Can’t ‘disappear’ this body

The senior official who reportedly asked whether the United Nations Military Observer Group in India and Pakistan, UNMOGIP existed, was not serious, just a bit facetious. For, not very far from his office lie those of the UNMOGIP. The Protocol Division of the Ministry of External Affairs annually publishes the Diplomatic List. It lists “U.N. Offices; International organisations and other Foreign Agencies.” UNMOGIP’s address is helpfully mentioned — 1AB, Purana Qila Road; its phone numbers, and names of three personnel besides the “Head of Mission/Chief Military Observer” are provided. All enjoy diplomatic status. It has offices in Srinagar and Muzaffarabad also.

India knows that if the UNMOGIP is expelled, the U.N. Security Council would be activated with predictable consequences. It chose, instead, in 1972, to prevent it physically from undertaking probes into complaints on the Indian side.

Pakistan’s aggression in 1965

The Group could have played a useful role last month, when charges of violations of the Line of Control were traded. In 1965, it played a crucial role in establishing Pakistan’s aggression, a fact few care to recall. The U.N. Secretary General’s Report to the Security Council was based on the Report of Lt. Gen. R.H. Nimmo, head of UNMOGIP. “Gen. Nimmo has indicated to me that the series of violations that began on 5 August were to a considerable extent in subsequent days in the form of armed men, generally not in uniform, crossing the CFL [Ceasefire Line] from the Pakistan side for the purpose of armed action on the Indian side.” He reported artillery fire and shelling “from the Pakistan side”. On September 1, “one and a half Pakistan tank squadrons crossed” the CFL supported by artillery. The Council’s Resolutions fixed August 5 as the date of casus belli. We won a big moral and political victory.

India has no use for such verdicts now. It will be judged in its own cause despite the clear legal position. A ceasefire in Kashmir went into effect on New Year’s Day, 1949. On January 15, representatives of the two armies signed an agreement on consolidating the ceasefire. The Notes made that day by Lt. Gen. Maurice Delvoie, Military Adviser to the U.N. Commission for India and Pakistan and later head of UNMOGIP, make sad reading: “On my request, both Commanders-in-Chief agreed to restore the communications by road between Srinagar and Rawalpindi, and to rebuild the necessary bridges. In addition, telephonic liaisons between these two localities will be restored.” On July 27, 1949, the parties signed at Karachi an Agreement defining the ceasefire line in Kashmir. “A cease-fire line is established”. The U.N. Military Observers’ say on disputes was “final”. By November 1, the line was demarcated on the ground. Definition of breaches was settled.

The UNMOGIP derived its authority from the Security Council Resolution of April 21, 1948 that empowered the United Nations Commission for India and Pakistan to establish “such observers as it may require.” India-Pakistan accords merely fortified it. Professor Rosalyn Higgins, later a Judge of the International Court of Justice, opined in 1970 that “this resolution would seem clearly to fall within the terms of Article 40 of the U.N.’s Charter even though that Article was not specifically mentioned. The authority for establishing UNMOGIP thus stemmed from Chapter VII rather than Chapter VI.” Article 40 authorises the Council to “call upon the parties to comply with such provincial measures as it deems necessary.” Chapter VI pertains to disputes on which the Council can make “recommendations.” Chapter VII deals with acts of aggression on which it “decides.”

All doubt was removed when the UNCIP was replaced by a Special Representative, Sir Owen Dixon, on March 30, 1951 when the Council “decides that the Military Observer Group shall continue to supervise the cease-fire in the State”. As a result “the authority for UNMOGIP was thus confirmed.”

It functions under the control and supervision of the Secretary-General. After the 1965 war, India wanted its mandate to extend to the international border. Since Pakistan opposed this, the U.N. Military Observer Group in India and Pakistan was set up. The United Nations India-Pakistan Observation Mission soon vanished; UNMOGIP survived. The Tashkent Declaration of January 10, 1966 bound the parties to withdraw “to the positions they held prior to August 5, 1965, and both sides shall observe the ceasefire terms on the ceasefire line.”

What followed is very relevant. On January 29, 1966, Lt Gen. Harbaksh Singh and Lt. Gen. Bakhtiar Rana signed an agreement at Lahore on their troops’ withdrawals. It said: “Both forces will withdraw 1,000 yards from the line of actual control” in specified sectors. The LoC did not coincide with the CFL. But it was always open to the parties to vary the line. If they did so, the line changed, but the agreement did not.

‘Adjustments in the ceasefire line’

New Delhi decided to use the 1971 war to settle Kashmir. The Security Council adopted a resolution on December 21, 1971 calling for return of troops to their former positions. On the same day, Foreign Minister Swaran Singh spoke meaningfully of “some adjustments in the ceasefire line in order to make it more stable, rational and viable. This we propose to discuss with Pakistan.”

The U.N. Secretary General reported on May 12, 1972 that India has stopped complaining to the UNMOGIP; flag meetings of both sides sufficed to resolve disputes. Pakistan disagreed. On May 17, 1972, even before the Simla pact, Swaran Singh told the Lok Sabha that the CFL “was violated by Pakistan in December 1971 and no longer exists. A new ceasefire line came into existence on 17 December 1971”. The UNMOGIP worked under the 1949 agreement but now “there is no subsisting agreement for this”. The absurdity is palpable. Violations do not destroy a CFL or an LoC. The UNMOGIP received a mandate from the Security Council. The 1949 Agreement merely abided by it.

On October 13, 1972, C.V. Narasimhan, the Under-Secretary General of the U.N., said in New Delhi: “there has been no written request from New Delhi to withdraw U.N. Observers from the Indian side of the old ceasefire line in Jammu and Kashmir.” He added that they were there under a Security Council resolution followed by an India-Pakistan agreement. They could not be withdrawn as long as the resolution remained. This was said after the Simla pact of July 3, 1972 which simply stated that “in Jammu and Kashmir, the line of control resulting from the ceasefire of December 17, 1971 shall be respected by both sides without prejudice to the recognised position of either side.”

An accord on August 29, 1972 amplified that the LoC “will be delineated along its entire length.” That was done at Suchetgarh on December 11, 1972. It did not rescind the terms of the Agreement of 1949 on the ceasefire line, concluded under the U.N. auspices.

Starke’s International Law, an authoritative work, cites various “modes of terminating hostilities” — by Armistice Agreements, truce accords or ceasefire, etc. No matter what the language, each case yields an “LoC resulting from cessation of hostilities.” The Secretary-General’s spokesman, Martin Nesirky, said on January 23 that “the Secretary-General’s position has always been that the UNMOGIP can only be terminated by a decision of the Security Council.” India’s Permanent Representative to the U.N. Hardeep Singh Puri’s assertion in the Security Council on January 22, that the UNMOGIP’s role has been overtaken by the Simla Agreement is belied by the records. So, is his colleague Manish Gupta’s plea that the CFL is replaced by the LoC — ergo the UNMOGIP’s role “has been overtaken by these developments.”

Obstruction of the UNMOGIP began well before the Simla Pact and the LoC.

India would do well to reflect on a sad fact of life — protesting Kashmiris do not go to Ministers’ offices; they invariably head for the office in Srinagar of the UNMOGIP. We have travelled a long way on the bilateral route, with some achievements en route. Kicking the U.N.’s agency like the UNMOGIP in the teeth is not the best way to secure a permanent seat on its Security Council, nor for that matter is doggedly avoiding a settlement of the Kashmir problem.

(A.G. Noorani is an advocate, Supreme Court of India, and a leading constitutional expert. His latest book, Article 370: A Constitutional History of Jammu and Kashmir , was published by Oxford University Press in 2011)

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