Does “Shimla Agreement” contradict UN resolutions?
India’ prism for viewing Kashmir issue continues to be the bilateral framework underscored in the Shimla Agreement of July 1972 between Pakistan and India. The crux of India’s argument is that this bilateral agreement supersedes previous UN Resolutions on Kashmir. Amongst other things, the Shimla Agreement records the following agreement between India and Pakistan:
1- That the two countries resolve to settle their differences by peaceful means through bilateral negotiations or by any other peaceful means mutually agreed upon between them.
2: Pending the final settlement of any of the problems between the two countries, both agree not to unilaterally alter the situation and agree to prevent the organization, assistance or encouragement of any acts detrimental to the maintenance of peaceful and harmonious relations.
3: The pre-requisite for reconciliation, good neighborliness and durable peace is a commitment by both the countries to peaceful co-existence, respect for each other’s territorial integrity and sovereignty and non-interference in each other’s internal affairs, on the basis of equality and mutual benefit.
4: In order to initiate the process of the establishment of durable peace, both agree that their respective forces would be withdrawn to their side of the international border. Both further agree that in J&K, the line of control resulting from the cease-fire of December 17, 1971 would be respected by both sides without prejudice to the recognized position of either side. Importantly, it was agreed that neither side would seek to alter it unilaterally, irrespective of mutual differences and legal interpretations. Both sides further undertook to refrain from the threat or the use of force in violation of this Line.
5: The principles and purposes of the Charter of the United Nations shall govern the relations between the two countries.
6: In accordance with the UN Charter, the parties will refrain from the threat or use of force against the territorial integrity or political independence of each other.
The Shimla Agreement, without a doubt, manifested the agreement of both countries to resolve the J&K dispute through bilateral means. However, the Shimla Agreement, neither in its preamble nor in the body, refers to the intent of the parties that it would not “supersede” UN Resolutions on J&K nor that it would have the effect of altering either party’s recognized position on J&K (notes the choice of words “without prejudice to the recognized position of either side”.
India has failed to appreciate a cardinal principle of international law: the Kashmir dispute seeded in multilateral topography through UNSC Resolutions. Once it mushroomed in such environ, it assumed a “multilateral character”. Despite wanting to, India cannot whittle down the nature of the dispute or its character by invoking bilateral agreements such as the Shimla Agreement.
Moreover, it was India that first took the J&K dispute to the UN in January 1948 by submitting a complaint against Pakistan to the UN Security Council (UNSC) under Article 35 of the UN Charter. This has been called Jawaharlal Nehru’s grave mistake by several Indian policymakers, who are aware of the irreversibility of retracting the steps after a dispute has been submitted to the UN. Several important UN Resolutions over the years have cemented the international nature of the J&K dispute.
Noteworthy UNSC resolutions with reference to J&K include the following:
1: UNSC Resolution No. 38 adopted on January 17, 1948 which called on both Pakistan and India to take all measures within their power to improve the situation in Jammu and Kashmir.
2: UNSC Resolution No. 39 adopted on 20 January 1948 which established a United National Commission to investigate, mediate and report on the situation in J&K.
3: UNSC Resolution No. 47 adopted on 21 April 1948 which noted “with satisfaction that both India and Pakistan desire that the question of the accession of Jammu and Kashmir to India or Pakistan should be decided through the democratic method of a free and impartial plebiscite…”. This resolution also recommended certain measures to be taken by both countries to create proper conditions for the plebiscite.
4: UNSC Resolution No. 51 adopted on 3 June 1948 pursuant to which the Commission was instructed to “proceed without delay to the areas of the dispute with a view to accomplishing the duties assigned to it…”. (Note: On 13 August 1948, the Commission proposed a ceasefire and a proposed truce agreement as well as proposed that both countries should “reaffirm their wish that the future status of the State of Jammu and Kashmir shall be determined in accordance with the will the people” and “agree to enter into consultations with the Commission to determine fair and equitable conditions whereby such free expression will be assured”. The Commission published detailed proposals for the operation of the Plebiscite Administration in January 2019 however, “the Indian Government was reluctant to give up control over the interim administration of Jammu and Kashmir, which it believed it was entitled to exercise by virtue of the Maharaja’s accession” (International Commission of Jurists, Human Rights in Kashmir, 1995).
5: UNSC Resolution No. 91 adopted on 30 March 1951 which, amongst other things, observed that India and Pakistan have “reaffirmed their desire that the future of the State of Jammu and Kashmir shall be decided through the democratic method of a free and impartial plebiscite conducted under the auspices of the United Nations”; reminded “the Governments and the authorities concerned of the principle embodied in its resolutions… ,that the final disposition of the State of Jammu and Kashmir will be made in accordance with the will of the people expressed through the democratic method of a free and impartial plebiscite conducted under the auspices of the United Nations; affirmed that the convening of a constituent assembly [the J&K Constituent Assembly]… and any action that assembly might attempt to take to determine the future shape and affiliation of the entire State or any part thereof would not constitute a disposition of the State in accordance with the above principle”; and declared the “belief that it is the duty of the Security Council in carrying out its primary responsibility for the maintenance of international peace and security to aid the parties to reach an amicable solution of the Kashmir dispute and that a prompt settlement of this dispute is of vital importance to the maintenance of international peace and security”.
6: UNSC Resolution No. 122 adopted on 24 January 1957 which reminded both India and Pakistan about the principle embodied in previous UNSC Resolutions including Resolutions No’s 47 and 91 that “the final disposition of the State of Jammu and Kashmir will be made in accordance with the will of the people expressed through the democratic method of a free and impartial plebiscite conducted under the auspices of the United Nations”. This Resolution once again reaffirmed that any actions taken or which the constituent assembly “might attempt to take to determine the future shape and affiliation of the entire State or any part thereof, or action by the parties concerned in support of any such action by the assembly, would not constitute a disposition of the State in accordance with the above principle”. The UNSC also observed that it “decides to continue its consideration of the dispute”.
Since the inception of the dispute, Pakistan has consistently maintained that J&K is an international dispute that cannot be whittled down through a bilateral agreement. Whilst not negating that the Shimla Agreement represents an unequivocal undertaking to bilaterally resolve the dispute, Pakistan’s principle argument remains that the overarching and overriding multilateral nature of UNSC Resolutions in respect of J&K has cemented its status as an international dispute.
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17 August, 2019