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India / Pakistan conflict - law rather than War, 16 June 1999



Law rather than War on Kashmir, Zia Mian, Princeton University
June 1999



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.

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.

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