Updated: April 7, 2022 9:58:54 am
Finance Minister Nirmala Sitharaman sought to remind Parliament on Wednesday (March 23) that it was the country’s first Prime Minister, Jawaharlal Nehru, who internationalised the Kashmir issue by taking it to the United Nations.
In remarks made in English and Hindi, the Finance Minister told Rajya Sabha: “It was the Congress that internationalised this matter…took it to the UN. Our first Prime Minister Pt Jawaharlal Nehru took it to the UN. Why? Because, somewhere… In December 1947, because the British perhaps suggested to him that this matter will not be resolved unless you take it to the UN… This matter was internationalised, and even today, our neighbour is misusing this. Who is responsible for this? It is an issue which should not have gone to a global forum, it is essentially an Indian issue, we could have handled it, we are handling it, and we are showing the difference now.”
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It is well documented that both the British government and Lord Mountbatten, who was the first Governor General of India after Independence from August 15, 1947 to June 21, 1948, believed that the then newly-founded UN could help resolve the Kashmir dispute. Mountbatten suggested this to Muhammad Ali Jinnah at a meeting between the two men in Lahore on November 1, 1947.
After Nehru met Liaquat Ali Khan in Lahore the following month, Mountbatten was convinced that an intermediary was needed. He recorded his views: “I realised that the deadlock was complete and the only way out now was to bring in some third party in some capacity or other. For this purpose I suggested that the United Nations Organisation be called in.” (Victoria Schofield, ‘Kashmir in Conflict’, quoting Mountbatten in H V Hodson, ‘The Great Divide’)
Reference to UN
Initially, while Liaquat “agreed to refer the dispute to the UN”, Victoria Schofield wrote in her seminal history of the Kashmir dispute, “India was not prepared to deal with Pakistan on an equal footing”. However, “when the two prime ministers met again in Delhi towards the end of December , Nehru informed Liaquat Ali Khan of his intention to refer the dispute to the UN under article 35 of the UN Charter…”.
Consequently, on December 31, 1947, Nehru wrote to the UN secretary general (then Trygve Lie of Norway) accepting a future plebiscite in Jammu and Kashmir.
He said: “To remove the misconception that the Indian government is using the prevailing situation in Jammu and Kashmir to reap political profits, the Government of India wants to make it very clear that as soon as the raiders (Pakistan-backed tribesmen who had entered the Kashmir Valley) are driven out and normalcy is restored, the people of the state will freely decide their fate and that decision will be taken according to the universally accepted democratic means of plebiscite or referendum.”
Issue in the UN
The UN Security Council took up the matter in January 1948. The jurist Sir Zafrullah Khan spoke for five hours in favour of the Pakistani position. India was unhappy with the role played by the British delegate, Philip Noel-Baker, who it believed was nudging the Council towards Pakistan’s position. V Shankar, private secretary to Sardar Vallabhbhai Patel, noted in his unpublished memoirs (quoted in Schofield):
“The discussions in the Security Council on our complaint of aggression by Pakistan in Jammu and Kashmir have taken a very unfavourable turn. Zafrullah Khan had succeeded, with the support of the British and American members, in diverting the attention from that complaint to the problem of the dispute between India and Pakistan over the question of Jammu and Kashmir. Pakistan’s aggression in the State was pushed into the background due to his aggressive tactics…as against the somewhat meek and defensive posture we adopted to counter him.”
On January 20, 1948, the Security Council passed a resolution to set up the United Nations Commission for India and Pakistan (UNCIP) to investigate the dispute and to carry out “any mediatory influence likely to smooth away difficulties”.
There is evidence to believe Sardar Patel was uncomfortable with Nehru taking the matter to the UN, and thought it was a mistake. “…Not only has the dispute been prolonged, but the merits of our case have been completely lost in the interaction of power politics,” he wrote. (July 3, 1948, quoted in Schofield)
Article 35 of UN Charter
There has been some debate on whether India chose the wrong path to approach the UN. In 2019, Home Minister Amit Shah said that had Nehru taken the matter to the UN under Article 51 of the UN Charter, instead of Article 35, the outcome could have been different.
According to UN records, India reported to the Security Council “details of a situation existing between India and Pakistan owing to the aid which invaders, consisting of nationals of Pakistan and tribesmen from the territory immediately adjoining Pakistan on the north-west, were drawing from Pakistan for operations against Jammu and Kashmir”.
India pointed out that J&K had acceded to India, and that the “Government of India considered the giving of this assistance by Pakistan to be an act of aggression against India…” Therefore, “the Government of India, being anxious to proceed according to the principles and aims of the Charter, brought the situation to the attention of the Security Council under Article 35 of the Charter.”
Articles 33-38 of the UN Charter occur in Chapter 6, titled “Pacific Settlement of Disputes”.
These six Articles lay out that if the parties to a dispute that has the potential for endangering international peace and security are not able to resolve the matter through negotiations between them, or by any other peaceful means, or with the help of a “regional agency”, the Security Council may step in, with or without the invitation of one or another of the involved parties, and recommend “appropriate procedures or methods of recommendation”.
Specifically, Article 35 only says that any member of the UN may take a dispute to the Security Council or General Assembly.
Article 51, which occurs in Chapter 7, titled “Action With Respect to Threats to the Peace, Breaches of the Peace, and Acts of Aggression”, on the other hand, says that a UN member has the “inherent right of individual or collective self-defence” if attacked, “till such time that the Security Council has taken measures necessary to maintain international peace and security”.
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