From: The News on Sunday (Pakistan), June 13, 1999

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Law rather than War on Kashmir

Zia Mian

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The long running low intensity conflict in Kashmir was bound to

escalate. It was only a matter of time. At one level, the current

fighting is simply another bloody interlude in a fifty year pattern of

India and Pakistan alternately negotiating and fighting over Kashmir.

However, things are made more dangerous by both states now having

nuclear weapons and policy makers sharing a reckless strategic

presumption that their respective nuclear shield protects them from the

outbreak of real war or the possibility of defeat.

Kashmir is a symptom of a deeper underlying problem, as everyone knows.

Think of the periodic chills and fever that are associated with malaria.

More to the point, the disease is serious and given to chronically

recurring. So far, at least, the fatal complications common to untreated

malaria have not set in. But this is not the occasion to dwell on this

infectious disease as a model for nationalism, nor to try identifying

the human analogues of the mosquitos who bear this disease from one

place to another and across generations, or the parasites who feed of

the body politic and are responsible for fever. The need now is to seek

help.

 

The major problem facing any effort to break the impasse between India

and Pakistan over Kashmir is that the two states disagree fundamentally

on the terms for talking about the issue. Pakistan insists any

discussion has to be based on the 1948 and 1949 UN resolutions on

Kashmir; coming after the 1947 war, they envisaged the United Nations

Commission for India and Pakistan supervising a settlement "in

accordance with the will of the people" of the region. India claims

primacy lies with the 1972 Simla Agreement; signed after the 1971

India-Pakistan war the treaty commits the two states to settle their

disputes "through bilateral negotiations or by any other peaceful means

mutually agreed upon between them" and makes no mention of the UN. The

Kashmiris are rarely consulted by either state or the international

community.

 

These positions have stalled any effort at a settlement and in fact

contribute to the resort to force. Fighting along the Line of Control

allows Pakistan to ask for international mediation. For hard-liners

here, the more severe the fighting the greater the incitement (they

hope) for the international community to talk about Kashmir. Thus

Pakistan fans the flames. This however creates pressure for Indian

hard-liners to settle the issue directly by force of arms. No Pakistani

support for Kashmiris, no problem.

 

There may be a way to break out of this potentially terminal dynamics.

It requires intervention. But not necessarily intervention of the kind

that Pakistan has traditionally aimed for, nor India traditionally

refused. Rather than a single state or group of states riding to the

rescue on Kashmir as if they already knew what the answer to the Kashmir

dispute was and imposing it by force, the United Nations General

Assembly could take a legal initiative. The General Assembly could

choose to ask the International Court of Justice for an advisory opinion

on the standing within international law of India and Pakistan's claims

over Kashmir, the existing UN resolutions on Kashmir, bilateral treaties

and agreements dealing with the dispute, and the right to

self-determination of the Kashmiris.

 

The International Court of Justice (otherwise known as the World Court),

based at The Hague in Holland, is the highest legal authority within the

United Nations system, and thus within the international community. The

UN Charter provides the General Assembly the right to ask the World

Court for an "advisory opinion" on "any legal question." This "opinion"

is not directly binding on the UN or its member states or even

enforceable. It is however understood to be authoritative as a statement

of the law. There is precedent for the United Nations General Assembly

using it power to ask the World Court for such an "advisory opinion."

Most recently the General Assembly asked the World Court whether the

threat or use of nuclear weapons was permitted under international law.

The World Court ruled in July 1996, declaring the threat or use of

nuclear weapons to be generally illegal.

 

The bottom line is that the UN General Assembly simply has to pass a

resolution asking the World Court for an "advisory opinion." It has to

be said that the World Court can refuse a request, but only if there

"compelling" reasons. It would be hard to see what "compelling" reasons

may arise in the case of Kashmir.

 

This is not the place to consider what either India or Pakistan may do,

what arguments they may put in front of the Court, or the justifications

they may offer for refusing to speak to the Court, or even the possible

eventual opinion of the Court. The point here is to offer a suggestion

about a process. It offers no shortcut to a solution. The process would

seek to clarify what could be a shared basis for the international

community for a solution to Kashmir.

 

It could be argued that since the World Court would offer only an

"advisory opinion" it would make no difference either to India or

Pakistan. They could choose to ignore it, and the status quo would

prevail. However, it is the fact that the UN General Assembly would be

taking the action that gives this proposal significance. For want of a

better institution, it is the closest thing to a forum for expressing

collective aspirations and understanding by the system of states. Once

the General Assembly sets out to seek a legal basis for the

international community to take a position on Kashmir the context within

which India and Pakistan argue their case about Kashmir would change.

India and Pakistan would have to decide whether they were prepared to

defy the wish of the world community and by so doing jeopardise what

international support presently they may have for their position.

 

Depending on the Court's judgment, India or Pakistan (or even both) may

well find itself isolated on Kashmir. This would be a big blow that

either would not be able to accept indefinitely, especially if the

international community kept insisting that the Court's judgment be used

to take some action. The Court's judgment on the general illegality of

nuclear weapons has been the basis for resolutions demanding disarmament

that now command some 130-150 supporters in the General Assembly,

increasingly isolating the nuclear weapons states. If this should start

to happen on Kashmir, it would be hard if not impossible for India, or

Pakistan, (or both, depending on how the Court decides) could remain

defiant for very long. They would be taking on the whole international

community backed up by international law.

 

Using the opinion of the Court, whatever it happens to be, the

international community could make it clear to both India and Pakistan

that there existed a new legal basis for a legitimate solution to the

Kashmir dispute and they would have to work within it if they expected

any support from the rest of the world. At the same time, a solution

based on an independent interpretation of international law could help

politicians in South Asia - if they wanted it to. For the first time

there would be an alternative to the long held positions that could be

argued to be even more legitimate. Leaders in India and Pakistan would

have the opportunity to modify their positions and justify this to

their constituencies on the grounds the World Court decision left no

alternative. In this, for once, they would be right. There should be no

alternative to resolving international disputes except through law.