Involving a ‘third party’

“There are many ways of going forward, but only one way of standing still.”
– Franklin D Roosevelt
The UN Charter requires all member states to “settle their international dispute by peaceful means in such a manner that international peace, security, and justice are not endangered”.
Chapter VI of the charter deals with various means of 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. It is recognised 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 compulsory arbitration.
Negotiation includes discussions between the concerned parties with a view to understand opposing opinions and positions, and reconcile the differences. It is a very useful method for the clarification and elucidation of opposing contentions. 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 properly. 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 negotiations generally fail to yield desirable results.
As a matter of fact, owing to its certain inherent weaknesses, 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 another 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 an 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 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. We can imagine the outcome if the world community had asked Palestinians to get their rights from Israel through negotiations.
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 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, instead of sticking to this bilateralism for another fifty years, Pakistan should seriously strive for alternative diplomatic means to settle its disputes with India.
For this purpose, third-party intervention, in the form of mediation or conciliation, should be sought. 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.”
For a long time, the US has been rendering a sort of good offices to make both countries come to negotiating table. Now, Pakistan has an option to ask the US to formally and actively mediate between the two countries to settle their outstanding issues. Similarly, P5+1 type initiatives can also be sought for this purpose.
The UN Secretary General Ban Ki-moon has also offered his ‘good offices’ for the settlement of disputes between the two countries. Therefore, now Pakistan must seriously and actively explore alternative means for settling its longstanding disputes with India peacefully – after abandoning altogether the current non-productive strategy based on so-called bilateralism.
The writer is a Lahore-based lawyer.
Email: mohsinraza.malik@ymail.com