By Engr. Bilal Awaisi.
Kashmir dispute dates back to birth of both Pakistan and India. Kashmir was one of the princely states situated in sub-continent. It had Muslim majority, but the ruler was Non-Muslim. The people of Jammu and Kashmir, perceiving that Maharaja would join India, started pre-emptive protests. Opposition against the oppressive ruler heightened and took physical form. The people of tribal areas moved to Kashmir to help their Muslim brothers. Maharaja of Kashmir had announced to join India through alleged Instrument of Accession. India took the matter to United Nations. Since that day, UN has passed many resolutions to solve this dispute. The essence of these resolutions is that the future of Kashmiris can only be decided through their will. The resolutions, at one hand, provide a mechanism to know the will of Kashmiris while at the other hand, they provide guidance on how to carry out that mechanism. These resolutions are based on the principles of UN charter and are the only solution to Kashmir dispute.
International Law regulates the relations among states. It is different from municipal law because it is not enacted by any legislature rather it has variety of other sources. UN resolutions are regarded as one of these sources. Thus, UN resolutions regarding Kashmir form the most authentic source of International Law dealing with that dispute. Due to this fact, the solution provided by the resolutions cannot be refuted by any party to the dispute. This solution should be executed as early as possible, before a precedence of rejecting International Law is set in the Third World.
India had amended article 370 of its constitution in order to deal with Kashmir. Making any amendments in its own constitution cannot provide India with any tool to decide about the future of Jammu and Kashmir. According to International Court of Justice, the provisions of a treaty prevail over the domestic law of a state party to that treaty. Both Pakistan and India are parties to UN Charter. As UN resolutions have their roots in this charter, India cannot use its constitution as a pretext to deal with Kashmir according to its own wishes. Thus UN resolutions should be implemented by parties to it in order to fulfill their international obligations.
Indian claim over the territory of Kashmir is based on Instrument of Accession. In this instrument of accession, Ruler of Kashmir presented his decision to join India. It did not mention that the will of Kashmiris had been determined. In reply to this Instrument, Lord Mountbatten wrote a letter, on behalf of Indian state, to Maharaja. It said that the accession of Kashmir would be subject to will of Kashmiris. It is exactly in accordance with UN resolutions thus further strengthening their position as solution to Kashmir dispute.
India uses Shimla Accord 1972 as a base to argue that the Kashmir dispute falls under bilateral relations and no third party is involved in it. But in this very accord, it has been explicitly declared that the relations between two states would be in line with the UN charter. Thus the accord further reinforces the position of UN resolutions in order to solve Kashmir dispute. Furthermore, it has not been explicitly declared in the accord that UN resolutions would be no more applicable to the conflict. It divulges that UN resolutions are still there to regulate relations of both countries regarding Kashmir.
India, unilaterally, no more accepts the application on UN resolutions. This stance of India is dangerous for United Nations as well as for International Law. It also jeopardizes the credibility, existence and application of UN Charter because according to UN Charter, the members of UN cannot diffuse its resolutions even through any agreement between them. So, the unilateral attempt of India to diffuse the resolutions are more dangerous than any bilateral arrangement. It also proves that UN resolutions prevail over whatever is contained in Shimla accord or any other such agreement regarding bilateral approach to solve the dispute.
Furthermore, Declaration on Principles of International Law, 1970 says that the right of self-determination belongs to all the nations. It does not relate self-determination to colonization. It generalizes that principle to be applicable on all peoples. According to Shaw, one of the eminent scholars of International Law, 1970 declaration is an authoritative interpretation of UN charter. Thus, the right of self-determination, as announced by UN resolutions, hold its ground for Kashmiris as well. In the light of all the aforementioned arguments, it can be concluded that UN resolutions are the only solution to Kashmir dispute. No unilateral or bilateral effort other than this can be valid. In order to fulfill the international obligations, both Pakistan and India have to implement UN resolutions in their letter and spirit.
Engr. Bilal Awaisi is BSc Electrical Engineering (UET Lahore) and also a Gold Medalist Pre-engineering.