Queries have been raised in Pakistan whether UN Security Council’s (UNSC) Kashmir resolutions were passed under Chapter VI or Chapter VII of the UN Charter? India also contends that its request made through a letter on January 1, 1948 to the Security Council for the resolution of the Kashmir dispute explicitly referred to the provisions of Chapter VI of the UN Charter. However, it is nevertheless contended here that for the purpose of deciding the binding nature or otherwise of a UNSC resolution, it is unnecessary to determine the issue whether the concerned resolution was passed under Chapter VI or VII of the UN Charter. The simple and obvious reason is that nowhere in the UN Charter, or the rules of the Security Council itself, can support be found for this avowed principle. Neither the UN Charter, the rules of UNSC nor any other related UN document states that a resolution passed under provisions of Chapter VI of the UN Charter is advisory and not binding in nature, and that passed under Chapter VII of the Charter is binding in nature. It is, therefore, a fallacy to say that once we determine the specific Chapter under which the resolution is supposed to have been made, we can automatically conclude as to the binding nature or otherwise of the resolution.
No further support of this general misconception is found if we study the practice of the UNSC right from its beginning to date. The Security Council rarely makes reference to any Chapter of the UN Charter or any provision thereof while passing a resolution. This practice perhaps is the foundation of the generally evolved misconception that when a reference is made to the provisions of Chapter VII, the resolutions need to be considered as binding. However, if this may be taken as a criterion to determine the nature of the resolution, then what would become of those hundreds of resolutions which have been acted upon and carried out as binding but where no reference to any Chapter or provision of the Charter was made?
The whole dispute — as have raged especially in India and Pakistan, and generally in some scholarly circles of the world — in relation to the impact of making a reference to Chapter VI or VII while making a resolution is, if we may say so, inept and misconceived. The mentioning of the relevant chapter is at best a declaratory act and the absence thereof does not rid the resolution of its inherent legal features that are to be implemented. However, one can juxtapose the powers of the Security Council to recommend or decide measures as binding versus the UN General Assembly’s (UNGA) competence under Article 10 of Chapter IV which explicitly states that UNGA can make recommendation only to the members. On the contrary, there is no such formulation in Chapter VI and VII of the UN Charter, which either calls upon the parties or decide the measures to be taken.
The criteria according to which the binding nature of the resolution of UNSC should be determined are discussed here afresh in relation to the resolutions passed by UNSC in 1940s and 1950 regarding Kashmir dispute.
Article 25 of the UN Charter provides that “The Members of the United Nations agree to accept and carry out the decisions of the Security Council in accordance with the present Charter”. According to some circles, the provisions of this Article provide a key to the question whether a resolution of the UNSC is binding or not, insofar as we have just to make a determination whether a resolution is a “decision” or otherwise in order to get to know whether it is binding or not accordingly. Article 27 of the UN Charter provides that any decision by UNSC is made by voting of members. Therefore all resolutions, of whatever nature, when adopted become a decision without any indication as to their binding nature or otherwise. It does not even therefore help us to determine the “nature” of the decision so as to reach a conclusion whether it is a decision which has a “binding” character or not.
As late as 2010, the International Court of Justice in its advisory opinion regarding “Declaration of Independence in respect of Kosovo” observed that (paragraph 94) “While the rules on treaty interpretation embodied in Article 31 to 33 of the Vienna Convention on the Law of Treaties may provide guidance, differences between Security Council resolutions also require that other factors be taken into account. Security Council resolutions are issued by a single, collective body and are drafted through a process that is very different from that used for conclusion of a treaty”.
Even in this latest judgment no support is provided to the generally held misbelief that resolutions made under Chapter VI are non-binding and those made under Chapter VII are binding.
Earlier in Namibia Advisory Opinion (1971), ICJ made a brief observation in relation to the interpretation of the resolutions of the UNSC as “The language of a resolution of the Security Council should be carefully analyzed before a conclusion can be made as to its binding effect. In view of the nature of the powers under Article 25, the question whether they have been in fact exercised is to be determined in each case, having regard to the terms of the resolution to be interpreted, the discussions leading to it, the Charter provisions invoked and, in general, all circumstances that might assist in determining the legal consequences of the resolution of the Security Council”.
Applying this test stated in Namibia opinion, one observes that in case of Kashmir resolutions, the circumstances that it creates and changes on ground that it brings are determining and making self-evident that the resolutions are binding as they have clearly ascertainable legal consequences.
Sir Michael C. Wood, renowned publicist and an expert in international law has however made a special study of the matter in his two articles viz The interpretation of Security Council Resolutions (1998) and The interpretation of Security Council Resolutions revisited (2017). The guideline provided by him for the interpretation of the UNSC resolutions is being mentioned herein below. On the basis of the principles provided by Sir Michael C. Wood, we shall proceed to determine whether the UNSC resolutions passed in 1940s and 1950 on Kashmir dispute were binding in character or not.
The conclusions reached at by Michael Wood (1998) were confirmed by Michael Wood (2017) [see last paragraph of 2017] and may be summarized as: (a) the aim of interpretation should be to give effect to the intention of the Council as expressed by the words used by the Council in the light of the surrounding circumstances; (b) The interpreter will, even if this is not expressly stated, seek to apply the general principles of interpretations as they have been elaborated in relations to treaties but caution is required as UNSC resolutions are not treaties; (c) In case of UNSC resolutions, given their essentially political nature, and the way they are drafted, the circumstances of the adoption of the resolution (are important). In general, less importance should be attached to the minutiae of language. And there is considerable scope for authentic interpretation by the Council itself.
We may start briefly with (c) above first and later deal in some detail with (a) and (b) above. (c) above provides that “In general, less importance should be attached to the minutiae of language. And there is considerable scope for authentic interpretation by the Council itself.”
The basic resolutions passed by the UNSC and United Nations Commission for India and Pakistan (UNCIP) in 1948 for the resolution of the Kashmir dispute were emphatically affirmed and reaffirmed by the UNSC in its resolution no. 91/1951 and 122/1957. The language used is unmistakably authoritative and decisive and no doubt has been left about the binding nature of the resolutions earlier passed by the UNSC and UNCIP. Both in 1951 and 1957, the UNSC declared that “Reminding the Governments and authorities concerned of the principle embodied in its resolutions 47 (1948) of 21 April 1948, 51(1948) of 3 June, 1948 and 80 (1950) of 14 March, 1950 and the United Nations Commission for India and Pakistan resolutions of 13 August, 1948, and 5 January, 1949, that the final disposition of the State of Jammu and 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.”
Although words quoted above from UNSC resolution no. 91/1951 appeared in the perambulatory part of the resolution and according to some is not the integral part of the “actual” decision, yet may be taken as an authoritative “interpretation” of the binding nature of the resolutions mentioned therein. The same words were reiterated in the same manner in 1957 and the same things may be said in relation thereto as have been said in relation to resolution no. 91/1951.
It is further maintained by the other party that India presented its case in 1948 under Chapter VI of the UN Charter. However, there appears to be no magic in making any reference to the provisions of Chapter VI or even VII by any party, as it is UNSC itself which decides ultimately its jurisdiction and its place in the UN Charter. In its official report relating to its practice during 1946-1951 under Chapter VII of the UN Charter, the UN Repertoire states that "Not the invocation of one or the other Chapter, but the Council’s appraisal of the character of the question before it, in the light of its primary responsibility for the maintenance of peace, and the Council’s evaluation of the facts adduced in each case, have been determinative of its procedure. The procedure followed has been general and appropriate to the consideration of questions both under Chapter VI and Chapter VII.”
We now proceed to determine the status of Kashmir resolutions further on the basis of other principles mentioned above in (a) and (b).
To begin with, it may be stated that UNSC and the UNGA have been authorized in Article 22 and 29 respectively to establish as many subsidiary organs as they may deem necessary for performance of their functions under the Charter. Pursuant to the powers conferred under aforesaid articles of the UN Charter various august bodies have been established. UNCIP was one such organ created by UNSC resolution no. 39/1948. Through UNSC resolution no. 47/1948, the UNSC not only extended its membership but also its mandate. Important resolutions were passed by UNCIP which were later incorporated in UNSC resolutions by reference. The mode of establishment of the UNCIP, its mandate, the work done by it and adoption of its resolutions by reference to UNSC make it absolutely clear that UNCIP was not merely an advisory body, and its work and recommendations were binding in nature.
There are 18 or so resolutions that have been passed in Kashmir case from 1947 to 1957 by the UNSC and its subsidiary organ UNCIP. In the resolutions passed during 1947, UNSC resolution no. 47 of 1948 spans over four pages. It refers to an earlier resolution no. 39 of 1948 passed on January 20, 1948 whereby the UNCIP was established and authorized to investigate the dispute relating to the case submitted for resolution and report back its findings to the UNSC on periodic basis enabling UNSC to take further decisions for the resolution of the dispute.
In a somewhat detailed study made below of the language and expressions of the resolutions, the comprehensive framework prescribed by them, the bodies created by them, the wide-ranging recommendations of the bodies later adopted and acted upon by the parties – all lead to the irresistible conclusion that the UNSC resolutions and the developments pursuant thereto were not merely recommendatory but binding in nature and meant by UNSC to be enforced and carried out by the parties.
In resolution no. 47/1948, mentioned above, the mandate and membership of the UNCIP was extended and it was conferred with additional powers. A clear and elaborate program was laid down for the activities of the UNCIP. The resolution addresses the Governments of India and Pakistan and directs them to progressively demilitarize the area of Jammu and Kashmir as a prelude to the holding of plebiscite under the auspices of the UN. It also lays down detailed instructions for the establishment of a provisional government in the territory of Jammu and Kashmir once the area is demilitarized and peace and order is restored. To this effect, directions were given to both Governments to take measures so as to facilitate the return of all those locals who had left the area after disturbances. Provisions were also made for appointment of a Plebiscite Commissioner.
The provisions made by resolution no. 47 of 1948, as mentioned above, were detailed in contents and minute in nature. Applying the linguistic and functional test as laid above, it is not very far-fetched to say that the resolution was passed with a clear intention to be enforced. The obvious aim is to proceed decisively and not to leave the parties to their own devices. The later developments also leave no doubt that UNSC continued to pass further resolutions under Chapter VII and not under Chapter VI of the UN Charter as is erroneously believed.
The UNCIP was an important sub-organ of the UNSC and was working directly under the authority and supervision of UNSC. It was also making periodic reports to the UNSC.
UNCIP, pursuant to the authority of the UNSC, passed an important resolution on November 9, 1948. The resolution has three parts and it deals with the issues of ceasefire between the parties, the basic principles of a truce agreement, and a commitment whereby the UNCIP was urging the parties to an undertaking that they accept and agree to the principle of plebiscite under UN auspices. This resolution was acted upon in toto in shape of the Karachi Agreement.
The Karachi Agreement, formally called the Agreement between Military Representatives of India and Pakistan Regarding the Establishment of a Cease-Fire Line in the State of Jammu and Kashmir, was signed on July 27, 1949. The parties agreed upon a ceasefire and a ceasefire line was also drawn. In order to clearly indicate the ceasefire line, a map was drawn and signed on behalf of India and Pakistan and made part of the Agreement by placing it with the Agreement as annexure. The 830 km long ceasefire line established in the agreement started from a southernmost point just west of the Chenab river in Jammu. It ran in a rough arc northwards and then northeastwards to the map coordinate NJ9842, about 19 km north of the Shyok River. The Karachi Agreement specified that UNCIP would station observers where it deemed necessary, and that the ceasefire line would be verified mutually on the ground by local commanders on each side with the assistance of UN military observers. Disagreements were to be referred to the UNCIP Military Adviser, whose decision would be final.
On March 30, 1951 by its Resolution 91 UNSC decided that United Nations Military Observer Group in India and Pakistan (UNMOGIP) be established to supervise the ceasefire in Jammu and Kashmir. UNMOGIP's functions were to observe, report, investigate complaints of ceasefire violations and submit its finding to each party and to the UN Secretary-General. UN Military Observers carry out field tasks deriving from the mandate and functions of UNMOGIP. Field tasks are further divided into operational tasks, support tasks, which are the administrative and logistic activities needed to perform the operational tasks. UN Military Observers maintain UN presence in the area of responsibility and monitor the situation through operational tasks, including conducting investigations of alleged ceasefire violation complaints, field trips to military units, area reconnaissance and manning of observation posts.
Regarding the nature of measures under the resolutions, Article 41 of the UN Charter provides that any measure short of use of military force can be suggested under Article 41 of the UN Charter. The binding nature of resolution, therefore, does not depend on the nature of measures suggested by the resolution.
UN presence ever since 1947 in the area of conflict demonstrates a strong resolve on behalf of the UN to carry out and enforce the resolutions of the UNSC. It is therefore inept to say that the UNSC resolutions were passed merely in the spirit of sympathy with the people of Jammu and Kashmir. The facts as detailed above show that the resolutions from the very beginning were meant to be enforced and binding. Therefore, the government of Pakistan and its policymakers should be clear of the formulation and confidently contend that UNSC Kashmir resolutions have a binding effect.
The author is Advocate Supreme Court of Pakistan, President Research Society of International Law and former Federal Minister for Law, Justice and Parliamentary Affairs.
E-mail: [email protected]
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