Recent decision of the Indian government to ask United Nations Military Observer Group in India and Pakistan (UNMOGIP) to vacate its office in New Delhi has evoked severe criticism. “Closing down the UN observers’ office in New Delhi is a glaring example of growing arrogance and fascism in the behaviour and attitude of Indian rulers,” said Muhammad Yasin Malik, Jammu Kashmir Liberation Front (JKLF) Chairman. Another prominent Kashmiri leader Shabir Shah commented: “The solution to Kashmir issue lies in implementation of the UN Resolutions and not by vacating the UN office.” Pakistan’s foreign office spokesperson said: “As long as the Kashmir dispute is not resolved, the UNSC mandate remains. These measures are inconsequential and they do not have any impact on the legal status of the dispute.”
Pakistan considers Kashmir as an unfinished agenda of the partition; and refuses to accept the illicit accession of the state of Jammu and Kashmir to India. For Pakistan UNMOGIP has a legal and symbolic value with regard to the disputed status of Kashmir.
As of May 2014, UNMOGIP has 40 military observers, 23 international civilian personnel and 45 local civilian staff. The observer group is financed by the regular UN budget and appropriations for biennium 2014-2015 are US$ 19.64 million. India has asked the UNMOGIP to vacate the government bungalow to “rationalize” the presence of the group which Indian government says has “outlived its relevance”. Asserting that it has been India’s “consistent and long-standing view that UNMOGIP has outlived its mandate”, Spokesperson in the External Affairs Ministry Syed Akbaruddin said they have “monetized” various facilities extended to the organisation. Officials further said the UN organisation was free to take any private property on rent.
In October 1947, India illegally occupied the princely state of Jammu and Kashmir by landing its forces under the cover of a dubious accession letter purportedly signed by the Maharaja of Jammu and Kashmir. Indian Army offensive was brought to halt by a UN-backed ceasefire on the night of Jan 1- 2, 1949. Earlier on Jan 1, 1948 India had moved the issue to the UNO. UNSC through its resolution 37(1948) decided to appoint a commission for monitoring the conflict in Kashmir. Accordingly, United Nations Commission for India and Pakistan (UNCIP) was set up. Thereafter, UNSC passed another resolution 47(1948), calling for demilitarization and holding of a plebiscite. The first group of unarmed military observers, which eventually formed the nucleus of UNMOGIP, arrived in the area on Jan 1, 1949 to supervise the ceasefire between India and Pakistan. Subsequently, the Karachi Agreement was signed between India and Pakistan on July 27, 1949 that established a ceasefire line (CFL) to be supervised by the UN military observers. Following this agreement, the mandate of UNCIP was terminated and UNSC [resolution 91(1951)] decided that UNMOGIP would supervise the CFL in Jammu and Kashmir.
After the Simla Agreement, acronym CFL was replaced with LoC (Line of Control)). India thereafter informed UNSC about non-utility of UNMOGIP and requested to wind it up. Ever since India’s contention remains that CFL no more exists and has been replaced by the LoC. Hence, UNMOGIP has no role to play. India, thereafter, did not report any violations of the ceasefire to the UNMOGIP. Pakistan, however, continues to lodge complaints with UNMOGIP.
There are numerous issues in the IHK like: blatant and continuous violations of International Humanitarian Law; highhandedness of Indian occupation forces which have highest solider to ground ratio in the world; Indian pursuit to change the demographic outlook through Israel style settlements to facilitate Hindu settlers; Indian plans for construction of Berlin style wall to divide the people of IHK and Azad Kashmir etc.
After nuclear tests by the two countries, the UNSC through its resolution 1172(1998) once again accepted Pakistan’s stand regarding “all” outstanding issues between India and Pakistan and urged the need to resolve disputes through mutual dialogue. Hence, in the context of Kashmir dispute, there is need for continued presence of UNMOGIP. United Nations also maintains that UNMOGIP will continue to function as no UNSC resolution has been passed to terminate it.
Kashmir is a disputed territory and cannot be annexed to India under coercive strategy. Kashmir is on the UN agenda and UNSC resolutions on Kashmir are still relevant and so is the case with UNMOGIP which is playing a very important role in marinating peace and order in Kashmir. Indian argument that role of UNMOGIP has become irrelevant after signing of Simla Agreement is quite illogical and has been criticized by UNSG and other entities. Given the disagreement between India and Pakistan about UNMOGIP’s mandate and functions, the Secretary-General’s position has been that UNMOGIP can only be terminated by a decision of the Security Council. In the absence of such a decision, UNMOGIP has been maintained with its mandate.
“Kashmiri people are not the party to the Simla Agreement therefore they are neither bound by such agreements and nor has this agreement impacted the international status of Kashmir dispute,” said the spokesman of Hurriyat Conference. The spokesman said India itself took this dispute to the UNO and this biggest institution of the world not only justified the struggle of the Kashmiri nation but it also recommended the right to self-determination for the people of Kashmir. “UNO passed 18 resolutions regarding Kashmir and both India and Pakistan are signatory to these resolutions. The order of the government to vacate the office premises of UNMOGIP is equal to running away from the reality,” he said.
Simla Agreement states that: “…That the principles and purposes of the Charter of the United Nations shall govern the relations between the two countries; that the two countries are resolved to settle their differences by peaceful means through bilateral negotiations or by any other peaceful means mutually agreed upon between them. Pending the final settlement of any of the problems between the two countries, neither side shall unilaterally alter the situation and both shall prevent the organization, assistance or encouragement of any acts detrimental to the maintenance of peace and harmonious relations…That in accordance with the Charter of the United Nations, they will refrain from the threat or use of force against the territorial integrity or political independence of each other”. In order to initiate the process of the establishment of durable peace, both the governments agree that: “In Jammu and Kashmir, the line of control resulting from the ceasefire of December 17, 1971, shall be respected by both sides without prejudice to the recognized position of either side. Neither side shall seek to alter it unilaterally, irrespective of mutual differences and legal interpretations. Both sides further undertake to refrain from the threat or the use of force in violation of this line”.
Excerpts from the text of Simla Agreement indicate that the entire agreement has been worked out within the framework of the UN charter and has no reference with regard to making the UN resolutions on Kashmir ineffective. Moreover, under the international norms, for any issue which is already seized upon by the UN, there can be no agreement between the parties to the dispute which runs contrary to the spirit of UN stance on the matter. And as per the UN standing on the subject, Kashmir is a disputed territory and its future is to be determined through a plebiscite.
Indian gimmicks to belittle the UN mandate through superficial actions or annexation of IHK to India through revocation of Article 370 would not alter the reality. To resolve the issue, India should appoint the Plebiscite Administrator in consultation with the UNSG and conduct the plebiscite in line with resolution 47(1948), which is the only UN specified and mutually accepted route towards resolving the Kashmir dispute.
The Nation, July 27, 2014
Disclaimer: Views expressed are of the writer and are not necessarily reflective of IPRI policy.