Daily Times

The Simla Agreement was signed between Pakistan and India on July 2, 1972 and, in October 2016, the agreement is over 44 years old. For the sake of discussion, the agreement can be divided into two parts. One part is related to the nature of relations between Pakistan and India whereas the other part is related to the status of the Princely State of Jammu and Kashmir. This opinion piece comments on the latter.

The objective of the Simla Agreement, as mentioned in its preamble, is this: “The Government of India and the Government of Pakistan are resolved that the two countries put an end to the conflict and confrontation that have hitherto marred their relations and work for the promotion of a friendly and harmonious relationship and the establishment of durable peace in the subcontinent so that both countries may henceforth devote their resources and energies to the pressing task of advancing the welfare of their people.” This statement is simply an expression of the resolve of both the signatory countries to end hostilities and establish peace between them to serve their people.

The objective part of the agreement is shorn of the word Kashmir, and the absence is rationalised because the events that led to the agreement surfaced from the disagreement on various issues between the east and west wings of Pakistan. Moreover, in 1971, India blatantly sided with East Pakistan to get it disassociated from West Pakistan to become Bangladesh. Interestingly, the issue of Kashmir that was also lingering at that time between Pakistan and India had nothing to do with any such disassociation.

In the agreement, although the words “the right of self-determination” are missing, these are implied in Sub-section I of Section One of the agreement that says: “That the principles and purposes of the Charter of the United Nations [UN] shall govern the relations between the two countries.” When the UN Charter is consulted, it is found that its articles one and two outline the purposes and principles. Article One of the UN Charter is about “Equal rights and self-determination of peoples,” and Article Two of the UN Charter is about “Prohibition of threat or use of force in international relations.” In this way, this subsection has a strong bearing on the Kashmir issue, especially where the points of the right of self-determination of Kashmiris and the territorial integrity of Kashmir are concerned.

At this juncture, two points may be considered important. Firstly, when the objective part of the agreement says that both the signatory governments are resolved to “put an end to the conflict and confrontation that have hitherto marred their relations,” it does not mean the negation of the right of self-determination of Kashmiris. Secondly, when the objective part of agreement says that both the signatory countries shall “work for the promotion of a friendly and harmonious relationship to establish peace in the subcontinent,” it does not mean they do so at the cost of the right of self-determination of Kashmiris. In short, notwithstanding the actions taken by both the signatory countries, the right of self-determination of Kashmiris is intact, inviolable and irrefutable.

In the body of the agreement, the word Kashmir is mentioned in two different sections. Section Five of the agreement says: “In Jammu and Kashmir, the line of control resulting from the cease-fire of December 17, 1971 shall be respected by both sides without prejudice to the recognised position of either side.” This statement shows that through the agreement in 1972 India ditched its own claim that Kashmir was its integral part. Section Seven says: “Both Governments agree that their respective Heads will meet again at a mutually convenient time in the future and that, in the meantime, the representatives of the two sides will meet to discuss further modalities and arrangements for the establishment of durable peace and normalisation of relations, including the questions of repatriation of prisoners of war and civilian internees, a final settlement of Jammu and Kashmir and the resumption of diplomatic relations.” This statement indicates that notwithstanding the stance of India domestically for the consumption of its people, India admitted in 1972 at the bilateral level that the final settlement of the Kashmir issue was still pending.

Whereas the downside of the Simla Agreement is that no timeframe has been mentioned to achieve the final settlement of the Kashmir issue, the upside of the agreement is that it does not prohibit any signatory party from referring the Kashmir issue back to the UN. Despite the lapse of 44 years, the Kashmir part of the Simla Agreement has delivered nothing to Kashmiris, who were not even a signatory to the agreement. Nor was the 1971 war fought in the name of the Kashmir cause. Without the consent and will of Kashmiris, the issue of Kashmir was reduced from international standing (such as the UN) to a bilateral one through the Simla Agreement, and the right of self-determination of Kashmiris was made subject to the fulfillment of the agreement. In this way, if the ultimate beneficiary of the 1971 war was Bengalis, the ultimate loser of the 1971 war was Kashmiris for no fault of theirs. In fact, in 1971, Kashmiris had lost the battle of Kashmir without even fighting it.

If the timeframe to resolve the Kashmir issue is not written in the Simla Agreement, it is also not written that the final settlement of the Kashmir can be kept pending for an indefinite period of time. In this way, the right of self-determination of Kashmiris has been made conditional on the time clause that is found absent in the agreement. Kashmiris may demand the time clause to effectuate their right of self-determination.

Secondly, the Simla Agreement makes negotiations between the two signatory countries subject to certain conditions. In this way, the right of self-determination of Kashmiris has been made conditional on the availability of certain circumstances. Kashmiris may demand unconditional bilateral negotiations between the signatory countries to hasten the process of the final settlement of the Kashmir issue.

Thirdly, the Simla Agreement has no binding on Kashmiris and does not prohibit them from raising their voice for the right of self-determination at the international level. Kashmiris may resort to it.

Fourthly, the Simla Agreement does not forbid Pakistan from sending the issue of Kashmir back to the UN, given the dysfunctional state of the Kashmir portion of the Simla Agreement. Pakistan may opt for this option.

The writer is a freelance columnist and can be reached at qaisarrashid@yahoo.com