From UPSC perspective, the following things are important :
Prelims level : Art 35 and 51 of UN charter
Mains level : Kashmir issue and its international prospects
- Union Home Minister recently held India’s first PM Nehru responsible for the existence of Pakistan-occupied Kashmir as he had declared an untimely ceasefire to the hostilities after Pakistan had invaded Kashmir in October 1947.
- He said that had Nehru taken the matter to the United Nations under Article 51 of the UN Charter, instead of Article 35, the outcome would have been different.
- The ceasefire was brokered by a UN Mission.
- According to UN records, on January 1, 1948, the GoI reported to the UNSC details of a situation existing between India and Pakistan owing to the aid which invaders, consisting of Pak nationals and tribesmen.
- Pointing out that J&K had acceded to India, the GoI considered the giving of this assistance by Pakistan to be an act of aggression against India.
- The Government of India, being anxious to proceed according to the principles and aims of the Charter, brought the situation to the attention of the Security Council under Article 35 of the Charter.
- Pakistan denied this on January 15, 1948, and said India’s complaint under Article 35 contained a threat of direct attack against it.
- Under the same article, Pakistan brought to the UNSC’s attention “a situation existing between India and Pak which had already given rise to disputes tending to endanger the maintenance of international peace and security.
- It falsely accused India of a “genocide of Muslims”, “failure to implement agreements between the two countries”, “unlawful occupation of Junagadh” and “India’s actions in J&K”.
- Articles 33-38 occur in Chapter 6 titled “Pacific Settlement of Disputes”.
- These six Articles lay out that if the parties to a dispute that has the potential for endangering international peace and security are not able to resolve the matter through negotiations between them, or by any other peaceful means, or with the help of a “regional agency”.
- The Security Council may step in, with or without the invitation of one or another of the involved parties, and recommend “appropriate procedures or methods of recommendation”.
- Specifically, Article 35 only says that any member of the UN may take a dispute to the Security Council or General Assembly.
- This Article occurs in Chapter 7 titled “Action With Respect to Threats to the Peace, Breaches of the Peace, and Acts of Aggression”.
- The chapter assumes that the Security Council is already seized of the situation.
- Article 51 essentially says that a UN member has the “inherent right of individual or collective self-defence” if attacked, “till such time that the UNSC has taken measures necessary to maintain international peace and security”.
- It says that exercise of this right must be immediately reported to the UNSC by the member, and “shall not in any way affect the authority and responsibility of the UNSC.
The outcome: Line of Control
- The decision to set up a UN Mission was taken on January 20 same year.
- The UN invoked Article 34 to mandate the mission to investigate facts of the situation, and to exercise any “mediatory influence…likely to smooth away difficulties”.
- The title of the agenda before the Security Council was also changed from the “Jammu & Kashmir question” to the India-Pakistan question.
- The five-member Mission, which had members nominated by India and Pakistan, and three others, eventually brokered the cessation of hostilities from January 1, 1949, and the establishment of a ceasefire line on July 27, 1949.
- Thus Pakistan left the areas of Jammu & Kashmir that were under its control on that day.
- It was this ceasefire line that came to be termed the Line of Control in the Simla Agreement of 1972.