The Simla Agreement and the Kashmir issue

Daily: Daily Times
Date: 17.08.16

Some retired diplomats in their opinion pieces in various Pakistani English dailies, and
some retired army generals airing their opinions on various TV talk shows are of two kind of
views. First, the Simla Agreement of 1972 between Pakistan and India has no more bearing
on Pakistan because of one reason or the other. Second, viewing the Kashmir issue
through the lens of the Simla Agreement is to favour India. This opinion piece tries to
address the two-pronged criticism.

Sub-section I of Section one of the Simla Agreement says: “That the principles and
purposes of the Charter of the United Nations shall govern the relations between the two
countries.” The Charter of the United Nations (UN) says that its articles one and two outline
the purposes and principles. Article one of the UN Charter is about “Equal rights and self-
determination of peoples” and Article two of the UN Charter is about “Prohibition of threat or
use of force in international relations.” In isolation, this subsection of the agreement has a
strong bearing on the Kashmir issue, especially where the points of the right of self-
determination of people and the territorial integrity of Kashmir (i.e. the princely state of
Jammu and Kashmir) are concerned. However, the generality of this sub-section is subdued
by the specificity of the next sub-section.

Sub-section II of Section one of the Simla Agreement says: “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 and both shall prevent organisation, assistance or encouragement of any
acts detrimental to the maintenance of peaceful and harmonious relations.” This self-
explanatory sub-section of the agreement has constrained Pakistan from taking the
Kashmir issue out of the bilateral domain to even at the UN level through any new
resolution or to the International Court of Justice. Nevertheless, the main point here is
whether or not Kashmir is one of the differences — which is required to be settled —
between Pakistan and India. Since the Mumbai attacks in 2008, India has actively been
excluding the Kashmir issue from bilateral negotiations primarily by not letting it top the
ladder of negotiation. In this regard, Pakistan is facing a problem also owing to the next sub-
section.

Sub-section III of Section one of the Simla Agreement says: “That the pre-requisites for
reconciliation, good neighbourliness and durable peace between them is a commitment by
both the countries to peaceful co-existence, respect for each other’s territorial integrity and
sovereignty and non-interference in each other’s internal affairs, on the basis of equality
and mutual benefit.” In this sub-section, pre-requisites have been set, and any atrocious
acts have been ruled out. Moreover, the word “equality” has been mentioned that favours
Pakistan, and not “reciprocity” that disfavours Pakistan. That is, if one country does the
wrong, the other country is not supposed to reciprocate the wrong. Against this
background, by restraining itself against Pakistan on the Mumbai attacks, India has gone
one notch up. Pakistan does not have much of an answer on how to stop India from topping
the agenda of bilateral negotiations with terrorism.

The reference to Kashmir comes in sub-section II of Section four where the Simla
Agreement says: “In Jammu and Kashmir, the line of control resulting from the creasefire of
December 17, 1971 shall be respected by both sides without prejudice to the recognised
position of either side. Neither side shall seek to alter it unilaterally, irrespective of mutual
differences and legal interpretations. Both sides further undertake to refrain from the threat
of the use of force in violation of this Line.” In this part of the agreement, the presence of
the words the “line of control” and the “ceasefire” clearly indicate that there is a dispute on
Kashmir between the signatory parties. Interestingly, this is the same sub-section that
determined Pakistan an aggressor in the Kargil war of 1999, and which was implemented by
making Pakistan withdraw from the Kargil heights to the pre-war position as was on
December 17, 1971. This development alone indicates that the Simla Agreement still has a
bearing on Pakistan. Further, this sub-section also indicates that India too cannot
transgress the line of control. Nevertheless, on the issue of Kashmir, further light has been
thrown in the next section.

Section five of the Simla Agreement says: “Both governments agree that the respective
Heads will meet again at a mutually convenient time in the future and that, in the meanwhile,
the representatives of the two sides will meet to discuss further the modalities and
arrangements for the establishment of durable peace and normalisation of relations,
including the questions of repatriation of prisoners of war and civilian internees, a final
settlement of Jammu and Kashmir and the resumption of diplomatic relations.” This section
is also self-explanatory and allays the fears of those who think that viewing the Kashmir
issue through the lens of Simla Agreement is to favour India. In this section, the phrase “a
final settlement of Jammu and Kashmir” indicates clearly that there is a dispute on it
between the signatory parties that these parties have agreed to resolve through
negotiations. The critics overlook the fact that this is the section under which bilateral
negotiations — to do what and to figure out how — have been taking place between
Pakistan and India.

In the post-1972 era, the single major achievement of India is to buy time on the Kashmir
issue; however, the single major failure of Pakistan is not to read the Simla Agreement
carefully. The critics have also played a role in discrediting the Simla Agreement openly,
and consequently, misguiding the public at large because of which some sections of
Pakistani society launched the Mumbai attacks, and by so doing sabotaged the Kashmir
issue. The point is simple: Pakistanis should support the Kashmir issue but not at the cost
of the lives of innocent Indian civilians. India does not retaliate to Pakistanis but it takes
revenge from Kashmiris inhabiting its part of Kashmir.

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