Dr. Syed Nazir Gilani – London
India as democratic, secular and plural State, could convince and impress any constituency, to the extent that sins committed against the people of Kashmir, in particular the Muslims, were overlooked. Very few people outside India would find time to take account of the plight of Indian minorities and the growing influence of radical Hindus. Bhimrao Ramji Ambedkaralso known as Babasaheb Ambedka, author of Indian constitution felt uncomfortable and along with many thousands of his lower caste Hindus at the end had to renounce Hinduism and convert to Buddhism. The constitution of India could not keep its promise of equality to its author either.
The radical India has decided to pack all the principles and guarantees given in Indian constitution and has decided to take Indian Muslims head on for a fight and keeps the Muslims in the valley of Kashmir under lock and key from 05 August 2019. The lock down has passed 176 days. However, history tells us that occupation and oppression have a sell-by-date.
It is important to point out that at the 230th Meeting of UN Security Council on 20 January 1948, presided over by Belgium India has conceded that Kashmir is a Core issue. Indian representative Mr. GOPALASWAMI AYYANGAR said “We hope to be able to convince the Security Council that once we have dealt with· the Kashmir question, there will probably not be anything of substance which will divide India and Pakistan to the extent of endangering international peace and security”.
India has waged a war against the people of Jammu and Kashmir, against its obligations and the Charter of the United Nations. Kashmir was a concern at the UN Security Council in August 2019 and in January 2020. It is misdirected understanding of UN Jurisprudence of Kashmir case, that it is a territorial or a bilateral dispute between India and Pakistan.
A national newspaper has very rightly said in its editorial on 25 January that “The UN needs to understand that Kashmir is as much a political dispute as it is a legal one.” We need to address the four components of Kashmir case, namely, “Rights and Dignity” and “Security and Self-Determination”, individually and simultaneously.
We have to admit that the new generation of diplomats all over the world would not be up to date on the jurisprudence of Kashmir case, for a variety of reasons. Unless the matters is actively debated at the UN Security Council or at other forums, diplomats do not have enough time to research into a case. Out of the 72 years, Kashmir has not featured at the UN Security Council for about 54 years. Therefore, the new generation of diplomats had no reason to keep themselves abreast on Kashmir in general and in particular on the stand that their respective country had taken at the UN Security Council, during the debates.
The gap in the understanding of Kashmir case by the new generation of diplomats could be easily understood by the statement made by Ambassador of France Mr. Marc Baréty, at National University of Science and Technology (NUST) during a question answer session. He has said, “We are mindful of the situation in occupied Kashmir and our head of states have conveyed their concerns to Prime Minister Narendra Modi. You cannot expect the international community to solve your territorial dispute however the thing which is direly needed from both sides is strong political will.”
The diplomat is not to be blamed for this gap in the stand of his country at the UN Security Council and his own understanding today. We should have remained around, all these years perfecting our narrative on Kashmir. We did not and the gaps have appeared. We welcome the interest of France on the situation in Indian occupied Kashmir but the remainder part of the statement is far remote from the continued position taken by France at the UN Security Council, during debates on Kashmir question.
Kashmir is not a bilateral territorial dispute as stated by the Ambassador. It is contrary to the position taken by France at the “539th meeting of the UN Security Council held on 30 March 1951. French position has remained that, “Resolutions of 13 August 1948 and 5 January 1949, to which we must always return because they won the express agreement of both India and Pakistan. If the parties are unable to reach agreement on the plan submitted to them, provision is made for arbitration, and, to make assurance doubly sure, arbitration is to be carried out b by an arbitrator or panel of arbitrators appointed not by a political body but by the President of the International Court of Justice.”
France should not only honour her commitments made at the UN Security Council but also highlight the “positive duty” of the Security Council, pointed out in respect of Jammu and Kashmir Situation in February 1957. United States of America was the first UN Security Council member to address the question of a “Positive Duty of the Security Council”. United States of America at the 768th meeting of the UN Security Council held on 15 February 1957 pointed out that Security Council had a ‘positive duty’ and “unless the parties are able to agreeupon some other solution, the solution which was recommended by the Security Council should prevail.” Let us remain around, so that gaps do not intervene.
Bilateral engagement is a component in article 33 of UN Charter, but it would be article 103 that would restrain infinite futile engagement and failure in the bilateral dialogue. The Document III submitted by Pakistan on 15 January 1948, to the UN Security Council, containing Particulars of Pakistan’s Case has admitted that “They have already unsuccessfully tried over a period of many months to seek a solution of the disputes between the two Dominions by the methods described in Article 33 of the Charter.”
There is a peculiar feature of the Kashmir dispute.It was at the 765th meeting of the UN Security Council held on 24 January 1957 that China highlighted the peculiar feature, that is, agreement between India and Pakistan, on the Kashmir Dispute before coming to UN Security Council. The peculiar feature has remained undisputed. China has said:
“”Para 68. This dispute has another peculiar feature. From the very beginning, the Council began with an agreement between two parties. In fact, before the two parties directly concerned ever appeared before the Council, the two parties agreed that the plebiscite should be the answer. What did the Council do? The Council tried to build a solution on this prior agreement that the two parties had before they came to this Council. So the idea of a plebiscite was not imposed by the Council on the two parties.”
Even the bilateral agreement has to be just and consistent with the principles of UN Charter. Bilateral engagement has failed in 1948 and the two countries had to petition the UN Security Council. Bilateral engagement could not be infinite. Article 103 of UN Charter has to intervene and prevail.
The author is President of London based Jammu and Kashmir Council for Human Rights – NGO in Special Consultative Status with the United Nations.
