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Looking Beyond Dialogue | Mohsin Raza Malik

Pakistan and India formally announced to initiate the ‘Comprehensive Bilateral Dialogue’ during Indian Foreign Minister Sushma Swaraj’s visit to Pakistan last month. It was decided that the so-called Comprehensive Bilateral Dialogue would include all the pillars from the previous ‘Composite Dialogue’ and the later ‘Resumed Dialogue’ besides the additional points. Now, the Foreign Secretaries of both countries are scheduled to meet in Islamabad on January 15 this month to discuss the modalities and schedule to carry forward the recently-agreed dialogue process. However, since India is awaiting a ‘prompt’ and ‘decisive’ action from Pakistan following the recent Pathankot terror attack, therefore now the future of this dialogue process hangs in the balance once again. As a matter of fact, primarily dependent upon the circumstances and the mood of the negotiating parties, the Pak-India dialogue process has been facing a sort of to-be-or-not-to-be question.

Aiming to resolve their bilateral disputes peacefully, the Prime Ministers of both India and Pakistan signed the historic Simla Agreement in 1972. In this agreement, both countries resolved to “put an end to the conflict and confrontation that have hitherto marred their relations and work for the promotion of a friendly and harmonious relationship and the establishment of durable peace in the sub-continent.” This agreement paved the way for a long and complex dialogue process between the two countries. However, there has hardly been any major breakthrough so far.

Both countries could not devise the basic modalities, modus operandi and agenda for these talks for a long time. In 1997, for the first time, Pakistan and India formally evolved an efficient and systematic mechanism for negotiations in the form of the Composite Dialogue Process (CDP). It was an important milestone in the Pak-India dialogue process and set the basic modalities and a road-map for future dialogue between the two countries. Eight issues were identified, and the level at which they were to be addressed. However, in the absence of required degree of resolution and commitment on the part of both countries, the CDP could never be properly initiated. Among other things, the 1999 Kargil war and the 2001 Indian parliament are believed to be the two major spoilers of this plan.

In fact, the intention, sincerity and seriousness on the part of the negotiating parties always make a big difference while resolving a conflict through negotiation. Unfortunately, these basic elements have always been missing in the dialogue process between the two countries.

Similarly, In order to get the desired results in negotiations, relations between the negotiating parties should be based on mutual respect and trust. Observably, there has always been a considerable trust-deficit between the two countries. Both nuclear-armed South Asian neighbours have been quite skeptical about the sincerity of their negotiating partner. Both countries have been accusing each other of planning and sponsoring various acts of terrorism in their respective territories. At times, they have not even been on speaking terms with each other. The so-called CBM’s have also utterly failed in bridging the trust-deficit between the two countries so far. In such a state of affairs, a meaningful and purposeful dialogue process cannot either be initiated or concluded successfully.

Chapter VI of the UN Charter deals with various means of pacific settlement of international disputes. Article 33(1) of UN Charter provides: “the parties to any dispute, the continuance of which is likely to endanger the maintenance of international peace and security, shall, first of all, seek a solution by negotiation, enquiry, mediation, conciliation, arbitration, judicial settlement, resort to regional agencies or arrangements, or other peaceful means of their own choice.”

Negotiation, undoubtedly, is the oldest and most common method of settlement of international disputes peacefully. Generally, it is recognized as the first step towards the settlement of such disputes. There have been many international treaties that make a failure to settle a dispute by negotiation a condition precedent to judicial settlement or arbitration of international disputes. However, the success of negotiations always depends upon the availability of an ideal and conducive environment. First, both parties should be comfortable enough with each other to sit together and discuss their issues exhaustively. Both parties should be cooperative and accommodating enough to understand each other’s points of view. Besides this, if the subject matter of the negotiation is a somewhat complex issue, then this negotiation is very unlikely to achieve desirable objectives.

As a matter of fact, owing to its certain inherent weaknesses and drawbacks, negotiation is not considered an effective method for the settlement of international disputes. Therefore, when two parties fail to settle their mutual disputes through negotiations, a ‘third party’ is needed to positively intervene to help both parties reach a settlement. Under the UN Charter, ‘mediation’, ‘conciliation’ and ‘good offices’ are three methods of pacific settlement of international disputes involving third-party intervention. When two parties are unwilling to negotiate, or fail to negotiate effectively, third-party intervention has been found very useful and fruitful. This assistance may be requested by one or both of the parties, or voluntarily offered by a third party.

Conciliation is the process of settling a dispute by referring it to a third party which elucidates the facts and suggests proposals for a settlement. ‘Good offices’ is also a diplomatic method in which a third party, acting as a ‘go-between’, tries to create an environment conducive for negations, and helps both disputants come to the negotiating table. Mediation is another effective process through which a third party proactively endeavours to bring the disputants together and assists them in reaching a settlement. In this case, a third party not only provides its services but also actively participates in the talks process and makes positive suggestions for the ultimate settlement of disputes.

In recent times, we have just observed third-party intervention playing a positive role in initiating and advancing the so-called Middle East Peace Process. The active participation and extensive support extended by the US certainly has helped reach milestones in the Middle East like the Camp David Accord, Madrid Conference, Oslo I, Oslo II, Sharm-el-Sheikh memorandum etc. And now the UN has also accorded Palestine a non-member observer state status. Certainly, the Palestinians and Israel could not have reached an agreement through bilateral negotiations alone.

In 1966, the Soviet Union helped Pakistan and India conclude a peace agreement – the Tashkent Declaration. The recent Iran-US nuclear deal is another diplomatic success story. The so-called P5+1 countries have helped Iran and the US reach a framework agreement marking the end of a 12-year confrontation between the two countries. This deal necessarily shows that sometimes extensive and sincere diplomatic efforts made by certain countries can lead to a settlement between such states that are considered each other’s ‘foremost enemies’.

Since inking the Simla Agreement in 1972, Pakistan and India have been trying to settle their ‘outstanding disputes’ through dialogue.

However, this dialogue process has miserably failed to resolve their mutual conflicts so far. The Kashmir issue has been the major source of confrontation between the two countries. Now, for a few years, cross-border terrorism has also become another major irritant between Pakistan and India. Regrettably, instead of resolving these issue through dialogue, both countries have started setting ‘pre-conditions’ for the initiation of this dialogue process.

Obviously, the current dialogue process will get both countries nowhere. In fact, a bilateral forum can hardly help both countries resolve their substantial issues, namely Kashmir and terrorism. The so-called bilateralism has already severely damaged the international character of the Kashmir issue. Therefore, now Pakistan should seriously think and look beyond the dialogue to settle bilateral disputes with India. For this purpose, third-party intervention, in the form of mediation or conciliation, should be sought. It is very pertinent to mention that the historic Simla Agreement also contains the provision for the third party intervention. Clause (ii) of the agreement says: “That the two countries settle their differences by peaceful means through bilateral negations or by any other peaceful means mutually agreed upon between them.”

The US has been rendering a sort of good offices to make both countries come to negotiating table for a long time. A few days ago, the US Secretary of State John Kerry urged Pakistan and India to continue their dialogue even after the recent Pathankot terror attack in India.

Therefore, now the major powers, including the US, may be asked to formally and actively mediate between India and Pakistan to help them resolve their outstanding disputes. Similarly, P5+1 type multilateral initiatives can also be sought for this purpose. Instead of sticking to so-called bilateralism for another fifty years, Pakistan should seriously strive for alternative diplomatic means to settle its longstanding disputes with India. Indeed, Franklin D Roosevelt has very rightly said, “there are many ways of going forward, but only one way of standing still’.

Source: http://nation.com.pk/columns/13-Jan-2016/looking-beyond-dialogue

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