Introduction

On 17^th January 2023, Pakistan’s Prime Minister, Mr. Shehbaz Sharif, sought the assistance of UAE in mediating Pakistan’s dialogue with India over its everlasting border dispute regarding Kashmir. However, this conflicts with India’s official position clarifying that India would not accept third-party mediation over the Kashmir dispute and any form of resolution shall be reached only via bilateral negotiations. This was followed up by another announcement on 5^th August 2023, where Mr. Shehbaz disclosed that Pakistan is willing to start talks with India to resolve the serious matters at hand. Amidst these contradictory communications, understanding the dynamics of alternative methods of dispute resolution, like mediation, becomes paramount.

This piece aims to analyse the efficacy of international mediation in resolving the Indo-Pak dispute over Kashmir. To this end, the first section of this piece will provide a brief overview of international mediation. To achieve this, the piece will first, unravel the nature of obligation of parties to dispute under Art.33; second, provide the essential conditions required for initiating mediation; and third, distinguish mediation from other methods of dispute resolution. The second section will rely on Jacob Bercovitch’s test to establish the inefficacy of mediation in resolving Indo-Pak conflict. The scope of this piece is limited to a theoretical perspective and does not extend to an empirical analysis.

International Mediation: A Brief Overview

International mediation is the process where parties seek assistance of an international organization or nation state to settle their conflict, without resorting to physical force [pg.18]. Such an understanding is in consonance with Art.33 of the UN Charter as well as the Manila Declaration, the legitimacy of which emanates from Art.2(3) the UN Charter.

While Art.33(1) does not explicitly specify the parties on whom the obligation of peaceful settlement is imposed, it can be inferred that it primarily addresses member states. This is because Art.33(1) is essentially a subset of Art.2(3) and the latter extends its scope of application to all member states [pg.1413]. Nevertheless, as a customary legal norm, this obligation also extends to third-party states that are not members of UN [pg.1413]. The nature of this obligation is not merely passive and instead, requires active efforts by the parties [pg.1414]. In this light, it is imperative to distinguish between Art.2 and Art.33 based on their scope of subject matter. While the former imposes obligation of peaceful settlement on member states for all international disputes, the latter necessitates institutional intervention by SC and GA only in cases where continuance of the dispute could endanger international peace and security [pg.1412]. Nonetheless, any mediation undertaken shall not have a binding force, as provided by Art.6 of the Hague Convention, 1910.

In light of this, it is essential to establish the objective criteria necessary for initiating third-party mediation [pg.17]. First, the dispute is drawn out and complex in nature. Second, the conflict management efforts on part of the parties have reached a deadlock. Third, it is beneficial for both parties to resolve the dispute at the earliest. Fourth, both parties are open to cooperation.

Additionally, before moving onto the implications of considering mediation as a form of dispute resolution, it is crucial to distinguish it from other alternatives. While mediation involves third-party intervention, negotiation merely refers to direct dialogue between two parties. Parties are under an obligation to not only undergo the formal process of negotiation, but also approach negotiation with the intent of arriving at a resolution [pg.47]. As opposed to this, conciliation is quite similar to mediation. The only difference being that under conciliation, a particular organ has the responsibility of investigating the facts and subsequently, submitting a proposal to both parties [pg.1417]. However, neither of the three modes have a binding force [pg.1417].

Subsequently, since mediation is often considered as an effective mode for dispute resolution, thus, in light of Mr. Sharif’s proposal, it is imperative to analyse viability of this method in resolving Indo-Pak conflict.

Viability of Mediation in Resolving Indo-Pak Conflict

This section explores the viability of mediation in context of India-Pakistan conflict over Kashmir. To this end, this piece will rely on the three-prong test proposed by Bercovitch as it permits a systematic analysis of all the relevant variables.

Nature of Parties

Bercovitch clarifies that mediation is possible only where adversaries have a symmetrical power balance, in terms of economy, military strength, and geopolitical stature [pg.21]. This is because mediation proves more effective in cases where power differences between parties are not substantial as, in such cases, adversaries become more amenable to concessions [pg.21].

In context of the Indo-Pak conflict, it is clear that there is deep-rooted animosity that prevails between both parties. This conflict is a culmination of several factors like conflict over religious ideologies, border dispute over Kashmir, and arms race to develop nuclear capabilities [pg.222]. Consequently, the only way mediation could be successful is if either party is willing to compromise its core interests, which does not seem likely in the present case.

Additionally, it is crucial for parties to depict political willingness to resolve the conflict via mediation. However, the same seems to be lacking in the Indo-Pak conflict. This can be witnessed from India’s reliance on the Simla Agreement of 1972, which clearly establishes bilateral negotiation as the primary mode for resolution of the Kashmir dispute. Lastly, it can be safely concluded that there is some degree of power disparity between India and Pakistan. This is evident from the fact that while India’s GDP in 2022 was $3.42 trillion, Pakistan’s GDP was $374.7 billion. Even across the spectrum of international recognition, India has an upper hand as Foreign Direct Investment constituted 1.5% of India’s GDP as opposed to 0.5% of Pakistan’s GDP in 2022.

Nature of Dispute

Bercovitch argues that mediation is unlikely to be successful in cases where vital interests, such as sovereignty and national security, are affected [pg.22]. Ideally, mediation is more likely to be successful when it undertaken before a certain threshold of violence is crossed [pg.22]. Thus, Bercovitch establishes a strong correlation between low rate of fatalities and successful mediation. In case of the Indo-Pak conflict, it becomes sufficiently clear that the main bone of contention is over the territoriality of Kashmir, which is an integral component of the territorial integrity of both countries [pg.2].

The principle of national sovereignty, which refers to the superiority of an authority within a territory, is sacrosanct to both nations [pg.241]. Thus, as a consequence of this principle, states have supremacy in context of internal jurisdiction, immunity from jurisdiction of other states and freedom from intervention by other states on one’s territory. However, the multiplicity of historical claims over the disputed area of Kashmir by India and Pakistan, along with contention over claims on resources like water under the Indus Waters Treaty, makes it challenging to define territorial sovereignty for Kashmir. Additionally, this conflict is reflective of enduring religious and political rivalry, accompanied by not just high fatality rates but also high levels of threat perception.

Characteristics of the Mediator

Bercovitch argues that high degree of impartiality, on part of the mediator, is the key to successful mediation [pg.26]. Essentially, trustworthiness of the mediator along with their ability to implement the agreement are integral factors that enhance the success of mediation [pg.25]. This implies that for a mediator to be impartial, it is imperative that they do not have any material interest in the resolution’s outcome. Further, it is also important that both parties are able to trust the mediator [pg.25].

So far, the UN, USA and China have attempted to mediate Indo-Pak conflict [pg.223]. However, India and Pakistan will not be amenable to either of these potential mediators in the future. While USA has a prosperous economic and political relationship with India, keeping in mind their multilateral cooperation in the field of defence and security, its relationship with Pakistan is precarious. This can be attributed to presence of militants in Pakistan [pg.6], which poses a direct threat to USA. Further, India may not be able to trust China on account of their ongoing border dispute. Thus, neither the USA nor China can act as an impartial mediator. Another reason why India naturally has a preference for bilateral negotiations, as opposed to mediation, is because in recent times, India is perceived as an emerging global power. Consequently, it resents the implications of the claim that a third-party is necessary for resolution of its border disputes [pg.524].

Additionally, even the UN does not seem as a viable choice as it lacks the necessary resources and leverage required to influence India and Pakistan to cooperate peacefully [pg.235]. This is because only the UNSC resolutions have a binding application and any consensus for such resolutions is fraught with difficulties due to the application of the veto power by UNSC’s permanent members.

Some scholars argue that instead of nation states or the UN, regional organizations like the South Asian Association for Regional Cooperation (hereinafter, ‘SAARC’) should be considered for mediating Indo-Pak relations [pg.139]. This is because these organizations will be more familiar and accommodating of culture of the parties [pg.151]. This is also in consonance with Art.52 of UN Charter. However, even in this scenario, the concern regarding enforceability of agreement reached still persists. This can be substantiated by Art.X of the SAARC Charter, which provides that decisions at all levels must be taken on the basis of unanimity, thereby leading to an inevitable delay in the resolution of any dispute. Additionally, organizations like SAARC also face impediments in addressing security cooperation as there is a lack of consensus among members regarding threat perceptions. Therefore, this piece argues that Indo-Pak conflict cannot be effectively resolved by way of third-party mediation as it does not fulfill Bercovitch’s criteria.

Conclusion

This piece provides a comprehensive overview of international mediation. It lays down prerequisites for initiating mediation and distinguishes it from other alternatives. Further, it unravels four challenges that hinder the effectiveness of mediation in resolving Indo-Pak conflict. Firstly, there is a prevailing power disparity between the two countries. Secondly, the rate of fatalities in context of violence inflicted as a consequence of this conflict is substantially high. Thirdly, the dispute is concerned with core interests of both countries like territorial integrity and national security. Lastly, there is a lack of availability of impartial third-party mediators in addition to India’s natural preference for bilateral negotiation. Therefore, this piece argues that despite being acknowledged as an effective method of dispute resolution, third-party mediation may not be efficacious in resolving the Indo-Pak conflict. Subsequently, both the countries need to explore other alternative means of dispute resolution like negotiations and arbitration for resolving the border dispute over Kashmir.

Manvi Sahni is a law student at National Law School of India University, Bangalore.

Picture Credit: ViaMediationCentre