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Points to ponder on the legal aspects of the J&K dispute
compiled by - Pranawa C. Deshmukh |
1. Responsibility for the security of the State of J&K rests with the Govt of India
This is assured by point (2), Section B, Part II (Truce Agreement) in the UNCIP Resolution of 13th August 1948.
2. The sovereignty of J&K over the entire territory shall not be brought into question
This is assured by A (1) Part II of UNCIP-R of 13-8-1948. All consideration is regarding the ENTIRE territory of the State of J&K, as per above remark, Isn't it?
3. There shall be no recognition of the so-called Azad (Free) Kashmir Government.
'AK' Government has no recognition in ANY UN-R. It is simply not mentioned anywhere. The only place it is mentioned in any UN document is in 'proposal' (and not in any UN-R), namely that of Gen.McNaughton pursuant to SC decision in its 457th meeting of 22-12-1049. This proposal speaks about 'demilitarization' in regions inclusive of AK.
4. The administration of the evacuated areas in the north shall revert to the govt of J&K and its defence to the Govt of India who will, if necessary, maintain garrisons for guarding the main trade routes
Again, B(2), Part-II of UNCIP of 13-8-1948 seems to assure this. The 'proposal' of Gen.McNaughton mentioned above explicitly refers to the "northern area".
5. Pakistan shall be excluded from all affairs of J&K in particular in the plebiscite, if one should be held
Point 3(a) of UNCIP-R of 5-1-1949 mentions that the plebiscite administrator would be 'formally' appointed by the 'Government of Jammu and Kashmir'. (What is the definition here of G-of-J&K?)
This already seems to exclude Pakistan from having any role in the plebiscite, as was then under consideration.
6. If a plebiscite is found to be impossible for technical or practical reasons, the Commission will consider other methods of determining fair and equitable conditions for ensuring a free expression of the people's will
Can we possibly use UNSC-R 123 of 21-2-1957 ["Requests the President of the Security Council,..., to examine with the Govt of India and Pakistan any proposals,....."] to indicate acceptance of other methods?
7. Plebiscite proposal shall not be binding upon India if Pakistan does not implement Parts I and II of the resolution of August 13, 1948.
Point (2) of UNCIP-R of 5-1-1949 puts these pre-conditions on the plebiscite consideration.
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