On July 8, 2014, the Spokesman of Indian Ministry of External Affairs made a formal statement saying, “As far as we (India) are concerned the UNMOGIP (United Nations Military Observer Group in India & Pakistan) has outlived its relevance. This is a consistent stance that we have articulated on several occasions since the Shimla accord.”
What is the legal ground of the spokesman’s pronouncement? Christopher Hitchens has made it easy to understand when he said; ““Perhaps you notice how the denial is so often the preface to the justification.” And George R.R. Martin confirms it by saying “Most men would rather deny a hard truth than face it.”
The spokesman has conveniently forgotten that India and Pakistan are signatories to various United Nations Security Council resolutions. These resolutions constitute an agreement because, unlike most resolutions of the Security Council, their provisions were first negotiated with the parties and, it was only after their written consent was obtained that they were adopted by the Security Council.
These resolutions are binding on 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. India, however, recognizing that the people of Kashmir would never freely vote accession to India; it contrived excuse after excuse to frustrate a plebiscite. One of the excuses is that Security Council resolutions have been superseded by the Simla Agreement.
The implication is false because 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). 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?
First, it may 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 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.
Second, despite the circumstance of the Simla Agreement, 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. The Agreement thus reinforces the obligations of both India & Pakistan to achieve a settlement in accordance with the resolutions endorsed by the Security Council 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 spokesman needs to understand that 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. A peace process that ignores the wishes of the people of 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 to all parties concerned.
Dr. Fai can be reached at 202-607-6435 or firstname.lastname@example.org