Only a summit between India and Pakistan at the highest political level can lead to a forward movement on Sir Creek, a no-war pact, and the Kashmir formula
The pre-condition Prime Minister Manmohan Singh has been insisting on for a visit to Pakistan — that there must first be “something solid” to achieve — defies the sound rules of diplomacy and is one which the self-consciously powerful impose unwisely. History has vindicated Churchill and proved Truman wrong in rebuffing Stalin’s pleas for a summit. Doables are more clearly determined at the summit level itself and Dr. Singh knows what they are. It seems that he has all but abandoned the agenda on which he so bravely worked during his first stint as Prime Minister.
What message is he seeking now to convey to Pakistan and Kashmiris? Expect “nothing from me?”
Ironically, the atmosphere for a visit to Pakistan was never better and there is something which he alone, at the highest political level, can accomplish — finalise an agreement that settles the Sir Creek dispute. Though it is of limited dimensions, its removal from the agenda of disputes awaiting settlement will provide an impetus to the resolution of the others and improve the atmosphere. Dr. Singh briefed the on-board media while returning from the Non-Aligned summit in Tehran on August 31 that he had told Pakistan President Asif Ali Zardari when they met there that “there must be a genuine feeling that Pakistan is doing all that it could do to deal with terrorism directed at India from Pakistan’s soil. The court trial on the Mumbai massacre is a crucial test of Pakistan’s sincerity.”
But he did not stop at that. He added, significantly, “I also said Sir Creek, which we had talked about during his visit to Ajmer [in April], was doable”. Nor is that all. Credible reports have it that when Pakistan’s Interior Minister Rehman Malik met India’s Home Minister Sushil Kumar Shinde “on the sidelines” of the SAARC Home Ministers’ Conference in the Maldives late last month, he gave a “verbal assurance” of access to Indian investigators to the accused in Pakistan’s prisons and the evidence already collected. This is an area which can be fully explored only in frank talks at a high level.
Sir Creek has been “doable” for at least the past five years. The joint statements issued on May 21, 2011 and June 19, 2012 speak of demarcation of “the land boundary in the Sir Creek area and the delimitation of [the] International Maritime Boundary between Pakistan and India.” A joint survey of Sir Creek was conducted in January and February 2007 which resulted in a joint map of the area. It was authenticated by both sides at the fourth round of talks when copies of the joint map were also exchanged.
Boundary-marking and making
As Dr. B.R. Ambedkar once remarked, boundary-marking is the task of a surveyor; boundary-making is the task of a statesman. Both countries, parties to the Convention on the Law of the Sea, submitted their claims to the extended Continental Shelf with the U.N. Commission on the Limits of the Continental Shelf. Their claims remain “on hold,” pending a settlement. If they continue to disagree on the limits of the EEZ or the Continental Shelf, the matter will have to be decided by arbitration (Articles 279-299 of the Convention). Is that what we want? Why not do the “doable”?
There are two other matters on which India can take the initiative. One is a no-war pact. Both sides came very close to an agreed draft in May 1984. India had sent an aide-memoire to Pakistan on December 24, 1981 setting out the principles. Pakistan sent its draft on January 12, 1982. In Islamabad, formal talks began in May 1982 when Pakistan presented a complete draft of a no-war pact. India followed up by presenting a draft Treaty of Peace, Friendship and Cooperation in August 1982. Indira Gandhi wantonly injected new elements on bases and alliances. Meanwhile, an agreement on a Joint Commission was signed on March 10, 1983.
Talks resumed at Udaipur and Delhi on March 1 and 2, 1984. There was a breakthrough in May 1984 on the two sticking points. The Shimla formulation on bilateralism and the criteria for NAM membership, adopted at Cairo on June 5, 1961, was acceptable to India on bases and alliances. Pakistan did not send its draft on them as it had promised. The Rajiv Gandhi-Zia-ul-Haq summit in Delhi on December 17, 1985 imparted momentum to the dialogue. Talks were held in 1986 but they petered out.
In 2012, bases and alliances have lost their relevance; but Article 8 of the India-Bangladesh Treaty can be adopted. It used a standard formulation for reciprocal pledges not to “enter into or participate in any military alliance directed against the other party” nor “allow the use of its territory for committing any act that may cause military damage to or constitute a threat to the security of the other.”
The no-war pact proposal was formally revived by Nawaz Sharif when he was Prime Minister, in a speech to the U.N. General Assembly on September 22, 1997: “I offer today from this rostrum to open negotiations on a treaty of non-aggression between India and Pakistan”. He renewed it in a television interview on December 11, 2008 after the Mumbai blasts: “We should sign a no-war pact for peace.”
Existing drafts can be meshed together. Not much work is involved. When this writer asked M.K. Rasgotra, India’s Foreign Secretary during the May 1984 talks, how much time it would have required, he raised his index finger and said, “one hour.”
There is another matter on which the summit will help. For some time, the Pakistan People’s Party government treated the Musharraf-Manmohan consensus on the four-point formula on Kashmir as something the cat had brought in. That is no longer the case. Pakistan is prepared to adopt a constructive line on the formula. Last month, Foreign Minister Hina Rabbani Khar clearly indicated to Iftikhar Gilani of DNA that, “we need a relook [on Kashmir], we need to do some homework for that.” In an interview to Barkha Dutt of NDTV around the same time, former PPP Prime Minister Yousuf Raza Gilani specified the subject of the homework: “There had been some formula earlier which was decided between General Musharraf and the Indian government. But there had been some loopholes which we wanted to tighten, aur uspe hum kaam kar rahe the [and we were working on it] when there was a change of government here in Pakistan.”
Tightening the loose ends would be a more accurate description for the exercise. Only a summit can accomplish that. And, that is where the havoc wrought since 2008 must be repaired. As Churchill said in a historic speech to the House of Commons on May 11, 1953, soon after Stalin’s death, “If there is not at the summit of the nations the will to win the greatest prize and the greatest honour ever offered to mankind, doom-laden responsibility will fall upon those who now possess the power to decide. At the worst the participants … would have established more intimate contacts. At the best we might have a generation of peace.”
(A.G. Noorani is an advocate, Supreme Court of India, and a leading constitutional expert. His latest book, Article 370: A Constitutional History of Jammu and Kashmir, was published by Oxford University Press in 2011.)