Dr. Syed Nazir Gilani |
Relations between India and Pakistan continue to be bedevilled for the last 71 years. It is because the ‘nationalists of opportunism’ in politics far exceed the ‘nationalists of conviction’. India and Pakistan are contributing to peacemaking around the world. Unfortunately, both have failed to roller skate good neighbourly relations and own the scope of bilateralism at home, to settle disputes and promote peace and welfare of their people. It was the failure in bilateral engagement under article 33, that Indian Government has invoked article 34 at the UN Security Council.
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 United Nations 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 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 UN Charter.
The scope of bilateralism on Kashmir has been explained and settled by United States of American at the 607th meeting of the UN Security Council held on 5 December 1952. Ernest A Gross US Representative at the Security Council at the 607th meeting of UN Security Council on 05 December 1952 has made a case for bilateral dialogue as follows: “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.
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Intra-State obligations conjoin with Charter obligations, and make a stronger case for Bilateralism. India and Pakistan have, caused 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 importance of bilateral engagement between India and Pakistan has been duly entertained during the debates on Kashmir at the UN Security Council.
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. Shimla Agreement under clause (ii) causes a jurisprudence of ‘Peaceful Means’. The two countries are resolved to settle their differences by peaceful means through bilateral negotiations or by any other peaceful means mutually agreed upon between them. In Shimla it has 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 Tashkent Declaration and the Shimla Agreements commit their jurisprudence to 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’ and on the other introduces the ‘sanctity’ clause in respect of line of control, a singular addition to the existing bilateral jurisprudence on Kashmir.
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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.
India – Pakistan Relations, need to be roller-skated on the principles and scope of Bilateralism. The conduct of the wisdom of this bilateralism in reference to UN Charter and a no prejudice clause makes it fair to the two sovereign states and the People of Jammu and Kashmir.
Although the principal subject of dispute – the people of Jammu and Kashmir, were not represented or adequately represented at any of these fora i.e.; the UN, at Tashkent, at Shimla and at Lahore, yet, prima facie, their principal interests on balance have not suffered any prejudice. 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.
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.
India-Pakistan Relations and The Scope for Bilateralism hinges on the shortlisting of the 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, committed in reference to UN Charter, 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.
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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 the India-Pakistan 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 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 specializes in Peace Keeping, Humanitarian Operations, and Election Monitoring Missions. The Views expressed in this article are author’s own and do not necessarily reflect the editorial policy of Global Village Space.