Shimla Agreement and Kashmir

Z.G. MUHAMMAD
On 2nd July 1972, Bhutto announced that his delegation would be departing following morning. ‘Surprisingly, during Bhutto’s farewell call on Mrs. Gandhi a breakthrough was made following some deletions and amendments to the final draft.’ Of the amendments made, the most relevant to J&K were inclusion of word “no prejudice clause’ in paragraph 4 (ii) and it read, “ In Jammu and Kashmir, the line of control resulting from the ceasefire of December 17, 1971, shall be respected by both sides without prejudice to recognized position of either side…”indira-gandhi

For over six and a half decades, India and Pakistan have been fighting the battle of wits at diplomatic front over Kashmir. There was not something new when on Monday January 21, 2013 India and Pakistan envoys in the United Nations exchanged hot words over Kashmir- except the suggestion made by Indian envoy. India’s Ambassador to the United Nation Hardeep Singh Puri set the ball rolling by calling upon the United Nations to withdraw UN Military Observers Group from Jammu and Kashmir. In support of his argument for withdrawal of the group he pointed out that, ‘its role has been overtaken by the Shimla Agreement of 1972 between India and Pakistan, signed by the Heads of the two governments and ratified by their respective parliaments’. The United Nations ‘setting aside Indian demand’ stated that ‘its observers were fully active in Kashmir and the mandate of its UN Military Observer group would continue to exist as only Security Council could decide to end it.”
This debate focusing on the Shimla Agreement and the United Nation Security Councils mandate in Jammu and Kashmir has raised some new questions. The statement of Martin Nesirky, representative for the UN Secretary General raised an all important question: If India takes the Kashmir “dispute” de novo to the United Nations Security Council for withdrawing the UNMOGIP from Kashmir and getting the Shimla agreement – which is bilateral agreement ratified by the comity of nations. Given to the security scenario in South Asia and Pakistan contesting the move the Security Council cannot suo motto initiate action for withdrawal of the UNMOGIP from Kashmir. Stationing of the military group, seen in its historical context was a result of the complaint lodged by India in January 1948 against Pakistan and marathon debates at the United Nations Security Council and the resolutions adopted thereafter. “Taken together these resolutions provided for a ceasefire and the demarcation of a ceasefire line, the demilitarization of the state, and a free and impartial plebiscite to be conducted by the UN.”
India’s international relations as on date are better than those during 1948- when on January 1; under Article 35 of the UN charter, it took Kashmir to the Security Council. Washington had played important role in seeing the resolutions on Kashmir through in the UNSC. It had co-sponsored the resolution granting right to self-determination to people and holding of plebiscite in the state. There has been a lot of debate amongst scholars why India took the case to the United Nations when it had turned down Pakistan’s proposal of inviting the ‘good offices of the British Common Wealth.’ It is separate debate punctuated with many ifs and buts but history testifies notwithstanding Prime Minister, Jawaharlal Nehru saying on June 26, 1952: “If after a proper plebiscite the people of Kashmir said we do not want to live with India, we are committed to accept this. We will not send an army against them. We will change the Constitution if necessary”, he was ‘remorseful’ of taking Kashmir to the UN.
It is important to understand how things will shape if New Delhi takes the issue of withdrawing the military observers group once again to UN but it is equally important to analyse the Shimla Agreement that was taken as a premise by Indian envoy for asking for closing down the UN observers office in Srinagar.
In 1971, after its dismemberment “Pakistan was left alone to solve the problem of prisoners of war and recovery of territory occupied by India.” In April India sent Union Minister, D.P. Dhar for talks with Pakistan. Talks were held on 26-29 April 1972 in Muree. In fact, this was a preliminary meeting, followed by a conference between Prime Minister, Mrs. Gandhi and President, Bhutto in Shimla. A former Pakistan diplomat who was part of delegation has described the Shimla conference as a ‘veritable drama in which superb diplomats played skillful roles’ and on more than one occasion because of two sides having contentious views on Kashmir curtains were drawn on the drama much before the final scene was performed. Couples of draft agreements were exchanged by the two countries but these got defeated because of disagreement on Kashmir- and conference failed.
On 2nd July 1972, Bhutto announced that his delegation would be departing following morning. ‘Surprisingly, during Bhutto’s farewell call on Mrs. Gandhi a breakthrough was made following some deletions and amendments to the final draft.’ Of the amendments made, the most relevant to J&K were inclusion of word “no prejudice clause’ in paragraph 4 (ii) and it read, “ In Jammu and Kashmir, the line of control resulting from the ceasefire of December 17, 1971, shall be respected by both sides without prejudice to recognized position of either side…”
The deliberations of Shimla Conference which have been written about by many historians and analyzed by many scholars in no way suggest that at any point of time the withdrawal of UNMOGIP was agreed upon. ‘In one of the drafts during Shimla conference Indian had suggested creation of a bilaterally supervisory body’ but it was not agreed to and as such has not figured in the Agreement. Had it been so the two countries would have brought it to the notice of the organization (UNSC) that had mandated the group to perform the specific duty of supervising the line. Besides other important immediate issues such as repartition of troops, it also said that the leaders of the two countries would meet for working out modalities for “final settlement of Jammu and Kashmir.”
Twenty-seven years after the signing of the agreement in an article in Mainstream (April 15.1995), P.N. Dhar one of Secretaries of Mrs. Gandhi claimed there was secret understanding about the control line subsequently graduating to a border. In a subsequent issue of the same magazine, Abdul Sattar a member of Pakistan delegation in Shimla contradicted the claim. Rama Chndra Guha writes, ” on July 14 Bhutto spoke for three hours in the National Assembly of Pakistan and said as victor India had all cards in hands- yet he still forged an equal agreement from unequal beginning- did not compromise on right to self-determination of people of Jammu and Kashmir. He offered a solemn commitment to people of Pakistan that if tomorrow the people of Kashmir start  a freedom movement , if tomorrow Sheikh Mohammad Abdullah or Molvi Farooq or any other starts a freedom we will be with them.” (Page 465)
Taking Kashmir de novo to the United Nations for shutting the blue gate forever in Srinagar and asking the UNSC to withdraw UNMOGIP on the face of it seems improbable unless New Delhi is satisfied that it would get requisite support for getting the resolution through and feel assured China will not veto the move.
There are some analysts who believe that it will open a Pandora’s box on Kashmir in the Security Council. Some observers hold the view that “all this noise about LoC and UNMOBGIP is to preempt any move by Pakistan to mention Kashmir in its presidential statements in the Security Council.’ Pakistan is holding UNSC’s alphabetically rotating presidency for this month. In such a scenario wait and watch is the catchword