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UN Resolution vis a vis Shimla Agreement

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By Abdul Majid Zargar *

India and Pakistan got into a verbal duel at the Security Council on the relevance of United Nations Military observer group for India & Pakistan (UNMOGIP) at the LoC in Jammu and Kashmir, with India stressing the force's role has been "overtaken" by subsequent Shimla agreements signed by the two Countries in 1972.

Pakistan has summarily dismissed this contention and said that that no bilateral agreement between the two nations has "overtaken or affected" the role or legality of the observer group. Besides the Shimla agreement, India submitted two more arguments in support of its contention-One that in times of austerity, resources need to be better utilized elsewhere than on UNMOGIP and second that since the nomenclature of Line of Ceasefire has changed to Line of control,( again courtesy Shimla agreement), the deployment of UNMOGIP has become invalid.

It is pertinent to mention here that the Military observer Group was itself constituted by UN pursuant to its resolutions of April 48 read with resolution of August 1948 as revalidated by resolution of 1951 to monitor ceasefire between the two warring Countries. In sum & substance, India has contended that Since UN resolutions passed in the matter have become redundant & irrelevant after the Shimla agreement , so has the UNMOGIP constituted under it.

Much has been said and many have waxed eloquent over Shimla Agreement as some thing, which is the only panacea that can cut the long-drawn India-Pakistan ice. Even academics too are sometimes mistaken on this. Indeed the talks about Shimla accord still continue to be half truths & mere eyewash. An ordinary analysis would reveal the actual picture and nature of this much-publicized agreement for which it is necessary to have a look at the relevant clauses of the original agreement which are reproduced below:

“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………

1.In order to achieve this objective, the Government of India and the Government of Pakistan have agreed as follows:
(i) That the principles and purposes off the Charter of the United Nations shall govern the relations between the countries;
(ii) 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.
iii)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 recognized position of either side.”

A cursory look at the above clauses makes following thing clear:
1) That differences between the two countries have to be resolved through bilateral negotiations failing which any other peaceful means or mechanism will have to be worked out to settle them
2) That Cease fire line of 17th December 1971 shall be respected by both sides without prejudice to the recognized position of either side
3) That the relations between the two countries shall continue to be governed by UN charter.

It is very essential to put the various words and phrases used in the above agreement in proper perspective and assign them the meaning in the context in which these are used. For instance once the two countries want their relationship continued to be governed by UN charter- the meaning of words “or through other peaceful means” assumes a great significance. In the context in which these are used, it only envisages role of a third party in the settlement of dispute between the parties.

As it is a common knowledge that India & Pakistan have failed to settle their core dispute over Kashmir despite lapse of more than thirty years since the Shimla agreement was signed and India, the first obligation of settling the dispute bilaterally vanishes. Since this obligation cannot be stretched upto eternity, we move to the next option of settling the dispute through “ other peaceful means” .

This naturally envisages a role for third party mediation or reversion of matter back to UN. Since India Vociferously opposes a third party mediation by any party like USA or European Union, the settlement of dispute process has to be initiated by UN. In the Shimla agreement the two Countries have also reiterated to continue to be governed by UN charter. Article 103 of the said charter provides that in the event of a conflict between the obligations of the Members of the United Nations under the present Charter and their obligations under any other international agreement, their obligations under the present Charter shall prevail.

It also provides that UN should assume an Arbitrator’s role between two disputing membership nations if the said dispute becomes a threat to global peace. India & Pakistan are two nuclear armed nations and are sitting on a powder keg. UN, therefore has a role here to play by default as well.

The agreement also uses the words “without prejudice to the recognized position of either side”. This nails the oft-repeated lie that there were some behind the scene agreements and the two Countries had decided to divide & enjoy that portion Kashmir which was under their respective control as on date.

In effect Shimla agreement has neither overtaken UN nor made its resolutions redundant. Instead it has made its role & resolutions more relevant & important.

* The author is a practicing chartered Accountant. Feedback: This e-mail address is being protected from spambots. You need JavaScript enabled to view it.


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