International Law, Its History, And Role In The Kashmir Dispute

Definition

International law is a set of principles or norms in the shape of treaties and agreements which countries accept as binding with respect to their dealings with other nations. It defines the ways in which nations would interact with other nations, people and organizations.

Introduction

International law is generally categorized into two classes, i. e. Public and Private law. Public international law governs dealings among states including laws of seas, economy, diplomacy, human rights and global conduct etc.

It is derived from written laws in the form of agreements, e. g. Vienna Convention and international customs recognized by civilized nations. On the other hand, Private international law deals with disagreements between people and businesses. There are certain institutions, most notable being United Nations with 195 members which recommend measures, however no international organization truly enforces international law.

Early Origin of International Law

Some historians trace earliest origins of international law to ancient world and the Middle Ages, however more active evolution started in the classical age with remarkable work of Grotius and Hobbes. At the end of Napoleonic wars, formation of the Congress of Vienna was the dawn of this era which laid foundations of the doctrine of international law. In this era, European states started defining the laws of new international order which later became universally recognized in other regions of the world. Many historic events in the 19th century further shaped the discipline including rise of democracy & nationalism, French & Industrial Revolutions in Europe, establishment of international institutions like Red Cross and rise of European theorists emphasizing rules for international law.

Modern History

The significant development after 1st World War was the formation of League of Nations to preserve peace. In spite of some success and laying ground work for a new international system, the institution could not survive due to non-inclusion of US & Soviet Union and various conflicts and aggressions which eventually led to 2nd World War. Establishment of United Nations withstanding the realities of power has finally succeeded in the form of a stable international order. Since then, International Law has strengthened and various institutions including International Court of Justice, Interpol, Security Council etc. have been established.

Vienna Convention

International law evolved as treaties or agreements among member states and later accepted by other states. The Vienna Convention on the Law of Treaties, often called the ‘treaty of treaties’ is an international accord which defines elaborate directions and guidelines on defining, amending and interpreting the treaties, e. g. the Vienna Convention on Diplomatic Relations established in 1961 outlines establishment, maintenance or termination of diplomatic dealings between sovereign nations and privileges & immunities of the diplomats. It has been ratified by 116 states and another 15 signatories include US and Pakistan while 65 states including India have not ratified or signed the convention.

Indo-Pak Territorial Disputes: Kashmir Conflict

Since partition of sub-continent in August 1947, India and Pakistan have maintained different territorial disputes most significantly that of Kashmir which has resulted into three wars fought between two countries since then. The roots of Kashmir conflict existed before 1947 and the way partition happened where solution of princely states’ accession was interpreted by India & Pakistan differently. The ruler of Kashmir Maharaja Hari Singh, a Hindu acceded to India in the face of growing unrest in Muslim majority state which resulted in notice of international community. India took the matter to United Nations and the matter has since been one of the longest unresolved disputes6. Since then India maintained article 370 in Kashmir till 2019 with some degree of autonomy to the state while Pakistan has consistently insisted on outcome of the conflict as per UN resolutions.

Application of International Law & its Limitations

The case of Kashmir needs to be reviewed in historical perspective and its legality in International Law. As per International law, right of self determination is an important custom which also existed in UN Charter in some form in 1945 but was not effective at that time. Due to ineffectiveness of a newly formed organization at that time in backdrop of Cold War era, it had many limitations due to its limited stature at that time. Another important factor is that provisions of UN Security Council resolutions are not binding on states in terms of enforcement. Moreover, silent rivalries of permanent member states especially China, USA, Russia & Britain regarding their interests in the region also resulted into indecisiveness on Kashmir. History of conflict reveals that both India and Pakistan have not been able to make meaningful endeavors for political or diplomatic solution of the dispute rather domestic legislation prevented the conflict towards solution7. Moreover, Shimla agreement has further complicated the circumstances where mediation by another country is only possible if both sides agree.

Role & Importance of International Law in Kashmir Dispute

Although Kashmir conflict has been further clouded due to inaction by various players, however the solution is possible through application of international law in its essence. First and foremost, relevant norm of international law is the right to self-determination to establish will of the people which may be in favor of India, Pakistan, power-sharing formula or an independent status. Role of UN has significantly evolved and it is a more vibrant forum now than half a century before. It can play a dominant role by consistent commitment to resolve the issue and by asserting its influence through Security Council. Other states can also play the role of intermediation though unwilling response of either India or Pakistan in the backdrop of Shimla agreement can derail the process. Hence, it may continue to hinder any diplomatic progress unless superseded by another agreement. Recent response of India to President Donald Trump’s mediation offer can be seen in this regard8.

Conclusion

International law has the potential to provide a framework of negotiation and interaction between states to resolve the disputes mutually as per their agreements or through relevant international organizations. However, the non-binding nature of the enforcement of international law hinders progress as in case of Kashmir dispute. Despite these challenges, only workable solution appears to be inter-state cooperation and bilateral agreement to negotiate a solution keeping in view the principle of self-determination.