Revisiting Shimla Agreement

Today it may sound out of sync with the times, but we can’t forget this significant chapter of history



In the cacophonous political environs, when constructing of “ghettos” for the two percent KP population, who left the valley in 1990, is the “dominant discourse”, I may sound out of tune in revisiting the 1972 Shimla Agreement. 
In sixty seven years history of the Dispute, after the United Nations resolutions of 1948, 1949 and 1957, the Shimla Agreement of 1972, between India and Pakistan has emerged as a major benchmark in the Kashmir narrative. And whenever the Kashmir problem makes it to the international headlines and invokes ritualistic statements from the United Nations Secretary General. Or as and when the relations between Islamabad and New Delhi turn acrimonious followed by intensification of exchange of artillery fire along the LoC and United States nudging the two countries for resumption of dialogue on Kashmir, the MEA pulls out the Shimla Agreement from its diplomatic bag and states talks can be held under this agreement only. 

Like his all predecessors in officer from Mrs. Gandhi to Manmohan Singh, Prime Narendra Modi has also more than once reiterated India’s stated position on third party mediation by stating that ‘the only way forward to proceed on all outstanding issues is a peaceful bilateral dialogue within the framework of Simla Agreement and Lahore Declaration.’ On March, 23, when Kashmir leaders attended Pakistan Day celebrations in the High Commission, the MEA spokesman repeated the stereotype statement. Ostensibly, aggrieved of such statements, on 15 April 2015 Wednesday, addressing thousands of people Syed Ali Geelani, Chairman, All Parties Hurriyat stated that, ‘Kashmir was not a border dispute between India and Pakistan but the issue of one crore people of the state. We will not accept status quo and our struggle to achieve Right to Self-Determination will continue. We will not accept Shimla agreement or Lahore declaration.’ On 17 April a leading New Delhi newspaper (TOI) reacting to the statement editorially commented, “Separatists are aware that no government in New Delhi would ever agree to hold a plebiscite in J & K in line with UNSC resolutions. These became wholly redundant after the India-Pakistan Shimla agreement and Lahore declaration. Both countries are duty-bound to discuss the Kashmir dispute on a bilateral basis alone. No third party can be seated on the negotiating table.” 

After all what is this Shimla Agreement all about? Why New Delhi that often calls UN resolutions as time-barred sees the four decade old Simla Agreement as a very valid document. Has this bilateral agreement signed by the two countries overridden or declared the UN resolutions on Kashmir ‘ultra-vires’. For understanding this question one needs to understanding the status of these resolutions or ‘covenants’ agreed upon by India and Pakistan. Krishna Menon in the Security Council in 1957 had declared that 13 August 1948 and 5 January 1949 resolutions as only ‘international engagements’, these were later on fortified by a bilateral agreement . A legal luminary of India says that these resolutions under Vienna Convention on the Law of Treaties constitute a ‘treaty’ {Article 2 (1) (a)}. The two resolution guarantees right to self-determination to people of Jammu and Kashmir irrespective of their faith and region and also provide an elaborate mechanism for exercise of these rights. The subsequent resolution passed on Kashmir by the Security Council not only reiterate these guarantees but also fortified them.

Has the Shimla Agreement in any way altered the status of Kashmir ‘Dispute’? To know this one needs to relook at the genesis of the agreement and also read the every clause of the agreement in the context of the UN resolutions. The 1971 war between India and Pakistan, unlike those of 1947 and 1965 was not over Kashmir. The only Kashmir connection this war had was ‘Pakistan walking into clever trap’ that caused to it suspension of overflight rights. The cracked down by Yahiya Khan in East Pakistan that outraged international opinion provide India an opportunity to build Mukti Bani –rebel force and then intervene. In this war ‘Pakistan suffered a disaster and Jinnah’s dream was wrecked’, the country was divided and over 93000 soldiers and civilians were taken prisoners by India and in West Pakistan it lost 5139 Square miles. 

After December 17 ceasefire no power offered to mediate a peace settlement. Thaw was set in only after D.P. Dhar visited Pakistan 26-29 April 1971. Pakistan wanted to address issues generated by the war but India also wanted settlement of Kashmir once for all. The meeting that was held in Murree brought no results. But, it did pave way for next summit that took place in Simla between June 28- 3July 1972. The six day parleys make a fascinating story in the diplomatic history of India and Pakistan. 

The contours of the agreement, in fact had been worked between three former comrades Sajad Zaheer, Mazhar Ali Khan and P.N.Haksar in third week of June in London. “It was all about return of Pakistan PoWs and recognition of Bangladesh.” It was D.P. Dhar, P.N. Dhar and T.N. Koul who wanted Mrs. Gandhi, to insist on the settlement of the Kashmir issue, Ramchandra Guha writes, “Mrs. Gandhi did not feel strongly about the subject.” 
The Simla agreement that was signed at midnight on 3 July 1972, makes no mention about withdrawing of the Kashmir Dispute from the Security Council nor does mention about abolishing of the institution of UNMOGIP. One of the important testimonies that Kashmir continues to be dispute on the agenda of UN. The only Kashmir related clause in the agreement is in Para 4 (ii) of Simla Pact which reads: “In Jammu and Kashmir the line of control resulting from the CFL of December 17, 1971 shall be respected by both the sides without prejudice to the recognized position of either side….”At India’s insistence a clause was added that ‘the two countries would settle all their differences by peaceful means through bilateral negotiations or by other means or mutually agreed upon..’ What was new in this clause that one make one believe that the Agreement has changed the nature of the dispute. India-Pakistan even after the UN had passed resolution remained engaged in bilateral negotiations. In the wake one after another emissary failing to resolve India Pakistan in 1953 started bilateral dialogue at Prime Ministerial level between Nehru and Bogra. In 1962, after India-China war, at the behest of the United States eight rounds of bilateral talks were held.