India-Pakistan: Remembering January 5, 1949 – OpEd

The 5th of January commemorates the anniversary of Resolution 47 of the United Nations Security Council. This resolution sought to organise a referendum to provide the people of Kashmir with the option of joining either Pakistan or India.

Jammu and Kashmir came under British suzerainty in 1846 when the British East India Company sold the Valley of Kashmir to the Raja of Jammu, Gulab Singh, in exchange for his acceptance of British rule. 

When the British withdrew from the subcontinent in 1947, the Maharaja, against the wishes of the majority of Kashmiris, signed the dubious Instrument of Accession, thereby annexing Kashmir to India. Until now, the legality of the Instrument of Accession has been contested. Kashmir was a majority Muslim State. This would have ensured that joining Pakistan would have been the obvious option. 

Several Muslim freedom warriors, including the Pashtun tribes of Pakistan, marched towards Kashmir at the time of independence in an effort to reclaim Kashmir from India. The Maharaja’s forces, who were already preoccupied attempting to quell an anti-Maharaja, pro-Pakistan uprising, were completely unprepared to resist such an invasion. India refused assistance until Singh signed the Instrument of Accession in favour of India. 

Despite the forced nature of Singh’s signature and the fact that it ran counter to the pro-Pakistan or independence aspirations of many Kashmiris, India’s leadership was convinced that Singh’s accession gave India the legal and moral right to the Princely State. India was able to dispatch sufficient soldiers to halt the advance of pro-Pakistani forces on the Kashmiri capital of Srinagar and even reverse some of their territorial gains. However, India was unable to send sufficient troops into Kashmir to make a significant breakthrough before the onset of winter rendered further operations difficult. 

As the weather prevented further campaigning on either side, Nehru decided to ask the Security Council to mediate, assuming that the United Nations would force Pakistan to withdraw. Thus, on 1 January 1948, Nehru wrote a letter to the United Nations Security Council arguing that: Under Article 35 of the United Nations Charter, any member may bring to the Security Council’s attention any situation whose continuation is likely to threaten the maintenance of international peace and security. India and Pakistan are currently experiencing this circumstance. 

Pakistan wrote its own letter to the UN Security Council on January 15, 1948, dismissing India’s assertions, detailing its own position towards Kashmir, and voicing a number of other concerns about India’s behaviour.

On 20 January 1948, the United Nations Security Council voted Resolution 39, establishing the United Nations Commission for India and Pakistan, much to India’s displeasure. The UNCIP was tasked with investigating the facts on the ground, acting as a mediator between India and Pakistan, and resolving the dispute. 

Despite the Security Council’s attempts, combat activities resumed in February, with both sides engaging in hostilities. After a few months of study, the United Nations Security Council adopted Resolution 47 on 21 April 1948 in an effort to establish the fundamental criteria for ending the war. In essence, Resolution 47 demanded that Pakistan ensure the withdrawal of independence fighters, followed by an Indian troop withdrawal. The United Nations would then establish a temporary Plebiscite Administration in Kashmir, with the mandate to conduct a fair and impartial plebiscite on the topic of Kashmir’s accession to Pakistan or India.

Although India and Pakistan eventually agreed to a ceasefire and a Line of Control, which went into effect on 1 January 1949, the UNCIP was unable to broker a deal about the demilitarisation of Kashmir or the conduct of the plebiscite. India, for its part, maintained that Kashmir was legally a part of India due to the dubious Instrument of Accession. 

In its last report to the Security Council, delivered in December 1949, the UNCIP admitted its inability to arbitrate the disagreement between India and Pakistan or persuade them to demilitarise. Therefore, the Security Council agreed to designate a series of individuals with greater flexibility to arbitrate between India and Pakistan in an effort to clear the way for the referendum. The United Nations failed to nominate a new envoy for India and Pakistan in 1958, thereby abdicating responsibility for the situation. During both the 1965 and 1971 India-Pakistan wars, the Security Council merely voted resolutions calling for a truce, with no mention of the Kashmiri people or their right to self-determination.

In the 1970s, debates in the United Nations General Assembly and Security Council established the idea that only colonised peoples had an explicit right to self-determination. This position has prompted advocates of India’s position to emphasise that Kashmir is not a colony, and hence the arguments for Kashmiri self-determination are invalid. 

After the 1971 Indo-Pakistani War, the two nations signed the Simla Agreement in 1972 to define the Line of Control in Kashmir. India and Pakistan differ on UNMOGIP’s mandate in Kashmir, as India argues that the mandate of UNMOGIP has expired after the Simla agreement, as it was particularly established to observe a ceasefire per the Karachi Agreement. However, the secretary-general of the United Nations argued that the UNMOGIP should continue to operate because no resolution to dissolve it had been enacted. India has partially curtailed the activity of 45 unarmed UN monitors on the Indian side of the Line of Control, citing the expiration of the UNMOGIP mandate.

In recent years, the United Nations’ attention has once again shifted to IIOJ&K, due to human rights. The severe attitude of India to the Kashmiri freedom movement has alienated a large portion of the Kashmiri populace. On August 5, 2019, the hopes of Kashmiri self-determination were once again eliminated when the Bharatiya Janata Party government placed Kashmiri political leaders under house arrest, revoked the articles of the Indian Constitution that made Kashmir an autonomous Indian state, and separated Ladakh as an independent province. Pakistan angrily denounced India’s action and pledged to bring the matter before the United Nations Security Council and maybe the International Court of Justice. Pakistan eventually persuaded its covert partner China to convene an emergency closed-door session of the Security Council on August 16, 2019, marking the first time in decades that the Kashmir problem has been directly addressed by the United Nations body. 

In the end, the Council did not take any action, but rather advised both sides to desist from adopting unilateral actions that could exacerbate the situation. Despite India’s grave breaches of human rights, the Kashmir dispute has yet to receive a just response from the United Nations.

Author is PhD Scholar (SPIR-QAU). Currently she is working in Islamabad Policy Research Institution (IPRI) as Policy Researcher/Consultant. Her work has been published in local and International publications.