Kashmir: Setting the Stage for the Settlement - Part 1
By Dr Ghulam Nabi Fai
Washington, DC
“Let us remember here that the future of Jammu and Kashmir is not something that the governments of India and Pakistan can decide without involving the Kashmiri people. How this diverse people’s representatives should be identified, and then associated with the process toward a possible settlement, are crucial if difficult questions, but every human and democratic principle demands this association.” - Professor Rajmohan Gandhi, grandson of Mahatma Gandhi, July 24, 2003.
If you intend to build a house, the first prerequisite is that you have a piece of land on which to build it. A foundation for conflict resolution is similar. Yet no platform, formal process, forum, conference, or any agency involved in conflict resolution is now in place, to the best of my knowledge, for mediating the dispute among the countries which purport to have a stake in the future of Kashmir.
Since the Simla Agreement of 1972, India has refused to permit any third party, such as the United Nations, to be involved in negotiating a settlement, declaring that the Simla Agreement specifically narrowed such a process exclusively to bilateral discussions. However, this is absolutely not true. A reading of the international law indicates that the point of departure for determining a just and lasting basis for Kashmir dispute should be: (a) the Charter of the United Nations which, in its very first article, speaks of "respect for the principles of equal rights and self-determination of peoples" and (b) the international agreements between the parties to the dispute – the Governments of India and Pakistan.
India and Pakistan have concluded multiple agreements which fall in this context. The first is embodied in the resolutions adopted by the United Nations Commission for India and Pakistan ( UNCIP) on August 13, 1948 and January 5, 1949. These resolutions constitute an agreement because, unlike most resolutions of the Security Council or the General Assembly of the United Nations, their provisions were first negotiated with the parties and, in written statements, explicitly accepted by them.
These agreements were written out in detail and are self-explanatory. Since it binds both India and Pakistan to respect the verdict of the people of Kashmir to be obtained through a free vote under the impartial supervision of the United Nations. When India seeks to propagate the impression that the United Nations resolutions have been superseded by the Simla Agreement, that impression is false.
That the implication is false can be readily seen from a comparison of the two texts: one that of the UN resolutions and second that of the Simla Agreement. But even if it were true, it would run counter to a standing principle of international relations which is set out in Article 103 of the Charter of the United Nations (accepted by every Member of the United Nations, including India and Pakistan). The Article says:
"In the event of a conflict between the obligations of the Members of the United Nations under the present Charter and their obligations under any other international agreement, their obligations under the present Charter shall prevail."
What, then, is the relevance of the Simla Agreement as far as instituting a peace process between India and Pakistan, fully recognizing Kashmir’s inherent right of self-determination, is concerned?
The pertinent facts about the Simla Agreement are: The Agreement nowhere precludes a settlement of the Kashmir dispute along the lines laid down by the United Nations with the consent of both India and Pakistan. Nor does it require that the United Nations be by-passed in the effort towards a settlement. On the contrary, it expressly says that the relations between the two countries shall be governed by the principles and purposes of the Charter of the United Nations. One of the basic principles of the Charter ( Article 33) is to seek a solution of any dispute by negotiation, enquiry, conciliation, arbitration, judicial settlement, resort to regional agencies or arrangements or other peaceful means. The linked principle (Article 34) is that the Security Council may investigate any dispute and (Article 36) at any stage recommend appropriate procedures or methods of adjustment. The Agreement thus reinforces the obligations of both parties to achieve a settlement in accordance with the resolutions endorsed by the Security Council, i.e. UNCIP resolutions and, if their bilateral efforts fail, to turn to the United Nations for assistance. Nothing would be more contrary to the Charter -- and, therefore, to the Simla Agreement itself -- than to bar recourse to the United Nations.
The Agreement makes mention of "a final settlement of Jammu and Kashmir" as one of the objectives of the two parties. It provides that, pending the final settlement of any of the problems between the two countries, neither side shall unilaterally alter the situation. This obviously is not a license for leaving problems unresolved. If anything, it implies a commitment to making efforts towards a final settlement.
It is thus a misconception that the Simla Agreement has in any way superseded the resolutions of the United Nations Commission for India and Pakistan (UNCIP) accepted by both parties. Nor can it be supposed to have narrowed the gulf between them and, to that extent, simplified the task of evolving a settlement. Even if it has done so, its impact on the Kashmir situation would have been open to question. Nothing in international law confers on two parties the authority to make decisions or conclude agreements which adversely affect the rights of a third. The third party here is the people of Kashmir.
In ignorance or disregard of all these facts and their logical corollaries, the recommendation is being currently made by some governments friendly to both India and Pakistan ( including the United States) that the two countries must resolve the Kashmir problem in accordance with the Simla Agreement of 1972.
Why is the Simla Agreement put in the forefront rather than the UNCIP resolutions? There can be several explanations. One is deference to India because of its superior might. If this motivates the current US diplomatic stance, it is, to say the least, undignified and contrary to the enduring principles of US policy towards all situations which involve inalienable human rights. Another reason can be the impression that the Simla Agreement, being of more recent origin than the UNCIP resolutions, might be more effective in activating the process. This is wrong in view of the fact that, for 43 years, the Agreement has signally failed to shake India out of its obdurate refusal to negotiate a settlement of the Kashmir problem. The current Indian position is that India is prepared to talk but there is nothing to talk about except how to perpetuate the status question of Kashmir.
If non-implementation were to render an agreement defunct, then the Simla Agreement is in no better state than the earlier, far more concrete and comprehensive agreement painstakingly worked out by the United Nations and concluded under its auspices in 1948-49. If passage of time were allowed to extinguish solemn international agreements, then the Simla Agreement has already suffered the same fate as the UNCIP resolutions. If agreements are to be revived, then why one and not the other?
It may also be that the Simla Agreement is being invoked because of lack of knowledge about its actual terms and the circumstances in which it was signed. India is taking full advantage of this factor to spread the misinformation that the Simla Agreement sanctions the perpetuation of the status quo in Kashmir and absolves her from the responsibility of striving for a settlement of the dispute. By citing the Simla Agreement at this stage, or encouraging others to do so, India obviously seeks to prevent those basic issues of the dispute being addressed that were fully taken into account by the United Nations. The agreement is pressed into service as a formula for evasion.
A sincere and serious effort towards a just settlement of the Kashmir dispute must squarely deal with the realities of the situation and fully respond to the people's rights involved in it. The Simla Agreement does neither. Indeed, it was not intended to do so; at best, it is reticent on the issues that need to be grappled with. A peace process mounted on its fragile platform is bound to collapse. Indeed, any process that ignores the wishes of the people of all five zones of the State of Jammu & Kashmir and is designed to sidetrack the United Nations will not only prove to be an exercise in futility but can also cause incalculable human and political damage.
(This is the first part of the series of articles on “Kashmir: Setting the Stage for the settlement”. Dr Fai can be reached at: 1-202-607-6435 or gnfai2003@yahoo.com)
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