Should U.S. Take ‘NO’ of India as an Answer?

Dr. Ghulam Nabi Fai

“I would like to categorically state that no such request (mediation on Kashmir) has been made by the Prime Minister (Modi) to the US President,” Subrahmanyam Jaishankar, Minister of External Affairs told the Indian Parliament on July 23, 2019. He added that “Shimla and Lahore accords provide the basis for resolution of all issues bilaterally.”

Why India stresses Lahore Declaration and Simla Agreement and not the United Nations resolutions, which were adopted only after the consent of both India and Pakistan was sought at the Security Council.? There is a need to clarify this assertion. This needs to be supplemented by some observations from the viewpoint of the people of Kashmir itself. These deserve to be borne in mind by all those who wish the conflict to be justly resolved once and for all.

The Lahore Declaration, which was signed on February 21, 1999 between Prime Minister Atel Behari Vajpayee and Prime Minister Nawaz Sharif, offered  “a vision of peace and stability between their countries, and of progress and prosperity for their people.”

It is true that peace, stability and harmony between India and Pakistan will open vistas of opportunities to shift resources to domestic development. The history testifies that the shared aspiration for peace and prosperity between these two neighbors will remain blocked until the Kashmir conflict is resolved through negotiations in which the Kashmiri leadership play a prime role.

The people of Kashmir cheered the joint commitment in Lahore Declaration “to protect and promote all human rights and fundamental freedoms.” But the fact is that the lofty promise was honored more in the breach than in the observance in Kashmir, where extrajudicial killings, abduction, rape, torture, arbitrary detentions, and ruthless suppression of political dissent are commonplace sufferings. The latest report of the United Nations High Commissioner on Human Rights issued on July 8, 2019 provides a glimpse on the human rights inferno in Kashmir.

Perhaps, I am too dismissive of the Lahore Declaration. But I think not. Even before the ink of Lahore Declaration was dry, then the Indian Deputy Prime Minister, L.K. Advani was shouting that Kashmir was nonnegotiable Indian territory, and that fate had destined India ultimately to bring Pakistan within its grasping sovereign orbit, thus proving that partition was a mistake and injustice. It would take a hyperthyroid imagination to extract optimism from that belligerency!

The people of Kashmir are rather perplexed that India has again reiterated its determination to implement the Simla Agreement rather than the UN resolutions. Why the stress on Simla Agreement? It seems that the Simla Agreement is being invoked because of lack of knowledge about its actual terms and the circumstances in which it was signed. India is taking full advantage of this factor to spread the misinformation that the Simla Agreement absolves her from the responsibility of striving for a settlement of the dispute. By citing the Simla Agreement at this stage when President Trump offered his office of mediation, India obviously seeks to prevent basic issues of the dispute that were fully taken into account by the United Nations. The Simla agreement is pressed into service as a formula for evasion.

The Lahore Declaration plus the Simla Agreement does not add up to progress in resolving the 71-year-old Kashmir conflict. Indeed, it is the same zero plus zero equals zero formula that has frustrated a peaceful settlement of the Kashmir dispute in accord with international law and justice since India’s illegal invasion on October 27, 1947.

The question arises: what should be the point of departure for determining a just and lasting basis? The answer obviously is (a) the Charter of the United  Nations which, in its very first article, speaks of “respect for the principles of equal rights and self-determination of peoples” and (b) the  international agreements between the parties to the dispute.

India and Pakistan have concluded agreements which are embodied in the resolutions adopted by the United Nations Security Council. These resolutions constitute an agreement because, unlike most resolutions of the Security Council, their provisions were first negotiated with the parties and, in  written statements, explicitly accepted by them.  These resolutions bind both India and Pakistan to respect the verdict of the people of Kashmir to be obtained through a free vote under the impartial supervision of the United Nations.

India and Pakistan also concluded bilateral agreements like Lahore Declaration and  Simla Agreement. The Simla Agreement nowhere precludes a settlement of the Kashmir dispute along the lines laid down by the United Nations with the consent of both India and Pakistan. Nor does it require that the United Nations be by-passed in the effort towards a settlement. On the contrary, it expressly says that the relations between the two countries shall be governed by the principles and purposes of the Charter of the United Nations. One of the basic principles of the UN Charter (Article 33) is to seek a solution of any dispute by negotiation, enquiry, conciliation, arbitration, judicial settlement, resort to regional agencies or arrangements or other peaceful means. The linked principle (Article 34) is that the Security Council may investigate any dispute and (Article 36) at any stage recommend appropriate procedures or methods of adjustment. The Simla Agreement thus reinforces the obligations of both parties to achieve a settlement in accordance with the resolutions endorsed by the Security Council, and, if their bilateral efforts fail, to turn to the United Nations for assistance.

It is a misconception that the Simla Agreement has in any way superseded the resolutions of the United Nations accepted by both parties. Nor can it be supposed to have narrowed the gulf between them and, to that extent, simplified the task of evolving a settlement. Even if it has done so, its impact on the Kashmir situation would have been open to question. Nothing in international law confers on two parties the authority to make decisions or conclude agreements which adversely affect the rights of a third. The third party here is the people of Kashmir.

Why is the Simla Agreement put in the forefront rather than the UN resolutions? One explanations can be the impression that the Simla Agreement, being of more recent origin than the UN resolutions, might be more effective in activating the process. This is wrong in view of the fact that, for 42 years, the Simla Agreement has signally failed to shake India out of its obdurate refusal to negotiate a settlement of the Kashmir problem. The current Indian position is that India is prepared to talk but there is nothing to talk about except how to crush the resistance in Kashmir and perpetuate the status quo.

If non-implementation were to render an agreement defunct, then the Simla Agreement is in no better state than the earlier, far more concrete and comprehensive agreement painstakingly worked out by the United Nations and concluded under its auspices in 1948-49. If passage of time were allowed to extinguish solemn international agreements, then the Simla Agreement has already suffered the same fate as the UN resolutions. If agreements are to be revived, then why one and not the other?

Dr. Fai is the secretary General of Washington-based World Kashmir Awareness Forum. He can be reached at: 1-202-607-6435  or  gnfai2003@yahoo.com