The mass uprising of the people of Kashmir against Indian military occupation has evoked two reactions from the Government of India. One is extreme repression and the second is the threat of war. On September 24, 2016, Mr. Narendra Modi, the Prime Minister of India made a formal statement with full authority: “Pakistan’s ‘awam’ (people), I want to say to you, India is ready to fight you.” He added, “We will isolate you. I will work for that.”
The world powers, including the U.S. has exerted no influence in restraining this belligerent rhetoric. The present situation has made it abundantly clear that the status quo in Kashmir is both unjust and untenable. It has thus thrown into sharp relief the urgent need for India and Pakistan to settle the 69-year old Kashmir dispute on a just and lasting basis.
The question arises: what should be the point of departure for determining a just and lasting basis? The answer obviously is (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.
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 13 August 1948 and second on 5 January 1949.
What, then, is the relevance of the Simla Agreement as far as instituting a peace process between India and Pakistan, fully recognizing Kashmiri’s inherent right of self-determination, is concerned?
The pertinent facts about the Simla Agreement are:
i. It was concluded in the aftermath of the India-Pakistan war of 1971 over what is now Bangladesh. Pakistan had suffered a decisive military defeat and 93,000 Pakistani prisoners-of-war were in Indian captivity. The factor of duress in thus obvious.
vi. The position consistently maintained by Pakistan that the status of Kashmir shall be decided by an impartial plebiscite has been recognized by the United Nations and, as it is identical with the position which India itself originally assumed at the world body, it is reflected in more than dozen substantive resolutions of the Security Council. A position safeguarded by the phrase "without prejudice to" can hardly be deemed to have been abandoned.
vii. In its preamble, the agreement states the resolve of the two governments to establish durable peace in the subcontinent. Durable peace results from setting the outstanding disputes, not from denying its existence.
It is thus a misconception that the Simla Agreement has in any way superseded the resolutions of the United Nations 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.
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