| The road of bilateralism was a cul-de-sac each time an attempt was made by India and Pakistan for a way out for reconciliation on Kashmir. Recently in New York outside the benches of United Nations India reaffirmed its position on Kashmir and stood securely behind Shimla Agreement as a
for negotiations. If we derive wisdom from the aphorism that all roads lead to Rome it becomes manifest that Pakistan and India may be have common ground.
Looking at Shimla 1972 its preamble emphasizes importance of solving the conflict that hitherto marred relation and cost many thousands of lives. The Agreement in its section (a) states that the principles of United Nations Charter shall govern their relations that at least vindicates Pakistan’s stand in a simple reference to the world body. The Charter also very sanctimoniously emphasizes in clear words pacific settlement of all disputes in Article 33 that itself is a derivative of Chapter 6. In Shimla there is a clear implied reference to Kashmir dispute. In this Agreement therefore there is proximity of the stand taken by Pakistan on Kashmir that United Nations deliberations in 1948 must guide negotiation for conflict resolution and the Indian standpoint that Shimla Agreement must be the vehicle. Furthermore Shimla Agreement is a treaty that spells clearly a commitment from both India and Pakistan to avoid military clashes. It follows therefore that border skirmishes and exchange of fire on LOC transgresses these covenants.
Furthermore as a rider to our inquiry it must be said that Section C of the Shimla Agreement obliges both countries to respect each other’s territory and if we take that to mean the territories of Jammu & Kashmir held by both then the all-important fact of ultimate delineation of territories of the beleaguered state has to be accomplished first. That will involve delimitation of borders because both India and Pakistan recognize the undecided nature of Kashmir evident from what culminated in so many bilateral negotiations. In order to reinforce the point about sovereignty there is no mention of the fate of territorial boundaries of Jammu and Kashmir in Shimla Agreement except recognition without prejudices the borders as they stood at that time.
The Agreement concludes that the two sides will meet regularly to reach a settlement of the dispute. Notwithstanding the fact that no progress has ever been made, this agreement taken as gospel for a way forward will require as a baseline starting point of all facets of the dispute. In its covenants it will be difficult to sideline the strong reference to United Nations and the long drawn work the world body has done that culminated in unanimous resolutions and a physical presence by its constituents in the disputed area. It may be Indian position to resolve the conflict to kick start from Shimla does vindicate the cause of people of the besieged State.
In India no one person owns responsibility or can do so to stimulate interest in solving Kashmir without a risk to their position in office. Congress MP Mani Shankar Aiyar admits that politicians in India are unaware of realities in Kashmir. It is an artifact of democracy for politicians to have selective memory on vital issues that can tear down a nation. International law will commit a member State to its obligation and ensure official statements made are observed and followed through. It also works like a safe bet for political advisors to propagate the stated policy on Kashmir. The former head of faculty of Social Sciences Jammu University Mr. Hari Om said on the Accession Day 27th October in Jammu that Accession and merger for Jammu and Kashmir are synonymous and Maharaja signed on the dotted line as did other princely states. In order to explain the merger Mr. Hari Om cited Articles 3 and 5 of the Jammu Kashmir Constitution that confirmed accession to India and 147 that would spell support for 3 and 5. These are contentious debates and not supportive of a solution if uncorroborated. What was expected from him as an academic researcher would be a reference to the authenticity of this J&K constitution and its legal history. In its critical analysis Mr. Hari Om would also have to give arguments for the instrument of accession to be a durable document.
Mr. Aiyer an astute observer thinks people of Kashmir have a belief that it is army that rules them. He was proven right by the revelation made by ex-army chief that funds were channeled through army to control governance in Kashmir. Kashmir is a weak link between regional countries and contingencies arise with territorial incursions. Territorial integrity violated by China taking a further slice of 18 kilometers in Doulat Beg Oldi from the mother soil of Kashmir is a blatant violation of rights of a nation. International law has sanctions against such violations because Article 73 of United Nations Charter offers protection from incursions. In pursuance of that statute and ICCPR (1966) Article 13 the caretaker member (India) in Kashmir would be bound to ensure furtherance ofof the territory it controls and expedite retrieval of the lost territories of the State. This is a binding law and entitles people of the State to argue for retrieval of lands to their have a right to register protest to demand restoration of their historical title to all its territories.
Unfortunately in a manifest appraisal of the drama what transpires is an atmosphere of cold war rhetoric popping up and still pervading political relations between India and Pakistan. Timed with these deliberations are an increase number of LoC violations, cross border mortar fire and according to security agencies 300 militants are ready to cross over. People talk about imponderables like behaviour of the regime change in Pakistan or the fall out of Afghanistan politics on the subcontinent. One imponderable I may add is the hubris of nuclear war looming over like a cloud and recently Nawaz Sherif made a pointed reference to it withObama. The consensus has been on a solution that incorporates the organic masses, will have a built in structure for security on all its borders and is nurtured with impartiality from without. Most epistemic think-tanks in India use foundational facts of the conflict to validate their opinions on the exigency it deserves. It is very unfortunate that Kashmir is caught in a morass of obdurate political posturing. At times they forget the people and look at the mountains, if ever a jolt for resolution is received.
(The author can be contacted at email@example.com, www.kashmircaselaw.com)