05-Apr-19

Kashmir

Background Facts
Indian Independence Act of 8 July 1947 British
India was divided into the Dominion of Pakistan
(later Islamic Republic of Pakistan) and the
Union of India (later Republic of India). Both
were granted independence from the British
Empire in the night from 14–15 August 1947,
marking the end of British rule over India.
The Indian Independence Act also released 565
Princely States which had existed under indirect
British rule by various legal arrangements from
their obligations to the crown. These territories
comprised about 45 per cent of the former
British Indian Empire

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All Princely States were given the choice which of the two new States to join.
Theoretically they also had the option of independence.
Until Independence Day, in 1947, 562 of the 565 princes had signed instruments of
accession to one of the new States or standstill agreements with the State they intended
to accede to.
The fate of three States, however, remained uncertain. The Maharaja of Jammu
and Kashmir, the Nawab of Junagadh, and the Nizam of Hyderabad had not notified
their decisions.

On 12 August 1947 Maharaja Hari Singh sent telegrams to the future governments of
India and Pakistan, proposing standstill agreements valid from Independence Day.
Influx of Pathan warriors princely troops were unable to defend the State Hari
Singh called India for military assistance. The Government of India under the former
Viceroy Mountbatten, now governor-general of the Indian Union, promised immediate
support upon the condition that Jammu and Kashmir acceded to their State, as an
intervention of the Indian armed forces on foreign territory would have been
unconstitutional.
Maharaja signed the Instrument of Accession to India on 26 October 1947.

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A letter, written by Mountbatten to Gulab Singh on the very same day. In this letter
Mountbatten expressed his government’s wish to hold a referendum on Kashmir’s future
once it had been pacified.
Notwithstanding the validity of the accession, India committed herself to hold a
plebiscite among the population of the former Princely State to determine the fate
of Kashmir.
Mountbatten’s accompanying letter to the Maharajah was only the first promise
of a representative of India to this end.
Similar statements of, eg, Jawaharlal Nehru as Prime Minister contributed to
India’s legal obligation to the people of Kashmir to hold a referendum

United Nations Commission for India

and Pakistan
Called upon by India on 1 January 1948 under Art. 35 Charter of the United Nations
(‘UN Charter’), the Security Council passed its Resolution 39 on 20 January 1948 which
provided for the deployment of the United Nations Commission for India and Pakistan
(‘UNCIP’) to investigate the facts and mediate the disputes between the two States

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Mediation-Three steps for Settlement

Mediation led to two UNCIP resolutions which were accepted by both governments.
The Resolution of 13 August 1948 encompassed three steps for a settlement of the
conflict.
UNCIP envisaged a ceasefire controlled by UN observers as a first step (Part I).
The ceasefire should be followed by a truce agreement aimed at
the demilitarization of Kashmir (Part II).
Afterwards, the governments should enter into consultations with UNCIP and
determine fair and equitable conditions for a plebiscite on the future of the State (Part
III).

UNCIP elaborated a catalogue of ‘Basic Principles for a Plebiscite’ comprising more

detailed provisions for the third step proposed in the Resolution of 13 August 1948.
The catalogue provided for the establishment of a Plebiscite Administration led by a
nominee of the UN Secretary-General.
After both Pakistan and India agreed to the plan, UNCIP passed its Resolution of 5
January 1949 containing the Basic Principles for a Plebiscite.
The UNCIP resolutions were accepted by both States

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Karachi Agreement
27 July 1949 (‘Karachi Agreement’). Both States declared their acceptance of the line of
ceasefire as a preliminary line of demarcation. By this agreement Part I of the UNCIP
plan was largely accomplished.
After the termination of the UNCIP mandate, the UN Security Council by UNSC Res
91 of 14 March 1951 established the United Nations Military Observer Group in
India and Pakistan (‘UNMOGIP’).
Similar to UNCIP, UNMOGIP’s function was to observe and report, investigate
complaints of ceasefire violations, and submit its finding to each party and to the
Secretary-General of the UN.

UNMOGIP remains active in Kashmir to this day.

UN Representative to India and Pakistan

(‘UNRIP’)
Besides UNMOGIP, the UN Security Council appointed a UN Representative to India
and Pakistan (‘UNRIP’) to advance negotiations of a truce agreement. However, the
mediation efforts of the UNRIP failed. The main impediment was the question of the
demilitarization of Kashmir.

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Pakistan’s contention
Pakistan held that the accession of Jammu and Kashmir to India was null and void for four
reasons:
(1) The Maharajah had signed a standstill agreement with Pakistan in advance which debarred
him from stepping into any negotiation or agreement with India.
(2) The Instrument of Accession was agreed to under pressure and fraud and was therefore
invalid ab initio.
(3) The accession was agreed upon under the condition that a referendum would be held
in Kashmir as soon as order was restored in the territory. However, the Indian Constitutional
Act did not provide for conditional accession.
(4) Pakistan asserted the right of the Kashmiris to self-determination, alluding to the stipulation of
a plebiscite in UNSC Res 47 and respective promises of Indian heads of State.

India replied that the Instrument of Accession was valid under international law.
Maharajah’s competence had not been affected by the standstill agreement between Pakistan and
the Princely State because this accord was limited to administrative agreements with former
British India.
The Maharajah had not acted under pressure; he had asked a neighbour for assistance which
could constitutionally only be provided under the condition of prior accession.
Besides, the violence brought over Kashmir had not come out of the Kashmiri population but
through the influx of foreigners from Pakistan.
India further held that the question of religion was not relevant for the legal fate of the Princely
States as the partition by religious majorities only applied to the territories formerly under direct
British rule (British India).
In the course of the conflict India added the argument that the creation of the Indian State of
Jammu and Kashmir and subsequent elections had made this territory an integral part of India.
India responded to the Pakistani call for a plebiscite stating that Pakistan had not fulfilled the
preconditions, such as the complete pullout of Pakistani armed forces from the territory of the
former Princely State.
Unable to overcome the obstacles in the negotiations the UNRIP position was abolished in
1953.

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On 17 November 1956 the Constituent Assembly of Jammu and Kashmir adopted a

constitution for the Indian-held part of the territory (Constitution of Jammu
and Kashmir), ignoring the warning of the UN Security Council in UNSC Res 91 of
1951 that such a determination of the future shape and affiliation of Kashmir would
contravene the principle that this question be resolved by a plebiscite under the auspices
of the UN.
In the meantime, the People’s Republic of China began conducting military manoeuvres
in the almost uninhabited eastern parts of Kashmir.
In the subsequent Sino-Indian war of October 1962, China occupied a section north-
east of Ladakh, which came to be known as Aksai Chin. The Trans-Karakorum tract,
also of strategic importance, was ceded to China by Pakistan in 1963.

The southern and south-eastern sections form the

Indian State of Jammu and Kashmir, which is
inhabited by three-quarters of the disputed region’s
population.
Pakistan holds the northern and western sections
divided in three administrative areas: Azad
(‘Free’) Kashmir; Gilgit; and Baltistan.
The government of Azad Kashmir is led by a
president and a State council. Pakistan claims that it
respects its independence. However, the
government of Azad Kashmir is overseen by
Pakistan’s Ministry of Kashmir Affairs.
The areas of Gilgit and Baltistan are de
facto administered by the Pakistani Government.
China controls the Aksai Chin and the Trans-
Karakorum Tract.

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Kutch issue
In December 1971, the Indo-Pakistani war over secessionist Bangladesh brought about
new fighting along the ceasefire line in Kashmir
Both countries stipulated in the Simla Agreement of 2 July 1972 that they would
respect the ceasefire and to settle all issues by peaceful means through bilateral
negotiations (https://treaties.un.org/doc/Publication/UNTS/Volume%20858/volume-
858-I-12308-English.pdf)
The UN is not assigned any active role in the settlement of the disputes between the
countries. The Simla Agreement does not refer to any other UN documents than the
UN Charter.

In the aftermath India denounced any Pakistani attempt to address the Kashmir issue
on the international level as a breach of the Simla Agreement.
With regard to the UNMOGIP mandate the Secretary-General took the position that
this mission could be terminated only by a decision of the Security Council.
The military authorities of Pakistan continued to present complaints about ceasefire
violations to UNMOGIP. The military authorities of India have not brought forward
any complaints since January 1972. They have restricted their support to UNMOGIP to
providing accommodation, transport, and other facilities.
In 1975, India granted Kashmir a special status under Art. 370 Constitution of the
Republic of India. Among other concessions, the legislative power of the federation was
limited in accordance with the Instrument of Accession.

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The Right to Self-Determination

The population of the former Princely State of Jammu and Kashmir is entitled to freely
determine its political status. (?)
Its right to self-determination mainly results from India’s and Pakistan’s acceptance of
the UNCIP resolutions of 21 April and 13 August 1948 and the explicit confirmation of
this right by representatives of both countries. India is also bound by Art. 1 (1)
International Covenant on Civil and Political Rights, reconfirming the right of all
peoples to self-determination since its ratification of this treaty in 1979.

Whether all citizens of the former Princely State and their descendants bear the right to
self-determination, or only the ethnic and cultural groups which define themselves as
Kashmiris. Other groups presumably redefined themselves as Indians or Pakistanis.
However, the developments over the decades since the dissolution of British India must
be taken into consideration in the assessment of the contemporary legal situation.
The concrete terms of a plebiscite are not predefined but the right to self-determination
requires that the population of the different parts of Kashmir can freely choose
between their accession to either Pakistan or India, or independence. Moreover, the right
to self-determination does not preclude approaches other than a plebiscite to solve
the Kashmir dispute.