What's In Blue

Posted Thu 15 Aug 2019

Jammu and Kashmir Consultations

Tomorrow (16 August) Security Council members are scheduled to hold consultations on the situation in Jammu and Kashmir. Oscar Fernández-Taranco, the Assistant Secretary-General for Peacebuilding Support, and General Carlos Humberto Loitey, the UN Military Adviser for Peacekeeping Operations, are expected to brief. Press elements may be discussed as a possible outcome of the meeting.

Recent Developments and Council and Wider Dynamics

The meeting, which was requested by Pakistan in a 13 August letter to the Security Council (S/2019/654) and subsequently called for by China, comes amidst a recent escalation of tensions between India and Pakistan over Jammu and Kashmir. Council members had originally considered including the issue under “any other business” last Thursday (8 August), to allow Council president Ambassador Joanna Wronecka to brief members on her meetings with the ambassadors of India and Pakistan.

Council members, many of whom have close bilateral relations with both India and Pakistan, acknowledge the sensitivity of the Kashmir issue for Pakistan and India, while recognising the seriousness of the current situation, and its potential to escalate. Although some members appear to prefer that this issue be handled bilaterally between the two countries, they will use tomorrow’s meeting to assess what role the Council might play in helping to resolve the current crisis. Tomorrow’s meeting will help them to take stock of an issue the Council has not addressed in several decades. It appears that several members will emphasise the importance of de-escalation, diplomacy, and restraint while referring to previous Security Council resolutions as a guide to addressing the crisis.

Heightened international attention to the longstanding Jammu and Kashmir dispute was sparked on 5 August, when India rescinded Article 370 of its constitution, which provided semi-autonomy to Jammu and Kashmir, and Article 35-A, which limited property rights in Jammu and Kashmir to inhabitants of the region. Since that date, extensive communications restrictions were also reported in Indian-administered Kashmir—including blocking cell phone, landline and internet access—as well as limitations on freedom of assembly and movement, although some of these restrictions have reportedly been removed. For its part, Pakistan suspended trade with India and expelled India’s High Commissioner to Pakistan.

This dispute between the two countries has not shown signs of dying down. In the past 24 hours Indian and Pakistani forces are reported to have exchanged fire across the Line of Control separating Indian-administered Kashmir from Pakistan-administered Kashmir. Pakistan claims that three of its troops were killed, as well as five Indian soldiers, while India denies losing any of its soldiers in the cross-border exchange. In a speech on Indian Independence Day on August 15, Indian Prime Minister Narendra Modi praised the government’s recent decisions on Jammu and Kashmir. Meanwhile, Pakistani Prime Minister Imran Khan tweeted that if the international community “allows this [the implementation of India’s recent decisions on Kashmir and Jammu] to happen, it will have severe repercussions & reactions in the Muslim world setting off radicalisation & cycles of violence.” While on a visit to Pakistan-administered Kashmir, Khan reportedly threatened to “fight until the end” should India commit “any type of violation”.

India and Pakistan have presented starkly different assessments of the current crisis. Pakistan has condemned India’s human rights policies in Jammu and Kashmir, and has argued that the recent changes to the constitution violate UN Security Council resolutions calling for the status of the region to be resolved through a UN-sponsored plebiscite representing the will of the people. In contrast, India maintains that developments related to its constitution are a sovereign matter, and that its recent decisions in this regard will result in enhanced economic prospects for the people of Jammu and Kashmir. It has further argued that disaffection among the people of Jammu and Kashmir has been used by Pakistan to justify terrorism.

India has maintained that the Simla agreement of July 1972, which stipulated that both countries would settle differences peacefully through bilateral negotiations rendered previous Council resolutions redundant. Pakistan has continued to call for the implementation of Council resolutions that it argues have said the final disposition of the dispute in Jammu and Kashmir should be determined through a plebiscite that reflects the will of the people of the region and takes place under the auspices of the UN.

The meeting tomorrow continues a high-level focus on this issue at the UN that began on 8 August, when Secretary-General António Guterres issued a statement appealing for “maximum restraint”. He further called on “all parties to refrain from taking steps that could affect the status of Jammu and Kashmir” and expressed concern about reports of restrictions on the Indian side of Kashmir.

In the first half of August, Pakistan transmitted three letters from its foreign minister to the UN outlining its concerns about developments in Jammu and Kashmir and appealing to the UN to address the crisis. These letters were submitted on 1 August (S/2019/623, addressed to the Secretary-General), 6 August (S/2019/635, addressed to the Secretary-General, the General Assembly and the Security Council), and 13 August (S/2019/654, addressed to the Security Council). In its 13 August letter, Pakistan explicitly requested that a Council meeting be convened on Jammu and Kashmir under the “India-Pakistan Question” agenda item, further asking that it be permitted to participate under relevant provisions of the Charter and rule 37 of the provisional rules of procedure.

Pakistan’s efforts to notify the Council of the current situation in Kashmir and to call for a Council meeting are consistent with article 35(1) of the UN Charter, which states: “Any Member of the United Nations may bring any dispute…to the attention of the Security Council or of the General Assembly”. Furthermore, according to rule 3 of the provisional rules of procedure, “The President shall call a meeting of the Security Council if a dispute or situation is brought to the attention of the Security Council under Article 35 …”. However, since the meeting is being held in informal consultations, a format that only allows the participation of Council members and UN officials, Pakistan’s request to participate under rule 37 of the provisional rules of procedure cannot be honoured.

It seems that there was a widespread preference among Council members to hold tomorrow’s meeting in private in order to have a frank, discreet discussion outside the public glare. A number of members were concerned that an open meeting, especially with the participation of India and Pakistan, could further heighten political tensions between the two countries.

There were signs of increased tensions over Jammu and Kashmir earlier this year. On 14 February, a Kashmiri extremist launched an attack on a military convoy that killed more than 40 Indian paramilitary personnel in Kashmir; responsibility for the attack was claimed by the group, Jaish-e-Mohammed (JeM), which is subject to UN sanctions under the 1267/1989/2253 Al-Qaida/ISIL Sanctions regime. On 26 February, India carried out airstrikes on what it asserted was a JeM training base in Balakot, Pakistan; Pakistan denied that the attack struck a JeM base. During an aerial skirmish on 27 February, Pakistan shot down two Indian planes and captured a downed pilot who survived the incident. Tensions were ultimately quelled after Pakistan released the pilot. At the time of the February unrest, the Security Council did not meet, with the parties reportedly preferring to resolve the flare-up bilaterally.

In July, the Office of the UN High Commissioner for Human Rights (OHCHR) released its second report on human rights in Indian-administered Kashmir and Pakistan-administered Kashmir, covering May 2018 to April 2019. The report highlighted “serious human rights violations and patterns of impunity in Indian-Administered Kashmir and significant human rights concerns witnessed in Pakistan-Administered Kashmir.”

Historical Background on the India-Pakistan Question

Following the partition of India in August 1947, the then-princely state of Jammu and Kashmir faced the options of acceding to either India or Pakistan or remaining independent.  Although its ruler Maharaja Hari Singh originally opted to remain independent, following an armed invasion by Pashtun forces from Pakistan he signed the Instrument of Accession to India in October 1947. This led to an armed conflict between Indian and Pakistani forces. On 1 January 1948, India brought the situation to the attention of the Council. This was followed by a similar request from Pakistan two weeks later. Between 1948 and 1971 the Council adopted eighteen resolutions concerning India and Pakistan.

The key resolutions and related developments are described below.

On 17 January 1948, the Council adopted its first resolution (S/RES/38) on the India-Pakistan Question, which called on India and Pakistan to take measures to improve the situation in Kashmir and to refrain from doing anything that would aggravate it.

It then adopted resolution 39 on 20 January, which set up the UN Commission for India and Pakistan (UNCIP) to investigate the dispute between the two countries over Kashmir and exercise “mediatory influence”.

Resolution 47, adopted in April 1948, enlarged the membership of UNCIP and recommended measures that would bring about a cessation of the fighting and create the proper conditions for a free and impartial plebiscite to decide whether the State of Jammu and Kashmir would accede to India or Pakistan. Among other things, the resolution also said that India should agree to a Plebiscite Administrator nominated by the Secretary-General, who would oversee the holding of the plebiscite after the implementation of various measures.

Resolution 51 adopted in June 1948 directed the Commission to proceed to the areas of dispute without delay “with a view to accomplishing in priority the duties assigned to it by resolution 47”.

Following the end of the first India-Pakistan war, the two countries signed the Karachi Agreement in July 1949, which established a ceasefire line to be supervised by UN military observers. These observers, under the command of the Commission’s Military Adviser, formed the nucleus of the United Nations Military Observer Group in India and Pakistan (UNMOGIP).

In the early 1950s, the Council passed several resolutions on India-Pakistan following reports to the Council from the UN Representative for India and Pakistan. Resolution 80 adopted in March 1950 called on both India and Pakistan to execute a programme of demilitarisation and terminated UNCIP.

Resolution 91, adopted in March 1951, decided that UNMOGIP would continue to supervise the ceasefire in Kashmir with a mandate to observe and report, investigate complaints of ceasefire violations and submit its finding to each party and to the Secretary-General.

Resolution 96, adopted in November 1951, and resolution 98, adopted in December 1952, were on the reports of the UN Representative on India and Pakistan and on efforts to establish a plan for the demilitarisation of Jammu and Kashmir.

In February 1957, the Council adopted three resolutions (resolution 122, 123 and 126) after an intensification of the conflict. There were no resolutions on this issue between 1957 and 1965.

Following a second war between India and Pakistan in 1965, the Council adopted five resolutions (S/RES/209, S/RES/210, S/RES/211, S/RES/214, and S/RES/215).

Following the end of the third India-Pakistan war in December 1971, the two countries signed the Simla Agreement in 1972, converting the ceasefire line into the Line of Control. The Simla Agreement calls for “the establishment of durable peace in the sub-continent, so that both countries may henceforth devote their resources and energies to the pressing task of advancing the welfare of their peoples”. The parties “resolved to settle their differences by peaceful means through bilateral negotiations or by any other peaceful means mutually agreed upon between them”.

In December 1971, the Council adopted resolution 307 under the “India/Pakistan subcontinent” agenda item, demanding a durable ceasefire and cessation of hostilities until withdrawals of all armed forces to the ceasefire line in Kashmir. It also requested the Secretary-General to keep the Council informed “without delay” on developments related to the implementation of the resolution.

The Council’s involvement on this issue subsided following the Simla Agreement, but UNMOGIP has continued to operate, and the position of the UN Secretary-General has been that UNMOGIP can only be terminated by a decision of the Council.

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