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The Procedure of the UN Security Council, 4th Edition

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Revised on 16 August 2019

Chapter 4:   THE COUNCIL CONVENES

Section 3:   Agenda and Summary Statement of matters of which the Security Council is seized

 

The situation in Jammu and Kashmir and the Security Council

 

Three items relating to India and Pakistan remain on the Summary Statement of matters of which the Security Council is seized:

 

57.  The India-Pakistan question (first considered by the Council in a formal meeting on 6 January 1948 under an earlier agenda formulation, “The Jammu and Kashmir question”, and last considered on 5 November 1965);

 

58.  The Hyderabad question (first considered in a formal meeting on 16 September 1948 and last considered on 24 May 1949); and

 

62.  The situation in the India/Pakistan subcontinent (first considered in a formal meeting on 4 December 1971 and last considered on 27 December 1971).

 

The Note by the President S/2010/507 provides that when agenda items on the Summary Statement become subject to deletion, after not having been taken up by the Council in a formal meeting for three years or more, the following procedure applies:  If a Member State notifies the Council President by the end of February each year that it requests an item to remain on the Summary Statement, “such item will remain on the statement for one year, unless the Security Council decides otherwise.”  In the Council’s practice, all such requests to retain items on the Summary Statement have been honoured.

 

Pakistan has, on a yearly basis, requested the retention of the three items listed above, as it did most recently on 10 January 2019 (S/2019/38).  The importance to Pakistani public opinion of those items remaining on the Summary Statement was highlighted by an incident which occurred in 2010.  Owing to the way that the weekly updates to the Summary Statement were issued at that time, a Pakistani newspaper, The Nation, mistakenly believed that the Council had acted unilaterally to delete the three items.  Despite the apparent efforts of Pakistan’s then UN representative to explain to the newspaper the technicalities of the Summary Statement, The Nation called this “a grave lapse” and a “studied omission” which deserved “to be condemned unreservedly”. 

 

On the other hand, India has long held that the three agenda items should be deleted from the Summary Statement.  With apparent reference to these items, the Indian representative has argued that

 

“the Council should amend its procedures so that items do not remain on its agenda

permanently.  There are matters that have been discussed for decades.  In such cases, further

attention should require that some valid reasons be proffered by those seeking retention of

those items on the agenda.” (S/PV.6672; see also S/PV.6870 and S/PV.7052).

 

The retention of the three India-Pakistan agenda items is not unique, since 10 other agenda items which have not been considered at formal Council meetings in recent years also remain on the Summary Statement at the request of one or more Member States.  What is unique about “The India-Pakistan question” and “The situation in the India/Pakistan subcontinent” is that although the Council has not convened a formal meeting on these items since 1965 and 1971, respectively, the United Nations Military Observer Group in India and Pakistan (UNMOGIP) which the Council established under the first item, and the mandate of which was modified under the second, still remains in existence.  In fact, in 2018, the Council President participated in an exchange of letters with the Secretary-General leading to the appointment of a new Chief Military Observer and Head of Mission for UNMOGIP (S/2018/659 and S/2018/660).  As of 31 July 2019, UNMOGIP is comprised of 43 military observers. 

 

The website of the UN Department of Peace Operations (DPO)  provides background on UNMOGIP.  DPO states that when India and Pakistan became independent in August 1947, under the Indian Independence Act,

 

“Kashmir was free to accede to India or Pakistan.  Its accession to India became a matter of

dispute between the two countries and fighting broke out later that year.  In January 1948, the

Security Council adopted resolution 39 (1948), establishing the United Nations Commission

for India and Pakistan (UNCIP) to investigate and mediate the dispute. . . .  The first team of

unarmed military observers, which eventually formed the nucleus of the United Nations Military Observer Group in India and Pakistan (UNMOGIP), arrived in the mission area in January 1949

to supervise, in the State of Jammu and Kashmir, the ceasefire between India and Pakistan . . . . 

On 30 March 1951, following the termination of UNCIP, the Security Council, by its resolution 91

(1951), decided that UNMOGIP should continue to supervise the ceasefire in Jammu and

Kashmir.  UNMOGIP’s functions were to observe and report, investigate complaints of ceasefire

violations and submit its finding to each party and to the Secretary-General.”

 

Hostilities broke out again between India and Pakistan in 1971.  When a ceasefire came into effect at the end of 1971, the Council adopted resolution 307 (1971) by which it demanded that a durable ceasefire in all areas of conflict remain in effect until all armed forces had withdrawn to their respective territories and to positions which fully respected the ceasefire line in Jammu and Kashmir supervised by UNMOGIP.  The following year, India and Pakistan signed an agreement defining a Line of Control in Kashmir which, according to DPO, “with minor deviations, followed the same course as the ceasefire line established by the Karachi Agreement in 1949.”  However, as stated by DPO, “India took the position that the mandate of UNMOGIP had lapsed, since it related specifically to the ceasefire line under the Karachi Agreement.  Pakistan, however, did not accept this position.”

 

Our book (page 506) considers that when India took the position that UNMOGIP’s mandate had lapsed, this constituted a withdrawal of host country consent.  Nonethless, the book notes that in this instance the Council did not act to terminate the UNMOGIP mandate.  However, according to the UNMOGIP website, India's military authorities have followed a policy of "limiting the activities of the UN observers on the Indian-administered side of the Line of Control, though they continue to provide necessary security, transport and other services to UNMOGIP." 

 

In 2016, outbreaks of violence in Jammu and Kashmir have brought renewed attention to UNMOGIP.  Responding to journalists’ queries on 2 August 2016, the UN Spokesperson for the then Secretary-General Ban Ki-moon clarified that the mandate of the UNMOGIP observers “is to report on the ceasefire between India and Pakistan along the Line of Control.  The UN Mission there does not have a mandate there beyond the Line of Control.”  

 

As noted above, UNMOGIP’s main functions have been to observe and investigate complaints of ceasefire violations, and to submit its findings to both sides and to the Secretary-General.  However, unlike all other peacekeeping missions except the United Nations Truce Supervision Organization (UNTSO), there is no present practice of the Secretary-General formally reporting on UNMOGIP to the Security Council. 

 

This lack of reporting to the Security Council was considered by the Council’s Ad Hoc Committee on Mandate Review in 2007.  Before the Ad Hoc Committee’s mandate terminated on 31 December 2007, the Council President addressed a letter to the Secretary-General setting out areas of agreement reached by the Council through the Committee (S/2007/770).  Among these were that the Council “would like to receive, in the appropriate mandate review mechanism, update briefings from the Secretariat, if necessary, possibly in June of every calendar year, on mandates older than five years and not subject to a periodic renewal”.  As pointed out in our book (page 488), although it was not specified in the letter, this description applies only to UNMOGIP and UNTSO, because the third such UN mission, UNMIK, has an established reporting timetable. 

 

The Council had not considered the mandate of UNMOGIP in a formal meeting since 1971.  Following the issuance of the Council President’s 2007 letter, for a few years the Council received briefings from the then Department of Peacekeeping Operations on UNMOGIP.  These briefings were first given in the Council’s Informal Working Group on Documentation and Other Procedural Questions, and then it was determined that such reviews would fall more within the purview of the Council’s Working Group on Peacekeeping Operations.

 

One issue which has been brought to the Council’s attention by Pakistan, in the context of the violence occurring since 2016, is that in its resolution 47 (1948), the Council took note that “both India and Pakistan desire that the question of the accession of Jammu and Kashmir to India or Pakistan should be decided through the democratic method of a free and impartial plebiscite”.  That same resolution instructed the UN Commission for India and Pakistan to facilitate the taking of the necessary measures with respect to “the holding of a plebiscite”.  This long-ago commitment of the Security Council to a plebiscite has been recalled by Pakistan in a number of letters written to the Secretary-General and the Council President (see, most recently, S/2019/623, S/2019/635 and S/2019/654).

 

Unlike letters published as General Assembly documents, letters published as Security Council documents do not include as part of their heading any relevant agenda items.  But when writing about Jammu and Kashmir, Pakistan has requested that each letter be circulated “in connection with” or “under” the item “The India-Pakistan question”.  This appears intended to imply that the fact that the India-Pakistan agenda item is still on the Summary Statement creates a link between the present situation in Kashmir and the Security Council.  This reasoning is a bit circular, since the items remain on the Summary Statement at the express request of Pakistan only.  And it does not address the position of India on the retention of the items.  Nonetheless, as long as UNMOGIP – an operation established by the Security Council – remains in existence, the Council does to a degree have a connection to some aspects of the present situation in Kashmir.

 

(This update supplements pages 488 and 506 of the book.)