By Prof. Bharat H. Desai
On 6 April 2022 the Permanent Representative of Pakistan (PRP), Munir Akram, sent a letter to the President of the UN Security Council (UNSC). It carried, as an annex, a resolution (No. 8/48-POL) and a joint communiqué adopted on “the Jammu and Kashmir dispute” at the 48th Session of the Council of Foreign Ministers of the Organization of Islamic Cooperation (OIC) held in Islamabad on 22 and 23 March 2022. Annex I carried a detailed five-page preface with 43 paragraphs whereas annex II also contains 5 pages.
Pakistan has successively used the OIC platform for its own purposes. However, the last item in the 60 paragraphs of the preamble to the said resolution contains a blatant lie. It states: “repeated consideration of the Jammu and Kashmir dispute by the UN Security Council”. It is factually incorrect and legally untenable in view of the fact that the UNSC has never dealt with any agenda item under this rubric. In fact, the UNSC has not dealt with any issue concerning either the India-Pakistan Question (IPQ) or the situation in the subcontinent after the UNSC resolution 307 of 21 December 1971.
Even as the bilateral relations with India are at the nadir, Pakistan’s ranting and use of the OIC and other forums are in sharp contrast to its obligation arising from the Shimla Agreement (02 July 1972) to settle “any differences” through “bilateral negotiations”.
Pakistani Filibuster
Pakistan has been routinely sending communications to the UNSC. On the first day of January 2022, the PRP sent a letter to the UNSC President (S/2022/1 of 04 January 2022) to seek the three “items retained” (India-Pakistan question; the Hyderabad question and the situation in the India/Pakistan subcontinent) on the list of “seized” issues of the UNSC. It follows two similar Pakistani letters of 2 December (S/2021/1004) and 27 October 2021 (S/2021/ 901). Pakistan’s penchant for conducting diplomacy-through-letters can be seen from a flurry of letters sent in 2021 (5), 2020 (6) and 2019 (7). They harp on the proverbial “IPQ” widely construed as a ‘dead horse’ in the UN circles.
Ostensibly, Pakistani moves – during the India’s current UNSC membership for 2021-2022 serve the purposes of being a ‘persistent objector’ and seek to cloud India’s moral high ground in the UN system. In a communication with the author, Ambassador Tirumurti, the Indian PR, has underscored the Indian position that “all outstanding issues with Pakistan are discussed only bilaterally”. As a corollary, the Shimla Agreement (1972) and the Lahore Declaration (1999) provide the basis for bilateral resolution of all issues between India and Pakistan.
The latest summary statement of the UNSG (S/2022/10/Add.14 of 4 April 2022) contains three matters of which the UNSC is ‘seized’ and of the stage reached in their consideration: (i) The Hyderabad question (16 September 1948; 24 May 1949) (ii) The India-Pakistan question (6 January 1948; 5 November 1965) and (iii) The situation in the India/Pakistan subcontinent (4 December 1971; 27 December 1971). The status speaks volumes about the first time the matter was taken up by the UNSC as well as the last time each of the item was addressed by it: 73, 57 and 51 years ago, respectively.
Finality of Accession
The Pakistani desperation to harp on retaining these ‘dead’ issues on the UNSC’s ‘seized’ item lists appears to be in ‘bad faith’ and at best aimed at ‘needling’ India. As compared to the Pakistani stridency to harp on the J&K, India does not make a big pitch to reclaim the Pakistan-occupied Kashmir (POK) from Pakistan’s ‘belligerent occupation’. It arose from forcible occupation of a sizeable part of the princely State of J&K by the raiders, sent with support of the new state of Pakistan when Maharaja Hari Singh signed the Instrument of Accession to join India on 26 October 1947 (Bharat H. Desai, " 'Surgical Strikes by India: Taking International Law Seriously", EPW, 52 (5), 2017; Commentary_4Feb2017.indd (epw.in)).
The Indian title to the entire territory of erstwhile princely state of J&K provides de facto and de jure legal basis to reclaim the POK.
Since the UNSC, after the last resolution 307 (1971), has remained silent on the IPQ issue underscores that the subsequent developments have overtaken the legal dynamics of the original issue. It came out vividly after the Indian action on 5 August 2019 to settle the remaining issues of State of J&K’s relationship as a constituent unit of India. Thus, in spite of Pakistan’s hue and cry and strident moves to push the UNSC to “take stock of an issue”, not addressed “in several decades”, the Council chose to organize a closed-door meeting and did not issue even any formal statement. In international legal parlance and consistent UN practice, for all practical purposes, the SC has ended any consideration of the IPQ ‘seized’ item.
Need for an Effective Indian Response
In view of the above, the Pakistani quest for retention of the three items on the UNSC ‘seized’ matters have outlived their utility. This author has earlier called for taking up the deletion of these seized items on a priority basis in The Tribune (9 August 2021). India needs to invoke its best diplomatic, political and international law tools for final closure of this past baggage.
The items not considered by the Council during the preceding three calendar years are subject to deletion unless a Member State notifies the President that the item be retained on the list for an additional year. Still the Council can decide otherwise as per the Provisional Rules of Procedure. So, it would make a sense to set in motion a targeted process to get the IPQ and other two items deleted from the UNSC agenda possibly before the end of India’s current UNSC term on 31 December 2022.
The issue necessitates legal and political decision at the Prime Minister level who, in turn, could entrust the task to the External Affairs Minister (EAM). EAM, an alumnus of SIS/JNU, need to marshal his diplomatic experience to finally nail the ghost of the IPQ from the UNSC’s ‘seized’ list. EAM could take over the reins in place of the PMI to personally lead the consultations in the matter with dramatis personae in New York as well as in the capitals of the UNSC member states. The current geo-political situation and the stand-off over the Ukraine crisis, makes India relevant and provides some basis to address this issue seriously.
Prof. Bharat H. Desai is Jawaharlal Nehru Chair and Professor of International Law at the Centre for International Legal Studies of SIS, JNU. He coordinated the Making SIS Visible initiative during 2008-2013 (Making SIS Visible | Welcome to Jawaharlal Nehru University (jnu.ac.in).