The Kashmir Dispute, as recorded in the UN documents, involves the principle of the right of self-determination, which
was basic both to the principle of Partition and the Charter of the United Nations. According to the 1970 Declaration of the
UN General Assembly, the term ‘self-determination’ means ‘the right of all peoples to freely determine their
political status.’ The Kashmir dispute basically involves three parties. Pakistan and India are the two main parties according
to the UN resolutions. The third are the Kashmiris, whose right of self-determination has been recognized in UN resolutions.
Pakistan and India, on their own cannot decide the future of the Kashmiris. The commitment to enable the Kashmiris to decide about their
future was not only made by India when it accepted the conditional so-called ‘Instrument of Accession’,
but was also explicitly admitted in India’s complaint before the UN Security Council in January 1948. The Indian Representative, in his letter to the President of the Security Council,
regarding the status of the State clarified that finally ‘its people would be free to decide their future by the recognized
democratic method of a plebiscite or referendum which, in order to ensure complete impartiality, might be held under international
auspices.’ Furthermore, the UN Security Council discussions led to the resolutions of August 13, 1948, and January
5, 1949,
which clearly laid down that ‘the question of the accession of the State of Jammu and Kashmir to India or Pakistan will be decided through the democratic
method of a free and impartial plebiscite.’
These UN resolutions are still valid, even though India has made many efforts to declare them ‘dead’,
particularly after the signing of the Simla Agreement on July 3, 1972. The Indian argument is based on Article (ii) of the
agreement, which states: ‘that the two countries are resolved to settle differences by peaceful means mutually agreed
upon between them.’ However, it may be noted that the said Article in no way implies that either party has agreed to
give up the UN option. In fact it follows Article (i) of the Simla agreement, which asserts the relevance of the UN principles
when it states: ‘that the principles and purposes of the Charter of the United Nations shall govern the relations between
the two countries.’ Moreover, this Indian claim has been refuted by various UN representatives who, on several occasions,
have clarified that, only a bilateral agreement, which solves the problem, would legally supersede the numerous existing UN
resolutions on that dispute. Also, in the absence of any fundamental change in the circumstances, the UN resolutions can become
invalid only when the UN Security Council declares them null and void. For example in 1956, the then UN Secretary General,
Dag Hammarskjold, had clearly stated that ‘the UN decision is valid until it has been invalidated by the organ which
took it.’ In April 1990, the UN Representative, Francis Guiliani, clarified: ‘a bilateral agreement, which solved
the problem, would supersede the resolution aimed at solving the issue. However, as long as the problem remained, the resolutions
would remain in effect regardless of when they were adopted.’ Thus, the manipulated elections to the Jammu and Kashmir State Assembly, often cited by India as the expression of the will of
the people of Kashmir, cannot replace the international
consensus which endorses impartial plebiscite under the UN auspices, as the means for ascertaining the wishes of the Kashmiris
regarding the future status of the State.
The Indian government again tried to use the election card to establish its legitimacy in Occupied Kashmir by holding
farcical elections in September/ October 2002. Commenting on the Indian government’s move to hold elections, the All
Parties Hurriyat Conference (APHC), said, ‘Elections provide no answers to the question of the people, which is that
the future of Kashmir is yet to be determined. Elections
did not provide anything in the past and cannot in the future either.’ Ruling out participation in the scheduled elections
APHC had said that elections should be held not for forming government but ‘to determine the future of Kashmir in keeping with the wishes of the people.’ APHC
has been stressing on holding trilateral talks, involving India, Pakistan and the Kashmiris, for resolving
the Kashmir dispute.
When in August 2002, India announced a four-phase schedule for the elections to the Occupied Jammu and Kashmir Assembly,
as part of its efforts to convince the APHC and other Kashmiri parties to participate in the elections, the BJP government
nominated the Kashmir Committee, headed by the former Law Minister, Ram Jethmalani to hold talks. The Indian Kashmir Committee
held two rounds of talks with Mr. Shabir Shah, leader of the Jammu and Kashmir Democratic Freedom Party and the APHC delegation.
APHC and Mr. Shah, however, rejected participation in the Scheduled Assembly polls. Here, it may be noted that the Indian
Kashmir Committee on September 8, in a joint statement at the end of the second round of talks, supported the Hurriyat Conference’s
demand to visit Pakistan for holding talks with Kashmiri leaders and the Pakistan government for finding a solution to the Kashmir imbroglio. However, on September 9, the Indian Prime
Minister, Atal Behari Vajpayee, denied that there was any proposal to allow the Ram Jethmalani-led Kashmir Committee to visit
Pakistan to hold talks with the Hurriyat leaders there. After elections a coalition government was formed. It is obvious that
this cannot be regarded as a true representative government of the Kashmiris, as none of the major Kashmiri political parties
participated in the elections.
More currently, implementation of UN resolutions in the case of East Timor is an important precedent. In the case of East Timor, the UNSC resolutions,
No. 384 and 389, passed in 1975 and in 1976 respectively, recognised the ‘inalienable right of the people of East Timor
to self-determination and independence in accordance with the principle of the charter of the UN’, and called upon Indonesia
to withdraw its forces from the territory and the government of Portugal to cooperate fully with the UN in implementing the
resolutions. Indonesia and Portugal, finally, agreed on May 5, 1999 to allow the UN to conduct a referendum for greater autonomy within Indonesia or independence. If the UN was able to finally fulfil
its commitment in case of East Timor, after twenty-three years, then why not in the case of Kashmir?
