Chapter 4:   THE COUNCIL CONVENES

Section 1:   Convening a meeting

 

Council takes up Jammu and Kashmir in consultations, against backdrop of unusual procedural factors

 

On 15 August 2019, the Security Council added to its monthly work programme consultations on “India/Pakistan” for the following day.  These consultations followed upon a letter from the Foreign Minister of Pakistan, dated 13 August 2019 (S/2019/654), in which he requested that the Council President “convene an urgent meeting of the Security Council under the item entitled ‘The India-Pakistan question’” to consider recent acts by the Indian government affecting the situation in Jammu and Kashmir.  He specifically cited, inter alia, the revocation by India of article 370 of its Constitution which had accorded to Jammu and Kashmir “special” and “autonomous” status; increased militarization and hostilities alledgedly violating the 2003 ceasefire understanding; and human rights violations reported by the UN High Commissioner for Human Rights.

 

The Foreign Minister also asked that pursuant to Rule 37 of the Council’s Provisional Rules of Procedure, a representative of his government be allowed to participate in the requested meeting.  In an earlier letter, he had cited Security Council resolution 38 (1948) which calls upon India and Pakistan “to inform the Council immediately of any material change in the situation which occurs or appears to either of them to be about to occur while the matter is under consideration by the Council, and consult with the Council thereon” (our emphasis).[1]

 

Notwithstanding the Security Council’s Rules 1 and 3 which would seem to obligate the Council to convene a formal meeting upon receipt of such a direct request from a UN Member State, our book (pages 201-212) details a number of cases in which the Council has not done so.  In some of these precedents, as in the case with the 13 August Pakistani request, the Council has opted to consider the matter, but in an informal, rather than formal, meeting. 

 

For considering the matter on 16 August, there was a clear preference among a majority of Council members to meet in private.  This meant they had three options:  a) closed consultations; b) an informal interactive dialogue; or c) a formal meeting held in private without Member States present other than the parties directly involved.  The latter two options would have allowed for the requested participation by a representative of Pakistan, as well as one from India, should that country so wish.  It is therefore significant that the Council decided on the format of closed consultations, which would not accommodate the presence of those representatives.  This may be in part because the clashing positions of both Governments, having been widely disseminated in recent days, appear to be largely known and might only become exacerbated if aired in a Council meeting.  It may also reflect a wish to exclude the parties in the interest of having as interactive a discussion as possible among the Council members themselves and the Secretariat briefers.  

 

Moreover, some Council members are known to be reluctant to have the Council formally engage on the matter at this time.  The position of others in this regard is nuanced.  As reported by TASS, for example, a representative of the Russian Federation told journalists on 14 August that while his government did not object to holding a meeting on Jammu and Kashmir, it should be discussed behind closed doors.  He added that the Council members needed to coordinate their positions first, because the issue had not been taken up by the Council for quite a while.

 

In his letter of request, Pakistan's Foreign Minister underscored that “The Jammu and Kashmir dispute between Pakistan and India has been on the agenda of the Security Council since January 1948.”  The mention of the Council’s “agenda” refers to its Summary Statement of matters of which the Security Council is seized. 

 

Item 57 of the 2019 Summary Statement is “The India-Pakistan question”, which was first considered by the Council in a formal meeting on 6 January 1948, under an earlier agenda formulation, “The Jammu and Kashmir question”.  The Council last met under the agenda item on 5 November 1965.

 

A second relevant agenda item on the Summary Statement is item 62, “The situation in the India/Pakistan subcontinent, which was first considered in a formal meeting on 4 December 1971 and last considered on 27 December 1971.

 

Owing to the long period of time when the Council has not taken up either of these items at a formal meeting, under the guidelines on the Summary Statement set out in the Note by the President S/2010/507, they have long been annually subject to deletion.  However, pursuant to a procedure set out in that note, Pakistan’s yearly request that they be retained has been honoured by the Council.[2] 

 

The retention of the India-Pakistan agenda items is not unique, since ten other agenda items which have not been considered at formal Council meetings for long periods of time 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 its current practice, the Council’s only formal attention to UNMOGIP has been periodic exchanges of letters with the Secretary-General leading to the appointment of a new Chief Military Observer and Head of Mission for UNMOGIP.  This occurred most recently in 2018.[3]

 

At present, UNMOGIP is comprised of 43 military observers and is deployed long the "Line of Control” between the Pakistani- and Indian-administered areas of Jammu and Kashmir.[4]  The "Line of Control" is not a legally recognized international border, but rather essentially a ceasefire line.  In 2016, when outbreaks of violence in Jammu and Kashmir brought renewed attention to UNMOGIP, the Spokesperson for 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” and that the Mission “does not have a mandate there beyond the Line of Control.”

 

As noted on the UNMOGIP website of the UN Department of Peace Operations, the Mission’s main functions have been to observe and investigate complaints of ceasefire violations and to submit its findings to both India and Pakistan, as well as to the Secretary-General.  However, the Secretary-General has not in turn submitted reports to the Security Council on UNMOGIP since 1972.[5]   

 

It is highly unusual for the Security Council to maintain an operation like UNMOGIP without requesting periodic reporting by the Secretary-General.  The fact that such a reporting requirement was lacking only in the cases of UNMOGIP and the UN Truce Supervision Organization (UNTSO) in the Middle East was considered by the Council’s Ad Hoc Committee on Mandate Review in 2007.[6]  This led thereafter to annual informal briefings on UNMOGIP by the then Department of Peacekeeping Operations, given first in the Council’s Informal Working Group on Documentation and Other Procedural Questions, and then its Working Group on Peacekeeping Operations.  Eventually, however, the briefings fell into abeyance.

 

The three letters[7] sent by Pakistan's Foreign Minister in August 2019 which have been published as Security Council documents have all affirmed that the Council has an ongoing responsibility for the situation in Jammu and Kashmir.  The argument that this is the case because the agenda item “The India-Pakistan question” remains on the Council’s Summary Statement is a bit circular, since it remains there at the express request of Pakistan only.  The ongoing deployment of UNMOGIP and the Foreign Minister's citation of relevant Security Council resolutions[8] create a stronger argument, especially when viewed against the scale of the worsening situation on the ground.  Nonetheless, irrespective of its own prior decisions, or the gravity of a matter, the primary factors determining whether or not the Security Council will seriously engage on a situation remain the viewpoints and political will of its members.

 

Seemingly with this in mind, in his 1 August 2019 letter to the Secretary-General, the Pakistani Foreign Minister appealed additionally for the wider engagement of other UN actors: 

 

“I take this opportunity to reiterate Pakistan’s call to establish a United Nations fact-finding mission to visit Indian-occupied Jammu and Kashmir to assess the situation on the ground.  Pakistan also supports the recommendation of OHCHR to establish a commission of inquiry to investigate the gross human rights violations.  Commensurate with the gravity of the evolving situation in Indian-occupied Jammu and Kashmir and to prevent its potential ramifications for the region, I would once again urge you to appoint a United Nations special representative on Jammu and Kashmir.”

 

In addition, it is reported that the Pakistan government is considering taking the revocation by India of article 370 of its Constitution to the International Court of Justice.

 

(This update supplements pages 201-212, 488 and 506 of the book.)

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[1] S/2019/635.

[2] Pakistan’s 2019 request was published as S/2019/38.  Pakistan also annually requests the retention of a third item, “The Hyderabad question”, first formally considered on 16 September 1948 and last considered on 24 May 1949.

[3] S/2018/659 and S/2018/660.

[4] For more detailed background, see a related article on this website, the UNMOGIP website, and a 15 August 2019 “What’s in Blue” article posted by Security Council Report.

[5] The last reports were S/10467 and Adds.1-4.

[6] Following completion of the Committee’s work, the Council President addressed a letter (S/2007/770) to the Secretary-General stating, inter alia, 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”.  This description applied only to UNMOGIP and UNTSO, UNMIK being a special case.

[7] S/2019/623, S/2019/635 and S/2019/654.

[8] Resolutions 38 (1948), 47 (1948), 51 (1948), 80 (1950), 91 (1951), 122 (1957), and 123 (1957).