UN, Article 99 and Kashmir

Reflecting the trust member-states have vested in the UN to act with foresight and impartiality, Article 99 of the UN Charter grants the secretary-general autonomous authority to bring matters to the attention of the Security Council when an imminent armed conflict threatens international peace.

Preventive diplomacy has been a practice of successive secretaries-general in moments of impending crisis. Dag Hammarskjold’s quiet intervention during the Congo crisis and U Thant’s steady hand during the Cuban Missile standoff proved the value of this tradition of responsible leadership. More recently, Ban Ki-moon exercised his good offices mandate through the instrument of regional offices and innovative use of special envoys.

UN secretaries-general have consistently expressed concern over Occupied Kashmir, but refrained from direct engagement due to India’s objections. Boutros Boutros-Ghali assessed the dispute and concluded that the commitment of both India and Pakistan to their bilateral arrangements had constrained the role of the UN. Based on Boutros-Ghali’s criteria, the conditions necessary for effective UN preventive intervention in Kashmir are: the capacity for early warning and threat assessment, consent of the parties involved, multilateral legitimacy through UNSC support and strategies to address root causes.

Occupied Kashmir has historically met these conditions except for partial obstacles to the parties’ consent and UNSC support. In effect, the inertia caused by the impediment of the Simla Agreement diluted the UNSC’s focus on Kashmir. After decades of multilateral stalemate, China sought UNSC deliberations on Kashmir after India revoked Article 370 in 2019, but no substantive resolutions emerged.

The Kashmir dispute, a most longstanding and volatile conflict on the UN agenda, has entered a profoundly dangerous new phase. The Pahalgam attack, which the secretary-general rightly condemned, cannot be viewed in isolation from the security, political and humanitarian environment in which it occurred. Indian Occupied Jammu and Kashmir remains a region marked by high militarisation, restricted civic space and recurring systematic human rights violations recognised by the UN High Commissioner for Human Rights (UNHCHR).

To speak of escalation without naming the root cause is to obscure the very crisis that preventive diplomacy is mandated to address. India has compounded the occupation disputes by revoking Articles 370 and 35A that protected the special status of Jammu and Kashmir. It has initiated demographic engineering by facilitating non-Kashmiri settlements in Kashmir. India’s efforts to alter the demographic composition of Occupied Kashmir mirror the Israeli occupation tactics in Palestine. The secretary-general must recognise the risks this trajectory poses to the future of Kashmir and multilateral institutions.

The dispute over Kashmir is central to the water conflict between India and Pakistan. Notwithstanding India’s unilateral assertion that it has placed the IWT in abeyance, the treaty remains in force and continues to be legally binding. Article XII of the treaty allows for revision, review, or termination but only with the mutual agreement of both parties.

The IWT is no work of fiction. It is a binding agreement that India voluntarily entered into, having surrendered dispute resolution powers exclusively to the World Bank. Any attempt on India’s part to disregard its obligations under the IWT, such as regular sharing of water data with Pakistan, will constitute a breach of the treaty’s provisions and provoke a retaliatory response from Pakistan.

This autumn, declining river levels in Kashmir will enhance India’s capacity to control water flows to Pakistan. At the same time, political tensions are expected to rise ahead of the upcoming elections in India. The convergence of environmental leverage and domestic electoral pressures heightens the risk of India restricting water flows and a corresponding risk of military retaliation from Pakistan.

In a geopolitical twist, China, the upper riparian state on the Brahmaputra River (Yarlung Tsangpo), may mirror India’s actions. Following India’s precedent on the rivers flowing to Pakistan, China could impose similar measures affecting water flows into northeastern India, particularly Arunachal Pradesh, which Beijing disputes. Thus, the Kashmir dispute is central to regional water insecurity, impacting not only Pakistan but also India itself, with cascading effects that involve China.

The brief but deadly four-day war between India and Pakistan in May was rooted in the Kashmir dispute. India’s declared absolution from its obligations under the Simla Agreement has nullified the bilateral mechanism that previously constrained third-party mediation and UN preventive intervention. Of particular relevance is the fact that the Simla Agreement has no exit clause to prevent unilateral suspension or withdrawal by either party.

To secure a timely re-engagement of the UN, India or Pakistan could formally invoke Article 99 through a specific request to the secretary-general to bring the Kashmir dispute before the UNSC. Alternatively, if the threat of imminent conflict is evident, the secretary-general may feel compelled by his moral responsibility and mandate for preventive action to take the initiative independently.

The secretary-general can activate a range of diplomatic instruments to facilitate meaningful intervention and secure peace and stability in the region. These may include appointing a special envoy for Kashmir, reactivating and enhancing the United Nations Military Observer Group in India and Pakistan (UNMOGIP), facilitating Track II diplomatic initiatives, deploying a human rights monitoring mission, and engaging with regional stakeholders such as China, European Union, Organization of Islamic Cooperation (OIC), Saudi Arabia, Shanghai Cooperation Organisation (SCO) and the UK.

Over the past months, Islamabad has gracefully enhanced its clout and created diplomatic space for maneuvering at the UN to rally support for Occupied Kashmir. The international community, particularly China, Saudi Arabia, the UK and the US, has evinced greater interest in supporting multilateral diplomacy on Kashmir amid mounting indicators of escalating regional instability. Under the circumstances, the conditions are uniquely conducive to a reinvigorated call for the implementation of the standing UNSC resolutions on Occupied Kashmir, thereby also addressing the closely linked India-Pakistan water disputes.

Despite a compelling case for UN preventive intervention in Kashmir, significant challenges lie ahead. Re-engaging the UN will demand bold leadership and genuine political will from the stakeholders involved. In practice, the UN may face challenges concerning its credibility with the parties and its capacity to sustain an intervention through to a lasting resolution. Success will also depend on navigating the complex geostrategic interests of the UNSC’s Permanent Five and Saudi Arabia and incentivising and securing their essential support.

The UN secretary-general, at this juncture, is unencumbered in initiating preventive action. It must now be recognised that the cost of failing to act preventively will be measured not only in lives lost, but also in the steady erosion of faith in international institutions. What now remains is the moral and institutional imperative to act, openly and decisively, before the window for preventive diplomacy closes again.

The writer is a freelance contributor. He can be reached at: jarral.kr@gmail.com