Dr. Syed Nazir Gilani
World Muslim Congress in collaboration with Kashmir Institute of International Relations organised a webinar titled “UN Special Rapporteurs Communications and State Response” on the side-lines of 48th session of UNHRC, Geneva on 21 September 2021. The author was connected from London and was asked to open the Webinar as the first speaker. Discussion focussed on Indian relationship with UN Special Rapporteurs.
There are 44 Thematic Mandate holders and 11 Country Mandate holders, appointed by the United Nations Human Rights Council to investigate, monitor and advise the Human Rights Council on the individual cases and country situations. These Special Rapporteurs, Interdependent Experts and Working Groups, help to clarify law and protect human rights around the world.
The 47 member UN Human Rights Council is elected by the UN General Assembly. The Independent Expert Prof Philip Alston visited US in December 2017 at the invitation of the Federal Government. He produced a report on the Extreme Poverty and Human Rights in USA. He has been very critical of Trump administration’s immigration and minority policies. United Kingdom also invited Prof Philip Alstonin November 2018 and he produced a damning report on pockets of poverty and on the devastating impact that spending cuts have had on the lives of a section of marginalised people.US and UK responded to these areas of criticism in the report. They did not shut their country doors on the investigation of UN Expert.
India the world’s largest democracy and an important member of the United Nations has been acting quite differently. India is at the UN General Assembly, in the Security Council for two years and in the Human Rights Council to ensure the protection and promotion of human rights.
It is disappointing to note that India has run into a serious dispute with the principles of the United Nations and its various bodies. It has crashed into the offices of the UN High Commissioner for Human Rights and does not want to acknowledge the June 2018and July 2019 Reports on the human rights violations in its administered part (now occupied) of Jammu and Kashmir. India failed to grant access to officers of the Higher Commissioner’s office into Kashmir and as a consequence they had to settle with the “Remote Monitoring” mechanism in preparing the two reports.
Nineteen UN HRC Experts had to write a joint letter to Government of India in 2020 to allow them access to Jammu and Kashmir and in the interim to update them on the human rights situation there. India decided to remain non-compliant to the requests made by these 19 experts as well. It has scrapped the State Human Rights Commission in Srinagar in October 2019. In other words Indian occupied Kashmir has been turned into a no go area for any independent verification of the allegations of gross violations of human rights.
India has a foot in the UN GA, in the UN SC and in the UN HRC and it cannot act with no holds barred in regards to the question of Human Rights and UN bodies involved in the promotion and protection of Human Rights.
Article 2 of UN Charter sets out seven obligations for a member nation of the UN. Under Article 143 India could not have qualified for a non-permanent seat at the UN Security Council.Rule 143, reads
“In the election of non-permanent members of the Security Council, due regard shall, in accordance with Article 23, paragraph 1, of the Charter, be specially paid, in the first instance, to the contribution of Members of the United Nations to the maintenance of international peace and security and to the other purposes of the Organization, and also to equitable geographical distribution.”
A continued non-compliance of the obligations under Article 2 of the Charter and the action taken on 5 August 2019 in Kashmir, against UN Resolutions on Jammu and Kashmir, India has risked to attract Article 6 under Chapter II of the UN Charter. It leads to the expulsion of a country from the United Nations.
According to Article 6, “A Member of the United Nations which has persistently violated the Principles contained in the present Charter may be expelled from the Organization by the General Assembly upon the recommendation of the Security Council.” This Article was first invoked by Israel against Iran in 2005. The basis of Israeli complaint was very poor and could not satisfy the conditions required under Article 6.
However, there is a long list of convincing allegations and of non-compliance which could, embarrass, hurt and even result in the expulsion of India as a member nation of the United Nations, under Article 6 of the Charter. Nobody would like an outcome like that. But there are consequences for non-compliance and for violation of the principles of UN Charter.
The Special Procedures of the Human Rights Council who report and advise on human rights from a thematic or country-specific perspective are involved in finding out about the civil, cultural, economic, political, and social rights in the Indian occupied Kashmir. The letter signed by 19 experts in 2020 remains as an outstanding against Indian non-compliance. The 17 recommendations made in the report of the UN High Commissioner for Human Rights also continue as an outstanding against India.
There is a UN SC warning on 5 August 2019 like action if ever taken by India or by Pakistan. Netherlands has argued at the 611st meeting of the UN Security Council held on 23 December 1952, that, “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.”
India without doubt has “loaded upon itself a very grave offence.” This offence has been committed against three parties namely, “the other party (Pakistan), United Nations, and against the right of the people of Jammu and Kashmir to self-determination.”
Israel relied for Iran’s expulsion on President Mahmoud Ahmadinejad’s statement in which he had called for the destruction of Israel. It could not add up to the requirement of an expulsion under Article 6 of the UN Charter. In the case of India the prosecution witnesses are the UN bodies and UN Experts.
A challenge to Indian election to UN Security Council’s non-Permanent seat, to UN Human Rights Council and on other UN bodies could be seriously considered. Any such challenge to her membership would embarrass, hurt and lead to India’s loss of respect in the Asia Pacific Group and in all the five Regional UN Groups. India may not lose her membership – but she would be embarrassed and hurt beyond repair.
The author is President of London based Jammu and Kashmir Council for Human Rights – NGO in Special Consultative Status with the United Nations.
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