The aftermath of the 1971 Indo-Pak war begat the Simla Agreement in July 1972, negotiated by India from an ill-gotten position of strength acquired as a consequence of unlawful aggression against the sovereignty and territorial integrity of Pakistan. Since then, India has steadfastly trotted out the bilateral treaty to stave off third-party involvement in the Kashmir dispute.
This obstructionist stance though is neither morally nor legally tenable after India egregiously wrecked the Simla Agreement on August 5, 2019, by its actions with respect to Indian occupied Jammu & Kashmir (‘IOJ&K’).
— Khaleek Kohistani (@KhalekKohistani) January 5, 2020
The Simla Agreement’s Article 1, paragraph (ii), states: “That 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. Pending the final settlement of any of the problems between the two countries, neither side shall unilaterally alter the situation…” Article 6 of the Agreement, moreover, acknowledges that Kashmir shall remain disputed until its “final settlement” between India and Pakistan.
The world community and its institutions, including the UN, should not hence be dissuaded by India’s devious posturing with regard to the Simla Agreement
By sinisterly decapitating Articles 370 and 35-A of the Indian constitution through domestic legalistic legerdemain, Prime Minister Narendra Modi’s BJP government has unlawfully annexed IOJ&K, recognized as a disputed territory under international law, and paved the way for changing its demographic composition. In due course, this would irreversibly thwart the fulfillment of Kashmiris’ right to self-determination in brazen defiance of international law.
These fundamentally transformative actions unquestionably amount to a unilateral alteration of the situation prior to the final settlement of the Kashmir dispute between two South Asian nuclear rivals. In the parlance of international law, they constitute a material breach of the Simla Agreement, representing the violation of a treaty provision essential to the accomplishment of its object or purpose.
Under customary international law, codified also in the Vienna Convention on the Law of Treaties, a material breach of a bilateral treaty by one of the parties entitles the other to invoke the breach as a ground for terminating the treaty or suspending its operation in whole or in part. Pakistan may, therefore, choose to formally untether itself from the Simla Agreement’s norm of bilateralism by suspending the operation of its Article 1, paragraph (ii).
This paragraph, which has formed the mainstay of India’s fetishistic insistence upon bilateralism, contains two inextricably linked sentences. According to settled rules of treaty interpretation, its effective and harmonious interpretation entails reading both the sentences together. Within this interpretative scheme, the upholding of the second sentence prohibiting the unilateral alteration of disputes is a necessary condition for continued operability of the first sentence laying down bilateralism.
Any other interpretation would be illogical and absurd. The unilateral and irresponsible steps undertaken by Prime Minister Modi’s government on August 5, 2019, have thus rendered the Simla Agreement’s Article 1, paragraph (ii), bereft of any legal effect or meaning. In any case, the Simla Agreement does not exclusively tie down India and Pakistan to bilateral dispute resolution.
It nowhere explicitly rules out availing multilateral means of dispute settlement. The foundational Lotus principle in international law permits sovereign states to act in any way they wish so long as they do not contravene an explicit prohibition. Pakistan, therefore, is not straitjacketed by the Simla Agreement in demanding third-party mediation over the Kashmir dispute, especially when India remains utterly disinclined to negotiate the matter with it at all, let alone fairly on legal and equitable terms.
India has steadfastly trotted out the bilateral treaty to stave off third-party involvement in the Kashmir dispute
The realization of Kashmiris’ right to self-determination, enshrined in the United Nations Charter and a slew of Security Council Resolutions, is a universal jus cogens obligation owed to the people of Kashmir not only by India and Pakistan but also the world community. Crucially, the Simla Agreement may not, therefore, be invoked to subvert the fulfillment of this right under the aegis of the UN.
Resorting to it in this manner would render it void for conflicting with a jus cogens obligation besides violating its own Article 1, paragraph (i), according to which “the principles and purposes of the UN Charter shall govern the relations between the two countries.” It would also run afoul of the Charter’s Article 103 whereby: “In the event of a conflict between the obligations of the Members of the UN under the present Charter and their obligations under any other international agreement, their obligations under the present Charter shall prevail.”
"The secretary general also recalls the Simla Agreement on bilateral relations between India and Pakistan, which states that the final status of Jammu and Kashmir is to be settled by peaceful means, in accordance with the Charter of the UN."https://t.co/IUWkh5of69
— Dawn.com (@dawn_com) August 8, 2019
On October 31, 2019, the Survey of India issued a new map of India. Besides depicting IHK’s illegal power grab, it also fancifully and provocatively includes areas that are part of Azad Jammu & Kashmir and Gilgit-Baltistan. From the standpoint of international law, this cartographic charade is entirely insignificant. A biased, unilaterally drawn up map to its liking can neither legally confer sovereign title to India over internationally recognized disputed territory nor furnish any factual or legal evidence of title over it.
Notably, by showing areas of Azad Jammu & Kashmir and Gilgit-Baltistan as part of the Union of India, India has struck another hammer blow to the Simla Agreement whose Article 4, paragraph (ii), states: “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 recognized position of either side.” This particular Article is also being continuously breached by India in Siachin since the incursion of its troops there in 1984.
Given that India’s hands are thoroughly sullied due to its contemptuous, serial and ongoing disregard for the Simla Agreement, it is morally and legally estopped from selectively or disjointedly citing the Agreement’s provisions to impede the involvement of external actors in Kashmir.
The world community and its institutions, including the UN, should not hence be dissuaded by India’s devious posturing with regard to the Simla Agreement. Instead, they must conscientiously play their part in ameliorating the ongoing humanitarian crisis in IHK, and in ensuring that the decades-long incendiary Kashmir dispute is amicably resolved according to the freely expressed wishes of the Kashmiri people.
Ali Sultan is an international law and policy expert. He teaches public international law at the Foreign Service Academy. The views expressed in this article are the author’s own and do not necessarily reflect the editorial policy of Global Village Space.