UN SG visit of Pakistan—his role under Article 99 of Charter in Kashmir


Dr Syed Nazir Gilani

Welcome Mr. Secretary General to Pakistan and have a rewarding stay, in a country which is home for major religions of the world. It has hosted the Afghan refugees and 2.5 million Kashmiri refugees (five generations) recognised in UN Security Council Resolution 47 of 21 April 1948. Your participation at the International Conference on Afghan refugees would attract a criticism of inequity and discrimination, if you fail to uphold the guarantees made to Kashmiri refugees in paras 12 and 14 of UN Security Council Resolution 47.
The principle of ‘equality of peoples’ under the Charter, calls upon the United Nations Secretary General to interpret article 99 in the manner Dag Hammarskjold interpreted in the case of Tunisia in 1961, U Thant in 1971 in Nigerian civil war, Waldheim in North Vietnam and Vietcong, Perez de Cuellar in Iran-lraq war, Boutros-Ghali in 1994 in Burundi, Kofi-Annan in 2005 in Zimbabwe and Ban-ki Moon in 2006 and 2013 in Fiji and Syria.
UN Secretary General Dag Hammarskjold, on receiving an invitation from President Habib Bourguiba to visit Tunisia in 1961, told the Security Council that it was “Obvious that he could not discharge the responsibilities flowing from article 99 unless he could make visits and thus be in a position to form a personal opinion about the relevant facts of a situation which might threaten international peace and security”. No member of the Council challenged the interpretation of the duties of the Secretary General. Nor were there any objections to the fact finding missions initiated by U Thant in connection with the Nigerian civil war.
UN Secretary General Dag Hammarskjold visited the summer capital of Jammu and Kashmir, for two days from 20-22 March 1959. He wanted to know for himself the situation in Kashmir. These were the times when Indian citizens, required an Entry Permit (VISA) to visit Indian administered part of Jammu and Kashmir.
Indian Government has committed a political vandalism on 5 August and a military aggression on 31 October 2019. People have remained under lock and key and cut off from the rest of the world. It is not only article 99 that envisages your duty towards the people of Kashmir but the 9 December 1991, General Assembly resolution 46/59; “Declaration on Fact-finding” in the Field of the Maintenance of International Peace and Security”, has further strengthened the role of Secretary General. The Secretary General can start any activity designed to obtain detailed knowledge of the relevant facts of any dispute or threatening conflict, in which the competent UN Organs need effectively to exercise their functions pertaining to the, maintenance of international peace and security. He may bring any such matter to the attention of the Security Council.
Seven of your predecessors listed above have explicitly invoked the duties under article 99. “Declaration on Fact-finding” by the United Nations has strengthened this role since March 1991. I wish to quote UN Security Council record of 611th meeting held on 23 December 1952 and invite your attention to “a very grave offence”.
The representative of Netherlands addressing the 611th meeting of the UN Security Council on 23 December 1952, has said, “In obtaining the consent of the parties to have the final and deciding process, that of an impartial plebiscite, held under the offices of the United Nations, the Council has placed the authority of our world Organization at the service of both parties and at the service of the people of Jammu and Kashmir themselves. We believe that this in itself constitutes a guarantee of considerable value. The party that would dare to violate an agreement thus reached would load upon itself a very grave offence against the other party, against the United Nations, and against the right of the people of Jammu and Kashmir to self-determination, a right which, in other contexts, both parties have so often and so eloquently defended.” Para 28.
On 5 August and 31 October 2019 Government of India has “loaded upon itself a very grave offence against the other party (Pakistan), against the United Nations, and against the right of the people of Jammu and Kashmir to self-determination.” Netherlands has further added that, “So, when there is a difference of opinion on the question of the remaining military forces, let us not underestimate the significance of the fact that the authority of the Security Council has become a factor in the solution of this matter- unless an agreement can be found outside of the Council and that the auspices of the United Nations are involved.”
The two OHCHR reports on the Human Rights Situation in Jammu and Kashmir and your report of May 2019 on Children and Armed Conflict, warranted an urgent consideration of your role under article 99 and Under UN “Declaration on Fact-finding” in saving Kashmiris defined by UN as “Historic” and “People of Legend”, entitled to “Rights and Dignity” and “Security and Self-Determination.” Maharaja of Kashmir was able to impose a curfew for 11 days in 1931, but the present Government of India led by Narendra Modi, has placed men, women, children, sick and elderly under the guard of over 900,000 soldiers.