The territorial dispute over Kashmir has been a longstanding diplomatic obstacle that has prevented normalized relations between India and Pakistan. Both countries insist upon their rightful claim to Kashmir, have fought three wars over the region since achieving independence from Britain in 1947, and have come close to a fourth conflict on innumerable occasions. 1Only a mediated peace accord can successfully address the multiple factors that contribute to Indian and Pakistani distrust, which, in turn, hinders the opportunity for a long-term solution.2
This Note examines mediation and arbitration techniques used to resolve other similar international disputes between two or more countries and Page 723 analyzes whether mediators could apply these techniques to resolve the India-Pakistan conflict successfully. Part II examines the conflict's historical background. Part III attempts to define the problem and identify the issues that prevent resolution. Part IV explains the primary factors necessary for successful conflict mediation. Part V examines and presents a comparative analysis involving the Borneo Conflict. Part VI attempts to draw conclusions given the similarities of other successful mediation attempts. Part VII discusses the importance of ripe mediation. Part VIII focuses on the importance of specific international actors. Part IX compares the India and Pakistan conflict with the current Iraq conflict. Finally, Part X discusses the implementation of the suggested mediation strategies and their implication for a successful long-term resolution of the India-Pakistan conflict.
After World War II, it became clear that the British Empire could control India no longer.3 In 1947, the British Empire decided to partition the region into two new countries, India and Pakistan. 4 The former princely states, long recognized in the region, would no longer have legal status after decolonization.5 As a result, each State had to decide to align with either India or Pakistan.6 Furthermore, the British strongly discouraged either State from trying to maintain independence.7
The ruler of Kashmir, Maharajah Hari Singh, originally sought independence for his territory.8 However, following the pro-Pakistani militants' invasion of Northern Kashmir, Singh turned to the Indian government for assistance.9 India refused to involve itself in the conflict unless Singh signed the Instrument of Accession; thereby he relinquished Kashmir's right to independence and made it a formal state within India. 10After Singh signed the agreement, India moved its troops into Kashmir and confronted the militants, ultimately preventing the militants' advance. 11 Page 724 Pakistan responded to India's troop movements and entered the region in November 1947, sparking the first full-scale Kashmir War.12
On January 1, 1948, during the war, India approached the U.N. Council to invoke Article 35 of the U.N. Charter.13 India accused Pakistan of giving transit to invaders, allowing them to use Pakistan as a base of operation, supplying military and economic transport to the rebels, and permitting Pakistani nationals to fight and train tribesmen. 14 Pakistan denied India's claim that it was aiding militants in Kashmir; instead it argued that they were acting independently.15 Additionally, Pakistan challenged the legal status of the accession agreement signed by Hari Singh.16 Pakistani officials argued that a plebiscite should decide Kashmir's legal status instead.17
Without addressing Indias original complaint, "the Security Council adopted a resolution establishing the United Nations Commission on India and Pakistan . . . [("UNCIP")]."18 Its established function was: "(1) to investigate the facts that gave rise to the Kashmir dispute, and (2) to exercise any mediatory influence likely to smooth away difficulties, to carry out directions given by the Security Council, and to report on the progress of executing the advice and directions of the Security Council."19 Page 725
The Security Council passed Resolution 47 in April 1948, before the UNCIP could act on its mandate.20 Resolution 47 increased the number of UNCIP member states and suggested additional measures, including the use of observers.21 In July 1949, the first Kashmir war came to an end with the Karachi Agreement, which created a ceasefire line. 22 Resolution 47 still remains the Security Council's outlined structure for a recommended permanent resolution. 23
After further unsuccessful attempts at mediation, the U.N. terminated UNCIP in favor of authorizing a U.N. Representative to conduct negotiations.24 A number of U.N. Representatives attempted to mediate a permanent resolution and enforce the plebiscite until 1958, but were unsuccessful.25
Since 1947, the Kashmir Dispute has continued to plague the relationship between India and Pakistan. 26 The mutual hostility between India and Pakistan stemmed from the Partition when Great Britain divided the Indian sub-continent without respect for traditional territorial boundaries. 27 Since that time, both India and Pakistan have maintained strikingly different points of view as to the outcome of the partition and its effect on the modern day status of Kashmir.28
Pakistani officials view Kashmir as the "unfinished business of Partition;" it is the missing "K" in the word Pakistan.29 The Pakistani government endorses a "two nation" theory, whereby the Muslim majority in Page 726 Kashmir signifies that it should govern the region.30 Thus, Pakistan insists that the U.N. should implement its resolutions calling for a plebiscite in Kashmir "to ascertain the 'will of the people of Kashmir.'"31
By contrast, the official Indian view is that the Instrument of Accession, signed by the Maharaja of Kashmir in 1947, lawfully cedes control over Jammu and Kashmir to India. 32 In reply to Pakistan's demands for the plebiscite, Indian officials argue that the elections held in Kashmir since 1952 are indicative of the "will of the people of Jammu and Kashmir," therefore making a U.N. plebiscite unnecessary.33
The ideological dispute over Kashmir continues today as Pakistan argues that the "illegal Indian occupation" of Kashmir and the violation of human rights by Indian security forces have led to popular uprisings against the Indian government.34 Moreover, the dispute over Kashmir contributes to Indian distrust of Pakistan altogether. Indian officials have consistently maintained that Kashmiri uprisings are not representative of the will of the people, and instead are the result of Pakistani government influence and militant infiltration, which has encouraged terrorism in the region.35
As it stands today, the distrust between India and Pakistan makes it difficult for the two sides to come to the negotiating table, let alone agree on a compromise. Until such hostilities subside, a compromise is unlikely.
The United Nations was involved in mediating the Kashmir Conflict from 1948 through 1965.36 Following the end of the India-Pakistan war of 1965, the United Nations continued to nominally engage India and Pakistan regarding Kashmir until the Third Pakistan-India war of 1971. At the end of the war, Pakistan and India signed the Simla Agreement in 1972, which emphasized the adoption of a bilateral framework to solve the crisis.37
After India signed the new ceasefire agreement, it took the position that the authority of the United Nations Military Observer Group ("UNMOGIP") had lapsed. 38 Pakistan did not agree with India's position. 39 Pakistan Page 727 continues to lodge complaints with the UNMOGIP, but the Indian government continues to restrict the UNMOGIP's movements on their side of control, thereby limiting the Groups' effectiveness.40 Currently, no international law or agreement resolves the territorial dispute and, to date, neither party is willing to concede rightful ownership of the Kashmir region.
In negotiation and potential settlement of any dispute, a number of circumstances serve to dampen, interrupt, or reverse escalation of the conflict.41 However, certain attributes are also necessary for a successful mediation. These include the timing or ripeness of the mediation, the type of mediator, and the United Nations' involvement. 42 These three conditions are necessary because they address different problems that may arise during mediation and acknowledge that there may only be a few moments to achieve success during any conflict.
"Ripeness" is the...