Syeda Zainab Hameed Gillani l

After the escalation in First Kashmir war, the Indian Cabinet referred the Kashmir crisis to the UN Security Council on 1 January 1948. UNSC Resolution 38 was passed in January 1948  following India’s decision to take Kashmir dispute to the UN.  The resolution called upon the governments of India and Pakistan to refrain from any activity which can aggravate the situation and can result in the loss of human life or property. Meanwhile through UNSC Resolution 39, passed in January 1948,  the UN agreed to create a three-member United Nations Commission for India and Pakistan (UNCIP) to investigate and assist in the resolution of the Kashmir dispute.

Through UNSC Resolution 47, passed in April 1948,  the UN decided to increase the membership of the UNCIP to five. It also decided to establish a special commission that would travel to the region to deal with governments of both countries for the resolution of the Kashmir dispute. In addition, the resolution also stated the following:-

a. Pakistan to withdraw all of its troops and tribesman engaged in Kashmir

b. India should also withdraw bulk of its troops from Kashmir except for a minimum number required for maintaining law and order

c. Allowing return of refugees

d. Releasing of political prisoners

e. Holding a UN-supervised plebiscite in the state of Jammu and Kashmir to determine the aspirations of the people

Since 1949, India has refused to agree to demilitarization of the region in any form to allow for a free and impartial plebiscite. Pakistan has always maintained that any withdrawal should be simultaneous and not unilateral.

UNSC Resolution 51 (Passed in June 1948)  re-affirmed the previous UNSC resolutions on the Kashmir dispute and directed the UNCIP to visit the disputed territories and to accomplish the duties assigned to the commission as soon as possible. UNCIP Resolution (Passed in January 1949) addressed the question of accession of Jammu and Kashmir to India or Pakistan and stated that this will be decided through a free and impartial plebiscite. The plebiscite will be held when the commission will find that the ceasefire and truce arrangements set forth in Parts I and II of Commission’s resolution of 13th August 1948 are carried out and arrangements for the plebiscite have been completed.

UNSC Resolution 80 (Passed in March 1950) commended both India and Pakistan for maintaining the ceasefire. The UNSC also appointed a UN representative to assist in the process of demilitarization of Kashmir. American Admiral Chester W. Nimitz was appointed as the future Chief Plebiscite Administrator for the region.

In October 1951, India convened a Constituent Assembly to formulate a Constitution for Jammu & Kashmir. According to the International Commission of Jurists, this Assembly was elected ‘in a manner which deprived it of all democratic legitimacy’. In response, the Security Council passed Resolution 91 of 1951 which affirmed that the convening of the Constituent Assembly and any action it might attempt to take to determine the future shape and affiliation of Kashmir would not constitute a disposition of the State in accordance with the principle of a free and impartial plebiscite conducted by the UN.1

UNSC Resolution 122 (Passed in January 1957) – The resolution declares that the assembly proposed by the Jammu and Kashmir National Conference could not constitute a solution to the problem as defined in UNSC 91. The Constituent Assembly was formally dissolved by resolution in January 1957 after framing a separate Constitution for Jammu & Kashmir and declaring that the whole of the former princely State to be an ‘integral part of the Union of India’ in defiance of the Security Council Resolutions. However, the Security Council in Resolution 122 of 1957 reaffirmed the action taken by the Constituent Assembly would not satisfy its earlier resolutions calling for a plebiscite.

It can be concluded that after declaring that whole of the former princely State is an ‘integral part of the Union of India’ in 1957 in defiance of the Security Council Resolutions, the status of J&K changed from a disputed territoy to an Indian occupied territory.

Customary International Law & Kashmir

According to  Article 42 of the Hague Regulations 1907, “Territory is considered occupied when it is placed under the authority of the hostile army. The occupation extends only to the territory where this authority has been established and can be exercised. The law on occupation applies to all cases of partial or total occupation, even if such occupation does not encounter armed resistance.”

There are three conditions for an occupation that of

  1. i) territory which the Occupying Power is not entitled to under International Law,
  2. ii) the Occupying Power is a hostile army, and

iii) that the Occupying Power has effective control and exercises its authority over the territory.

All these three conditions apply on the Indian Army. For example after the revocation of Article 370, Indian government is no more entitled to be in J&K and hence its army has gained the status of hostile army. India now effectively exercise control over J&K after the imposition of governor raj in the state.

Syeda Zainab Hameed Gillani is pursuing career in law and has deep interest in international law and contemporary affairs.


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