At the conclusion of the Foreign
Secretary-level talks, the June 28 Indo-Pak joint statement reiterated
the two parties' "commitment to the principles and purposes of the Charter
of the United Nations, and their determination to implement the Simla Agreement
in letter and spirit." The BJP immediately expressed its serious concerns
over the joint statement and criticised the UN factor in it.
How far is such criticism justified?
Is the reference to UN and Simla agreement in the same sentence contradictory?
Let us analyse the technicality of both. On October 22, 1947, armed raiders
and Pakistani Army regulars invaded Kashmir under the command of Major-General
Akbar Khan. Fearing the worse, the Maharaja of Kashmir, Hari Singh signed
the Letter of Accession on October 26, 1947, and sought India's help. After
a month of fierce fighting India referred the case to the UN Security Council
(UNSC) on January 1, 1948 in the context of aggression by Pakistan.
In response, the UNSC passed the following resolutions. The first resolution of January 1, 1948, urged the two governments to take necessary measures to improve the situation. The second, of April 17, recommended the setting up of a five-member UN commission to place their good offices and mediation at the disposal of India and Pakistan. The third resolution of August 13 had three parts.
Part I called for a "ceasefire" to which India implemented from January 1, 1949. Part II made it incumbent upon Pakistani forces, both "regular" and "irregular", to withdraw from the occupied territory and urged India to reduce its troops strength in the area. Part III, the contentious of the three, talked about the determination of the future status of Jammu & Kashmir in accordance with the "will of the people". The resolution does not mention the term "referendum" or "plebiscite". It said that implementation of Part III would arise only after the Part I and II have been implemented.
In addition, the UN Commission on India and Pakistan assured to India that "the plebiscite proposal shall not be binding if Part I and II of the August 13 resolution were not implemented." The troops withdrawal from the "occupied territories" by Pakistan never took place. Can the resolutions be imposed? No. There is a clear distinction between the UN resolutions passed under Chapter VI and Chapter VII of the UN Charter. The resolutions on Kashmir were passed under Chapter VI, which means that they are non-binding recommendations.
They can only be implemented through mutual cooperation of the parties. In contrast, the resolutions passed under Chapter VII are binding, such as the ones passed on Iraq, Israel (recently) and East Timor. For this, the UNSC can take all necessary measures, including force, to ensure implementation.
No wonder when UN Secretary General Kofi Annan came to South Asia in March 2001, while replying to a question in Pakistan on the implementation of the UN resolutions on Kashmir, he said that it was like "comparing apples and oranges". He was referring to the distinction between Chapter VI and Chapter VI resolutions. He also said that since the resolutions on Kashmir were passed under Chapter VI, they couldn't be enforced. Member-states as per the UN Charter can help India and Pakistan create conditions in which a solution could be explored bilaterally. This is why Mr Annan considered it a bilateral issue and rather than a UN issue.
In this context, the Simla agreement becomes complementary to the UN resolutions. The first clause in the 1972 Simla agreement reads "the principles and purposes of the Charter of the United Nations shall govern the relations between the two countries". So, reference to "commitment to the UN Charter" in an Indo-Pak agreement or statement is not a new phenomenon. The Simla agreement above other commitments enshrines that "the countries are resolved to settle their differences by peaceful means through bilateral negotiations or by any other peaceful means mutually agreed upon between them". So where is the contradiction? The reference to the UN Charter in the Simla agreement has been made in the context of the Chapter VI resolutions. The Simla agreement lays down the guidelines for Indo-Pakistan conflict resolution mechanism, which is "bilateral"; and "through peaceful means".
In recent years, analysts in Pakistan have questioned its UN-centric Kashmir policy for the above reasons. President Musharraf's statement on resolving Kashmir by "setting aside the UN resolutions", shows Pakistan's eventual acceptance of the limited mandate that the UN resolutions on Kashmir have.
(The writer is Research Fellow,
IDSA)