Certain legal and political voices in India assert that the United Nations Security Council resolutions on Jammu and Kashmir have lost their legal significance following the Simla Agreement. They contend that, by agreeing to resolve all disputes through bilateral negotiations, Pakistan effectively transformed the Kashmir issue into a bilateral matter. Some even invoke Article 59 of the Vienna Convention on the Law of Treaties, arguing that the conclusion of a new agreement renders prior obligations void.
This interpretation is legally unsound. It reflects either a deliberate distortion of international law or a fundamental misunderstanding of its basic principles. A good-faith reading of international legal instruments makes it clear that subsequent bilateral arrangements cannot nullify binding Security Council resolutions adopted under Chapter VI of the UN Charter, unless the Council itself so determines. Anyone with even a rudimentary grasp of international law would find it untenable to sustain this argument.
Despite India’s claims, international law reinforces the enduring authority of UN resolutions on Kashmir.
There are two interpretations of the Simla Agreement: Pakistan’s and India’s. Pakistan says the UN resolutions remain valid and binding despite Simla. India claims the agreement has rendered them irrelevant and obsolete. We all know the implications of accepting Pakistan’s view. But what happens if we accept India’s position? This is where things get interesting.
Under international law, even if you accept India’s interpretation, it doesn’t mean the UN resolutions automatically become void. On the contrary, it means the Simla Agreement itself would be considered void, and the UN resolutions would continue to apply with full force.
Before we go deeper, let’s take a look at what the Simla Agreement actually says. It is true that the agreement talks about resolving disputes through bilateral talks or any mutually agreed mechanism. That is the clause India refers to when it insists that no third party can mediate on Kashmir unless both sides agree.
But does the agreement say that the UN no longer has a role? No, it doesn’t say so. In fact, the very first clause of the Simla Agreement clearly states that both countries will be governed by the principles and purposes of the UN Charter. If that’s the case, how can you exclude the UN from disputes between the two countries?
Now let’s look at what the UN Charter itself says. Article 103 is especially important. It says that if there’s a conflict between a member state’s obligations under the Charter and any other international agreement, the Charter takes precedence.
And this isn’t just about the clauses of the Charter, it covers “obligations” under the Charter, which include all relevant UN resolutions. This is not my personal interpretation. The UN’s own “Collective Measures Committee” has confirmed that Article 103 applies to both Security Council and General Assembly resolutions.
So, to sum it up:
If you accept Pakistan’s interpretation, the UN resolutions are alive and valid.
If you accept India’s interpretation that Simla overruled the resolutions, then by Article 103 of the UN Charter, the Simla Agreement becomes void, and the UN resolutions regain full authority.
Either way, the UN resolutions on Kashmir remain relevant and enforceable.
There’s another point to consider. Under the Simla Agreement, both countries agreed to resolve “bilateral” disputes through talks. But Kashmir isn’t just a bilateral issue. Under the Partition Plan, Kashmir was given the option to join either India or Pakistan. But it wasn’t for India or Pakistan to decide. That right belonged to the Kashmiri people. So how can any agreement about Kashmir be valid if it excludes the people of Kashmir?
Another clause in the Simla Agreement says that neither side will change the situation unilaterally. Has India respected this clause? Clearly not. Look at what they’ve done in Kashmir in recent years. Isn’t it intellectually dishonest to say the UN Charter no longer matters while at the same time violating the Simla Agreement by changing Kashmir’s status illegally?
And if someone still insists that the Simla Agreement nullifies the UN resolutions, one should read Article 53 of the Vienna Convention on the Law of Treaties. It says any treaty that conflicts with the fundamental principles of international law is void.
Let there be no confusion: the UN resolutions on Kashmir are not meaningless. They remain binding, relevant, and enforceable.
The writer is a lawyer and author based in Islamabad. He tweets @m_asifmahmood.