Need to Pursue Arbitration Clause on Kashmir

Dr. Syed Nazir Gilani

:A debate around Kashmir in India, in Pakistan and Kashmiri circles has never abated. If we had invoked the arbitration clause, India had no exit ramp. It is generally said that UN Security Council Resolutions are under Chapter VI and therefore are only recommendations. This is not true. Article 1 (2) of UN Charter on “equality of people and right of self-determination” and the jurisprudence of investigation of the Kashmir situation by UNCIP, its reports, reports by UN representative for India and Pakistan and debates at the UN Security Council, perfects the interpretation in our favour.

Kashmir case involves, “international peace and security” and at the same time “equality of people and right of self-determination”, of the people. The two components do not stay in Chapter VI, but cross over into Chapter VII and other chapters as well.

To break the logjam over demilitarization Pakistan proposed the introduction of “United Nations force”. At the 761st meeting of the UN Security Council held on 16 January 1957, Pakistan said that to break the logjam over demilitarization a “United Nations force might be temporarily introduced into Kashmir”. The proposal was taken up by the Security Council at its 768th meeting on 15 February 1957, and the Resolution S/3787 of 14 February 1957, moved by Australia, Cuba, United Kingdom and Northern Ireland and United States of America.

Pakistan’s proposal received a strong support from Philippines at the 773rd meeting of UN Security Council held on 20 February 1957. Mr. Romulo the representative of Philippines said, “I must emphasize that sovereignty of India or of Pakistan is not involved in the proposal to send a United Nations force into the State of Jammu and Kashmir for a temporary and limited purpose. In the view of both the Council and the Commission, neither India nor Pakistan can bring into question the sovereignty of the State of Jammu and Kashmir…Under the circumstances and pending the holding of a plebiscite, neither India nor Pakistan can claim sovereignty over the State of Jammu and Kashmir”.

The first and the last time, Government of Azad Kashmir, ever wrote to UN was on 8 July 1948, when President of Azad Kashmir Sardar Ibrahim Khan, addressed a demarche to the chairman of UNCIP. Earlier Sheikh Abdullah, addressed the UN Security Council on 5 February 1948. Kashmiris did not bother to consider the consequences of not raising the Kashmir case at the UN from November 1965 to August 1996, for about 31 years. We paid for this neglect. Kashmir case lost its regularity on the UN Security Council agenda. It does not return on the UN Security Council agenda as regular item from August 1996 but is reinstated on a provisional basis, through an annual application of a member state. Pakistan however, has been very careful and cautious in supervising the process.

The present advocacy on Kashmir conducted by Pakistani and Kashmiri leadership is a hotchpotch. It is a mutton stew with mixed vegetables, which we serve in the British Parliament, European Parliament, at our meetings and various forums. United States of America has been very clear that any bilateral engagement between India and Pakistan should be consistent with the principles of UN Charter. The bilateral process is not indeterminate and in case of a failure, it needs a referral to UN Security Council under article 103 of the Charter.

United States of America defined the mission of United Nations Representative, as two fold.First he will effect demilitarization in the State of Jammu and Kashmir on the basis of the international agreement embodied in the 13 August 1948 and 5 January 1949 resolutions of the United Nations Commission for India and Pakistan [S/1100, S/1196]. United States of America pointed out, “While previous efforts to bring- about agreement between the parties on the demilitarization provisions of these resolutions made by the United Nations Commission, by General McNaughton and Sir Owen Dixon have not been successful, they have undeniably made progress toward the desired end. The area of disagreement has been narrowed and we have, thanks to them, a fairly clear picture of what these disagreements are.”

We have overlooked a guidance that Brazil and United States of America have introduced in the use of arbitration. United States of America has said, “If, however, these efforts should fail of their purpose, the United Nations Representative would embark on the second phase of his mission. He would return to this Council and report to it those points of difference between the parties, in regard to the interpretation and execution of the agreed resolutions of 13 August 1948 and 5 January 1949, which he considers must be resolved to enable demilitarization to be effected. The arbitration clause of the present resolution would then become operative, and the United States most earnestly urges that the parties accept the arbitration procedure as a final step to concluding a peaceful settlement of this problem, which holds so much danger for the peace, prosperity and stability of the great subcontinent.”

Arbitration clause on Kashmir reads, “Calls upon the parties, in the event of their discussions with the United Nations Representative failing in his opinion to result in full agreement, to accept arbitration upon all outstanding points of difference, such arbitration to be carried out by an arbitrator, or a panel of arbitrators, to be appointed by the International Court of Justice in consultation with the parties;” Kashmir case is neither a recommendation nor any difficult. A mechanism is agreed upon. We need a will and a reliable knowledge of the case.

Dr. Syed Nazir Gilani is President of London based NGO JKCHR.