Daily Times

Relations between India and Pakistan continue to be bedevilled as 71 years pass. It is because the ‘nationalists of opportunism’ in politics far exceed the ‘nationalists of conviction’. India and Pakistan are contributing to peace making around the world. Unfortunately both have failed; to roller skate to good neighbourly relations, own the scope of bilateralism at home, settle disputes, promote peace and the welfare of their people. It was the failure in bilateral engagement under article 33, that the Indian Government has invoked article 34 at the UN Security Council.

The Kashmir dispute has been duly debated at the UN Security Council, fully investigated under the authority of UN Security Council and a UN mechanism to hold a referendum under the supervision of the UN; awaits compliance by India and Pakistan. Article 33 of the United Nations promotes bilateral engagement between parties, and Kashmir is no exception.

The importance of bilateral engagement between India and Pakistan has been duly entertained during the debates on Kashmir at the UN Security Council. The scope of bilateralism on Kashmir has been explained and settled by United States at the 607 meeting of the UN Security Council held on December 5 1952.

The US representative stated that: “It seems to me that the principles on which we are trying to proceed to assist the parties to carry out their Charter obligations are these:In the first place, a lasting political settlement must be an agreed settlement. Secondly, the Security Council will, we feel, always welcome any agreement which the parties themselves can reach on any basis which will settle the dispute, provided of course that basis is consistent with the principles of the Charter of the United Nations”.

As member nations of United Nations India and Pakistan, have Charter obligations to settle disputes peacefully between themselves and to co-operate in promoting peace in other parts of the world. Intra-State obligations conjoin with Charter obligations, and make a stronger case for Bilateralism. India and Pakistan have, in addition to Charter obligations and intra-state obligations, a substantive and a rich jurisprudence of Bilateralism. The problem remains that it has been only rendered on paper and the two counties have failed to put that into practice.

The Tashkent Declaration of 1966, Shimla Agreement of 1972, Lahore Declaration of 1999, establish a formal regime of principles; in the conduct of bilateral relations and the settlement of disputes. The two countries are resolved to settle their differences by peaceful means through bilateral negotiations or by any other peaceful means mutually agreed upon. In Shimla it had been agreed, that ‘both shall prevent the organisation, assistance or encouragement of any acts detrimental to the maintenance of peaceful and harmonious relations’. It is important to note that the Tashkent Declaration and the Shimla Agreement commit their jurisprudence to the UN Charter obligations and to the final settlement of Jammu and Kashmir dispute.

The Lahore Declaration of February 1999, on the one hand reiterates a ‘determination to implement the Shimla Agreement in letter and spirit’. On the other hand, it introduces the ‘sanctity’ clause in respect to the line of control; a singular addition to the existing bilateral jurisprudence on Kashmir. Additionally at Lahore, the parties for the first time skipped a reference to the UN Charter and to a no prejudice clause that existed in Tashkent Declaration and Shimla Agreement. This does not prejudice the prevailing authority of article 103 of the UN Charter.

The regime of bilateralism between India and Pakistan, would work, if they flag the fact that the people of Jammu and Kashmir are neither an adjunct nor an adjective — but an ‘essential principal’, on their own and in Indo-Pak relations

Indo-Pak relations need to function on the principles and scope of bilateralism. The wisdom of this conduct, in reference to the UN Charter, a no prejudice clause makes it fair for both states and the people of Jammu and Kashmir. Although the principal subject of dispute — the people of Jammu and Kashmir — were not adequately represented at any of these forums; yet, prima facie, their principal interests on balance have not suffered any prejudice.

On the other hand, the Indian interpretation of bilateralism has no merit as article 103 of UN Charter shall always prevail. Article 103 of UN Charter says that in case of treaties between countries which are incompatible with the Charter, obligations derived from the Charter must prevail.

India-Pakistan Relations and The Scope for Bilateralism, hinges on the short listing of grievances of the people of Jammu and Kashmir. The poise of grievances in the beginning has to be separate and the same could be developed into a collective commonality. India and Pakistan, in view of the broad and rich spread of 71 year old jurisprudence of bilateralism; shall have to focus on all political disputes that threaten peace. India and Pakistan shall have to improve relations and begin talking sooner rather later.

The regime of bilateralism between India and Pakistan, would work, if they flag the fact that the people of Jammu and Kashmir are neither an adjunct nor an adjective — but a ‘principal essential’, on their own and in Indo-Pak relations. The door of bilateralism should be kept wide ajar, for a conclusive success of the regime of bilateralism, and at the same time they shall have to remain consistent with the principles of the UN Charter.

The author is President of London based NGO JKCHR, which is in special consultative status with the United Nations. He is an advocate of the Supreme Court and specialises in Peace Keeping, Humanitarian Operations and Election Monitoring Missions.

The writer is the President of JKCHR — NGO in Special Consultative Status with the United Nations. He is on UN Register as an Expert in Peace Keeping, Humanitarian Operations and Election Monitoring Missions. He is a senior advocate of the Supreme Court. Author could be reached at dr-nazirgilani@jkchr.com

Published in Daily Times, September 18^th 2018.