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Life for Pakistan with reference to the Kashmir dispute for a long time was a simple affair as the relevant UN Kashmir resolutions, in its estimation, provided the legal framework for its settlement. The advent of the Simla Accord and subsequently the Lahore Declaration complicated it a little bit but the two instruments in Pakistan's scheme of things never disturbed the primacy of the UN resolutions. Certain developments have however taken place recently which seem to have turned things upside down.
For example, a day before the Agra summit and subsequently at the post-summit press conference in Islamabad, President Musharraf threw a kind of bombshell when he put in doubt the validity of these instruments by referring to the failure of Simla Accord and Lahore Declaration to promote a Kashmir settlement.
The other important development which has taken place is the omission by President Musharraf to mention the UN resolutions in his speech at the state banquet given by President Narayanan in his honour; and the repeated mention by Pakistan of the wishes of the people of Kashmir without reference to the UN resolutions as the basis for resolving the Kashmir dispute.
The effect of these developments is the apparent confusion with regard to the status of the preceding instruments, namely, the UN resolutions, Simla Accord and the Lahore Declaration. In this context, some questions need urgent answers. First, does Musharraf's reference to the failure of the Simla Accord and the Lahore Declaration to deliver mean they are dead now?
Secondly, what is the status of the UN Kashmir resolutions after President Musharraf's failure to mention them at the banquet in Delhi or the repeated reference to the wishes of Kashmiris without mentioning the UN resolutions as prescribing a method for ascertaining the wishes.
Thirdly, what was the purpose of these pronouncements and what are their consequences for Pakistan?
As to the question regarding the failure of the Simla Accord and the Lahore Declaration to deliver, it was clarified later that it did not signify their rejection by Pakistan but only that they had failed to address the core issue of Kashmir. At his July 20 press conference in Islamabad, President Musharraf stated that the Lahore Declaration mentioned Kashmir only once and that the focus of Simla Accord was the withdrawal of 90,000 POWs.
Additionally, he referred to the Agra summit as the starting point of the next round of proposed negotiations with India. President Musharraf may not say so but the fact of the matter is that for all practical purposes he is denouncing the Simla and Lahore instruments as having outlived their utility. The question arises whether Pakistan is justified in doing so.
To begin with, it is not the first time that some people in Pakistan have questioned the continuing validity of Simla Accord and Lahore Declaration. For example, Mr Abdul Sattar, before ascent to the office of foreign minister, had argued, as a free-lance writer, that Pakistan reserved the right to denounce the Simla Accord as it was an agreement imposed on Pakistan under coercion. Was he justified in his assertion?
Unfortunately, Mr Sattar seems to be on the wrong side of the law. Article 52 of the Vienna Convention on the Law of Treaties certainly endows states with the right to denounce imposed treaties. However, it does not mean that this right is available to them for an indefinite period.
Here, the principle of reasonableness intervenes in a temporal sense, which signifies that a state exercising this right needs to do it within a reasonable period of time which Pakistan clearly did not do.
In all logic this right is not available to Pakistan almost thirty years after the Accord was concluded. It is also not available for the reason that we have during the last almost thirty years been parroting that Kashmir dispute is to be resolved on the basis of the UN resolutions and the Simla Accord.
The principle of estoppel now clearly forbids Pakistan from denouncing the Simla Accord.
As to President Musharraf's argument of failure of the Simla Accord and Lahore Declaration for lack of emphasis on the centrality of the Kashmir dispute, it simply cannot be a valid ground to jettison these instruments. If whims and wishes were to be the basis of continuation or otherwise of agreements, international relations would suffer irreparably.
Simply because the instruments in question no longer serve a country's purpose cannot be a valid ground to reject them. Honestly speaking, Pakistan should have refused to accept these instruments at the time they were concluded if they did not take care of its national interests.
If at all Pakistan wants to pull out of the Simla Accord and the Lahore Declaration, it can do so only on the principle of the change of circumstances, which is accepted as a legitimate ground for rendering a treaty invalid.
In other words, pacta sunt servanda or sanctity of treaties is the fundamental principle in the relations between states without which stability in the world would suffer. However, this principle can in certain circumstances be a factor of instability.
In such a situation, another principle, namely, the change of circumstances comes presents itself. But this principle cannot be invoked by a state arbitrarily in order to wriggle out of a difficult situation.
Consequently, Article 62 of the Vienna Convention on the Law of Treaties which deals with this principle lays down five conditions, which must be fulfilled before a state can successfully invoke it: a) the change must be of circumstances which existed at the time the treaty was concluded; b) the change must be a fundamental one; c) the change must also be the one not foreseen when the treaty was concluded; d) those circumstances must have been the basis of the consent of the parties; e) the effect of the change must be to radically transform the scope of obligations still to be performed.
The condition, relevant for our present purposes, is the change in circumstances which existed at the time the treaty was concluded.
Applying this condition to Simla Accord and Lahore Declaration, one can argue that these instruments stipulated the settlement of the Kashmir dispute by India and Pakistan to the exclusion of the people of Kashmir.
Now in view of the emergence of Kashmiris as a party to the Kashmir dispute, which was not the case at the time these instruments were concluded, these instruments have incurred invalidity on the ground of the change of circumstances.
The changed Pakistani position on Kashmir has serious implications. For example, one consequence is that Pakistan can no longer insist on a UN-supervised plebiscite to ascertain the wishes of the people of Kashmir and that this could take place through some other method.
Another consequence is that Kashmiris need not join either India or Pakistan and that they will have the freedom to go for the "third option" or independence of Kashmir whenever their wishes are ascertained.
Lastly, the question arises as to the purpose behind President Musharraf's pronouncements and their consequences for Pakistan. In so far as the Simla Accord and the Lahore Declaration are concerned President Musharraf seems to have been motivated by the desire to protect Pakistan's national interest, which he believes was compromised by the civilian governments which concluded them.
At any rate, if Pakistan wants to make a case in favour of rejection of these instruments, the best course would be to invoke the principle of the change of circumstance as the Kashmiris, on both sides of the divide who are the principal affected party, have rejected them.
However before doing so it is necessary to think through the consequences for this course of action. This is so because there is a danger that Pakistan may be accused of being a "rogue state" if it acts arbitrarily in moving away from the Simla agreement and the Lahore declaration.
As to the Kashmir resolutions, it must be said that Pakistan's changed position has the merit of saving it from the embarrassment of taking an untenable stand - that is restricting the Kashmiris' choice to joining either India or Pakistan.
However, it deprives Pakistan of seeking a quid pro quo from India in return for this enormous concession at the negotiating table. It would be fair to say that in diplomatic parlance Pakistan has shown its hand too early and publicly.
Irrespective of the fact whether
Pakistan can control the damage flowing from its changed position on UN
resolutions, the cumulative effect of all these developments is an Alice
in the Wonderland situation for Pakistan. It appears as if this state of
affairs has come about for want of consultation with the legal cell of
Pakistan Foreign Office.
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