International Conference on Jammu & Kashmir Dispute , 20-21 November 2019 in Ankara Remarks by the Ambassador of Pakistan to Republic of Turkey, Amb. Syrus Sajjad Qazi

International Conference on Jammu & Kashmir Dispute , 20-21 November 2019 in Ankara

Remarks by the Ambassador of Pakistan to Republic of Turkey, Amb. Syrus Sajjad Qazi

JAMMU AND KASHMIR DISPUTE:
 A CASE OF JUSTICE DENIED

Ladies and gentlemen,

I would like to thank the Lahore Center for Peace Research and Institute of Strategic Thinking for co-organizing this International Conference to discuss the Jammu & Kashmir dispute which one of the oldest disputes on agenda of the United Nations Security Council.

We are extremely honoured to have the presence of such a huge constellation of scholars, academics, thinkers and parliamentarians under the same roof. Indeed, this Conference is a very important effort aimed at finding a viable solution to one of the most serious threats to international peace and security.

Ladies and Gentlemen,

Jammu & Kashmir dispute is one of those international disputes, where justice has not only been delayed – it has been deliberately denied.

The legal case of the Kashmiris aspiring for their inalienable right to self-determination is as strong as the moral determination of the Kashmiris to uphold their rights despite seven decades of illegal Indian occupation.  

Over seven decades of double-speak; denial; evasion; diversion; and use of excessive force has neither changed the legal foundations of this dispute nor the political aspirations of the Kashmiris.

If anything, it has only further strengthened the Kashmiris’ resistance against the occupation.

Ladies and gentlemen,

The legal facts and foundations of the case are clear:

·      Jammu & Kashmir has been and remains a disputed territory;

·      India’s presence in the disputed territory constitutes an illegal occupation;

·      The relevant UNSC resolutions guarantee against any unilateral change in the status of the disputed territory; and above all

·      The Kashmiris right to self-determination is guaranteed under the international law and in light of the relevant UNSC resolutions.

I will briefly examine these points one by one.

Ladies and gentlemen,

The Jammu & Kashmir dispute between Pakistan and India has been on the agenda of the UN Security Council (UNSC) since January 1948.

The disputed nature of Jammu & Kashmir has been affirmed and re-affirmed by no less than 11 UN Security Council resolutions.

A series of UNSC resolutions, including Resolutions 47 of (1948), 51 of (1948), 80 of (1950) and 92 of (1951) underlined that the principle that “the final disposition of the State of Jammu & Kashmir will be made in accordance with the will of the people expressed through the democratic method of a free and impartial plebiscite conducted under the auspices of the United Nations.

In addition, there is an entire compendium of UN reports, statements, letters of the President of the UNSC and related legal correspondence that reinforce the disputed nature of the territory.  

Today, it is hard to understand India’s collective amnesia on Jammu & Kashmir despite the fact the disputed nature of the territory was recognized by India’s own founding fathers.

It was India’s first Prime Minister Nehru again who gave his “word of honour” in the Indian Legislature on 2nd January 1952 when he said:

“We have taken the issue to the United Nations and given our word of honour for a peaceful solution. As a great nation, we cannot go back on it.”

He reiterated this pledge to the people of Jammu & Kashmir numerous times in his public statements as well as in his correspondence with the Pakistani leadership.

Today, more than just the honour of the Indian state is at stake due to the non-implementation of these pledges – the very fate of over 1.5 billion people, 1/5th of the entire humanity, hangs in balance.

Ladies and gentlemen,

The illegal and unilateral steps taken by India on 5 August 2019 do not change the legal status of the disputed territory.

The Security Council’s Consultations of 16 August 2019 reaffirmed the “disputed” nature of Jammu and Kashmir and the Council’s role in the dispute. The convening of these Consultations directly repudiated the Indian position that their actions were an “internal affair”.

Likewise, the UN Secretary General in his statement of 8 August 2019 clearly stated that the UN’s position on Jammu & Kashmir was governed by the UN Charter and the relevant UN Security Council resolutions.

Ladies and Gentlemen,

The presence of the Indian forces in Jammu & Kashmir meets all the legal conditions that constitute an “occupation.”

India is not entitled to the territory under the international law as evidenced by numerous UNSC resolutions; its military presence in the disputed territory and rejection of this presence by the Kashmiris, legally as well as politically, qualify it as a “hostile army;” and it continues to exercise its illegal control through force over the lives and properties of those in the territory in defiance of their wishes and aspirations for self-determination, once again guaranteed by the UNSC.  

Any attempt to contest its disputed nature by changing the facts on ground; and all illegal efforts to subsume it within its own territory amounts to an act of perpetuation of occupation and illegal annexation.

Ladies and gentlemen,

The relevant UNSC resolutions on Jammu & Kashmir are a legal guarantee against any unilateral change in the status of the disputed territory.

However, on 5 August 2019, these resolutions were blatantly violated when through a so-called “Presidential Order”, the Indian government abrogated the Article 370 of the Indian Constitution, rescinding Indian Occupied Jammu & Kashmir’s (IOJ&K) special status.

Separately, a bill was passed by the Indian Parliament to divide IOJ&K into two Union Territories (UT).

This illegal order also superseded Article 35-A of the Indian constitution, which defined the residents of IoK and limited subjects like property ownership and state citizenship to the current residents of the area till the final settlement of the dispute.

However, India’s attempts to unilaterally and illegally alter the status of the disputed territory in contravention of the international law are not new, and have been rejected unequivocally by the UN Security Council in the past as well.  

When in 1951, India convened a Constituent Assembly to formulate a Constitution for Jammu & Kashmir, Security Council passed Resolution 91 on 30 March 1951.

The resolution further 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.

By making this affirmation, the UN Security Council not only made a clear pronouncement on the illegality of India’s action at that time, but also established clear legal red-line for any such subsequent actions.

Let me share a page out of Security Council’s own records in this regard.

On 29 May 1951, at Pakistan’s request and in view of clear indications that India did not intend to uphold its commitments, the UN Security Council convened a meeting to discuss the issue again.

The Security Council at that time was being presided by Turkey – led by Ambassador Selim SARPER of Turkey.

Speaking before the UNSC, the Permanent Representative of Pakistan, Ambassador Ahmad Shah Bokhari said:

“It is a thousand pities that the Security Council has to turn its attention again to this matter and that this time it has to do so because its appeals, warnings, re-quests - whatever one likes to call them – to the Government of India have been ignored.”

Ambassador Bokhri appealed to the Council:

“For the sake of the prestige of the Security Council and of the United Nations, if for no other reason, the impression should not be allowed to grow that India can break its international pledges without world opinion pronouncing its verdict on the grave danger to international morality and international peace which such a breach would involve.”

In response, the Indian Representative reassured the Security Council that India had no intention of defying the pronouncements of the Council.

He stated and I quote:

“I reaffirm that so far as the Government of India is concerned, the constituent assembly for Kashmir is not intended to prejudice the issue before the Security Council or to come in its way. “

After listening to both sides, as well as the Council members which overwhelming concurred with the apprehension expressed by Pakistan, Turkey as the President of the Security Council, received the concurrence of the UNSC to send a letter of both Pakistan and India, which “summarize[ed] the general line of the Security Council's discussion.”

This letter once again forms an important link in the chain of the legal pronouncements by the UNSC, binding India to the resolution of the dispute. The letter expresses the hope that Council’s previous decisions as well as commitments made by the parties would be upheld:

The letter also captures for history as well as for eternity, India’s assurances, both in terms of recognizing the disputed nature of the territory as well as its pledge to uphold the relevant UNSC resolutions.  

It states:

“Members of the Security Council, at its 548th meeting held on 29 May 1951, have heard with satisfaction the assurances of the representative of India that any constituent assembly that may be established in Srinagar is not intended to prejudice the issues before the Security Council or to come in its way.”

Despite these reassurances, India continued to take unilateral actions in defiance of the pronouncements of the UNSC, prompting UNSC to pass another resolution 122 of 1957. The resolution yet again reaffirmed that:

“the convening of a constituent assembly as recommended by the General Council of the " All Jammu and Kashmir National Conference " and any action that assembly may have taken or might attempt to take to determine the future shape and affiliation of the entire State or any part thereof, or action by the parties concerned in support of any such action by the assembly, would not constitute a disposition of the State in accordance with the above principle” (of plebiscite).

Ladies and gentlemen,

In hindsight, there is little doubt that these commitments by India before the UNSC - a body that today India aspires to become a permanent member of – were nothing more than mere eye-wash.

India’s illegal actions of 5 August 2019 seeking to unilaterally alter the internationally recognized status of Occupied Jammu & Kashmir and to change its demographic structure are part of the same deliberate strategy to evade legal obligations.

These unilateral steps even violate the bilateral agreements between the two sides.

The Simla Agreement of 1972 stated that:

“Pending the final settlement of any of the problems between the two countries, neither side shall unilaterally alter the situation and both shall prevent the organization, assistance or encouragement of any acts detrimental to the maintenance of peaceful and harmonious relations.”

Ladies and gentlemen,

In the same vein, the so called “bifurcation” of Indian Occupied Jammu and Kashmir into two Union Territories is a flagrant violation of UN Security Council Resolutions including Resolutions 47 (1948), 51 (1948), 80 (1950), 91 (1951), 122 (1957) and 123 (1957) as well as the Bilateral Agreements between India and Pakistan, especially the Simla Agreement.

Pakistan has also rejected the political maps of India, issued by the Indian Home Ministry displaying Jammu and Kashmir region and seeking to depict parts of Gilgit-Baltistan and Azad Jammu and Kashmir within the territorial jurisdiction of India. These political maps are incorrect, legally untenable, void, incompatible with the United Nations’ maps and in complete violation of the relevant United Nations Security Council Resolutions.

The United Nations Security Council Resolution 38 calls upon Pakistan and India, “to inform the Council immediately of any material change in the situation which occurs or appears to either of them to be about to occur while the matter is under consideration by the Council, and consult with the Council thereon”.

In line with this resolution, Pakistan has written several letters to the UNSC, highlighting India’s violations in this regard.

Ladies and gentlemen,

This brings me to my next point - the denial of their right to self-determination of the Kashmiris which is at the very heart of the Jammu & Kashmir dispute.  

When on 1 January 1949, the UN helped enforce ceasefire between Pakistan and India, the UN Security Council (UNSC) and UN Commission for India and Pakistan (UNCIP) passed several resolutions for the resolution of the dispute.

The UNSC Resolution 47 of 21 April 1948 stated that “both India and Pakistan desire that the question of the accession of Jammu and Kashmir to India or Pakistan should be decided through the democratic method of a free and impartial plebiscite”.

Subsequent, relevant UNSC Resolutions rejected India's claim over Kashmir and established self-determination as the governing principle for the settlement of the Kashmir dispute.

These resolutions very clearly declared that the final disposition of the State of Jammu and Kashmir would be made in accordance with the will of the people expressed through the democratic method of a free and impartial plebiscite conducted under the auspices of the United Nations.

Again, this right was recognized by India itself:

Speaking to all India Radio on 3 November 1947, the first Prime Minister of India, Jawahar Lal Nehru, made a pledge, and I quote:

“We have declared that the fate of Kashmir is ultimately to be decided by the people. The pledge we have given not only to the people of Kashmir but to the world. We will not and can not back out of it.”

Ladies and gentlemen,

The sad reality is that resolution of the Jammu & Kashmir does not require more legal evidence – it needs the political will and moral determination of the UNSC as well as the international community to uphold the international law.

Today, Occupied Jammu & Kashmir remains one of the most militarized zones in the world, where more than 700,000 Indian security forces continue to unleash a reign of terror, encouraged by “black laws” that ensure complete impunity to perpetrators of human rights violations.

The seven decades of crimes against humanity in the Indian occupied Kashmir is a blot on the collective conscience of humanity, marked by discovery of mass graves; rape and sexual assault; extra-judicial killings and torture; enforced disappearances; unending curfews; house arrests and detentions of Kashmiri leaders; and collective, inhuman and degrading punishments, which yet again constitute violations of international human rights law.

With each passing year, Indian repression has been further emboldened by the inaction of the international community.

Human resilience and defiance against oppression and occupation cannot be subdued through force. Kashmiris are a living proof of this.

However, how many more lives will be lost before justice is upheld?

This question is relevant not only for the Kashmiris but also for the moral conscience and values of this world.  And we better find an answer to this question soon.

Thank you