Kashmir – Merits of Bilateral Dialogue After General Elections

The new government in Pakistan has tried to make up with India. It has offered an olive branch to restructure good neighbourly relations. There are eight outstanding issues to be resolved by the two countries. Kashmir, does not stand on its own as the core issue, after 23 June 1997, a joint statement was issued in Islamabad. It was included in the list of eight unresolved issues.

At a time when United Nations after a long lapse has expressed a serious interest in its June 2018, report on the ‘Human Rights situation in Kashmir’, the general political consensus in Pakistan has been disturbed by the coercive tactics of the Indian government. There is a common belief that Modi will not talk to Pakistan until the April-May general elections in India are over.

Pakistan has to revisit the Indian justification made in her letter S/628 dated 01 January 1948 addressed to the President of the UN Security Council, stating that, “the responsibility for the defence of the Jammu and Kashmir State should be taken over by a Government capable of discharging it”, and reconcile it with an equal counter capability to defend the ‘rights and dignity’ and ‘security and self-determination’ of the people of Jammu and Kashmir.

There may be merit to resume dialogue with India after general elections on seven outstanding issues but holding the eight item of Kashmir as a hostage to these elections has no merit. It would mean granting India freedom and time to use its security forces in Kashmir and carry out the planned massacre of Kashmiri Muslims, in particular the youth.

Whosoever in the present government feels comfortable with a waiting period until May 2019 is misdirected. He should return to Pakistan’s basic stand on the bilateral dialogue. Pakistan has expressed itself on the failure of India-Pakistan bilateral dialogue in para 1 of Document III dated 15 January 1948 submitted to the UN Secretary General. Pakistan’s memorandum carried in UN Security Council Document S/646 stated that the, “Pakistan Government is glad that the Government of India has chosen to make a reference to the Security Council. In fact they have for some time been of the view that this is the only feasible method of, peacefully settling the differences between the two countries. They have already unsuccessfully tried over a period of many months to seek a solution to the disputes between the two Dominions by the methods described – in Article 33 of the Charter.” Article 33 provides for a bilateral engagement.

India in her reference to the UN Security Council S/628 accused Pakistan of committing “all the atrocities” in Kashmir “of which a barbarous foe is capable”. If Pakistan was a ‘barbarous foe’ in Kashmir in January 1948, it would not advocate for the people of Kashmir. Pakistan used the UN’s own findings of June 2018 to showcase the presence of 500,000 to 700,000 Indian troops in Kashmir, making it one of the most militarised zones in the world and that these security forces are guilty of gross and systematic abuse of human rights. They are engaged in war crimes as well.

Although Pakistan has acknowledged that article 33 of UN Charter could not help them, the importance of bilateral engagement between India and Pakistan has been duly entertained during the debates on Kashmir at the UN Security Council. The door of bilateralism should be kept wide ajar, for conclusive success of the regime of bilateralism, and at the same time they shall have to remain consistent with the principles of UN Charter.

The scope of bilateralism on Kashmir has been explained by United States of America at the 607th meeting of the UN Security Council held on 5 December 1952. Ernest A Gross US Representative at the Security Council has made a case for bilateral dialogue as follows: “It seems to me that the principles on which we are trying to proceed to assist the parties to carry out their Charter obligations are these: on the first place, a lasting political settlement must be an agreed settlement. Secondly, the Security Council will, we feel, always welcome any agreement which the parties themselves can reach on any basis which will settle the dispute, provided of course that basis is consistent with the principles of the Charter of the United Nations”.

India and Pakistan, have Charter obligations to settle disputes peacefully between themselves and to co-operate in promoting peace in other parts of the world. Kashmir is not a bilateral dispute. Right of self-determination is a basic human rights ‘title’ and it falls under article 1 (2) of UN Charter. Dispute around the future of Kashmir is between India and Pakistan. Title to self-determination is not in dispute.

It is important to note that Tashkent Declaration and the Shimla Agreements commit their jurisprudence to the UN Charter’d obligations and to the final settlement of Jammu and Kashmir dispute. The Lahore Declaration of February 1999, on one hand reiterates a ‘determination to implement the Shimla Agreement in letter and spirit’ and on the other introduces the ‘sanctity’ clause in respect of line of control. It is a singular addition to the existing bilateral jurisprudence on Kashmir. We have created an unnecessary web of confusions and it has helped India to procrastinate. We need to sit and seek full clarity on these matters.

Bilateral engagement is not indeterminate and India should not be allowed to use it as a cover to commit atrocities and war crimes in Kashmir. From 15 January 1948, to date we have seen many seasons and rounds of bilateral engagement. Their failure necessitates action under article 103 of the UN Charter.

The writer is the President of JKCHR – NGO in Special Consultative Status with the United Nations. He is on UN Register as an Expert in Peacekeeping, Humanitarian Operations and Election Monitoring Missions.

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