As we have discussed in last write up about the Indian contention that Shimla agreement has nullified the UN resolutions and after signing the Shimla agreement by both the countries the UN resolutions stand irrelevant and nullified, let us analyze this fallacious, distorted and unfounded assertion. To put is briefly at the outset this is not true. The fact is that despite signing the Shimla agreement . the UN resolutions are still intact and valid.
Now let me explain it. India depends upon article 59 of the Vienna Convention on the Law of Treaties that states:
“A treaty shall be considered as terminated if all the parties to it conclude a later treaty relating to the same subject-matter and:
(a) It appears from the later treaty or is otherwise established that the parties intended that the matter should be governed by that treaty; or
(b) The provisions of the later treaty are so far incompatible with those of the earlier one that the two treaties are not capable of being applied at the same time.
2. The earlier treaty shall be considered as only suspended in operation if it ap pears from the later treaty or is otherwise established that such was the intention of the parties.”
India claims that as per this article Shimla agreement has suspended the operation of UN resolution. However this is erroneous and untrue. The fact is that Shimla agreement can’t suspend anything mentioned in the UN resolution. Let me explain this point now.
We have discussed earlier that Shimla agreement has declared explicitly that principles and purposes of the Charter shall govern the relations between the two parties. Now let us go through the Charter that is supposed to govern the relations between Pakistan and India.
Article 103 of the UN Charter states that : “In the event of a conflict between the obligations of the Members of the United Nations under the present Charter and their obligations under any other international agreement, their obligations under the present Charter shall prevail.”
It means that article 59 of the Vienna Convention on the Law of Treaties would have been applied had there been a comparison between two bilateral agreements. Article 103 has explained it in very simple way that no subsequent agreement can override the obligations under the UN Charter.
Pertinent to mention here is the fact that article 103 has not talked about provisions of the UN Charter; it has talked about the “obligations” under UN Charter. What does this mean?
The Collective Measures Committee of the UN has decided that article 103 shall apply to the resolutions of Security Council and General Assembly.
So we can aptly conclude that despite the Shimla agreement the UN resolutions on Kashmir are still valid and intact.