Updated: August 21, 2019 9:28:08 am
The events following the August 5 announcement reminded me of a Kashmiri friend saying they are the proverbial grass beneath two elephants. “When two elephants fight, the grass suffers; and, when the same two elephants make love, the grass also suffers.”
For 72 years, this dynamic has played out at the Line of Control (LoC): When the elephants fight, shelling across the LoC kills, injures and displaces Kashmiri communities. When the elephants make peace, as in the Vajpayee-Musharraf era, Kashmiris fear a secret deal that puts a legal gloss on the territorial status quo, converting the LoC into an international boundary overnight, without considering what the Kashmiris themselves want. However, preserving the sanctity of the LoC will prevent the crisis from further unraveling and sustain hopes of finding common ground in an increasingly polarised environment.
Legally, the LoC is a ceasefire line and not an international boundary. Under international law, it is defined and protected by a bilateral treaty, the 1972 Simla Agreement, executed in writing between India and Pakistan following the 1971 war, and subsequently ratified by both parliaments. Records of these negotiations show Prime Minister Indira Gandhi would have preferred to declare the ceasefire line an international boundary and permanently settle the Kashmir question but agreed instead to the LoC at Pakistan’s request. It is also significant that the same agreement largely restored the territorial positions of both countries in Jammu and Kashmir prior to the war.
The language of the agreement and the negotiating history make abundantly clear the intent behind defining the line in this way: The territories on either side of the line remain the subject of a dispute and making arrangements (military or otherwise) at the LoC do not prejudice the final resolution of the conflict. The parties have since reinforced this understanding of the LoC in subsequent compacts such as the Lahore Declaration of 1999, an unpublished ceasefire agreement in 2003, and, a statement from the Indian and Pakistani Directors General of Military Operations in 2018 reiterating their commitment to uphold the 2003 ceasefire understanding in letter and spirit. As with any bilateral treaty, the status or definition of the LoC can be legally altered only with the agreement of India and Pakistan.
While the constitutional changes to Article 370 are being fiercely contested under Indian and international law, they don’t automatically impact the status of the LoC. A domestic law of one country simply cannot amend a bilateral treaty without the consent of the other party. Previous amendments and additions to Article 370, too, haven’t changed the LoC. Last year, Pakistan introduced the Gilgit Baltistan Order 2018, an executive order to begin the integration of Gilgit Baltistan into the federal structure of Pakistan and a step towards making it the country’s fifth province, akin to Punjab or Sindh. While India and Kashmiris on both sides of the LoC opposed the move, there was no suggestion that the LoC should be sacrificed.
It is arguable that the unilateral constitutional changes, like we saw earlier this month, fundamentally violate the letter and spirit of the Simla Agreement. Article 4 (2) of the Simla Agreement states: “Neither side shall seek to alter it (the LoC) unilaterally, irrespective of mutual differences and legal interpretations. Both sides further undertake to refrain from the threat or the use of force in violation of this Line.” Such an interpretation would justify internationalising the conflict, violating the ceasefire and in the extreme, direct military action. Indeed, Pakistan briefly threatened to reconsider its adherence to bilateral treaties, including the Simla Agreement, in response to India’s latest move, but has since gone silent on the issue. The reasons are as much political as they are legal. Pakistan realises the Line of Control is the only remaining way for it to retain its claim on Kashmir. India has adopted an identical position for exactly the same reasons. When the Indian home minister was questioned in Parliament about what his changes mean for territory on the Pakistani side, he reiterated with some force India’s claim to all of Kashmir. Diplomatic speak from the Ministry of External Affairs followed to confirm that the changes do not affect either the LoC or the Line of Actual Control, the disputed border with China running through Ladakh.
For all these reasons, many see the LoC as merely perpetuating an indefinite and harmful status quo, preventing a substantive resolution of the conflict. However, given the reality of ever-hardening territorial positions (particularly in India) and increasingly polarised narratives within Jammu and Kashmir, the LoC, ironically, is the only surviving political space where common ground can be found. This is why the much-maligned Four Point Formula, centred around opening up the LoC for trade, travel, religious tourism and people-to-people exchanges, has survived in the imagination of Kashmiris of vastly different political inclinations. It allows the historic identities, cultural and familial ties, and to a limited degree, political aspirations of the people of Jammu and Kashmir to be celebrated without asking either India or Pakistan to climb down from their respective legal and political positions. The governments should preserve the gains made on the LoC rather than using it to settle scores on other issues.
The LoC can be changed in two ways: Bilateral agreement or an all-out war. The former is practically impossible when all diplomatic channels for dialogue are suspended. The latter is unlikely to produce a decisive victor and will inflict untold suffering on Kashmiris. They deserve better from two countries claiming to act in their best interests.
This article first appeared in the print edition on August 21, 2019 under the title ‘Protect the LoC’. The writer, a lawyer, has worked on dialogue and peacebuilding initiatives in Kashmir. Views are personal.
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