April 22, 2024

Kashmir issue: A legal perspective; UN Resolution

Pandit Jawaharlal Nehru addressed his nation and said: “the future of the state would be decided in accordance with the wishes of the people ascertained through a referendum held under the auspices of the UN.”

India and Pakistan were partitioned in 1947. Kashmir was split as well, with two-third going to India and third going to Pakistan, even though India’s share was predominantly Muslim. When the British left India in 1947, on the basis of plebiscite as well as religious line, thousand of people lost their lives and twelve million people fled from one area to another area.

According to the Indian Independence Act 1947, the princely states were free to join India or Pakistan or remain independent. Kashmir was one of these princely states with a majority of the Muslim population. Due to the autocratic rule of Maharaja, the situation became worse and uprising started in Muslim majority areas of Kashmir specially in Poonch due to the socioeconomic differences. When tribesman from NWFP entered in Jammu & Kashmir in October 1947 and joined freedom fighters.

Maharaja Hari Singh faced a revolt from the Muslim majority and requested India for armed assistance. India claimed that Hari Singh signed an Instrument of Accession. Pakistan refused to accept the accession. When war broke out among India and Pakistan. The Indian Government announced that after the restoration of law and order the issue will be resolved on the wishes of people.

Pandit Jawaharlal Nehru addressed his nation and said: “the future of the state would be decided in accordance with the wishes of the people ascertained through a referendum held under the auspices of the UN.” In 1948 United Nation Security Council decided that the issue of Kashmir’s future should be determined by a free and fair referendum and asked India and Pakistan to remove their forces.

There are over twenty-five United Nation Resolution calling for the solution of the Kashmir conflict. The United Nation Resolutions allowing self-determination for the people of Jammu and Kashmir remain absolutely valid and provide a basis for the settlement of the lingering dispute. The UN can enforce its decision on under Chapter VII of the UN Charter remain legally binding on the parties. Article 25 also reiterates its obligatory nature.

The Security Council under the UN Charter has the powers to enforce its decisions and resolutions militarily or by any other means necessary. United Nation should enforce India to withdraw its army from Kashmir and the international community especially the United Nation should not ignore this threat to international peace. The United Nation should hold a referendum to decide the future of Kashmir. The people of Kashmir are waiting for their right of self-determination promised by United Nation.

Because all the people have a right of self-determination that is contained in Article 1 of International Covenant on Civil and Political Right and Article 1 of the International Covenant on Economic, social and Cultural Rights. The concept of self -determination provides that the people may determine their political status freely and according to international law self-determination is the people’s right to freely decide their political, cultural, economical and social status.

The International Covenant on Civil and Political Right ICCPR also prohibits torture and another form of cruel inhuman and degrading treatment. Article IV and VII of the ICCPR also ban torture even in the time of emergency or when the security of the state is threatened. The

International Court of Justice also refers to the right of self-determination, as the right held by the people rather than a right by government alone.
But India is continuously violating human rights and International law. India has never implemented the resolution of the United Nations. Instead, India has maintained violating international law. Human right violation is the part of the campaign of the Indian Army against Muslim Kashmiris. The Muslim Majority population in Kashmir Valley suffer from the repressive tactics of the security forces.

The Indian Army targets leaders and young students in particular by imposing strict sanctions. Indian Army used different tactics to suppress Kashmiri peoples. Recently Indian Government revoked Article 370 and A35 in which Jammu and Kashmir were given special status and broke the promise of the referendum made by Nehru. Indian Government revoked this autonomy without involving the people of Jammu and Kashmir. It is totally against International law, and the international community is still silent.

The international community must realize that peace and stability in South Asia can only be possible if the Kashmir issue is resolved because India and Pakistan both are a nuclear power and it is a threat to international peace and stability. If war breaks out once among India and Pakistan, then the whole region will effect due to the consequences of war.

This is an international issue. So the only solution of Kashmir issue is the right to self-determination which should be given to Kashmiris to provide them with the right decision to whom they want to accede. And both India and Pakistan should be legally bound to accept the outcomes of the referendum. The referendum with the free consent of locals of Kashmir under the UN charter is the only solution to the issue by which the issue of Kashmir could be resolved.

UN under the organ-like Trusteeship Council has to take charge of both parts of Kashmir under her custody, and the troops of Pakistan and India along with other agencies should cease to play any role in the politics of both territories and then the people of Kashmir are asked to decide whether want to enjoy a sovereign and independent status, or they want to join India or Pakistan.

Only this solution can stop the mass killing and widespread human rights violation. War and cross-firing is the cause of destruction, unemployment and poverty.


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