@M. Sarmad
On Simla Agreement:
Ijaz Hussain addresses this in his book
Kashmir Dispute: An International Law Perspective, and relevant paragraphs are reproduced below:
To begin with, the protagonists of the foregoing viewpoint contend that "the question of the accession of the State of Jammu and Kashmir to India or Pakistan will be decided… through a free and impartial plebiscite" under the UN auspices as stipulated in the Security Council resolutions has been replaced by the provision of the Simla Agreement of 1972 which lays down that the two countries are resolved to settle their differences by peaceful means through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." This has been termed as "bilateral approach" to the resolution of the Kashmir dispute as against the international or multilateral approach of the said UN Security Council resolutions on Kashmir. In other words, in this view the Simla Agreement, which is the latest treaty on Kashmir, excludes third party involvement including that of the United Nations and the resolutions adopted by any of its organs in the matter unless the two countries mutually decide otherwise. In short, in this view, the Kashmir question is no more than a purely bilateral matter to be resolved through peaceful means by India and Pakistan to the exclusion of all other approaches.
On the basis of the foregoing contention India seems to enjoy a good
prima facie case in the matter. However, a close scrutiny of the Agreement demonstrates that the Indian contention is quite untenable. To begin with, paragraph 1 (i) of the Simla Agreement specifically provides "[t}hat the principles and purposes of the Charter of the United Nations shall govern the relations between the two countries." Article 2 of the Charter which spells out the principles of the Organization in its paragraph 2 provides that “[a}” Members… shall fulfil in good faith the obligations assumed by them in accordance with the present Charter." More precisely, article 103 of the Charter says in unambiguous terms: "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." Article 103 by laying down the principle
lex prior derogat posteriori (the later treaty shall be invalid if incompatible with the earlier treaty) goes against the general international law principle of
ex posterior derogate priori (the later treaty invalidates the earlier treaty). In other words, article 103 attempts to regulate the question of compatibility between the Charter and other international agreements. As is clear from the language of this article, between the two categories of norms (namely those obligations undertaken by the members by virtue of the present Charter and those undertaken by any other international agreement) the former category prevails when the two are in conflict with each other. This is so because of the "constitutional" or "grundnorm" character of the Charter which its founding fathers intended as borne out by the
travaux préparatoires of the San Francisco conference.
As to legal consequences of the conflict between the two norms, the international agreement in question becomes inapplicable but is not vitiated with invalidity. In other words, in case of conflict with obligations under the Charter, the treaty in question is neither abrogated nor rendered invalid. Only the obligations under it which are contrary to those under the Charter become inoperative… Given the fact that in international law an obligation to negotiate does not mean an obligation to reach an agreement, in all probability, India is not likely to agree any time with Pakistan to the grant of the right of self-determination to the people of Kashmir in terms of the pertinent UN resolutions. This is testified by the history of negotiations on Kashmir between the two countries since the advent of the Simla Agreement whereby India has been and remains extremely reluctant to enter into negotiations on the issue, let alone agreeing to the exercise of the right of self-determination by the people of Kashmir. Given this ground reality and even without taking it into account, what is the status of the Simla Agreement in international law, in view of the fact that the Agreement virtually denies the Kashmiri people a right which they enjoy under the UN Charter and which has a status of jus cogens?....
Taking up the question of compatibility of the Simla Agreement with the provisions of the UN Charter, one notices that article 2 of the Agreement by virtually denying this right to Kashmiris comes into conflict, for example, with article I, paragraph 2 of the Charter which spells out the purposes of the Organization in these terms: "To develop friendly relations among nations based on respect for the principle of equal rights and self-determination of peoples." It is also at variance with articles 55 and 56 of the Charter. By virtue of the former article, the UN members commit themselves to take a number of steps in order to create conditions of stability and well-being which are essential for peaceful and friendly relations among nations based on respect for the principle of equal rights and self-determination of peoples. And by virtue of the latter article, they pledge to take joint and separate action for the purposes set forth in article 55.
Similarly, as seen above, article 103 of the United Nations Charter unambiguously states that the obligations of the members have precedence over their obligations under any other international agreement. The Simla Agreement in its article I states "[t]hat the principles and purposes of the Charter of the United Nations shall govern the relations between the two countries." In view of the fact that article 2 of the Simla Agreement by effectively denying the right of self-determination to Kashmiris is violative of the United Nations Charter as well as its own article 1, it is therefore null and void.
Lastly, the right of self-determination which the people of Kashmir obtained by virtue of the pertinent United Nations resolutions has not been affected through the conclusion of the Simla Agreement for the reason that they were not a party to it and India and Pakistan are not entitled in international law to speak on their behalf. This argument has been accepted by the International Commission of Jurists in these words:
However, the peoples of Jammu and Kashmir were not parties to the Agreement and neither India nor Pakistan, both of which had conflicts of interest with the peoples of Jammu and Kashmir can be regarded as having authority to bind them. The members of the ICJ mission do not see, therefore, how the Simla Agreement can be regarded as having deprived the peoples of Jammu and Kashmir of any rights of self-determination to which they were entitled at the time of the Agreement.
Source:
Hussain, Ijaz. (1998). Kashmir Dispute: An International Law Perspective. P.186, 187, 191, 195, 196.
India if they claim instrument of accession to be valid reason for Kashmir ownership should then immediately retreat from Junagadh and hand it over it Pakistan. Why the hypocrisy?
I don’t see a way ahead, which would allow a peaceful solution to the conflict. It would remain a thorn to both, in the foreseeable future.
Ofc, I think there is no peaceful resolution to the issue. This will lead to focus on non-peaceful attempts.
