The Kashmir dispute between India and Pakistan is one of the oldest unresolved disputes on the agenda of the UN Security Council. India and Pakistan have totally different perceptions regarding the nature of the dispute. Pakistan regards it as the unfinished agenda of Partition, and an issue for granting self-determination to the Kashmiris. India, on the other hand, regards it as a territorial issue. It asserts that Jammu and Kashmir is an integral part of India, and that Pakistan is occupying Indian Territory. In the post 9/11-world, South Asia has again emerged as a region where US interests are at stake. Kashmir is again in the limelight. It seems in the interests of the United States now that the dispute should be solved.

Among many favoured solutions of the dispute, other than implementing the UN resolutions, is the conversion of the Line of Control (LoC) into an international border. This means maintaining the prevailing status quo. Here we have to take onto account the fact the LoC is merely a ceasefire line and appreciate the struggle for self-determination going on in the Indian-controlled Kashmir. Moreover, the Kashmiris do not recognize the LoC. Secondly, the LoC is an altered ceasefire line whereby India acquired territory by military aggression in 1971. Therefore, accepting the LoC would mean legitimizing Indian aggression. Thirdly, the LoC, as accepted by both Pakistan and India at Simla in 1972, does not exist any more. The Indian incursion into Siachen in 1984 has destroyed the sanctity of the ceasefire line.

A number of arguments have been advanced in favor of transforming the LoC into an international border. They basically relate to the irrelevance of the UN resolutions on Kashmir, especially those adopted on 13 August 1948, and 5 January 1949. Another argument is that these UN Security Council resolutions have become invalid because they were adopted in circumstances that have undergone drastic changes. Therefore the two countries should make the present Line of Control the permanent border. One has to examine these arguments through International Law perspective, according to which, “treaties are to be respected”.

Article 62 of the Vienna convention and its paragraph 1 lays down the conditions under which a change of circumstances may be invoked as a ground for terminating or withdrawing from a treaty. These could be reduced to five, which are as follows:

1)       The change must be of circumstances that existed at the time when the treaty was concluded.

2)       The change must be a fundamental one.

3)       The change must also be one not foreseen by the parties at the time of conclusion of the treaty.

4)       The existence of these circumstances must have constituted an essential basis for the consent of the parties to be bound by the treaty.

5)       The effect of the change must be to radically transform the scope of obligations still to be performed under the treaty.

Now applying the provisions of article 62 to the Kashmir question, the gap between the position today and when the resolutions were adopted seems to be the main consideration for the argument. The time factor does not carry any weight to render the agreement redundant. If it did, all treaties would become redundant over time. Witness the treaty of Utrecht of 1713, the 1898 treaty between Great Britain and China for 99 years, and UN resolution 242 adopted in 1967 after the six-day Arab-Israel war. The only attempt to suggest that circumstances had changed was made by Prime Minister Nehru, who viewed the Kashmir resolutions as extinct on the grounds that Pakistan entered SEATO and CENTO. This was not a valid argument as it also implies that the resolution of the Kashmir issue depends on the status quo being maintained.

In fact no change of circumstances has taken place. What were the circumstances under which the Kashmir resolutions envisaging the right of self-determination for the people of Kashmir were adopted? They came about when India and Pakistan were engaged in armed hostilities and the continuation of these hostilities was viewed as a threat to international peace and security. These circumstances were clearly spelled out in the preamble to the Kashmir resolution of 13 August 1948. Appreciating the fact that Pakistan and India have fought several wars over the question of Kashmir and that the current insurgency in Kashmir can lead to another round of fighting confirms that the circumstances have not undergone any change. In fact, one could argue that they have deteriorated to the extent that implementation of the Kashmir resolutions cannot be postponed any longer.

The Kashmir dispute cannot be solved through confrontation. India and Pakistan have wasted much time. Let the Kashmiris themselves decide their future. The present military regime seems committed to reduce tensions in Indo-Pak relations. India being the larger party to the dispute must take the larger initiative.