By Brian Cloughley, ATO
Asia Times Online
Thursday, Nov 27, 2014
|Mediation is "a form of conflict management in which a third party assists two or more contending parties to find a solution without resorting to force." In international affairs it is a process designed to encourage opposing nations to avoid conflict by placing their arguments, usually about territorial disputes, before an independent tribunal which can weigh evidence and deliver a ruling that will settle the dispute, under law.
There have been cases in which mediation, arbitration, third party involvement - call it what we will - removed the likely causes of war between two countries, and it is obvious that if there were more arbitration there would be less conflict. In this dreadful world, so full of confrontation, hatred and barbarity, anything that will reduce the chances of conflict must be considered laudable by all but the certifiably insane.
At the moment one of the major international concerns is the confrontation between India and Pakistan, both of which are busily testing yet more nuclear-capable missiles. Much of the world had hoped that India's prime minister, Narendra Modi, would - in spite of his nationalistic tendencies - lay down his cudgels and take up an olive branch, but this has not happened. It was reported that the reason for termination of dialogue was that Pakistan's high commissioner in Delhi, Abdul Basit (a man of outstanding ability, incidentally), met with Indian citizens who seek resolution of the India-Pakistan dispute over the territory of Kashmir.
So Delhi cancelled a scheduled meeting between the foreign secretaries of the two countries, and even the demonstrably India-supportive United States was moved to describe the decision as "unfortunate". There has not been interaction between the prime ministers who constantly jet around the world visiting so many leaders - all sorts of leaders, in fact, except the one next door with whom contact is so important. And the sticking point, the seemingly insoluble difference that stops movement towards rapprochement, is the territory of Kashmir.
At a press conference, Basit stated that "Kashmiris are legitimate stakeholders in finding a peaceful solution to the issue," which seems pretty fair, given that the future of the Kashmiri people is at stake and that a peaceful solution is infinitely preferable to resolution by conflict. But India's Ministry of External Affairs, conducting diplomacy by tweet, posted that "there are only two 'stakeholders' on the issue of Jammu and Kashmir - India and Pakistan. None [sic] else." And that sums up the problem : India believes that the people of Kashmir are irrelevant to the dispute that has destroyed so many Kashmiri lives.
The historian Alastair Lamb wrote that the dispute began "as a contest over rights to a territory, not the struggle to establish the wishes of a people." Yet it is a determination of the United Nations that "We, the peoples" should "save succeeding generations from the scourge of war," and it is evident that the issue of Kashmir is the most likely catalyst for conflict in the Sub-continent.
The territory of Kashmir has been in dispute between India and Pakistan since most of it was awarded to India after Independence in 1947. There is no point in going into detail about the historical background, and it is sufficient to state that the matter remains on the books of the UN Security Council, which passed a resolution agreeing with India's Prime Minister Jawaharlal Nehru that the matter of accession to India or Pakistan should be decided by the people because, as Nehru said so wisely, "Kashmir should decide question of accession by plebiscite or referendum under international auspices such as those of the United Nations."
Nothing of the sort has happened, and both countries blame each other for the continuing standoff which has caused useless wars between them. Countless numbers of citizens of both countries, civilians and soldiers, have died for nothing because of the Kashmir dispute, and it is the touch-paper for wider conflict in the subcontinent. The local exchanges of fire taking place could easily develop into wider engagements that could escalate to war. So it would be very sensible to have the Kashmir dispute resolved.
At the UN General Assembly in October 2014 Pakistan's representative said:
Pakistan is willing to engage India in a comprehensive dialogue to normalize relations between the two countries by finding an amicable solution to the Jammu and Kashmir dispute. Peaceful resolution of this dispute is imperative for durable peace and stability in South Asia.That seems reasonable. But India's representative stated that this was "untenable", reiterating India's position that that there should be no third party mediation. The official stance, emphasized by India's Home Minister Rajnath Singh, is that "Pakistan has accepted a resolution in National Assembly asking for UN's intervention ... but if there is a problem it should be resolved through bilateral talks."
According to Singh, Pakistan is trying to "internationalize the Kashmir issue," which is a non-sequitur, a logical fallacy, because the dispute was referred to the UN Security Council more than 60 years ago and has remained on its agenda ever since.
The original Resolutions on Kashmir have never been questioned by the Security Council. They have not been modified, never mind canceled. The fact that the United Nations Military Observer Group in India and Pakistan (UNMOGIP, created in 1949) continues in being is evidence that the UN is involved in the Kashmir dispute. (Which is not acceptable to India which, unlike Pakistan, denies UNMOGIP's observers access to the Line of Control dividing the disputed territory and has recently tried to close down its office in Delhi.)
For more than 60 years it has not been possible for the Kashmir problem to be resolved bilaterally, and it is impossible that it could ever be resolved in that manner. It is a most serious situation and the Indian official offhand line that "if there is a problem" is sadly inappropriate. There is room for negotiation, to be sure - but negotiation involving third parties, as has been so successful in the past in resolving disputes in which India has been involved.
For example, the Indus water treaty, drawn up in 1960 under the auspices of the World Bank, allocated distribution of water from the six rivers that run down from Tibet through India to Pakistan's Indus Basin. This was a prime example of successful mediation, and as the Guardian newspaper had it in 2002 : "It is true that some disputes between India and Pakistan appear intractable. But the Indus treaty is proof that these can be amicably solved. For peace, both sides must accept that water must never become a weapon of war." The mediated Treaty is still in force. It removed a source (literally) of dispute. And it proves that third party mediation works in reducing the possibility of war.
Then there was the India-Pakistan dispute about the Rann of Kutch, a totally sterile and economically and strategically useless area of land (like the Siachen Glacier) about which it seemed there would be everlasting dispute. But both countries - encouraged by British prime minister Harold Wilson - agreed to arbitration by the UN. The UN Tribunal reached its decision in February 1968 and awarded some 10% of the disputed territory to Pakistan, which was a most satisfactory outcome for India.
More recently there was the Bay of Bengal dispute between India and Bangladesh, settled through The Arbitration Tribunal on the India-Bangladesh Maritime Delimitation, which delivered its ruling on July 7, 2014. The tribunal was set up "under the Permanent Court of Arbitration in The Hague, in the matter of the Bay of Bengal Maritime Boundary Delimitation between India and Bangladesh." The decision of the court was accepted by both countries and was a shining example of dispute-solving through mediation.
Yet on Kashmir, as stated by US Special Representative James Dobbins in May 2014, India has "consistently rejected any third-party mediation and argued that this is an issue that needs to be negotiated directly and without the participation of any third party."
India's foreign minister declared in October that "There is no way in which India will accept any intervention on an issue that is entirely accepted in the Simla Agreement as a bilateral issue between India and Pakistan ... It is a waste of time for anybody no matter how eminent to be even trying to question it."
It is plainly incorrect to claim that that 1972 Simla Agreement between India and Pakistan excludes mediation, if only because it agreed that the "principles and purposes of the Charter of the United Nations shall govern the relations between the two countries" - and the UN Charter states that:
The parties to any dispute, the continuance of which is likely to endanger the maintenance of international peace and security, shall, first of all, seek a solution by negotiation, enquiry, mediation, conciliation, arbitration, judicial settlement, resort to regional agencies or arrangements, or other peaceful means of their own choice. [Emphasis added.]Further:
The Security Council may investigate any dispute, or any situation which might lead to international friction or give rise to a dispute, in order to determine whether the continuance of the dispute or situation is likely to endanger the maintenance of international peace and security.Does not the Kashmir "situation" fit precisely into that category?
It is obvious that India and Pakistan will never by themselves agree to a Kashmir solution and that the dispute has the potential to yet again cause war. And war in the subcontinent would inevitably escalate to nuclear exchanges that would kill millions of people.
It therefore makes sense to seek a solution by involving a third party. And that should be the International Court. Arbitration is the only path that can lead to reduction of tension and towards increased trust, trade and prosperity. Independent mediation is the only way to peace.
Brian Cloughley is a former soldier who writes on military and political affairs, mainly concerning the sub-continent. The fourth edition of his book A History of the Pakistan Army was published this year.
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