the partition plan, the UN resolutions also vividly recognised the right of the people to decide their own future through a process of self-determination. It is also pertinent to mention that the UN – through its resolutions 91 and 122 – also repudiated the Indian stance that the issue of accession of Kashmir had been resolved by the constituent assembly of Kashmir. These resolutions reiterated that the question of accession could not be resolved by any means other than those enunciated in the UN resolutions on the subject.
In the wake of the 1971 war between India and Pakistan, the Simla Agreement was signed. Clause 6 of the agreement emphasised the resolution of all disputes between the two countries, including Kashmir, bilaterally through peaceful means. The very fact that India acknowledged Kashmir as a disputed territory in Simla Agreement belied its claims of Kashmir being its integral part. But unfortunately the Indians have used varying tactics to suspend or scupper the process of dialogue. India has always remained evasive on the core issue of Kashmir. They also claim that in view of the Simla Agreement Pakistan cannot internationalise the Kashmir dispute. That stance is also devoid of any legality.
The bilateral agreement does not change the status of the dispute. It also does not preclude the possibility of raising it again at the UN in case the bilateral agreement fails to deliver. Article 103 of UN Charter says “In the event of a conflict between the obligations of the members of the UN under the present charter and their obligations under any other international agreement, their obligations under the present charter will prevail”.
What that means is that the UN resolutions on Kashmir will take precedence over all other international agreements on the same issue. So Pakistan is very much within its right to invoke UN resolutions, after having tried to find a solution through the bilateral arrangement. The UN resolutions on Kashmir adopted under Chapter VII of the UN Charter remain legally binding on the parties. Article 25 also reiterates their obligatory nature. Under the UN Charter the Security Council has the power to enforce its decisions and resolutions militarily or by any other means necessary; the powers that it has used during the Korean war in 1950 and in Iraq and Kuwait in 1991. It is abundantly clear from the foregoing that the legal status and obligations of the parties to the dispute under UN resolutions and that of the Security Council to have its resolutions implemented remain unaffected.
The foregoing facts prove beyond any iota of doubt that the Kashmir dispute is about the Kashmiris’ right to self-determination and they along with India and Pakistan are a party to the dispute. It affects them more than any other party.
The writer is a freelance contributor.
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