An impediment in the way of finding a solution to the Kashmir dispute is the never-ending argument about the merits of bilateralism versus international mediation. While India is not in favor of international involvement, Pakistan has been concentrating (and perhaps successfully) its diplomatic efforts on internationalizing the dispute. The focus on the mechanism by which a solution might be found rather than on compromises needed to find that solution has worked to no one's advantage.
As Barbara Tuchman conveys through her famous book March of Folly, "avoidable political disasters in history have taken place because of a peculiar trait of people in power". The Kashmir problem is with us because of the attitudes of such people in power in India for the last seventy years. Persistent refusal to understand that the Kashmir dispute is an international dispute is the main symptom of the disease that this wooden-headed leadership is suffering from. It is time that Kashmir is accepted as an international dispute within the charter of United Nations to which India and Pakistan are parties. This dispute has to be resolved in accordance with UN Charter which is binding on both these parties to the dispute. This charter emphatically imposes the duty of negotiation. As explained by Openheim, an international Law expert, 'Where the continuance of dispute is likely to endanger the maintenance of international peace and security, the parties are under a clear obligation to seek its solution by inter alia negotiations (UN Charter Article 33 (1)). This obligation exists even in the absence of a specific undertaking to do so and the obligation is judicially enforceable. The International court of Justice can mandate the parties to negotiate '.
No compromise can be arrived at without some 'give and take '. Adopting an inflexible position makes non-sense of any honest negotiation. India and Pakistan have never undertaken any sincere and serious dialogue. Let us examine the validity of the doctrine of 'arbitration and mediation' with reference to Article 51 in Part IV – 'Directive Principles of State Policy '. The Article reads: ''51 – Promotion of international peace and security. The state shall endeavor to:
• Promote international peace and security;
• Maintain just and honorable relations between nations;
• Foster respect for international law and treaty obligations in the dealings of organized peoples with one another; and
• Encourage settlement of international disputes by arbitration.''
This directive was subject of an intense debate in the Constituent Assembly, providing an illuminating insight into it. In the Draft Constitution this article was numbered as 46 and it did not contain the last clause. During a discussion of this article on November 25, 1948 B.M. Gupte of Bombay referred to an amendment which he had tabled, by which he wanted the incorporation of this clause. He Said, '' _____ Personally it would have given me greater satisfaction if, instead of merely laying down our objective as the promotion of peace, we could have devised and emphasized some method for promotion of peace. I think Mahatma Gandhi has suggested one method. He laid down the principle of arbitration for the settlement of labor disputes. That principle could be very well extended to other departments of life and also to international disputes. I think it would have been better if we had provided that arbitration should be resorted to if we want to avoid war —–I would have been very much gratified if we had laid down here that our international policy would be to encourage the settlement of disputes through arbitration—–''
Impressed by the force of these arguments, B. R. Ambedkar accepted the amendment and the last clause was added. Unfortunately, however, the Indian leadership has failed to honor what is not merely an international obligation but constitutional obligation as well, namely, to settle the dispute bilaterally. It has contemptuously rejected even something much less than arbitration – mediation.
The problem can be solved if there are statesman who are concerned about posterity. Myopic politicians can play no role in the matter. A bold sifting from frozen postures is called for. Two misleading clinches require special mention. Sovereignty is not negotiable, proclaims one. Kashmir is an inseparable part of India, pronounces the other. Both are utter non -sense.
(Abdul Majid Mattu has authored various books on Kashmir and is a Senior Columnist.)