Talks on Kashmir Under Shimla Agreement- And Modi’s Offer

Z.G. Muhammad

India and Pakistan relations are once again on rocks. It is not a new phenomenon. Sixty seven years graph of relations between the two even at a cursory look shows that there are only a few crests and rest all troughs- some very deep. From ab initio dispute over future of Jammu and Kashmir has been at the centre of relations between the two countries.
On 15 August 1947, the princely state of Jammu and Kashmir had denied to fall into the basket of either of the two dominions – India and Pakistan. From this date to 27 October 1947, when army from New Delhi ostensibly at the request of Maharaja Hari Singh at Srinagar airport it was an independent state. Despite the “fact and date of the Instrument of Accession” remaining a debate, India and Pakistan is engaged in resolving the Kashmir dispute from the day it was born. The first summit meeting between Govern-Generals of the two countries was held on November 1, 1947, followed by innumerable meetings at bilateral level, interventions and resolutions by the United Nations Security Councils and third party mediations.
In this column, it will not be possible to recap entire   history of dialogue over Kashmir between the two countries but whenever there has been a change of guard in New Delhi hopes for purposeful dialogue that would lead to the resolution of Kashmir dispute have brightened. In May, when Narendra Modi led NDA government came to power, it had renewed hopes of an important section of Kashmir leadership that the new BJP leadership will be guided vis-à-vis Kashmir and Pakistan by the Vajpayee doctrine of ‘conciliation’. So was true about Pakistan Prime Minister, Nawaz Sharif, reiterating that he wanted to pick up threads from Lahore visit of Vajpayee he enthusiastically arrived in New Delhi on the oath ceremony of Narendra Modi. Despite finding himself in a diplomatic predicament on receiving a “charge sheet” from New Delhi, Nawaz Sharif had shown enthusiasm in improving trade relation with India. And the “bonhomie” struck at one to one meeting between the two prime ministers ended at a bitter note, when India called off the Secretary level meeting scheduled for August 25 after Pakistan’s ambassador to India routinely met “leaders” from Jammu and Kashmir, days before the talks were scheduled.

It is another debate if the move was to delegitimize the Kashmir “leadership.” And what the new government wants to achieve by delegitimizing the leaders with whom both NDA and UPA government had engaged in the past at the highest level. Or if the rebuff was intended to tell them that their strength had wilted away and they had become irrelevant. Nevertheless, the immediate question that haunts the public mind is after spurning of the secretary level talks what next.
If the stalemate in the relations between two countries persists will it follow a tradition pattern of ending into intensified ceasefire violations, skirmishes and armed standoff between the two countries along the LOC? And if it could explode into full-fledged war in 2015. Narendra Modi believes Pakistan has lost capacity to fight the conventional wars as India was far more superior in armoury and arsenals- rightly so India is five times bigger than India in size and strength. But in terms of possession of nukes the two countries are evenly placed. This strengthens the belief that South Asia is a most “dangerous place” in the world and Kashmir is a nuclear flash point that cries for a resolution.
Historically, India-Pakistan relations have followed a pattern failure of talks have ended in tension on borders even war and end of war has led to resumption of dialogue. While one is apprehensive the cycle getting repeated still in the bizarre situation of Indo-Pak relation once again on a brink United Nations General Assembly meeting in the last week of September still holds a glimmer of hope. Both Prime Ministers are scheduled to be there. Will the two meet on the side-lines as envisaged despite secretary level talks aborted by India? Will Pakistan Prime Minister raise Kashmir problem in his address to General Assembly and demand implementation of the UN resolution on Kashmir? If one goes by mood in the US press cancellation of the secretary level talks on a very flimsy ground has not gone well with Washington. In all likelihood, when Narendra Modi meets President Obama resumption of dialogue with Pakistan also will be discussed.
Narendra Modi government is not going to stick to its no -dialogue policy with Pakistan on Kashmir has started becoming obvious. On Saturday, despite making undiplomatic and unsavoury remarks about Pakistan by denouncing the meeting of Pakistan High Commissioner Abdul Basit with Kashmir leaders as “making spectacle of talks” he sounded positive in informing the Japanese media that ‘India has no hesitation to discuss any outstanding issue with Pakistan within the bilateral framework that has been established under the Shimla Agreement and the Lahore Declaration’.
Stating that his government had ‘no hesitation to discuss all outstanding issues under the two agreements is not a bad omen for Indo-Pak relations. Shimla agreement is not a document is not document that surrenders right to self-determination to the people of Jammu and Kashmir. True, Pakistan initially liked to eschew any discussion on Kashmir at Shimla in 1972 but India did not let it off the hook. Those conversant with the history of the dialogue at Shimla, exchange of drafts between two countries, amendments and changes that these drafts were subjected to during marathon sessions fully well understand that the Shimla agreement did not alter the status of the Kashmir dispute but it only provided an alternative mechanism of resolving it bilaterally but makes it no binding. This is evident from clause two of the agreement which reads: through bilateral negotiations or any other peaceful means mutually agreed upon them. This amply leaves scope for third party mediation or arbitration by any international organization etc. The clause six of the agreement while making meeting between India and Pakistan leaders binding for a ‘final settlement of Jammu and Kashmir’ recognizes in the very first clause that the principle and purpose of the charter of United Nations shall govern the relations between the two countries. This binds them to their earlier commitments on Kashmir to United Nations – the key phrase in the agreement that suggest that the Shimla agreement has not affected the status of Kashmir dispute is, “without prejudice to the recognized position of either side.” It in no case replaces or over rides the UN resolutions, as rightly pointed out by A.G. Noorani , “it cannot rule out for ever the UN involvement or bar the interest of other powers in what has been an international question. A bilateral accord which violates the UN charter is void as article 103 provides. The jurisdiction of the organ it has created with specific mandate (the Security Council and General Assembly) cannot be ousted by a pact between two members to resolve matters bilaterally just as an arbitration agreement between individuals cannot affect the jurisdiction of Courts.” Lahore Declaration that PM Modi mentions also calls for “intensification of efforts” by leaders of two countries of resolution of all issues including Jammu and Kashmir.
Let us wait for 27 September before writing an epitaph on Indo-Pak talks.

(Full text of article that appeared in Greater Kashmir on 1-9-14)