Kashmir: third party Mediation

From time to time Pakistan calls upon the US to help resolve the Kashmir issue. The request was renewed by Prime Minister Nawaz Sharif during his meeting with the US secretary of state on the sidelines of the recent nuclear security summit in The Hague. Can third party mediation be effective on Kashmir?

The six-decade long thorny issue between Pakistan and India can be settled in three ways: One, India agrees to give effect to the UN Security Council resolutions on Kashmir. Two, the issue is resolved bilaterally between the two countries. Three, third party mediation or intervention makes New Delhi and Islamabad thrash the issue out.

Ideally, the Kashmir problem should have been settled by putting into effect UNSC resolutions calling for a plebiscite in the disputed territory. In the words of the UNSC resolution dated April 21, 1948, “both India and Pakistan desire that the question of the accession of Jammu and Kashmir to India or Pakistan should be decided through the democratic method of a free and impartial plebiscite.”

Be that as it may, as early as the mid-1950s, India backpedalled on its commitment putting forward two reasons in the main: one, the Constituent Assembly of the Indian-controlled Kashmir ratified the state’s accession to New Delhi in 1954. Two, Pakistan’s defence alliance with the US upset the military balance in the region making it necessary for India not to demilitarise Kashmir – an essential condition for holding the plebiscite. In 1957, India declared Kashmir to be its constituent and irrevocable part. Since then the country has stuck to this stance.

Although Pakistan calls for implementation of the UNSC resolutions, at times it has expressed the willingness to explore other ‘out-of-the-box’ options. This particularly happened when Gen Pervez Musharraf was at the helm. However, no consider progress has been made on this account mainly because of perceived serious political fallout.

As for the UN, its will to address any issue is as strong or weak as that of the permanent members of the SC and they have not been forthcoming in having the Kashmir plebiscite staged. Even China, one of the P5 and a long-time staunch supporter of Pakistan’s Kashmir position, has shifted its stance and favours a bilateral settlement of the problem.

The second option, bilateral resolution of the problem, is favoured by New Delhi. In this connection, it refers to the 1972 Pak-India Simla Agreement, which provides that the two countries would “settle their differences by peaceful means through bilateral negotiations or by any other peaceful means mutually agreed upon between them.” India contends that under the Simla Agreement, the Kashmir problem ought to be settled only through bilateral means.

The Indian contention is contested by Pakistan on the ground that the text of the Simla Agreement clearly states “That the principles and purposes of the Charter of the United Nations shall govern the relations between the two countries.” At any rate, Article 103 of the UN Charter makes it clear 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 is important to look at what bilateral discussion of the Kashmir issue entails for India. It does not entail agreeing to separation of the territory from India including conceding the right of self-determination to the people of Kashmir, as that would run counter to the claim that Kashmir is an integral part of India. It entails, what New Delhi dubs, Pakistan’s ‘occupation’ of a part of Kashmir and its ‘support’ to the insurgency in the state. Hence, multilaterally or bilaterally, India does not seem well disposed to entertaining any proposal that might have the effect of drawing Kashmir out of its control.

In such a scenario, can third party mediation be viable? In the context of Kashmir, resort to mediation has some problems. One, in principle, mediation is undertaken with the consent of the parties to a dispute and India has consistently ruled out such an exercise on Kashmir. Mediation without consent becomes intervention and Washington or any other power is not inclined to or capable of coercing India into addressing the Kashmir problem in a way that satisfies Pakistan.

Two, since India has been successful in convincing the world that the insurgency in Kashmir is an offshoot of Islamic militancy and that state as well as non-state actors from Pakistan are involved in cross-border infiltrations, third party mediation or intervention, even if it is employed, may end up attaching greater weight to the Indian position and concerns than Pakistan’s. The major powers have their own interests, which may not coincide with those of Islamabad.

With the UN resolutions in a limbo, India not inclined to discuss Kashmir with Pakistan bilaterally or accept third party mediation and the powers that be reluctant to intervene, the issue remains unresolved and serves as a reminder that international politics is power politics.

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