Pakistan is so fond of talks with India. The talks, as always, would turn out to be a zero-sum game. Reason? Eyeball to eyeball, India never speaks out its real mind, batna (best alternative to negotiated agreement).

India believes UNCIP resolutions stand antiquated. And, under the Simla Accord, Pakistan is barred from agitating the Kashmir issue at any international forum.

India’s case is based on clasula rebus sic stantibus _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 operation of a treaty. The principle stands codified in Article 62 of the Vienna Convention on the Law of Treaties. Para 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 exercise of self-determination a sine qua non of 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 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India should tell the competent forum that the Simla Agreement of 1972 has superseded the UNCIP Resolutions on the basis of the principle `lex posterior derogat priori, later treaty abrogates the earlier one’.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 so! She 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’. Right of self-determination now not only a political but also a legal right. Obviously, plebiscite is still the best solution of the Kashmir issue. Or, perhaps a nuclear Armaggedon or nuclear holocaust.


Rawalpindi, September 4.