ISLAMABAD: The Jammu and Kashmir Council for Human Rights (JKCHR), an NGO in Special Consultative Status with the economic and Social Council of the United Nations, has said that under rule 11 of the UN Security Council in September 1996 Kashmir has been deleted as a subject on the UN SC Agenda. Addressing a press conference after launching the council report for the year 2008 in Islamabad, JKCHR Secretary General Dr. Nazir Gilani said that the Government of Pakistan failed to bring Kashmir on UN SC agenda and the Government of Azad Kashmir continues to fail to act in accordance with its Constitutional duty in respect of self-determination for the last 38 years.

He said the two failures in aggregate attracted the consideration of simplification procedure which led to the deletion of Kashmir as a subject on the UN Security Council Agenda. “The issue does not remain on UN SC as it continued to be from 6 January 1948 to 15 September 1996. Its character has changed and it is brought on the agenda on an annual basis under a reminder provision by a member State,” the report said. The report further said that the nature of rivalry between India and Pakistan has changed and this change has been influenced by the growing intervention of civil society institutions. Kashmiri leadership which has graduated through 131 years of Rights Movement, for a variety of reasons failed to come up with a Kashmiri interest and take due advantage of this change in the nature of rivalry between India and Pakistan. “Kashmiri leadership failed to reposition itself in the new developing context and best interests of the people. It is high time that every Kashmiri regardless of his domicile prepares himself/herself to discharge his/her ‘common duty to interfere’ in all the matters that are conducted in their name at various levels within India and Pakistan or abroad.

It added that Kashmir is not a dispute but the claims of India and Pakistan have made it a dispute. “It embeds the Right of Self Determination of a people. Right of Self Determination of the people of Jammu and Kashmir remains a basic principle of UN Charter. Self-determination rests on the jurisprudence of living adult numerical,” it maintained. Numerical strength constitutes the basis of self-determination. Kashmir has lost a generation in the last 18 years since 1990 and this numerical deficit, may have caused a serious harm to self-determination now and for many, many years to come. The people of Quebec lost a yes vote for Independence when the two sides were separated by about 50,000 votes, the report said.

A true friend of the people of Kashmir and a true advocate of self-determination would always assure that living numbers in Kashmir are saved for a final count in self determination, it maintained. India has accrued a criminal liability for failing to protect ‘life’, ‘honour’ and ‘property’ under the Instrument of Accession and Pakistan has accrued a higher burden of criminal liability for failing in its assumed responsibilities under UNCIP resolutions and for failing to save a ‘living numerical’ envisaged in article 257 of the Constitution of Pakistan. A surrogate broad spread on Kashmir remains fully responsible for eroding the fundamental character of right of self-determination and for creating a trust deficit in the Kashmiri community. Unlike Ireland, East Timor and Kosovo, the Kashmiri leadership is short-listed in India and Pakistan. Therefore, they act as proxies and play a non Kashmiri dulcimer, it said. Self-Determination of the people of Kashmir suffered serious erosion in its character on 15 September 1996 when it was hit by rule 11 of the provisional rules of procedure of the Security Council to review the list of matters which had not been considered by the Council in the preceding five years (1991-1995) and were to be automatically deleted from the list of matters of which the Council is seized.

There were fifty such items which had not been considered by the Security Council in its formal meetings during the five year period 1991-1995. “The India Pakistan question” and “The Hyderabad question” were listed as items 6 and 7 in the list. It is unfortunate to point out that Kashmir under “The India Pakistan question” was last discussed at the 1251st meeting of UN SC on 5 November 1965. There had been a lapse of 30 years and 9 months since the last time when Kashmir was considered by the UN SC. Kashmir is no more on the UN Security Council agenda in the shape and manner in which it had continued to be since 6 January 1948 till 15 September 1996. It is retained provisionally for a period of one Year under a reminder provision. On 27 August 1996 JKCHR made a representation to the UN Security Council, on the deletion of Kashmir from UN SC agenda. It urged upon the President of UN SC that the decision under rule 11 of the provisional rules of procedure of the SC had caused a serious prejudice to one of the basic principles – Article 1 (2) of UN Charter.

Loss suffered by Kashmir case at the UN points out the most serious failings of the Government of Azad Kashmir and the most serious neglect of the Presidency in not performing their constitutional duties to guard and increment the case of self determination of the People of Jammu and Kashmir. Government of Azad Kashmir and the Presidency have accrued a criminal liability for failing to discharge the public trust and constitutional obligations and for squandering the legislative tenures and public funds, resulting in converting Kashmir into a commercial enterprise and a self serving private activity. One major diplomatic misjudgment came from President Musharraf at the UN. The President while addressing the 61st Session of the United Nations General Assembly on 19 September 2006 skipped any reference to self-determination.

The diplomatic misjudgment of the President was further incremented by Riaz Mohammad Khan Foreign Secretary and Leader of Pakistan Delegation in his address at the 62nd Session of the UN General Assembly on 2 October 2007. Khan also nudge passed the issue of self-determination. A section of Kashmiri leadership during the heights of President Musharraf’s rule decided to change their horse’s mid-stream. As desired by President Musharraf a majority except Syed Ali Shah Gilani gave up on Hurriyet constitutional discipline and decided to sell “outside the box” solution to public. It is an appreciable new contribution to the political vocabulary of Kashmir. However, the idea cannot override the jurisprudence of the Kashmir case and the Constitutional discipline set under article 257 of the Constitution of Pakistan.

Prime Minister of Pakistan carries a higher burden of responsibility as Chairman AJK Council and by virtue of his authority to nominate 5 people on the Council. The Government of Pakistan, which retains a major share in the legislative authority in Azad Kashmir and has taken upon an exclusive list of responsibilities under articles 19(2), 21, 31(3) and 56 of the Constitution Act 1974, has to discharge a broad spread of trust at home and abroad. It has to discharge its accrued responsibilities under article 257 of the Constitution of Pakistan and its obligations as a member nation of the UN. Government of Jammu and Kashmir has an instrument of Accession with India. It is provisional and disputed. Jammu and Kashmir is the only State which unlike other States in the Union of India has a separate Constitution. It is important to point out that while other Princely States signed the Instrument of Accession to India and subsequently the Instrument of Merger, the State of Jammu and Kashmir did not sign the Instrument of Merger with India.

The “accession” of Jammu and Kashmir was limited to the areas of Defence, External Affairs and Communication. Right until the Delhi Agreement of 1952, it did not accept any provisions of the Constitution of India other than those agreed to in the Instrument of Accession. Accession is a contract that the Government of India would protect ‘life’, ‘property’ and ‘dignity’ of the people of Jammu and Kashmir. Unfortunately, Government of India has failed the test set out in the terms of Accession in the last 18 years. Indian Security Forces resorted to first killing in the State between the night of 8/9 January 1990. These killings are a failure in honouring the terms of accession and a violation of the role stipulated under UNCIP resolutions in regard to number and behaviour of Indian security forces. JKCHR reported the first killings to the UN on 10 January 1990.

On 6 June 1990 JKCHR delegation dilated the report of the first killings in Kashmir at the UN in Geneva and invoked ECOSOC Resolution 1503 against India on her ‘gross and systematic abuse’ of human rights. JKCHR rigorously highlighted the ongoing situation in Kashmir at UN World Conference on Human Rights in Vienna, in June 1993. There is a need to understand that the right of self-determination precedes the process of accession to Pakistan. The process has to be allowed in accordance with the jurisprudence of UNCIP resolution and the wisdom of article 257 of the constitution of Pakistan. This jurisprudence does not disturb the respective positions taken by India and Pakistan since Tashkent Declaration. It should be accompanied by a neutral dispensation towards every school of opinion in Kashmir.-SANA

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