Third Party Mediation and Kashmir

Z.G. MUHAMMAD

It is not a beaten path. That columnists and commentators in the subcontinent in general and Jammu and Kashmir in particular- on both the sides of the dividing line   love to tread on October 27 every year for heck of it. Today also, the date runs through Kashmir narrative.
On this day in 1947, men in olive green from New Delhi landed at 9.00 A.M at   Srinagar aerodrome. Sorties after sorties of planeloads of soldiers raising clouds of dust landed until the sunset. Ever since, with some historians holding view Kashmir dispute was born on this day it has been a matter of debate and discussion with scholars, researchers and commentators.
Sixty five years after, the date continues to be central to the Kashmir narrative. The Kashmir dispute   not only continues to echo in India and Pakistan parliaments but also resonates at the United Nations. In the fall of 2013, it dominated discussions in the Oval Office of White House between President Obama and India and Pakistan Prime Ministers during their separate meetings. Pakistan Prime Minister Nawaz Sharif during his meeting with President Obama pleaded for mediation for resolving the Kashmir dispute. India raised objection, that after 1972 Shimla Agreement, Kashmir dispute had lost its international status and it was now only a bilateral issue.
This debate over Kashmir being an international debate or bilateral issue again brought the “instrument of accession” that have enabled India troops to land in Jammu and Kashmir and developments thereafter into focus.  Lord Mountbatten had said in a lengthy aide-memoire dated 25 February 1948 about October 27 decision,  ‘that India was sending troops into what now was an Independent country’, that was going to create a lot of hullaballoo   internationally for preventing this he  insisted on “formalities of accession to be fulfilled.”  (‘Jammu and Kashmir was independent after British paramountcy and protection was withdrawn from the princely states on 15 August 1947.’)
The debate on the question of landing of troops sharpened after new researches on the subject came to fore.  Famous British historian Alistair Lamb,  expert on South Asia  known for his 1968 book, Asian frontiers- studies in a continuing problem wrote, “There are good grounds for believing that in fact the Maharaja never signed an instrument.” Kashmir historian Dr. Abdul Ahad in ‘Kashmir Triumphs, Tragedies’, and writer Muhammad Sultan Pampori in ‘Kashmir in Chains (1819-September 2010) very subtly endorses his views. Lamb   has amplified his statement in three well-documented books, Kashmir: A Dispute Legacy 1846-1947, the Birth of Tragedy and Incomplete Partition.
His assertions had caused a counter narrative from India- that spoke about authenticity, legality and sanctity of the instrument of accession.  On these counter narratives; Lamb came up with another important point:  “While the date and perhaps fact of accession to India of the State of Jammu and Kashmir in late October 1947 can be questioned, there is no dispute that at that time any such accession was presented to the world at large as conditional and provisional.”
Lord Mountbatten in his 27 Oct 1947 letter had written to Maharaja, “The question of accession should be settled by reference to the people”. Nehru did reiterate the commitment not only in public statements but also took the Constituent Assembly on board on many an occasions. (See India’s Foreign Policy by Jawaharlal Nehru 443-451). India’s top most historian Ramachandra Guha has traced a letter from Nehru to Maharaja Hari Singh in December 1947- in this letter   he talks of ‘four options’ that in the words of Guha “remain the four options being debated today”. (India After Gandhi page 71-72).
Lamb makes an important point- the point that places at rest the whole debate whether there is an instrument accession or not- if it was signed on 26th or 27th of October or much later. “The point is clear, he writes, “A reference to people would be entirely futile unless it contained potential of reversing the process of accession. If the people opted for Pakistan or, Indeed, for continued independence, then any documents relating to accession which Maharaja may have signed would be null and void.”
“On October 28 1947, the Governor General of Pakistan, M.A. Jinnah, also agreed that the answer to Kashmir lay in a plebiscite. The disagreement was in modalities for holding a Plebiscite and by what was understood by “impartial auspices”.  One and half month after October 27, Jawaharlal Nehru was of “opinion that India must come to some rapid and more or less final decision about Kashmir with Pakistan.” (Guha).  From his letter of    December 1, 1947 to Maharaja, it is clear that Nehru   was convinced, “Even if military forces held Kashmir for a while, a later consequences might be strong reaction to them”. It is not clear, if his powerful Home Minister, Sardar Patil was in agreement with him or not on the question of resolving Kashmir with Pakistan.
On January 1, 1948, India took the Kashmir dispute to the Security Council under article 35 of charter of United Nations in which ‘the mediation of the Security Council was expressly sought in a matter which otherwise threatened to disturb the course of international relations.’ Many in India have called it his ‘diplomatic blunder’. What prompted Nehru to take the dispute to UNSC is the moot point. I do not think Jawaharlal Nehru was that naïve to believe that the United Nations would take his application against Pakistan as a gospel truth and endorse the instrument of accession. He perhaps wanted to wriggle out of the maelstrom but it did not happen.
The United Nations after passing resolutions in 1948 and 1949 guaranteeing right to self-determinations and asking for holding a plebiscite under its aegis in fact  did not recognize the “instrument of accession  of a monarch against whom people had risen in revolt.  Its asking for appointment of a Plebiscite Administrator suggested that  it declared actions taken after October 27, including appointment of Sheikh Abdullah as the Emergency Administrator as null and void.
The United Nations resolution to which India, Pakistan and comity of nations are signatories according to M.Y. Buch, a former advisor to UN Secretary General is an “international agreement”- that cannot be scrapped unilaterally or by any bilateral agreement. The question arises has Shimla Agreement overridden the UN resolutions and closed the option of third party intervention.   From the document on deliberations at Simla and more explained by Bhutto in his 19 July 1972 speech, the answer could be no.