[sacw] Law rather than War on Kashmir

[Harsh Kapoor]

South Asians Against Nukes Mailer
June 13, 1999

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

Law rather than War on Kashmir

Zia Mian

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.
_______________________________________

South Asians Against Nukes
(http://www.mnet.fr/aiindex/NoNukes.html)

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