Mediation in these five phases (class notes):

Mediation

The
United Nations defines mediation as a process “whereby a third party assists two or more parties, with their consent,
to prevent, manage or resolve a conflict by helping them to develop mutually
acceptable agreements” (2012) (peacemediation.de). Mediating actors can be
categorized into four types: individuals (e.g., former United States President
Jimmy Carter), states (e.g., Sweden which has gained prestige in the
international arena as an impartial mediator), international organizations and
regional organizations (e.g., the United Nation and the Arab League) (Melina
2013:79). These actors, when mediating, can make use of different approaches
relevant to the dispute since all disputes vary in terms of parties, intensity,
and response and so forth (Bercovitch 1996:4). The motivation behind a
state-led mediation can vary and could include one of the following options; 1)
the desire to achieve a prestigious reputation as a bridge-builder (in case of
Norway and Sweden) 2) enhancing the state’s own national interests and
expanding influence 3) to reduce the impact of the conflict on one’s own
country. Powerful states with much resources and prior mediating experience can
prove to be effective in their mediator-role given that they can make use of
their material capabilities through incentives and inducements (Melina 2013:86).                                                                                                                                                                      Although,
the approach of mediation differs according to the situation some general
structures can observed in these five phases (class notes):

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Phase 1:
Contacting                                                                                                                                                                Phase 2: Understanding the case or conflict.                                                              Phase
3: Identify the underlying interests and thereby create criteria’s              Phase 4: Create options that fulfil both criteria’s so both parties
can chose the option that is most suitable for them.                                                                                                            Phase 5: Agree on a solution (lawyers are here needed sometimes to
make a contract). Furthermore an agreement on how to implement the solution.

UN
Resolution

With
regards to Jammu and Kashmir there have been mediation efforts from the United
Nations in the early years of the dispute. It was on 1st Jan 1948
that the Kashmir dispute for the first time was brought to the attention of the
Security Council by the Government of India referring to article 35 of the UN
Charter which states following:

Article 35: Any Member of the United Nations may
bring any dispute, or any situation of the nature referred to in Article 34, to
the attention of the Security Council or of the General Assembly (legal.un.org)                                                                                                         Article
34: The Security Council may investigate any dispute, or any situation which
might lead to international friction or give rise to a dispute, in order to
determine whether the continuance of the dispute or situation is likely to
endanger the maintenance of international peace and security (legal.un.org)

                      The two countries agreed
to the appointment of a UN Commission to mediate between them. The UN Security
Council urged a cease-fire and a resolution was passed encouraging Pakistan to
withdraw its forces from the State of Jammu and Kashmir and when this was
achieved the Indian Government would withdraw its forces as well leaving behind
only a necessary amount to maintain security in the area. The aim was to hold
an internationally supervised plebiscite so that “the final disposition of the State of Jammu and Kashmir will be made in
accordance with the will of the people expressed through the democratic method
of a free and impartial plebiscite conducted under the auspices of the United
Nations” (un.org).      The differences
however made it very difficult to achieve the demilitarisation. The discussions
and negotiations remained regarding when demilitarisation shall be completed
and the size of forces that should be left due to security concerns.           However, the possibility of solving
the Kashmir dispute was reduced by the Cold War geo-political context at the
time. The rivalry and the self-interest of the two Security Council members,
U.S. and Soviet Union, had implications on the voting’s on the Kashmir issue.
Furthermore, U.S. diplomacy efforts with Pakistan and military and economic
assistance increased India’s mistrust and insecurity towards Pakistan and the
U.S as a mediator (Budania 2001:95).                                                                       UN’s mediator role in the
Kashmir dispute was very active in the beginning but continuous failures to
implement the resolutions made it difficult for them to continue.

Perspectives:
conflicting points of view

·        
Pakistani perspective
on the issue

·        
Indian perspective on
the issue

·        
Kashmiri perspective on
the issue

Each
party, China, India and Pakistan, has its own position with regards to Kashmir.
However, in most debates the dispute remains to be a territorial one and the
Kashmiri perspective is often not considered or heard. On the other hand, there
are some complications with regards to the question of representation of the
state of Jammu and Kashmir since the people are also facing an internal
conflict and division. The state of Jammu and Kashmir is split into another
Hindu-Muslim conflict. The Indian administered Kashmir has a Muslim population
of 68,31% while the Hindu population only equals to 28,34% of the total (2011)
(indianexpress.com). However, at the time of the partition the state was under
Hindu rule.                                                                                                             Such
internal division makes it difficult to understand what the Kashmiri people
want. However, the desire for independence has grown among the Kashmiri people
and according to a poll by The Chatham House 74 percent to 95 % of people from
the Muslim Kashmir Valley, where the conflict is centred, would vote for
independence (edition.cnn.com)

Future
recommendations

·        
Drawing lessons from
earlier mediations

·        
The role of China as a
mediator?

It
is evident that the UN Security Council’s attempts to manage an agreement
between the parties on demilitarization and a plebiscite on Kashmir failed.
There are several reasons for India’s preference of bilateral negotiations and
the rejection of China’s offer to act as a mediator in the Kashmir dispute.                                                                                               India
does not want internationalization of the Kashmir issue due to its mistrust to
foreign powers which roots back to US’s diplomacy policy with Pakistan while
engaging as a mediator in the Security Council in the conflict in the 1980s.
India has thus continuously referred back to the Simla Agreement that was
signed by Prime Minister Indira Ghandi and President Zulfikar Ali Bhutto in
1972 emphasizing the importance of bilateral negotiations. Meanwhile, Pakistan
has been trying to internationalize the Kashmir issue which has worsened the
Indo-Pak relationship.                                             If past history is any
guide, it is clear that attempts to resolve the dispute without interference
has not led to any results. Interference of China in the Kashmir conflict is
not without complications either. The bilateral friendship between India and
China has been growing over the years and particularly the China-Pakistan
Economic Corridor (CPEC) has given reasons to strengthen the relation
additionally. On the other hand, that is not the case for the Sino-Indian
relation that stands at a crossroad. They are both emerging powers which mean
increasing competition. In addition, India decided to boycott the Belt and Road
Initiative (BRI) summit that was held in Beijing in 2017 as a response to CPEC
which India claims legitimizes Pakistan’s position on the Kashmir issue. Nonetheless,
China has strong interest in protecting its own investments which mean securing
the region and settling the dispute between the two nuclear countries. CPEC is
one of the main motives behind China’s interest in playing the mediator role in
the Kashmir dispute.

                      Considering
the depth of the Kashmir dispute and the continuous failure of India and
Pakistan’s government to resolve the conflict indicates the need to resolve it
bilaterally in combination with the presence of an external mediator who can
create links between the two, make use of creative incentives and
simultaneously preserve own interests. China could use different strategies to
force India for a possible solution. Such tactics could include:

a)      Both
China and India are currently focusing on economic development. China could use
its economic position in the region to empower India and such economic
competitive corporation would serve both countries. Enable integration through
CPEC.

b)      China
could take advantage of its relations with Pakistan and urge it to take
measures to address India’s cross-border concerns.