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Article 35, UN Charter — How India took up Pakistan invasion of J&K (Relevant for GS Prelims & Mains Paper II; IOBR)

Union Home Minister Amit Shah held India’s first Prime Minister Jawaharlal 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
The ceasefire was brokered by a United Nations Mission. According to UN records, on January 1, 1948, the Government of India reported to the Security Council “details of a situation existing between India and Pakistan owing to the aid which invaders, consisting of nationals of Pakistan and tribesmen from the territory immediately adjoining Pakistan on the north-west, were drawing from Pakistan for operations against Jammu and Kashmir”. Pointing out that J&K had acceded to India, the “Government of India 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 Security Council’s attention “a situation existing between India and Pakistan which had already given rise to disputes tending to endanger the maintenance of international peace and security” and accused India of a “genocide of Muslims”, “failure to implement agreements between the two countries”, “unlawful occupation of Junagadh” and “India’s actions in Jammu & Kashmir”.

Article 35
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.

Article 51
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 Security Council has taken measures necessary to maintain international peace and security”. It says that exercise of this right must be immediately reported to the Security Council by the member, and “shall not in any way affect the authority and responsibility of the Security Council under the present Charter to take at any time such action as it deems necessary in order to maintain or restore international peace and security”.

The outcome
The decision to set up a United Nations Mission was taken on January 20. 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, which left Pakistan with 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.

Source: The Indian Express



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