Right of self-determination now is not only political right but also legal right. Plebiscite is still best solution
RAWALPINDI: Pakistan is fond of talks with India. The talks, as always, will turn out to be a zero-sum game and the reason is, eyeball to eyeball, that India never actually speaks out its real mind. India believes that the United Nations Commission for India and Pakistan (UNCIP) resolutions stand antiquated. And, under the Simla Accord, Pakistan is barred from agitating the Kashmir issue at any international forum.
In the case of a ‘fundamental change of circumstances’, that existed when a treaty was concluded, a party to that treaty may invoke this fact as a ground for termination or suspending the operation of a treaty. The principle stands codified in Article 62 of the Vienna Convention on the Law of Treaties. Paragraph 3 of the Convention, codifying the principle of rebus sic stantibus, states, “If, under the foregoing paragraphs, a party may invoke a fundamental change of circumstances as a ground for terminating or withdrawing from a treaty, it may also invoke the change as a ground for suspending the operation of the treaty”.
Pakistan considers the exercise of self-determination sine qua non to any solution. Pakistan’s view is based on UNCIP Resolutions dated August 13, 1948, and January 5, 1949, besides about 13 other resolutions, including one criticising a sham state-assembly election in occupied Kashmir.
India should tell the competent forum that the Simla Agreement of 1972 has superseded the UNCIP Resolutions on the basis of the principle of lex posterior derogat priori — that a later treaty abrogates the earlier one. The principle is enshrined in Article 59 of the Vienna Convention on the Law of Treaties.
Yet, India never did any of that. India understands that it has a weak legal case. Paragraph 1(i) of the Simla Agreement provides, “the principles and purposes of the Charter of the United Nations shall govern the relations between the two countries”. The right of self-determination now is not only a political right but also a legal right. Obviously, a plebiscite is still the best solution to the Kashmir issue.
Amjed Jaaved
Published in The Express Tribune, September 6th, 2015.
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