Article 370, Kashmir and UN Security Council Resolutions

My first post on Article 370 had deconstructed the syntax and semantics of its provisions. The second one had scrutinized the Constituent Assembly debates to draw inferences on the legislative intent behind the Article. Both assessments clearly and categorically indicated that:  

• A) Article 370 was meant to be a temporary provision; and, 
• B) There are no constitutional hurdles for the Article’s abrogation. 

Nevertheless, in every public discourse on the relevance of Article 370, there is a section of intelligentsia that bandies Kashmiri aspirations and their right for self-determination vociferously. The United Nations Security Council resolutions, calling for a plebiscite in Jammu and Kashmir, are often cited to support secession from the Union of India.

Are such separatist voices in consonance with the United Nations’ directives? Do the UN Resolutions invalidate Jammu and Kashmir’s accession to India? Or conversely, do they impose any restrictions on India’s sovereignty over Jammu and Kashmir?

I explore facts and facets of accession from a UN perspective in this piece, which is a part of a series of articles on the Article 370 imbroglio.

Backdrop to UN Intervention

The accession of Jammu and Kashmir with the Dominion of India took place post independence at a time when tribesmen from Pakistan had invaded the State. The Instrument of Accession imposed on India the obligation of defending the State of Jammu and Kashmir against external aggression. Hence, Indian troops were flown into the Kashmir valley in October 1947 to drive the aggressors out.

The Indian Army soon discovered that the invaders enjoyed active assistance of the Pakistani authorities. Therefore, the only option for completely removing the raiders from Kashmir was by attacking and neutralizing their bases and supply lines across the border. No doubt, such military action would have escalated hostilities even more between the two countries. Unfortunately though, such overt aggression ran contrary to Sri. Jawaharlal Nehru’s pacifist foreign policy. Hence, on 31 December 1947, India lodged a formal complaint with the United Nations against the Pakistani belligerence.

It is interesting - to cite Sayyid Mir Qasim, a J&K politician’s remarks on page 42 of his book, ‘My Life and Times’- that Sheikh Abdullah was “...not in favor of India seeking the UN intervention because he was sure the Indian army could free the entire State of the invaders...”

Nevertheless, with the ball in the United Nations’ court, the flurry of resolutions that followed was fait accompli.

Overview of Resolutions

The first UN Security Council resolution was adopted in 1948. Resolution No. 38 of 17 January 1948 called upon both India and Pakistan to take all measures to reduce tensions between each other.

The next one, Resolution No. 39 of 20 January 1948, authorised the establishment of a Commission of the Security Council, composed of representatives of three members of the UN (one to be selected by India, one to be selected by Pakistan, and the third to be designated by the two selected), for monitoring the situation in Jammu and Kashmir and for exercising mediatory influence to carry out the orders, advice and directions of the Security Council.

The third and most substantive resolution was No. 47 of 21 April 1948. It recommended the cessation of hostilities and the creation of conditions conducive for a free and impartial plebiscite in the State of Jammu and Kashmir. It also increased the size of the United Nations Commission for India and Pakistan (UNCIP) to five. The final resolution of 1948 was No. 51 of 3 June 1948, which issued certain instructions to UNCIP.

The subsequent resolution, No. 80 of 14 March 1950, pertained to the initiation of demilitarization programme in Jammu and Kashmir. While terminating the UN Commission for India and Pakistan (UNCIP), it appointed a UN Representative to observe, supervise, facilitate and report on the demilitarization process and, at an appropriate time, to arrange for the appointment of a Plebiscite Administrator.

The resolutions of 1951, No. 91 of 30 March 1951 and No. 96 of 10 November 1951, reiterated earlier steps taken and issued relevant operational directives to the UN Representative. Subsequent resolutions of 1952 and 1957 (No. 98 of 23 December 1952; No. 122 of 24 January 1957; No. 123 of 21 February 1952; and No. 126 of 2 December 1957) continued to work towards the goals, activities and objectives set out in earlier resolutions.

Indeed there are other India-Pakistan related resolutions of the Security Council. But, they all pertain to cessation of hostilities between the two nations during their armed conflicts of 1965 and 1971.

A Note on UN Resolutions

A review of the UN Charter will show that the powers of the UN Security Council are provisioned under Chapters VI and VII. While the former deals with “Pacific Resolution of Disputes”, the latter pertains to “Threats to Peace, Breaches of the Peace and Acts of Aggression.”

Resolutions of the Security Council adopted under Chapter VI are intended to be followed and implemented through negotiations and peaceful settlement between the conflicting parties.

In contrast, resolutions adopted under Chapter VII invest the Security Council with the power to make stringent demands that mandatorily require nations to comply with the terms set forth therein. This leaves no room to the party concerned to negotiate a mutual settlement.

Implications of Resolution 47

The Security Council in that Resolution recommended:-

“...to the Governments of India and Pakistan the following measures as those which in the opinion of the Council are appropriate to bring about a cessation of the fighting and to create proper conditions for a free and impartial plebiscite to decide whether the State of Jammu and Kashmir is to accede to India or Pakistan”.

The point to note here is that the resolution calling for a “free and impartial plebiscite” was only a “recommendation”, not either a demand or a direction mandating compliance.

More noteworthy though is the phrase “...to decide whether the State of Jammu and Kashmir is to accede to India or Pakistan.” This most certainly and unambiguously indicates that the ‘plebiscite’ envisaged was intended to determine the issue of 'accession' and that 'independence' of Jammu and Kashmir was not an option contemplated.

Indeed, voices in the valley and beyond, endorsing the inclusion of ‘independence’ as a third alternative to their demands of right to self-determination, need to necessarily rethink the matter.

The resolution goes on to recommend that the Government of India should institute a Plebiscite Administration body, with a nominee of the UN Secretary-General as Plebiscite Administrator, who would communicate directly with “....Commission of the Security Council...”, i.e., the UN Commission for India and Pakistan (UNCIP), which was constituted with (erstwhile) Czechoslovakia, Belgium, Colombia, Argentina and USA as its 5 members.

So then, after the termination of the UNCIP vide Resolution No. 80 of 14^th March 1950, this resolution, notwithstanding its recommendatory status, has lost much of its relevance.

Implications of Resolution 91

In Resolution No. 91, the Security Council took specific note of:

1. The resolution, adopted on 27^th October 1950 by the General Council of the ‘All Jammu and Kashmir National Conference’, recommending the “convening of a constituent assembly for the purpose of determining future shape and affiliations of the State of Jammu and Kashmir...”; and 
2. The fact that “...such a constituent assembly would be elected in only a part of the whole territory of Jammu and Kashmir.”

Hence, the Security Council affirmed:-

“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 might attempt to take to determine the future shape and affiliation of the entire State or any part thereof would not constitute a disposition of the State in accordance with the above principle (i.e., of the will of the people expressed through the democratic method of a free and impartial plebiscite...”

What then are the implications of this recommendatory resolution of the Security Council?

On one hand, it means that, in the eyes of the Security Council, the “Constitution of Jammu and Kashmir”, drafted and adopted by the Constituent Assembly of Jammu and Kashmir, is really not an expression of the will of the people of the State.

On the other hand, it also means that any such expression of the will of people will only be valid post a plebiscite to determine the will of the people of all of Jammu and Kashmir - i.e., inclusive of the parts of Jammu and Kashmir under Pakistani and Chinese occupation. Needless to say, such a plebiscite, for determining accession to either India or Pakistan (and not for adopting a Constitution of Jammu and Kashmir under the Instrument of Accession), can only be held after the restoration to India of all territories currently under Pakistani and Chinese control.

Locus Standi of Security Council

For determining the applicability of the Security Council resolutions, it has to be borne in mind that Jammu and Kashmir, at the time of its accession to India, was an independent, princely state, which had neither joined the United Nations (by signing the UN Charter) nor had approached the UN for any assistance with regards to the matter of its accession. Indeed, the accession of the State was the fallout of (a) the termination of British rule in the Indian subcontinent; and, (b) the negotiations preceding the partition of India and Pakistan.

Hence, it can be argued validly that the Security Council lacked the competence to reopen the question of accession of Jammu and Kashmir either at the instance of India or Pakistan. The only party which might have had a right, to demand a reconsideration of the issue of accession, was perhaps the Ruler of Jammu and Kashmir, who had signed the Instrument of Accession, or his successor in interest.

Further, it is apparent that only the question of “external aggression in Jammu and Kashmir” had been brought to the notice of the Security Council for resolution through negotiated settlement. Needless to say, the Security Council exceeded its terms of reference when it called for a plebiscite in Jammu and Kashmir. 

So then, the million-dollar question: Why did the Nehruvian government meekly accept the terms laid down in UN Resolution No. 47. Confounding, indeed!

Conclusions

In view of the foregoing arguments, it is clear that the UN Security Council had no legal competence to broach the issue of accession per se and to 'unusually', if not 'invalidly or unlawfully', call for a plebiscite. Besides, the resolutions of the UN Security Council were all adopted under Chapter VI of the UN Charter and hence were advisory in nature. Finally, India is under no obligation to abide by those resolutions, either in letter or spirit.

Thus, the demand for a plebiscite made by certain sections in Jammu and Kashmir (and rest of the world) suffers from infirmities, legal or otherwise. Regardless of the UN resolutions, any such referendum is untenable, ineffectual and inexpedient.

In this context, it must be said that any suggestion to the effect that Article 370 is the link that is holding Jammu and Kashmir and (Rest of) India together is downright ridiculous and worthy of the scorn it deserves!