Published On: Mon, Sep 25th, 2017

Pakistan and India at the UN GeneralAssembly – Kashmiri point of view

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Dr. Syed Nazir Gilani

nazir-gilaniPakistan spoke at the 72nd session of UN General Assembly on 21 September and India on 23 September 2017. In between the two statements both countries exercised their respective rights of reply. His Excellency Shahid Khaqan Abbasi Prime Minister of Pakistan in his 2263 words statement made at the 72nd session of UN General Assembly yesterday, devoted 501 words to advocate the case of the people of Jammu and Kashmir.
Prime Minister of Pakistan told the story of Kashmir in an exceptionally convincing manner. The narrative was improved and direct as compared to the one used at the 70th and 71st session in 2015 and 2016. The story telling was important because he was addressing the world and in particular every Indian citizen would have tuned in to listen. Common Indian needs to know, that all is not well in Kashmir.
Pakistan made a reference to the legitimate struggle for self-determination of the people of Jammu and Kashmir and laid out an itemised charge sheet against India. The most sensitive and grave items in the charge sheet were use of rape as a state policy, war crimes and violation of Geneva conventions. Pakistan called for an international investigation into India’s crimes in Occupied Kashmir. It proposed that United Nations Secretary-General and the High Commissioner for Human Rights send an inquiry Commission to Occupied Kashmir to verify the nature and extent of India’s human rights violations, secure the punishment of those responsible, and provide justice and relief to the victims.
Pakistan demanded that UN Secretary-General should appoint a Special Envoy on Jammu and Kashmir. His mandate should flow from the longstanding but unimplemented resolutions of the Security Council. There was a demand of a comprehensive dialogue with India to address all outstanding issues, especially Jammu and Kashmir. Those in the Foreign Office and others who remain responsible for the content of the Statement could have consulted the Kashmiris living in Azad Kashmir, Pakistan and the Diaspora and looked for a more authoritative phrase. The victims phrase is missing in the statement.
The right of reply used by Eenam Gambhir, First Secretary in the Permanent Mission of India to the United Nations in New York, confirms that authors of the Statement made by Shahid Khaqan Abbasi Prime Minister of Pakistan of Pakistan, have not used the opportunity to include the right phrases that could flag the constituency of the tragedy and leave a lasting impact on the world community.
People around the world, in India and in Pakistan would have started examining the merits of the speeches made by Pakistan and India at the UN General Assembly. However, the people of the State of Jammu and Kashmir have a special reason to examine the two speeches. Prime Minister of Pakistan genuinely attempted to charge sheet India for her wrongs in Kashmir and devoted 501 words to various items present in the charge sheet. The speech is an improvement on the previous two speeches made at the 70th and 71st session of the General Assembly.
Pakistan’s statement lacked the strength of an equivalent and appropriate phrase. The death of a generation in Kashmir, wrong done to the habitat and people, a society of half-widows, profiling of Kashmiri youth, use of mercenaries, failure of bilateral engagement and the role of United Nations, role of Indian army under the bilateral agreement and restraints under UN resolutions and engagement of army with a civilian population were the important phrases, that could have been used in the speech. The narrative backed by an appropriate defining phrase, would have made Indian desk very uncomfortable and the listeners in India, sympathetic towards the sufferings of the men, women and children in Kashmir.
This is the second time that Foreign Minister Sushma Swaraj addressed the UN General Assembly. Authors of Sushma Swaraj’s speech seemed to have worked very hard on the content. At the 71st session in 2016 she said, “My firm advice to Pakistan is: abandon this dream. Let me state unequivocally that Jammu and Kashmir is an integral part of India and will always remain so.” This time at the 72nd session of General Assembly Foreign Minister of India said, “Prime Minister Abbasi has recalled old resolutions that have been long overtaken by events. But his memory has conveniently failed him where it matters. He has forgotten that under the Shimla Agreement and the Lahore Declaration India and Pakistan resolved that they would settle all outstanding issues bilaterally. The reality is that Pakistan’s politicians remember everything, manipulate memory into a convenience. They are masters at “forgetting” facts that destroy their version.”
Foreign Minister Sushma Swaraj’s speech made at UN General Assembly has many areas that need to be looked into. In particular, India decided to go all out and attacked Pakistan with no holds barred. The choice of phrase and citation needs a thorough examination. Indian desk or Delhi may have found some comfort in the manner of their counter attack but her argument on Kashmir is hollow and has no merit.
Sushma Swaraj’s argument that events have overtaken the UN Resolutions and ‘under the Shimla Agreement and the Lahore Declaration India and Pakistan resolved that they would settle all outstanding issues bilaterally”, is one legged walk and has no merit. India has an agreement with the people of Jammu and Kashmir confirming that, “as soon as law and order have been restored in Kashmir and the soil cleared of the invader the question of the State’s accession should be settled by a reference to the people.”
India has entered into a written agreement with the Government of Jammu and Kashmir on 27 October 1947, before it decided to surrender the accession agreement at the UN on 01 January 1948, for a UN supervised vote. Ever since January 1948, two administrations of Jammu and Kashmir, fall on the Pakistani side of the cease fire line. Therefore, Sushma Swarajde jure does not qualify to speak on behalf of all the people of Jammu and Kashmir. The decency of the argument requires to accept that if Sheikh Abdullah had not spoken in favour of the presence of Indian security forces in Kashmir and if he had not held out a good reference in their favour, their presence would have been regarded as an occupation because Pakistan had entered into a Stand Still Agreement with the Government of Jammu and Kashmir on 15 August 1947.
Pakistan represents a strong constituency in Jammu and Kashmir and an overwhelming majority in Azad Kashmir and Gilgit and Baltistan. India does not have any constituency in Azad Kashmir and Gilgit and Baltistan. It is working hard to cultivate a constituency in the Kashmiri Diaspora but it will always be aRag, Tag and Bobtail and would never prevail. Indian address at the General Assembly was a tit for tat or an effort to duck behind weaknesses of Pakistan. She did not address the five Kashmiris living at Srinagar, Muzaffarabad, Gilgit, 2.5 refugees living in various parts of Pakistan and the Kashmiri Diaspora.
Sushma Swarajmay have a point to remind Pakistan aboutthe Shimla Agreement and the Lahore Declaration.Intra State agreements are always welcome instruments to settle disputes. But these could not override the international agreement agreed by India and Pakistan on Kashmir. UN Resolutions, provide for a bilateral engagement. But any agreement reached in regard to Jammu and Kashmir has to be just and consistent with UN Charter.
Indian defence of flagging the two agreements as a substitute for UN Resolutions is without merit. India and Pakistan have been engaging in a bilateral dialogue for the last 69 years. UN Resolutions do not permit for an indeterminate bilateral engagement. If the two countries fail to settle the dispute, the matter has to be addressed by the United Nations. It is most likely, that the Security Council might make a reference to International Court of Justice for an opinion.
Security Council before referringthe question of a failed bilateral engagement or the question of non-compliance of UN Security Council resolutions to the ICJ, has an option to determine the merits of Shimla Agreement and the Lahore Declaration under article 103 of UN Charter. It states, “In the event of a conflict between the obligations of the Members of the United Nations under the present Charter and their obligations under any other international agreement, their obligations under the present Charter shall prevail.”
A common Kashmiri would like to see that the two countries reach a just settlement consistent with UN Charter (UN SC Resolutions) on their title to self-determination. However, it would not be agreeable that the UN mechanism on Kashmir is held hostage to the two open ended bilateral agreements. Sushma Swaraj’s reference to Shimla Agreement and the Lahore Declaration at the General Assembly has no merit. India could not claim to be representing all the five people of the State of Jammu and Kashmir. She is faced with an ongoing unrest in the part on its side of the cease fire line. It has resulted into the death of a generation.
An unwilling people could not be controlled by the use of any force. Government of India needs to be extremely cautious, that its armies are in the State under a bilateral arrangement and have also been placed under a UN Security Council discipline. These forces are a supplement admitted in aid of the State forces and remain sub-ordinate to the State administration.
Pakistan has flagged the question of war crimes and violation of Geneva Conventions in its statement at the UN General Assembly. There are strong voices and claims of human rights abuses committed by these forces. It accrues a criminal and civil liability. Indian Government cannot deny that a Kashmiri leader has bailed out Government of India in February 1948 at the UN Security Council. After 69 years of wait, Sushma Swaraj is in no position to duck behind two bilateral agreements with Pakistan and dignify the status quo in Kashmir. Pakistan is in dispute with India, while as the people of Jammu and Kashmir, are contesting their title to self-determination. Therefore, Indian narrative would not be strong enough to overcome a ‘dispute’ and a ‘title’.
The author is the President of JKCHR – NGO in Special Consultative Status with the United Nations. He is on UN Register as an Expert in Peace Keeping, Humanitarian Operations and Election Monitoring Missions. Author could be reached at dr-nazirgilani@jkchr.com

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