UN mediation of the Kashmir dispute

The United Nations has played an important role in maintaining peace and order in Jammu and Kashmir soon after the independence of India and Pakistan in 1947, when a dispute erupted between the two States on the question of Jammu and Kashmir. India took this matter to the UN Security Council, which passed resolution 39 (1948) and established the United Nations Commission for India and Pakistan (UNCIP) to investigate the issues and mediate between the two countries. Following the cease-fire of hostilities, it also established the United Nations Military Observer Group for India and Pakistan (UNMOGIP) to monitor the cease-fire line.

Overview
Following the outbreak of the Indo-Pakistani War of 1947, India's Governor General Mountbatten flew to Lahore On 1 November 1947 for a conference with Muhammad Ali Jinnah, proposing that, in all the princely States where the ruler did not accede to a Dominion corresponding to the majority population (which would have included Junagadh, Hyderabad as well Kashmir), the accession should be decided by an `impartial reference to the will of the people'. Jinnah rejected the offer. The Prime Ministers Jawaharlal Nehru and Liaquat Ali Khan met again in December, where Nehru informed Khan of India's intention to refer the dispute to the United Nations under article 35 of the UN Charter, which allows the member states to bring to the Security Council attention situations `likely to endanger the maintenance of international peace'.

India sought resolution of the issue at the UN Security Council on 1 January 1948. Following the set-up of the United Nations Commission for India and Pakistan (UNCIP), the UN Security Council passed Resolution 47 on 21April 1948. The measure imposed an immediate cease-fire and called on the Government of Pakistan 'to secure the withdrawal from the state of Jammu and Kashmir of tribesmen and Pakistani nationals not normally resident therein who have entered the state for the purpose of fighting.' It also asked Government of India to reduce its forces to minimum strength, after which the circumstances for holding a plebiscite should be put into effect 'on the question of Accession of the state to India or Pakistan.' However, it was not until 1 January 1949 that the ceasefire could be put into effect, signed by General Gracey on behalf of Pakistan and General Roy Bucher on behalf of India. However, both India and Pakistan failed to arrive at a truce agreement due to differences over interpretation of the procedure for and the extent of demilitarisation. One sticking point was whether the Azad Kashmiri army was to be disbanded during the truce stage or at the plebiscite stage.

The UNCIP made three visits to the subcontinent between 1948 and 1949, trying to find a solution agreeable to both India and Pakistan. It reported to the Security Council in August 1948 that "the presence of troops of Pakistan" inside Kashmir represented a "material change" in the situation. A two-part process was proposed for the withdrawal of forces. In the first part, Pakistan was to withdraw its forces as well as other Pakistani nationals from the state. In the second part, "when the Commission shall have notified the Government of India" that Pakistani withdrawal has been completed, India was to withdraw the bulk of its forces. After both the withdrawals were completed, a plebiscite would be held. The resolution was accepted by India but effectively rejected by Pakistan.

The Indian government considered itself to be under legal possession of Jammu and Kashmir by virtue of the accession of the state. The assistance given by Pakistan to the rebel forces and the Pakhtoon tribes was held to be a hostile act and the further involvement of the Pakistan army was taken to be an invasion of Indian territory. From the Indian perspective, the plebiscite was meant to confirm the accession, which was in all respects already complete, and Pakistan could not aspire to an equal footing with India in the contest.

The Pakistan government held that the state of Jammu and Kashmir had executed a Standstill Agreement with Pakistan which precluded it from entering into agreements with other countries. It also held that the Maharaja had no authority left to execute accession because his people had revolted and he had to flee the capital. It believed that the Azad Kashmir movement as well as the tribal incursions were indigenous and spontaneous, and Pakistan's assistance to them was not open to criticism.

In short, India required an asymmetric treatment of the two countries in the withdrawal arrangements regarding Pakistan as an `aggressor', whereas Pakistan insisted on parity. The UN mediators tended towards parity, which was not to India's satisfaction. In the end, no withdrawal was ever carried out, India insisting that Pakistan had to withdraw first, and Pakistan contending that there was no guarantee that India would withdraw afterwards. No agreement could be reached between the two countries on the process of demilitarisation.

Scholars have commented that the failure of the Security Council efforts of mediation owed to the fact that the Council regarded the issue as a purely political dispute without investigating its legal underpinnings. Declassified British papers indicate that Britain and US have let their cold war calculations influence their policy in the UN disregarding the merits of the case.

McNaughton proposals
In December 1949 the Security Council asked its Canadian President General McNaughton to meet both sides for a solution. McNaughton forwarded his proposals to both Governments on 22 December and reported to the Security Council on 29 December, before his term as President of the Security Council expired on the 31st. Nevertheless, he continued his mediatory activities at the Council's request and submitted a final report on 3 February 1950.

On 22 December he proposed that there be a simultaneous withdrawal of Pakistan's regular forces and India's regular forces not required for security, that there be a disbanding of both the Azad Kashmir forces and the Kashmir State forces and millitia and thirdly the inclusion of the Northern Areas in this demilitarisation scheme while the civil administration there would continue to be vested in the local authorities subject to United Nations supervision.

Pakistan accepted these proposals but India rejected them. India was unhappy that Pakistan was treated as an equal party as in its view Pakistan was present illegally in Kashmir while India was present legally. The United States warned India that if it refused the McNaughton proposals it would be the third consecutive time it rejected the findings of an impartial UN agent and the United States would be left with no choice but to support whatever action the Security Council would take. Nehru responded by accusing the United States of pressurising the Indian Government. US policy makers saw India's rejection of the proposals as the "worst example yet" of its intransigence.

Cold War historian Robert J. McMahon states that American officials increasingly blamed India for rejecting various UNCIP truce proposals under various dubious legal technicalities just to avoid a plebiscite. McMahon adds that they were 'right' since a Muslim majority made a vote to join Pakistan the 'most likely outcome' and postponing the plebiscite would serve India's interests. Some Indian officials privately admitted to their American counterparts that they would prefer a partition of the State to a plebiscite.

US ambassador Loy Henderson told Indian officials that the American impression that India was evading a plebiscite was being fuelled by India's refusal to have a conciliatory attitude which would help in the prompt holding of a plebiscite.

Despite India's rejection the McNaughton proposals were warmly received by the Security Council. It passed a resolution giving both countries five months to arrange the demilitarisation scheme. India later accepted the draft resolution on 14 March 1950. The Council then appointed Sir Owen Dixon who was to implement McNaughton's demilitarisation proposals for the State.

Dixon Mission
In the first phase, Dixon proposed that areas evacuated by Pakistani troops could be administered by local authorities under the Commission's surveillance. To meet India's objections regarding the terms 'authorities' and 'surveillance' Dixon proposed that the administration in areas west to the ceasefire line be carried out according to the law and custom of the Jammu and Kashmir State before the present troubles. An officer of the United Nations would be attached to each district magistrate to ensure the impartiality required for the holding of a plebiscite. India refused this plan because it believed that the local authorities, who had replaced the 'legally authorised' State executives, were biased in favour of Pakistan and this was not in India's interests. India suggested no alternative.

Dixon also believed that on the Indian side of the ceasefire line certain conditions needed to be met to ensure a fair plebiscite. This included attaching a United Nations officer with each district magistrate who would be allowed to see the Magistrate's records and proceedings, the UN officer was to observe, inspect, remonstrate and report. Nehru objected to these proposals on the grounds that they constituted a "derogation from the sovereignty of the state". Nehru also gave no alternative proposal.

Sir Owen Dixon then put before the Prime Ministers of the two countries an alternative set of plans which would practically in the process eliminate the ceasefire line. These plans included a coalition government between Sheikh Abdullah and Ghulam Abbas, or allocating portfolios among the different parties. The second suggestion was instituting a neutral government by respected non-political persons for a period of six months before the plebiscite would take place. The membership would be equally split between Hindus and Muslims under a United Nations supervisor. The third proposal was the installation of an administrative body manned totally by UN representatives. None of these proposals appealed to Nehru. Sir Owen Dixon took India to task in very strong language for its negative reactions to the various alternative demilitarisation proposals.

Dixon next asked Nehru in the presence of the Pakistani Prime Minister whether it would be advisable to have plebiscites by region and allocate each region according to the results of a plebiscite in each. India reacted favourably to this plan. According to the Indian historian Raghavan, it was first Nehru who proposed a partition-cum-plebiscite plan: Jammu and Ladakh would go to India, Azad Kashmir and Northern Areas to Pakistan, and a plebiscite would be held in the Kashmir Valley. Dixon favoured the plan, which bears his name till this day. Dixon agreed that people in Jammu and Ladakh were clearly in favour of India; equally clearly, those in Azad Kashmir and the Northern Areas wanted to be part of Pakistan. This left the Kashmir Valley and 'perhaps some adjacent country' around Muzaffarabad in uncertain political terrain. However, according to Dixon, Pakistan "bluntly rejected" the proposal. It believed that the plebiscite should be held in the entire state or the state should be partitioned along religious lines. Pakistan believed that India's commitment to a plebiscite for the whole of Jammu and Kashmir should not be departed from.

Dixon also had concerns that the Kashmiris, not being high-spirited people, may vote under fear or improper influences. Following Pakistan's objections, he proposed that Sheikh Abdullah administration should be held in "commission" (in abeyance) while the plebiscite was held. This was not acceptable to India.According to Raghavan, at this point, Dixon lost patience and declared failure.

The Dixon Plan had involved the exclusion of both Indian and Pakistani troops from the plebiscite zone. On 16 August 1950 Nehru turned down Dixon's plan for a limited plebiscite on the grounds that the State Government's authority should not be suppressed for any period of time. Another reason for India's rejection of the Dixon Plan was that it wanted Indian troops to remain during the plebiscite for "security reasons" while it demanded at the same time that Pakistani troops be excluded.

Dixon felt that India would not agree to demilitarisation and other provisions governing the plebiscite that guard against influence and abuse.

Without a demilitarisation by India, Pakistan and the Azad forces were not willing to withdraw from the territory they had retained. Dixon's final comment was to suggest that India and Pakistan be left to solve the situation on their own.

Dixon's failure compounded American ambassador Loy Henderson's suspicions about India's motives and good faith. He concluded that Indian allegations of America's pro-Pakistan bias, which he noted were being quietly stimulated by Nehru himself, made it more suitable for the Commonwealth nations to intervene. Washington heeded its ambassador's advice and for the rest of 1950 played a scant role in the Kashmir issue. Henderson became the first American to visit Kashmir and observed that the majority of the Valley would choose Pakistan over India in a plebiscite. The majority if given the third option would opt for independence.

Frank Graham's mediation
When Dixon's successor, Dr Frank Graham, arrived in the subcontinent during a time of tension, he tried to effect demilitarisation prior to a plebiscite but India and Pakistan could not agree on the number of troops who were to remain in Kashmir.

UN Security Council plebiscite resolution
The Security Council of United Nations on the complaint of Government of India concerning the dispute over the State of Jammu and Kashmir passed United Nations Security Council Resolution 47 (1948).
 * This resolution required among other things that Pakistan withdraw from the areas of Pakistan-administered Kashmir which it had captured in 1947 immediately and conditions be created for a free and impartial plebiscite to decide the future of the state. The Indian Army should withdraw and maintain a skeletal force to ensure proper functioning of the civil affairs of the state after satisfactory withdrawal of Pakistani tribesmen and forces.
 * It recommended to the governments of India and Pakistan to restore peace and order in Jammu and Kashmir and provide full freedom to all subjects of the state, to vote on the question of accession.
 * Furthermore, it recommended to the government of India to establish Plebiscite Administration to hold fair and impartial referendum as soon as possible, a nominee of the Secretary-General of the United Nations to be appointed as the Plebiscite Administrator, release all political prisoners, invite the major political groups to share the administration at the ministerial level while the plebiscite is being prepared and carried out. UN Official statement: The boundaries and names shown and the designations used on the map do not imply official endorsement or acceptance by the United Nations. The Dotted line represents approximately the Line of Control of Jammu and Kashmir agreed upon by the Republic of India and the Government of Pakistan since 1972. Both the parties have not yet agreed upon the final status of the region and nothing significant has been implemented since the peace process began in 2004.

Status of Indian controlled territory of Jammu & Kashmir
Meanwhile, elections were held in Indian territory of Jammu & Kashmir, which brought up the popular Muslim leader Sheikh Abdullah, who with his party National Conference, generally supported India. The elected Constituent Assembly met for the first time in Srinagar on October 31, 1951. Then The State Constituent Assembly ratified the accession of the State to the Union of India on February 6, 1954 and the President of India subsequently issued the Constitution (Application to J&K) Order under Article 370 of the Indian Constitution extending the Union Constitution to the State with some exceptions and modifications. The State’s own Constitution came into force on January 26, 1957 under which the elections to the State Legislative Assembly were held for the first time on the basis of adult franchise the same year. This Constitution further reiterated the ratification of the State’s accession to Union of India. New Delhi: The Government of India states that "the external artificial boundaries of the Republic of India, especially concerning the international borders under its jurisdiction created by a foreign body are neither correct nor authenticated".

Status of Pakistani territory of Kashmir
However, these tidings were not recognized by Pakistan, which asks for a plebiscite to ascertain the wishes of the people. The people there set up, now called Azad Jammu and Kashmir in the West help by Pakistan that it controls. The much larger region of Pakistani Kashmir in the North-West, which was a special dependent territory named Northern Areas in the erstwhile state, generally bore no mention in Pakistani laws and Constitution as being of any status, until in 1982 the Pakistani President General Zia ul Haq proclaimed that the people of the Northern Areas were Pakistanis and had nothing to do with the State of Jammu and Kashmir. Islamabad: The Government of Pakistan maintains un-provisionally and unconditionally stating that the formal "Accession of Jammu and Kashmir" to Pakistan or even to the Republic of India remains to be decided by UN plebiscite and a formal referendum for a final settlement of the dispute. It accepts UN's map of the territory. It also states that the designations and the presentation of the Kashmir's regional map based on UN practice, do not imply the expression of any opinion whatsoever on the part of the Commonwealth Secretariat or the publishers concerning the legal status of any country, territory or area, or of its authorities, or concerning the delimitation of its frontiers or boundaries. There is no intention to define the status of Jammu and Kashmir, which has not yet been agreed upon by the parties. It further says that boundaries must be based on religious, cultural, racial, historical, geographical and not political orientated.

Status of Aksai Chin in China
Beijing: The Communist government of the People's Republic of China maintains its control over what is known as the Chinese Kashmir of Ladakh plateau, China states that Aksai Chin is a part of Chinese provincial region the Xinjiang Autonomous Region and does not recognise the addition of Aksai Chin to the Kashmir region.
 * China did not accept the boundaries of the princely state of Kashmir and Jammu, north of the Aksai Chin and the Karakoram that were proposed by the British Empire.
 * China settled its border disputes with Pakistan in the Trans-Karakoram Tract of 1963 with the provision that the settlement was subject to the final solution of the Kashmir dispute. However recognized by Pakistan as part of China as it is claimed, stating that the Line of Actual Control is not demarcated or boundary undefined, the frontier is yet to be finalised, between Islamabad and Beijing as part of the Sino-Pak border agreement.

United Nations Military Observer Group in India and Pakistan
The Security Council Resolution 47 (1948) also enlarged the membership of the UNCIP to 5 members. India and Pakistan signed the Karachi Agreement in March 1951 and established a ceasefire line to be supervised by observers. After the termination of the UNCIP, the Security Council passed Resolution 91 (1951) and established a United Nations Military Observer Group in India and Pakistan (UNMOGIP) to observe and report violations of ceasefire.

After the Indo-Pakistani War of 1971, the two countries signed the Simla Agreement in 1972 to define the Line of Control in Kashmir. India and Pakistan disagree on UNMOGIP’s mandate in Kashmir because India argued that the mandate of UNMOGIP has lapsed after the Simla agreement because it was specifically established to observe ceasefire according to the Karachi Agreement.

However, The Secretary General of the United Nations maintained that the UNMOGIP should continue to function because no resolution has been passed to terminate it. The military authorities of Pakistan have continued to lodge complaints with the UNMOGIP about ceasefire violations. The military authorities of India have lodged no complaints since January 1972 and have restricted the activities of the UN observers on the Indian side of the Line of Control.

Map issues
As with other disputed territories, each government issues maps depicting their claims in Kashmir as part of their territory, regardless of actual control. It is illegal in India to exclude all or part of Kashmir in a map. It is also illegal in Pakistan not to include the state of Jammu and Kashmir as disputed territory, as permitted by the U.N. Non-participants often use the Line of Control and the Line of Actual Control as the depicted boundaries, as is done in the CIA World Factbook, and the region is often marked out in hashmarks, although the Indian government strictly opposes such practices. When Microsoft released a map in Windows 95 and MapPoint 2002, a controversy was raised because it did not show all of Kashmir as part of India as per Indian claim. However, all the neutral and Pakistani companies claim to follow UN's map and over 90% of all maps containing the territory of Kashmir show it as disputed territory.