Pakistan’s nascent government is hoping for the resumption of bilateral talks with India. However, the government feels that this is not possible before the Indian parliamentary elections in April or May 2019, as electoral rhetoric in India demands an anti-Pakistan approach rather than pursuing dialogue with Pakistan.
The political realities suggest that any progress towards reconciliation is unlikely even after the Indian parliamentary elections are held, next year. Pakistan wants a dialogue with India particularly on the Kashmir issue and India is unwilling to talk about Kashmir.
In November 2018, after Prime Minister Imran Khan inaugurated the construction of the Kartarpur corridor – a long held demand of the Sikh community – there were increased hopes of a possible thaw between the two rivals. However, these expectations were dashed after the Indian leadership refused to resume dialogue with Pakistan. Indian media’s propaganda coverage of Kartarpur initiative added fuel to the fire.
The negative response and bellicose tone by Indian leaders is not something new and should not be construed as part of election rhetoric. For more than two decades, India has spurned peace overtures with Pakistan under the guise of terrorism allegations. Therefore, looking at the previous bilateral discussions between the two countries which have remained unsuccessful at best, even if India resumes dialogue with Pakistan, it will not be willing to talk about Kashmir.
Article 60 of the 1969 Vienna Convention on the Law of Treaties states that if a country commits “material breach” of a bilateral treaty, such as India has done in case of the Simla agreement, the other country is “entitled to terminate the treaty.”
The situation has become even more complicated due to India’s refusal to accept any third-party mediation in resolving issues with Pakistan. India maintains that it will only talk to Pakistan in lieu of bilateral framework and cites 1972 Simla Agreement for this purpose. As the Simla agreement states that the two countries should “settle their differences by peaceful means through bilateral negotiations”.
Meanwhile, Pakistan wants the United Nations to play its role in resolving the Kashmir dispute because direct negotiations have yielded no result. Following the recent acts of violence by the Indian troops in which scores of civilians were killed in Indian Occupied Kashmir, Prime Minister Imran Khan telephoned UN Secretary General Antonio Guterres and demanded UN intervention in Kashmir. Khan reminded Guterres that the Kashmir dispute is “not a bilateral issue between Pakistan and India but an internationally recognised dispute.”
India has used the Simla agreement as pretext for resolving all differences including Kashmir bilaterally. However, there is now growing realisation in Pakistan that India is using the Simla agreement for only neglecting the UN Security Council resolutions on Kashmir.
From a legal perspective, the Simla Agreement has lost its relevance and the future of this agreement has become questionable due to India’s unilateral declaration that Kashmir is its “integral” and “non-negotiable” part. India frequently emphasises on a particular clause of the agreement which urges both countries to settle their differences through direct negotiations. However, it has ignored other clauses in the same agreement which calls for “a final settlement of the Kashmir dispute” and stresses that until “the final settlement of any of the problems between the two countries… neither side shall unilaterally alter the situation.” This means neither India nor Pakistan could unilaterally declare that Kashmir is its “integral part” and any such declaration is a “breach” of the treaty.
Article 60 of the 1969 Vienna Convention on the Law of Treaties states that if a country commits “material breach” of a bilateral treaty, such as India has done in case of the Simla agreement, the other country is “entitled to terminate the treaty.” A “material breach” of a treaty happen when there is a violation of a provision which is crucial for the accomplishment of the purpose of a treaty.
Therefore, if Pakistan wants to move forward in seeking third party mediation on Kashmir, the first step would be to consider its withdrawal from the Simla agreement by invoking Article 60 of the Vienna Convention because India has breached the agreement. There is no point of staying in the agreement when India is using it for the purpose of exploiting it, and for avoiding legal constraints placed on it by the international law. If Pakistan considers such an option at any stage, it will not remain legally obliged to hold “direct negotiations” on Kashmir. However, the option of withdrawing from the Simla agreement should not be misunderstood as the suspension of communication between the two countries.
Bilateralism has produced no result and therefore, the role of mediation has become increasingly important in the Kashmir dispute. Pakistan would have to actively seek UN involvement in this regard. UN Secretary General Antonio Guterres has also laid great emphasis on “multilateralism” for resolving conflicts. Therefore, Pakistan should not lose any opportunity in seeking the Secretary Generals’ cooperation in this matter. In September 2017, Guterres also created the UN High-Level Advisory Board on Mediation consisting of global leaders and renowned experts. Pakistan should engage the Advisory Board because such steps will help Pakistan in internationalising the Kashmir cause.
Pakistan should ensure that it is using its geo-strategic position to its maximum advantage for building global pressure on India to resolve the Kashmir issue. The tilt of Western powers including the United States will remain in India’s favour because of their vested interests. However, Pakistan will remain a key player in international politics given its important role in the region particularly in Afghanistan where America’s longest war is still ongoing. Pakistan will also remain close to China due to the China-Pakistan Economic Corridor (CPEC) which will provide Beijing with access to the Arabian Sea.
The resolution of Kashmir dispute is necessary for South Asian peace and Pakistan can expect progress only after steering the issue towards the right direction.
The writer is a Research Fellow at the Strategic Studies Institute Islamabad (SSII). He can be reached @AQadeerOfficial
Published in Daily Times, December 26th 2018.