Kashmir and the Simla Agreement

Daily: Daily Times
Date: 19.10.16

The Simla Agreement was signed between Pakistan and India on July 2, 1972 and, in
October 2016, the agreement is over 44 years old. For the sake of discussion, the
agreement can be divided into two parts. One part is related to the nature of relations
between Pakistan and India whereas the other part is related to the status of the Princely
State of Jammu and Kashmir. This opinion piece comments on the latter.

The objective of the Simla Agreement, as mentioned in its preamble, is this: “The
Government of India and the Government of Pakistan are resolved that the two countries
put an end to the conflict and confrontation that have hitherto marred their relations and
work for the promotion of a friendly and harmonious relationship and the establishment of
durable peace in the subcontinent so that both countries may henceforth devote their
resources and energies to the pressing task of advancing the welfare of their people.” This
statement is simply an expression of the resolve of both the signatory countries to end
hostilities and establish peace between them to serve their people.

The objective part of the agreement is shorn of the word Kashmir, and the absence is
rationalised because the events that led to the agreement surfaced from the disagreement
on various issues between the east and west wings of Pakistan. Moreover, in 1971, India
blatantly sided with East Pakistan to get it disassociated from West Pakistan to become
Bangladesh. Interestingly, the issue of Kashmir that was also lingering at that time between
Pakistan and India had nothing to do with any such disassociation.

In the agreement, although the words “the right of self-determination” are missing, these
are implied in Sub-section I of Section One of the agreement that says: “That the principles
and purposes of the Charter of the United Nations [UN] shall govern the relations between
the two countries.” When the UN Charter is consulted, it is found 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 this way, this subsection has a strong
bearing on the Kashmir issue, especially where the points of the right of self-determination
of Kashmiris and the territorial integrity of Kashmir are concerned.

At this juncture, two points may be considered important. Firstly, when the objective part of
the agreement says that both the signatory governments are resolved to “put an end to the
conflict and confrontation that have hitherto marred their relations,” it does not mean the
negation of the right of self-determination of Kashmiris. Secondly, when the objective part
of agreement says that both the signatory countries shall “work for the promotion of a
friendly and harmonious relationship to establish peace in the subcontinent,” it does not
mean they do so at the cost of the right of self-determination of Kashmiris. In short,
notwithstanding the actions taken by both the signatory countries, the right of self-
determination of Kashmiris is intact, inviolable and irrefutable.

In the body of the agreement, the word Kashmir is mentioned in two different sections.
Section Five of the agreement says: “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 recognised position of either side.” This statement shows that through the
agreement in 1972 India ditched its own claim that Kashmir was its integral part. Section
Seven says: “Both Governments agree that their respective Heads will meet again at a
mutually convenient time in the future and that, in the meantime, the representatives of the
two sides will meet to discuss further 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 statement indicates that notwithstanding the
stance of India domestically for the consumption of its people, India admitted in 1972 at the
bilateral level that the final settlement of the Kashmir issue was still pending.

Whereas the downside of the Simla Agreement is that no timeframe has been mentioned to
achieve the final settlement of the Kashmir issue, the upside of the agreement is that it
does not prohibit any signatory party from referring the Kashmir issue back to the UN.
Despite the lapse of 44 years, the Kashmir part of the Simla Agreement has delivered
nothing to Kashmiris, who were not even a signatory to the agreement. Nor was the 1971
war fought in the name of the Kashmir cause. Without the consent and will of Kashmiris, the
issue of Kashmir was reduced from international standing (such as the UN) to a bilateral
one through the Simla Agreement, and the right of self-determination of Kashmiris was
made subject to the fulfillment of the agreement. In this way, if the ultimate beneficiary of
the 1971 war was Bengalis, the ultimate loser of the 1971 war was Kashmiris for no fault of
theirs. In fact, in 1971, Kashmiris had lost the battle of Kashmir without even fighting it.

If the timeframe to resolve the Kashmir issue is not written in the Simla Agreement, it is also
not written that the final settlement of the Kashmir can be kept pending for an indefinite
period of time. In this way, the right of self-determination of Kashmiris has been made
conditional on the time clause that is found absent in the agreement. Kashmiris may
demand the time clause to effectuate their right of self-determination.

Secondly, the Simla Agreement makes negotiations between the two signatory countries
subject to certain conditions. In this way, the right of self-determination of Kashmiris has
been made conditional on the availability of certain circumstances. Kashmiris may demand
unconditional bilateral negotiations between the signatory countries to hasten the process
of the final settlement of the Kashmir issue.

Thirdly, the Simla Agreement has no binding on Kashmiris and does not prohibit them from
raising their voice for the right of self-determination at the international level. Kashmiris may
resort to it.

Fourthly, the Simla Agreement does not forbid Pakistan from sending the issue of Kashmir
back to the UN, given the dysfunctional state of the Kashmir portion of the Simla
Agreement. Pakistan may opt for this option.

Back to columns in 2016