Last month when President Trump met with Pakistani Prime Minister, Imram Khan, he said; “If you would want me to mediate or arbitrate [the Kashmir dispute], I would be happy to do so”. This was after he claimed that he had been asked by Indian Prime Minister Modi to “mediate or arbitrate”.
This claim that Modi had invited Trump to mediate caused a major storm in the politics of India. Government officials strongly denied that Modi had ever requested or would ever request mediation from Trump.
India and Pakistan have resolved their differences through third-party mediation in the past. For example, in the Indus Rivers dispute over water distribution in the Indus system of rivers between India and Pakistan. This dispute resulted in the Indus Waters Agreement mediated by the World Bank and is still in effect today. Another example is the Rann Kutch boundary dispute between India and Pakistan, successfully mediated by British Prime Minister, Harold Wilson. Why then, such vehement opposition on the part of India to mediate the Kashmir dispute.
Indian recent stated foreign policy, particularly in their dealings with Pakistan, is governed by the Simla Agreement. This agreement was signed by Pakistan and India in July 1972 to “put an end to the conflict and confrontation that have hitherto marred their relations”.
In paragraph two of this agreement, it states: “That the two countries are resolved to settle their differences by peaceful means through bilateral negotiations or by any other peaceful means mutually agreed between them”.
India’s position is that a U.S. mediation to resolve the Kashmir dispute is in direct violation of this agreement.
Their position however, seems to have a fundamental flaw based on the language of the Simla Agreement which states “…or by any other peaceful means mutually agreed between them”. Surely mediation is compatible with “any other peaceful means”.
It appears that the Kashmir mediation issue pivots around whether the process of mediation is considered a “peaceful means” or not. Pakistan believes it to be a peaceful means and therefore not in violation of the Simla Agreement while India perceives it as a non-peaceful means, at least to the extent that it violates the
spirit
of the Simla Agreement.
These two perspectives relate to how we understand the mediation process. In its purest form, mediation is nothing more than “facilitated negotiation and dialogue”, and as such would unanimously comply with the Simla Agreement. (This is in contrast to arbitration, where a third party adjudicates and imposes a ruling).
The issue becomes blurred when the mediator is not neutral and impartial; when he has personal interests in the outcome of the dispute; and where he has power to influence an outcome, thereby affecting the balance of power. One could make a strong argument that this sort of “mediation” is in direct violation of the Simla Agreement’s “…or by any other peaceful means…” as it could be perceived as coercion and imposition, rather than peaceful mediation in its purest form.
New Delhi it appears, perceived President Trump’s offer to “mediate” as a threat of coercion, imposition and pressure which understandably resulted in a radical and extreme reaction of imposing direct rule on Kashmir.
If there is any chance at all of resolving the Kashmir dispute through mediation, it needs to be in complete compliance with the Simla Agreement. It would require a mediator who is unwaveringly neutral and has no skin in the game whatsoever. It would need to be implemented with integrity, as a truly “facilitated negotiation and dialogue” without exertion of pressure or influence in any way. A promise of such a mediation might bring Prime Minister Modi and his government to the table to negotiate a resolution to the 70 year old Kashmir dispute.
