On dispute resolution

Updated September 19, 2016


Many would argue that recent attempts at dispute resolution between India and Pakistan have not been particularly successful. For Pakistan, the settling of its outstanding disputes with India are contingent on making substantial progress on the Kashmir front; India, on the other hand, has progressively hardened its position and appears unwilling to compromise in any meaningful way on Kashmir. But while the challenging nature of the existing sets of disputes between India and Pakistan may hinder progress, one needs to understand how effective the means and methods used for settling such differences have been for conflict resolution between the two states.

Dispute resolution between states proceeds in a limited number of ways — sometimes as a hybrid thereof. Resolution could be forced by one state upon another in the form of a treaty subsequent to a military defeat or conquest; it could be reached between the disputants through bilateral negotiations without any third-party involvement; it could be achieved through formal, legal adjudicatory mechanisms defined in bilateral agreements with or without third-party involvement; and, finally, it has often been attained through established multilateral treaty frameworks, such as through the Dispute Settlement Body of the World Trade Organisation.

Even the US feels the pressure of censure from the international community when it resists international courts.

The instantiation of the United Nations, and the application of the UN Charter, foreclosed the resolution of disputes through military defeat or conquest and, as such, is also a nullity under international law as it is tainted by duress or coercion. Under the UN Charter, the unilateral use of armed force is only allowed in self-defence and not to force a settlement. However, bilateral negotiations rarely work for resolving disputes without third-party involvement or the use of international courts and tribunals, unless there are huge economic or military disparities between states.

Naturally, in such instances the more powerful state is — through threat of punishment or enticement of reward — frequently able to dictate terms, resulting in a resolution which is virtually always lopsided. Indeed, one major reason why the Shimla agreement, for the bilateral resolution of disputes between India and Pakistan, has failed is because the power and economic differentials between the two states are not that stark.

In contrast, multilateral and bilateral agreements that require resolution by international courts and tribunals have proven to be quite successful for resolving entrenched interstate disputes, with the implementation of these international judgements also quite swift. For many international experts —even in the absence of an enforcement body in international law — it is the threat of international censure and the potential reputational loss within the global community of nations that forces a state to comply with these international judgements. This is why in 1994, when the ICJ (by a majority of 16 to one) decided that the Aouzou Strip contested between Libya and Chad belonged to the latter, Libya accepted and implemented this judgement by expeditiously withdrawing its troops from the contested region, even though it was militarily much stronger in comparison to Chad.

Even a hegemonic power like the US feels the pressure of censure from the international community when it resists the judgements of international courts. Such was the case in 1986, when the ICJ found the US in breach of its obligations under customary international law for using illegal force and violating the sovereignty of Nicaragua — requiring, as a consequence, that the US make war reparations to the latter. When the US vetoed the implementation of the ICJ’s ruling in the Security Council, it had to face the wrath of the General Assembly, which unequivocally called for the “full and immediate compliance” of the decision of the international court. The US was thus compelled to negotiate with Nicaragua, which finally dropped its claim from the ICJ in 1991, in exchange for US aid.

In the context of Pakistan and India, agreements — with or without third-party involvement — requiring the settlements of disputes through international tribunals, have been effective because awards handed down by the concerned international adjudicatory bodies have been accepted and implemented by both states.

Under the auspices of the World Bank-brokered Indus Water Treaty, recent awards by a neutral expert in relation to the Baglihar Dam controversy, and by the Permanent Court of Arbitration (based in the Hague) over the Kishanganga hydroelectric project dispute, continue to be implemented by both nations. Importantly, both countries successfully resolved the significant Rann of Kutch dispute through arbitration by the Indo-Pakistani Western Boundary Case Tribunal that was constituted pursuant to an agreement brokered by British prime minister Harold Wilson in 1965, who also managed to convince both nations to cease fighting. The ad hoc tribunal delivered its final award in 1968 and awarded India 90pc and Pakistan 10pc of the disputed Kutch.

One must understand that general, open-ended negotiations that are affected by political whims and do not employ international dispute-resolution mechanisms often fail to resolve hard interstate disputes. Therefore, the Shimla accord, the ‘composite dialogues’ and, most recently, the ‘comprehensive bilateral dialogue ‘ are initiatives destined to fail in their current form because they are ill equipped to force or even facilitate a resolution over any major dispute between India and Pakistan.

The rest of the world has moved forward, supplementing international courts and tribunals by establishing permanent regional courts of human rights whose judgments are respected and implemented. Examples of such courts include the European Court of Human Rights, the Inter-American Court of Human Rights and the African Court on Human and Peoples’ Rights. The South Asian Association for Regional Cooperation has completely failed as a union of regional integration at any level, let alone as a dispute resolution forum. Today, even Indian Prime Minister Narendra Modi’s ceremonial visit for the upcoming Saarc Summit in Islamabad seems doubtful due to the current tense relations between Pakistan and India.

The writer is former legal adviser, Ministry of Foreign Affairs, and law faculty at Lums.

Published in Dawn September 19th, 2016