Mediation of India Pakistan

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The Future of India-Pakistan Relations:
The Declining Role of Mediation Between
These Rival States
KISHALA SRIVASTAVA
1. INTRODUCTION
II. A LOOK AT THE HISTORY BEHIND THE INDIA-PAKISTAN RELATIONS

A. Mutual Religious Intolerance and Extreme Nationalism
B. The Race to Developing Nuclear Weapons and the Preceding
Wars
C. Water Dispute
D. The Border Dispute Over the Territoryof Jammu and Kashmir
III. THE ROLE OF INTERNATIONAL MEDIATION AND PAST EFFORTS OF

MEDIATION BY THIRD PARTIES
A. An Overview of Mediation
B. Mediation on an International Dispute Level
1. THE UNITED NATION'S MEDIATION EFFORTS IN INDO-
PAKISTANI RELATIONS
2. THE UNITED STATES'MEDIATIONEFFORTS IN INDO-PAKISTANI
RELATIONS
3. CHINA 'S MEDIATION EFFORTS IN INDO-PAKISTANI RELATIONS
IV. EXAMPLES OF SUCCESSFUL MEDIATION IN BORDER DISPUTES
V. THE FAILED ROLE OF MEDIATION IN INDO-PAKISTANI DISPUTE

A. The Deep-RootedAnimosity Between India and Pakistan
B. The Principleof Sovereignty
C. No Viable Candidatesfor Mediator
D. India FavorsBilateralism as Opposed to Third PartyMediation
VI. CONCLUSION
Juris Doctor Candidate at The Ohio State University Moritz College of Law, Class
of 2019; B.A Political Science and B.A. Business Administration, University of Florida.
221
OHIO STATE JOURNAL ON DISPUTE RESOLUTION [Vol. 34:1 20191
I. INTRODUCTION
The states of India and Pakistan, whose bilateral relationship has

drastically transformed the geopolitical landscape of South Asia from the mid-
twentieth century to present day, have a contentious history as a result of a
multitude of factors stemming from the partition of British India in 1947 and
the resulting conflicts since then.' Among the various points of contention are
the arms race to develop nuclear weapons, the religious tension between Indian
Hindus and Pakistani Muslims, and the border dispute over the territory of
Jammu and Kashmir; the last issue will be the main focus of this paper.
The hostility between these two sovereign states has led several actors,
including the United Nations, United States, and China, to attempt to mediate
the disputes in the past; while their efforts were sometimes successful in the
short-term, these actors have failed to resolve the underlying and deep-rooted
conflicts between India and Pakistan? Although the international community
has had past success in mediating disputes between two sovereign states,
especially those pertaining to border conflicts, the role of mediation in
resolving the conflict between India and Pakistan has a bleak future.
Employing mediation techniques will not be successful in alleviating the
tension between these two states because of the deep-rooted and inherent lack
of trust between India and Pakistan, the asymmetrical power balance in terms
of economy and military strength, and the inability of either state to trust a
mutual third party to mediate the disputes.
This paper will illustrate how the deep-rooted animosity between
India and Pakistan, which has intensified the issues plaguing the bilateral
relationship, will not be resolved by mediation techniques employed by third
party actors, such as international organizations and individual states. Part II
of this paper will address the history of Indo-Pakistani relations, beginning
with the partition of British India and continuing to expound upon the points
of contention, including religion and nationalism, the development of nuclear
'See Asad Hashim, Timeline: India-Pakistan Relations, AL JAZEERA (Feb. 27, 2014),
http://www.alj azeera.com/indepth/spotlight/kashmirtheforgottenconflict/2011/06/201161
5113058224115.html (providing a chronological timeline of significant events in the
history of Indo-Pakistani relations, starting with the partition of British India into India and
Pakistan, and ending with formal talks in 2014 between the states' respective leaders
discussing future bilateral relations).
2 See AMIT DHOLAKIA, THE ROLE OF MEDIATION IN RESOLVING INDIA-PAKISTAN
CONFLICT: PARAMETERS AND POSSIBILITIES 53 (2005). See generally India Rejects China's
Mediation Offer on Kashmir, AL JAZEERA (July 13, 2017),
http://www.alj azeera.com/news/2017/07/india-rejects-china-mediation-offer-kashmir-
170713205330786.html.
222
THE FUTURE OF INDIA-PAKISTAN RELATIONS
weapons, water disputes, and the territorial dispute over Jammu and Kashmir.
Part II will end with a brief summary of present-day relations between the two
states.
Part III will detail past third-party mediation efforts, both successful
and unsuccessful, by the United Nations, United States, and China. Part IV
will provide context for past successful mediation efforts relating to border
disputes, highlight reasons for the successful results, and explain why these
results may not particularly apply to Indo-Pakistani relations. Part V will
demonstrate why mediation techniques will not be successful in the future in
alleviating the tension between India and Pakistan. Finally, Part VI will
succinctly conclude the paper.
II. A LOOK AT THE HISTORY BEHIND THE INDIA-PAKISTAN

RELATIONS
Britain gained control over India through the passage of the

Government of India Act of 1858, under which the British Crown seized
control of India from the East India Trading Company.3 The British Empire
maintained strong control of India as nine provinces and 584 princely states
until the end of World War II in 1945, when Britain lacked the resources and
power to continue to hold control over India.4 Tensions were already rising
between those living under British rule, as two political factions were created:
the Indian National Congress and the All-India Muslim League.' The Indian
National Congress, comprised of majority Hindus, sought a unified state while
the All-India Muslim League, led by Muhammed Al Jinnah, advocated for a
"two-nation theory," dividing into separate territories for Hindus and Muslims
respectively.'
In 1947, the British Parliament enacted the Indian Independence Act,
which partitioned British India into India and Pakistan.' The hasty partition of
India into the Dominion of India (present-day India) and the Dominion of
Pakistan (present-day Pakistan and Bangladesh) was criticized by many as the
3 M. Ramaswamy, Constitutional Developments in India 1600-1955, 8 STAN. L. REv.

326,328 (1956).
4 Brian Farrell, The Role of International Law in the Kashmir Conflict, 21 PENN ST.
INT'L L. REv. 293, 294-95 (2003); Chloe Chaplain, Indian Partition: A BriefHistory of
India and Pakistan on the 70th Anniversary of Independence, EVENING STANDARD (Aug.
15, 2017), https://www.standard.co.uk/news/world/indian-partition-a-brief-history-of-
india-and-pakistan-on-the-70th-anniversary-of-independence-a3612126.html.
s Farrell, supra note 4, at 295.
6 Tayyab Mahmud, Migration, Identity & the Colonial Power, 76 OR. L. REv.
633,
674-75 (1997).
7 Indian Independence Act
1947, 10 & 11 Geo. 6 c. 30 (Eng).
223
British Crown failing to ensure a peaceful transfer of power.s Britain was

largely condemned for failing to take into consideration issues such as border
9
rights, citizenship, and division of assets, among others. As British India was
partitioned based on religious lines, millions of people, fearing religious
persecution, were forced to flee their homes in order to gain refuge in the
0
respective state that supported and protected their religious beliefs.' Hindus
who were inevitably caught in newly-formed Pakistan were murdered, while
Muslims still in India were killed by militants observing Hinduism or
Sikhism."
Understanding the initial tension between Hindus and Muslims living
under British rule as a result of the poorly planned partition of India in 1947
is essential in analyzing the various points of contention between modern-day
India and Pakistan. This underlying tension has led to great animosity between
the two states. The remainder of Part II focuses on specific issues: religion and
nationalism as they go hand-in-hand, the arms race to develop nuclear
weapons, the water dispute and its resulting enactment of the Indus Water
Treaty, and lastly, the border dispute regarding the territory of Jammu and
Kashmir. Although this list does not encompass the nature of all the conflicts
between these two states, they are the most pressing ones, as they are all
interrelated.
A. Mutual Religious Intolerance andExtreme Nationalism
Since the partition into India and Pakistan, both states have exhibited
actions that can be loosely described as "jingoism" towards each other, but not
on individual levels to the rest of the international community. Jingoism is
defined as "extreme patriotism, especially in the form of aggressive or warlike
foreign policy."12 This form of severe nationalism is rooted in religious
a See William Dalryple, The Great Divide, THE NEW YORKER (June 29, 2015),
https://www.newyorker.com/magazine/2015/06/29/the-great-divide-books-dalrymple.
See generally Alex Von Tunzelmann, Who Is to Blame for the Partition?Above All,
Imperial Britain, N.Y. TIMES (Aug. 18, 2017),
https://www.nytimes.com/2017/08/18/opinion/india-pakistan-partition-imperial-
britain.html (drawing a parallel to how the British Empire ran India to how they hastily
transferred power without thinking of the ramifications).
9
See The Partitionof India: The Unruly End ofEmpire, ECONOMIST (July 19, 2007),
http://www.economist.com/node/9507188 ("The decision to divide India on religious lines
was taken with regret but little foreboding and carried out with outrageous haste and
unconcern by the British government and its viceroy in India, Lord Mountbatten.").
10 See id.
" Jeffirey Weiss, India and Pakistan- A CautionaryTale for Israel and Palestine, 18
CONN. J. INT'L L. 455,459 (2003).
2 Jingoism, OXFORD ENGLISH DICTIONARY (2d ed. 1989).
224
intolerance towards each other; Hindu-dominated India versus Muslim-

dominated Pakistan. Not only is it evident in the states' treatment of each
other, but also their internal treatment of religious minorities. The religious
differences were exacerbated by the dispute over Jammu and Kashmir, which
is a state located in the Himalayan mountains between India and Pakistan.13
Although India is officially a secular state, religion plays a large role
in politics and the democratic process.' 4 Roughly eighty percent of Indians are
Hindus, with the other twenty percent being comprised mainly of Muslims,
Christians, and Sikhs.' 5 Although religious freedom and pluralism is
guaranteed under the Indian Constitution, religious minorities in India have
long faced persecution by the religious majority.1 6 Recently, the Indian
government has come under fire by the Human Rights Watch, a non-
governmental organization which advocates for universal human rights."
According to the Human Rights Watch, the Indian government was complicit
and failed to investigate attacks on religious minority groups by Hindu
extremists.' 8 It does not seem as if violence against religious minorities,
especially Muslims, will decrease in the near future as the current political
party in power, Bharatiya Janata Party, has increasingly been making
inflammatory comments regarding Muslims in India.'9
Religious intolerance and persecution of minorities has long occurred
in Pakistan as well. The British partitioned India into India and Pakistan to
give Muslims a state where they would be free of religious persecution. 20
'3 Manjeet S. Pardesi & Sumit Ganguly, The Rise of India and the India-Pakistan
Conflict, 31 FLETCHER F. WORLD AFF. 131, 135 (2007) (at the time of the partition, the
state of Jammu and Kashmir was geographically in India, but had a majority Muslim
population, with a significant number of Hindus and Buddhists living there).
14 See Religious Intolerance in India, N.Y. TIMES (Dec. 25, 2014),
https://www.nytimes.com/2014/12/26/opinion/religious-intolerance-in-
india.html?mtrref=www.google.com&assetType=opinion.
'sId
16See generally id
" See generally India: Unchecked Attacks on Religious Minorities, HUMAN RIGHTS
WATCH (Jan. 18, 2018), httpsi/www.hrw.org/news/2018/01/18/india-unchecked-attacks-
religious-minorities.
I SId
19 Aritry Das, BJPLawmakers Continue TargetingIndia'sReligious Minorities,ASIA
TIMES (February 8, 2018, 3:43 PM), http://www.atimes.com/article/bip-lawmakers-
continue-targeting-indias-religious-minorities/ (Member of Parliament Vinay Katiayr
stated, "Why do the Muslim need to stay in this country when a partition was created based
on [the religions of the] population? They were given a separate piece of land. So they
should go to Pakistan or Bangladesh; what purpose do they have here?").
* See generally Mohammed Hanif, Pakistan, Land of Intolerant,N.Y. TIMES (Oct.
19, 2017), https://www.nytimes.com/2017/10/19/opinion/pakistan-muslims-
ahmadis.html.
225
OHIO STATE JOURNAL ON DISPUTE RESOLUTION [V ol. 34:1 2019\
Ironically, religious minorities in Pakistan continue to be persecuted and

attacked. The Ahmadis, people adhering to a smaller sect of Islam, were
officially deemed by Pakistan's Parliament in 1974 to be "non-Muslims.""
Since then, Ahmadis have been legally and socially persecuted, subject to anti-
Ahmadi ordinances in Pakistan's Penal Code, and denied the right to even use
basic greetings such as "Assalam Alaikum."22 Pakistan has been scrutinized
by the international community for its strict blasphemy laws, which have
disproportionately targeted religious minorities."
B. The Race to Developing Nuclear Weapons and the

Preceding Wars
Since the partition in 1947, India and Pakistan have engaged in three
official wars before the development of nuclear weapons by both sides and
skirmishes after the development and testing of nuclear weapons by both
states.24 The first war between the states was fought in 1947, when lashkars
(armed tribesmen) from Pakistan entered Jammu and Kashmir, which was
largely independent at that time as it neither acceded to Pakistan nor India. The
Maharaja (ruler) of Jammu and Kashmir asked the Indian government for
military assistance in exchange for agreeing to officially accede to India.2 The
accession of Jammu and Kashmir to India is hotly disputed, as there are claims
that the Maharaja acceded under military pressure by India and the inhabitants
of Jammu and Kashmir, who are majority Muslim, were not treated fairly as
26
they were placed under the control ofthe Indian government. This war ended
in 1949, when the United Nations intervened and arranged for a ceasefire,
establishing a ceasefire line." This will be elaborated upon further in Part II.C.
The second war between the states erupted in 1965, which resulted in
a ceasefire brokered by the United Nations (UN). 28 Although this was initiated
by a border control clash, it resulted in thousands of Pakistani soldiers crossing
21 Id
2 Rabia Mehmood, Bigotry Against Ahmadis, a Constant in Pakistan, AL JAZEERA

(Dec. 18, 2016), https://www.aljazeera.com/indepth/opinion/2016/12/bigotry-ahmadis-
constant-pakistan-1612181.13353263.html.
2 What Are Pakistan's Blasphemy Laws?, BBC NEwS (Nov. 6, 2014),
http://www.bbc.com/news/world-south-asia-12621225.
'See Hashim, supranote 1 (this timeline is a brief overview of all ofthe major events
between India and Pakistan since their respective inceptions in 1947).
2
s Id.; Ali Khan, The Kashmir Dispute: A Planfor Regional Cooperation, 31 CoLUM.
J. TRANSNAT'L L. 495, 508 (1994).
I Hashim, supranote 1.
27 Id
2 Id
226
into Jammu and Kashmir.29 In response to the presence of Pakistani soldiers,

the Indian government ordered soldiers to cross the national border of Pakistan
into Lahore.30 The United Nations Security Council adopted Resolution 209,
requesting both governments to comply with the United Nations Military
Observer Group in India and Pakistan (UNMOGIP).31
The third major war took place in 1971 as a result of India invading
East Pakistan and supporting Bengali insurgents (present-day Bangladesh),
citing humanitarian reasons for the intervention. 2 After Pakistan initiated a
military crackdown, thousands of people fled to India. 33 The result of this war
was not only the establishment of Bangladesh as a sovereign state, but also the
enactment of the Simla Agreement.' The Simla Agreement was precedential
because it was the first effort to settle disputes between the two states through
peaceful, bilateral means." Additionally, the Simla Agreement established the
"Line of Control," which essentially divided Jammu and Kashmir between
India and Pakistan.36
After the war in 1971, both India and Pakistan developed nuclear
weapon capabilities.3 7 In 1998, both India and Pakistan conducted nuclear
tests.3 8 Alarmed by the respective nuclear capabilities, the United Nations
Security Council passed Resolution 1172, which not only condemned nuclear
tests by the two states, but also attempted to convince them to become parties
to the Non-Proliferation Treaty. 39
The last, but limited war, commonly known as the Kargil War,
occurred in 1999, when Pakistani militants occupied various points along the
2 Id
30
Id
31 India-Pakistan Background UNITED NATIONS,
https://peacekeeping.un.org/mission/past/unipombackgr.html.
32 Khan, supra note 25, at 497 (citing RICHARD SISSION & LEO E. ROSE, WAR AND
SECESSION: PAKISTAN, INDIA AND THE CREATION OF BANGLADESH (1990)).
33 Id
' Hashim, supra note 1 ("The Simla Agreement designates the ceasefire line of
December 17, 1971, as being the new 'Line-of-Control (LoC)' between the two countries,
which neither side is to seek to alter unilaterally, and which 'shall be respected by both
sides without prejudice to the recognised position of either side.'").
" Khan, supra note 25, at 523-24.
36
Id at 525-26.
3 See generally Adam Packer, Nuclear Proliferation in South Asia, 38 COLUM. J.
TRANSNAT'L L. 631,634-35 (2000).

38
Farrell, supra note 4, at 306.
39
S.C. Res. 1172, 17 (June 6, 1998) (Operative clause seven states "Calls upon India
and Pakistan immediately to stop their nuclear weapon development programmes, to
refrain from weaponization or from the deployment of nuclear weapons, to cease
development of ballistic missiles capable of delivering nuclear weapons and any further
production of fissile material for nuclear weapons").
227
OHIO STATE JOURNAL ON DISPUTE RESOLUTION [Vol. 34:120191
Indian side of the Line of Control." This conflict ended when the United States
conducted a diplomatic, not military, intervention and pressured Pakistan to
41
remove its troops from Indian territory along the Line of Control.
Since the Kargil War in 1999, there have been a substantial amount of
skirmishes, but none that amount to a full-scale, or even limited, war.42 One of
the more notable events that took place to truly upset Indo-Pakistani relations
was the 2008 attack on Mumbai, where armed militants opened fire on
civilians at many prominent locations in the city, even holding civilians
hostage for three days in a hotel.4 3 It is not officially known whether the
gunmen acted upon orders by the Pakistani government." Although the
Pakistani government vehemently denied any involvement by Pakistani
intelligence agencies, the government admitted to the possibility of the attacks
being planned in Pakistan, as one of the attackers was allegedly part of
Lashkar-e-Taiba, a well-known terrorist group originating in Pakistan. 45 Since
then, tensions have not risen to an alarming level; it should be noted that
nuclear war in the South Asia geopolitical region seems less likely as a result
of the concept of mutually assured destruction. Mutually assured destruction,
a doctrine that came out of the Cold War Era, states that under reciprocal
deterrence, either side has the capability to strike back in response to a nuclear
attack."
C. Water Dispute
One of the major points of contention between India and Pakistan is

over water rights; several hydroelectric power plants have been disputed over,
which is addressed in the Indus Water Treaty of 1960. 4 This situation
illustrates an example of relative success of a mediator in Indo-Pakistani
relations. The World Bank, an international organization, mediated the dispute
' Sheila Rajan, The Prospect of Third-Party Mediation of the Kashmir Dispute: Is
There a Way to Re-engage India in a FacilitatedDiscussion?, DIGITAL COMMONS MICH.

ST. U. C.L. 12 (2005).
" Holger Wenning, Kashmir: A Regional Conflict with Global Impact, 1 N.Z. J. PUB.
& INT'L. L. 197,200-01 (2003).
' Hashim, supra note 1.
4 Id
4 Id
" Keith Norman, MAD: Mutually Assured Destruction, 58 ALA. LAW. 8 (1997).
4
Dr. Waseem Ahmad Quresh, The Indus Water Treaty and the Role of World Bank
as the Mediator, 24 WILLAMETTE J. INT'L L. & DISP. RESOL. 211, 212-215 (2017)
(explaining that the Indus Water Treaty was enacted as a result of the struggle over fresh
water in that region; each state was granted control over three rivers; however, the conflict
is rooted in the use of Pakistan's river water as the river first flows through India).
228
and helped both states ratify the treaty in 1960.4 The World Bank was
especially effective in foreshadowing potential conflicts that could occur after
the treaty had been ratified. The treaty stipulates that each state may use waters
from the other state's respective rivers in four ways: agriculture, domestic use,
hydroelectricity, and nonconsumptive use. 49 The World Bank demonstrated
effective mediation by a third party by brokering a relatively fair agreement
while also establishing its continued role in the water dispute."
Recently, both parties have appealed to the World Bank to resolve a
dispute. Pakistan alleges that India's construction of hydroelectric plants on
Pakistan's rivers is hindering Pakistan's ability to provide adequate
irrigation.5 1 However, both states rejected a mediation offer, as advised by
World Bank, because they want different means of dispute resolution.52
Pakistan seeks reconciliation through the Court of Arbitration, while India
seeks the appointment of a neutral third party. 53
The World Bank's mediation of Indo-Pakistani tension over water
disputes has been viewed as largely successful. However, it is unlikely that
these types of mediation techniques will prove to be effective when tackling
larger issues, such as the de-escalation of nuclear tension and the border
dispute over Jammu and Kashmir.
D. The Border Dispute Over the Territory of Jammu and

Kashmir
The deepest underlying cause of the animosity between India and

Pakistan is the everlasting dispute over the region of Jammu and Kashmir
(hereinafter "Kashmir"). Most of the issues between the two states are rooted
in the continuous fight over Kashmir. Since the partition in 1947, two of the
three wars have been fought over ownership and presence in the disputed
territory." To understand why this territory is so desperately fought over, it is
8 Id at 216.
49
1d at 217.
50 Id at 218-219. The World Bank is responsible for appointing a neutral party for
conflict resolution, managing a trust fund to compensate the neutral party, and establishing
a Court of Arbitration. Id
5' Id at 223-224. The construction of the hydroelectric plants are disturbing the
natural flow of the rivers and hence hindering the irrigation system. Id Additionally,
Pakistan is worried that India's obstruction of the flow of water could serve as a pressure
point for Pakistan in times of war and conflict. Id
5
2 Id at 224.
5 Id
54 Anthony Wanis St. John, The MediatingRole in the Kashmir DisputeBetween India.
and Pakistan, 21-SPG FLETcHER F. WORLD. AFF. 173,174 (1997).
229
important to look at the history of the region since the partition of British India
into India and Pakistan.
The state of Kashmir is located in the Northern Himalayan mountain
range and is adjacent to both India and Pakistan. 55 In 1947, after the British
formally partitioned British India into the two states, the Kashmiri population
was over seventy percent Muslim, but it was ruled by a Maharaja Hari Singh,
a Hindu ruler.5 6 At the time of independence, Maharaja Singh was dedicated
to securing autonomy for Kashmir.57 However, when a group of Muslim
tribesmen invaded Kashmir in October 1947 and Maharaja Singh was
unprepared to defeat them, he requested India's military aid. 58 In return for
providing troops and military support, India requested that Maharaja Singh
formally accede Kashmir to India.59
Following this accession of Kashmir to India, both India and Pakistan
continued to fight over the region, resulting in a stalemate after Pakistan sent
troops into India and India launched a counterattack.W This led to the UN
intervening and brokering a ceasefire in 1949; the lines drawn split Kashmir
into Azad Kashmir, which came under Pakistani control; and the Kashmir
Valley, Jammu, and Ladakh, which remained under Indian control.6 1 China
currently owns a portion of Kashmir as well."
In 1965, the two states once again clashed over control over Kashmir,
this conflict erupted when Indian forces invaded West Pakistan after Pakistan
launched "Operation Grand Slam," in which they intended to attack a bridge
that linked a vital city in Kashmir to India. 63 Following weeks of fighting, the
UN proposed a ceasefire; however, this proved ineffective as both sides
continued to violate the ceasefire." At the time, both the United States and the
5 Id
56 Id at 174-175; LESLEY TERRIS, MEDIATION OF INTERNATIONAL CONFuCrS: A
RATIONAL MODEL 139 (2017).
57
TERRIS, supra note 56, at 139.
s8 Id at 139-40 (explaining that the group of tribesmen invaded Kashmir after the
Maharaja's government quashed a rebellion by the Muslim majority in September 1947.)
After the Mahajara requested aid from India, the Indian government sent troops, military
equipment, and supplies to Kashmir. Id
9
Id at 140.
* Id
61
Id; Ather Zia, ErasingKashmir'sAutonomous Status, AL JAZEERA (Aug. 14, 2017),
http-//www.aljazeera.com/indepth/opinion/2017/08/erasing-kashmir-autonomous-status-
170813093425950.html.
62
Katie Hunt, India and Pakistan'sKashmir Dispute: What You Need to Know, CNN
(Sept. 27, 2017), https:J/www.cnn.com/2016/09/30/asia/kashmir-explainer/index.html
(explaining that China currently owns a portion of Kashmir called "Aksai Chin").
63
TERRS, supra note 56, at 153.
6 Id
230
Soviet Union, seeking to expand their influence in the Indian subcontinent,

expressed interest in mediating the conflict. 65 The Soviet Union ultimately led
both states to agree to the Tashkent Declaration, which was signed on January
10, 1996.6 Under this agreement, both states agreed to withdraw their forces
from the other state's respective territory, return any prisoners of war to their
respective states, and maintain peaceful diplomatic relations.67 The end of the
Indo-Pakistani War of 1965 illustrates an example of a relatively successful
application of international mediation techniques by the Soviet Union;
however, merely five years later, the two states would begin fighting again-
this time over the Bengali protests in East Pakistan in 1971.68 As previously
mentioned in Part II.B, India and Pakistan fought a brief war in 1999, when
Pakistani troops crossed the Line of Control into Indian-occupied Kashmir.69
Since 1999, there has not been a full-scale war between India and
Pakistan over Kashmir; however, there has been a multitude of skirmishes that
were resolved relatively quickly, along with several peace talks between the
leaders of the two states. 70 Recently, there have been a few small conflicts with
solider deaths.7 ' However, the dispute over Kashmir remains to be, the
forefront issue between India and Pakistan.
65
1Id at 156 (explaining that the United States ultimately was not
the ideal candidate
for mediating this dispute. The United States was preoccupied with its involvement in
Vietnam at the time. Additionally, the United States was not perceived to be a neutral
mediator by India because it had previously supported Pakistan by supplying weapons and
support).
* United Nations Security Council, Letter Dated Mar. 24, 1966 from the Permanent
Representative of India Addressed to the President of the Security Council, U.N. Doc.
S/7221 (Mar. 25, 1966). The letter details the Tashkent Declaration, under which the Prime
Minister of India and President of Pakistan at the time "hereby declare[d] their firm resolve
to restore normal and peaceful relations between their countries and to promote
understanding and friendly relations between their peoples." Id
67
TERRIS, supra note 56, at 157.
6 Id at 158.
' Hashim, supra note 1.
70 See Kashmir Fast Facts, CNN (Mar. 19, 2017),
https://www.cnn.com/2013/11/08/world/kashmir-fast-facts/index.html. For example, in
2001, India ended a six-month ceasefire and invited Pervez Musharraf to engage in peace
talks. Id Although both states have met multiple times to discuss the conflict in Kashmir,
they have not had success in either producing a joint statement and agreement on Kashmir
or ending the hostilities between the states. Id Most recently, both India and Pakistan have
relocated their respective populations to safer locations, as there has been an exchange of
fire. Id
" See India-Pakistan Relations, N.Y. TIMES (Aug. 26, 2018),
https://www.nytimes.com/topic/destination/indiapakistan-relations (discussing that, more
recently, there has been cross-border clashes that have resulted in both civilian and soldier
deaths. Additionally, India has resorted to force in quelling Kashmir protests).
231
III. THE ROLE OF INTERNATIONAL MEDIATION AND PAST EFFORTS

OF MEDIATION BY THIRD PARTIES
A. An Overview of Mediation
Mediation, one of the most commonly used alternative dispute

resolution techniques employed in the international community, relies on the
intervention and support of a neutral third party who is completely external to
the conflict and has no self-interest.72 Mediation is preferred over arbitration
in the international community because it has a less binding impact, which
73
allows states to retain their sovereign and autonomous natures.
There are various factors that are essential in the success of employing
mediation techniques. These factors include autonomy and voluntariness,
confidentiality, the freedom to exit the mediation process, and neutrality of the
mediator. 74 For a successful mediation to occur, the mediation must be wholly
voluntary for both parties.75 The parties must feel as if they are in control of
the process; therefore, they must agree to refer their dispute to a mediating
party on their own.76 A foundational characteristic of mediation is
77
confidentiality not only among parties, but also with the mediator. The
promise of confidentiality not only builds trust among the parties, but also
allows the parties to speak and act candidly to come to an agreement. 7
Another essential aspect of mediation is the parties' freedom to enter
and leave the mediation process at their own discretion. 79 This flexibility
allows mediation techniques to be applied to a variety of disputes, whether
they are territorial, intrastate, or interstate. Additionally, mediation transfers
some of the power of decisionmaking and reaching an agreement back to the
parties, as they can dictate whether they want to participate and give consent
to the mediation process.
Finally, a central aspect of mediation that makes it a successful
alternative dispute resolution technique is the neutrality and impartiality of the
mediator. The mediator's neutrality is vital in the process because they are
7 GLOBAL PERSPECTIVES ON ADR 43 (Carlos Esplugues & Silvia Barona eds., 2014).
7 See id at 44-45.
74 Id at 44.
75
Id at 44-45.
76
1d at 43-44.
" Id at 45-46.
' Id (stating confidentiality is an "essential ingredient in mediation"). The promise
of confidentiality also alleviates any concerns by parties that the information provided will
be used against them in later proceedings. Id
79 Id at 45.
8" Id
232
expected to both assume an operational role in helping the parties reach an

agreement and serve as a catalyst for a channel of communication. 8
'
Additionally, as parties seek out a credible mediator, two factors are
considered: (1) the trustworthiness of the mediator; and (2) the mediator's
capability of implementing the agreement.' Without the presence of these two
factors, mediation is unlikely to be successful.
B. Mediation on an InternationalDispute Level
Mediation is one of the more successful alternative dispute resolution

techniques to employ on an international level, as it is not only flexible in its
varying degrees, but also allows states to preserve their sovereignty. The
mediator is tasked with actively participating in settlement discussions,
offering proposals, and communicating the terms of the agreement to each
83
party.
There are five types of mediators that are typically involved in
international disputes: (1) international organizations (e.g., the UN, World
Trade Organization); (2) regional governmental organizations (e.g.,
Organization of American States, European Union); (3) individuals (e.g., U.
Thant); (4) states (in the instant issue, China and United States); and (5) non-
governmental organizations." In the case of India and Pakistan, only
international organizations (the UN) and individual states (Soviet Union in
'1965 and the United States to an extent) have been relatively successful in
mediating the disputes.
The three critical actors that will be discussed here are the UN, the
United States, and China. All three potential mediators have mediated disputes
between India and Pakistan in the past, although some not successfully. Due
to the intensity of the animosity and disputes between India and Pakistan, it
seems as if only an international organization or individual state will possibly
be successful in mediating the issues between the two states, because both
third-party actors have relative strength and influence.
81
Id at 47 (explaining that the mediator assumes an "equidistant role" by maintaining
a safe distance from the parties and is prohibited from developing a relationship with either
party that would show preference toward them).
" TERRIS, supra note 56, at 9.
8 J. G. MERRILLS, INTERNATIONAL DISPUTE SETTLEMENT 26 (6th ed. 2017).
" Id at 27 (giving the example of the International Committee of the Red Cross
mediating disputes involving humanitarian conflicts, with the addition of non-
governmental organizations as a potential mediator); Molly M. Melin, When States
Mediate, 2 PENN ST. J.L. & INT'L AFF. 78,79 (2013).
233
1. THE UNITED NATION'S MEDIATION EFFORTS IN INDO-

PAKISTANI RELATIONS
Although the UN, with the exception of the Security Council, lacks
binding authority, the organization places a high emphasis on the importance
of mediation in peacekeeping and dispute resolution. The UN published an
extensive guide on international mediation, which emphasizes the importance
of factors such as preparation, consent by the participating parties, neutrality,
and inclusiveness. 85 There are three actors within the UN that are involved in
international mediation processes: the Security Council, who passes binding
resolutions; the General Assembly; and the Secretariat (specifically the
Secretary General).
The UN has been involved in Indo-Pakistani affairs since the
beginning of the dispute. In response to the war that erupted in 1947, the UN
Security Council adopted Resolution 39, which established the United Nations
Commission for India and Pakistan (UNCIP) " to monitor and mediate the
dispute over Kashmir." UNCIP is comprised of representatives from
Argentina, Belgium, Colombia, Czechoslovakia, and the United States.89
Following Resolution 39, both India and Pakistan became parties to the
Karachi Agreement, which established a ceasefire line that would be
maintained and supervised by military observers.90 The UN deployed military
advisors to Kashmir to aid the two states in drawing the line and dividing
Kashmir into respective territories.9 ' The United Nations Military Observer
Group in India and Pakistan (UNMOGIP) was formed to both continue the
responsibilities of UNCIP after its dissolution and observe the ceasefire in
Kashmir." UNMOGIP still exists today.9 3 The UN also intervened in the Indo-
Pakistani War of 1965, brokering a ceasefire and adopting Resolutions 209
8s Guidance for Effective Mediation, UNITED NATIONS (2012),

https://peacemaker.un.org/sites/peacemaker.un.org/files/GuidanceEffectiveMediation_U
NDPA2012/o28english%29_0.pdf.
" MERRILLS, supra note 83, at 235.
" S.C. Res. 39 (Jan. 20, 1948).
"8 India-Pakistan Background, UNITED NATIONS PEACEKEEPING,
https-//peacekeeping.un.org/mission/past/unipombackgr.html (last visited Sept. 22, 2018).
89 ROBERT GORMAN, GREAT DEBATES AT THE UNITED NATIONS: AN ENCYCLOPEDIA
OF FIFTY KEY IssuEs 1945-2000 87 (2001).
" India-Pakistan Background, UNITED NATIONS,
https://peacekeeping.un.org/mission/past/unipombackgr.html (last visited Sept. 13, 2018).
91 TERRIS, supra note 56, at 145.
1 India-PakistanBackground, supra note 88.
* For more information on UNMOGIP, see UNMOGIP FactSheet, UNITED NATIONS
PEACEKEEPING, https://peacekeeping.un.org/en/mission/unmogip (last visited Oct 30,
2018).
234
and 210.' Following the nuclear tests conducted by India and Pakistan in
1998, the UN Security Council adopted Resolution 1172, which condemned
both states for testing nuclear capabilities, demanded that both states
discontinue testing, and calling on both to become members of the Treaty on
the Non-Proliferation of Nuclear Weapons.9 5
The UN's recent mediations effort proved to be futile, as it lacked
leverage and resources to not only provide the support needed by the two
states, but also to influence India and Pakistan to cooperate peacefully.' It is
unlikely that the UN will evolve into an effective mediator in the future.
2. THE UNITED STATES' MEDIATION EFFORTS IN LvDO-

PAKSTANIRELATIONS
Throughout history, the United States has played an active role in

Indo-Pakistani relations; however, the United States has not consistently
supported the same state, which has led to relative distrust by both India and
Pakistan regarding the United States' role as an unbiased mediator.9 7
The United States became involved in South Asia during the Cold
War, when the Soviet Union invaded Afghanistan. The invasion pressured the
United States to militarily back Pakistan to preserve their interests in the
region.9 8 In response to Pakistan's newly acquired military equipment, India
purchased military equipment and arsenal from the Soviet Union to retain its
advantage over Pakistan.9 At the end of the Cold War, India ceased relations
with the Soviet Union and moved its focus toward developing economic
relations with the United States.100
The United States' relationship with India worsened when the United
States condemned and placed economic sanctions on India following the
latter's nuclear tests in 1998.101 India's reluctance to view the United States as
94 India-Pakistan Background, supra note 88. As previously discussed, Resolution

209 requested the Indian and Pakistani governments to comply with UNMOGIP. See supra
note 31 and accompanying text. Resolution 210 called upon India and Pakistan to cease
hostilities and retreat their armed forces to their previous locations. S.C. Res. 210, ¶ 1
(Sept. 6, 1965).
95 S.C. Res. 1172 (June 6, 1998).
9 See TERRIS, supra note 56, at 145.
m See DHOLAKIA, supra note 2, at 53-70.
9 Id
99Id at 54.
1*" Neal Gidvani, The Peaceful Resolution of Kashmir: A United Nations Led Effort
for Successful International Mediation and a Permanent Resolution to the India-Pakistan
Conflict, 18 TRANSNAT'L L. & CONTEMP. PROBS. 721, 742 (2009).
101 US.-India Relations, COUNCIL ON FOREIGN RELATIONS,
https://www.cfr.org/timeline/us-india-relations (last visited Sept. 13, 2018).
235
OHIO STATE JOURNAL ON DISPUTE RESOLUTION (Vol. 34:1 20191
an ally was eased when the United States intervened in the 1999 Kargil War;
the Clinton Administration pressured Pakistan to withdraw its forces and
retreat behind the Line of Control. 102 Additionally, under the Bush
Administration, the United States lifted the 1998 economic sanctions
03
following the 9/11 attacks as a sign of good faith. Since then, the United
States has had relatively stable relationships with both India and Pakistan.
The United States' future involvement as a mediator between India
and Pakistan is uncertain under the Trump Administration. At the earliest
stages of the Trump Administration, it was perceived that the United States
would be a neutral party, attempting to broker peace between the two states.10
However, the United States has recently chilled its relationship with Pakistan
and is growing warmer towards India.
On January 1, 2018, the President of the United States tweeted that the
United States intended to cut off aid to Pakistan, stating that Pakistan provides
shelter to terrorists; in response, Pakistan's foreign minister called United
States the "friend who always betrays."' 05 This exchange shows that Pakistan
would not view the United States as a neutral mediator.
Although the United States, one of the world's leading superpowers,
has the influence, money, and capabilities of serving as a mediator between
India and Pakistan, the United States' recent favoritism toward India makes it
an unlikely candidate to mediate the conflicts between the two states.
3. CHINA'S MEDIATION EFFORTS IN INDO-PAKISTANI

RELATIONS
China's potential role as a mediator is interesting because, while the

nation does possess the capabilities and influence to serve as an effective
mediator, it lacks the ability to be a neutral party. China has had a contentious
history with India regarding territorial disputes and its support of Pakistan.
10 Rahul Roy-Chaudhury, The United States' Role and Influence on the India-
PakistanConflict, DISARMAMENT FORUM: INDIA AND PAKISTAN: PEACE BY PIECE, 33-34
(2004), https://www.peacepalacelibrary.nl/ebooks/files/UNIDIRjpdf-art2l l7.pdf.
Gidvani, supranote 100, at 743.
'03
104 See India Rejects US Offer to Mediate with Pakistanon Kashmir Issue, TIMES OF
INDIA (Apr. 5, 2017), https://timesofindia.indiatimes.com/india/india-rejects-us-offer-to-
mediate-with-pakistan-on-kashmir-issue/articleshow/58018616.cms.
" Javid Ahmad, Mistrust Is the OriginalSin of US-PakistanRelations, THE HILL,
(Jan. 8, 2018, 3:45 PM), http://thehill.com/opinion/intemational/367943-mistrust-is-the-
original-sin-of-us-pakistan-relations.
236
India and China have had various border disputes in the areas of Aksai
Chin in Kashmir and Arunachal Pradesh,106 which have led to wars and
increased tension between the two states.107 In 1962, Sino-Indian relations
worsened as the two states engaged in deadly war over the territory of
Doklam'OS and since then, both states have been on high alert in the disputed
regions.'". Each side has deployed and stationed troops along the nation's
shared border, although the exact number of troops is unknown." 0
Additionally, India's relationship with Tibet continues to be a source of
contention. 1" The Dalai Lama has been living in India for the past several
decades, establishing his base in Dharamsala." 2
Since the establishment of Sino-Pakistani relations in 1951, the two
states have been strong allies, both militarily and economically." 3 During two
of the Indo-Pakistani wars, China provided Pakistan with tremendous military
and development assistance, evidently taking Pakistan's side." 4 Additionally,
China played a pivotal role during the nuclear arms race between India and
' 0 Arunachal Pradesh is a state in India located in the northeast part of the country
and borders China. Deryck O. Lodrick, Arunachal Pradesh,
https://www.britannica.com/place/Arunachal-Pradesh (last visited on Oct.
30, 2018).
107 See generally WILLEM VAN EEKELEN, INDIAN FOREIGN POLICY AND THE BORDER
DISPUTE WITH CHINA 94 (2016).
"0 Doklam is the disputed area between India, China, and Bhutan. Christopher
Woody, Tensions Are Still Simmeringa Year After the World's 2 Biggest CountriesAlmost
Clashedover a Border at the Top of the World, BUSINESS INSIDER (Aug. 22, 2018, 3:40
PM), https://www.businessinsider.com/tensions-between-china-and-
india-continue-year-after-doklam-standoff-2018-8.
109 Steven George, China Holds Live FireDrills, as Border Dispute with India Enters
Fifth Week, CNN (Aug. 25, 2017, 12:00 AM),
https://www.cnn.com/2017/07/19/asia/india-china-border-standoff/index.html.
10 Julie McCarthy, In a Remote Himalayan Corner, Tensions Rise Between India and
China NPR (July 10, 2017, 6:17 PM),
https://www.npr.org/sections/parallels/2017/07/10/535976567/in-a-remote-himalayan-
corner-tensions-rise-between-india-and-china.
"' Tanvi Madan, India's Relation with China: The Good the Bat and the
(Potentially) Ugly, BROOKINGS (Oct. 8, 2013),
https-//www.brookings.edu/opinions/indias-relations-with-china-the-good-the-bad-and-
the-potentially-ugly/.
112 Sugam Pokharel, DalaiLama Caught in the Middle as India and China Reboot
Ties, CNN (Mar. 30, 2018, 8:08 PM), https://www.cnn.com/2018/03/30/asia/india-tibet-
china-dalai-lama-intl/index.html.
113 Raymond Lee, The Strategic Importance of Chinese-PakistaniRelations, AL
JAZEERA (Aug. 3, 2016), http://studies.aljazeera.net/en/reports/2016/08/strategic-
importance-chinese-pakistani-relations-1.60803101555719.html.
114 Id
237
OHIO STATE JOURNAL ONDISPUTE RESOLUTION (Vol. 34:1 20191
Pakistan by guiding Pakistan on nuclear development and providing the

necessary technology and equipment.1 5 In sum, China has aided Pakistan
militarily, economically, and has helped develop Pakistan's infrastructure;
6
India has viewed this as China aligning with and favoring Pakistan."
It is unlikely that China will be an efficient mediator, as one of the
parties does not view it as neutral. Chinese-Pakistani relations appear to
remain stable and their status as economic, military and diplomatic partners
will not change in the foreseeable future. 1 7 This partnership leads India to
remain on edge in regard to developing its relationship with China as a
regional superpower. While India maintains strong economic ties with China,
the countries' relationship is not strong enough for India to trust China to
mediate the Kashmir dispute without letting China's self-interest influence the
situation. Mediation requires the third-party to be a trusted actor, the actor
should not be directly involved in the conflict.! 18 China remains to be engaged
in a territorial dispute with India, and, in the past, has become directly involved
with India and Pakistan's disputes. Therefore, China is not a viable and
appropriate third party to be considered for the role of mediator.
IV. EXAMPLES OF SUCCESSFUL MEDIATION IN BORDER DISPUTES
International border disputes have been successfully mediated in the

past, whether by the UN, independent states, or non-governmental
organizations. Resolving border disputes can be especially complex, as
various factors must be considered; claims to the disputed territory may be
political, economic, cultural, ethnically driven, or religious, sometimes even a
culmination of factors.' 1 9 However, several actors have been successful in
alleviating tensions between two states and resolving their border disputes.
1
5Jamal Afridi & Jayshree Bajoria, China-Pakistan Relations, COUNCIL ON FOREIGN
RELATIONS (July 6, 2010), https-//www.cfr.org/backgrounder/china-pakistan-relations
("China supplies Pakistan with nuclear technology and assistance, including what many
experts suspect was the blueprint for Pakistan's nuclear bomb.").
16 China PakistanTies Driven by Rivalry with India: US Experts, ECONOMIC TIMES
(July 12, 2018, 6:23 PM), https:/economictimes.indiatimes.com/news/defence/china-
pakistan-ties-driven-by-rivalry-with-india-us-experts/articleshow/5140233 8.cms.
" 7 Muhammad Akbar Notezai, Pakistan's Burgeoning Relationship with China, THE
DIPLOMAT (Jan. 24, 2018), https:/thediplomat.com/2018/01/pakistans-burgeoning-
relationship-with-china/.
"8 TERRIS, supra note 56, at 2.
" Approaches to Solving TerritorialConflicts: Sources, Situations, Scenarios and
Suggestions, CARTER CENTER (2010),
https://www.cartercenter.org/resources/pdfs/news/peace_publications/conflictresolution
/solvingterritorial conflicts.pdf.
238
An example of a successful mediation of border disputes is the UN's

intervention and mediation of the Cameroon-Nigerian border dispute in
2006.120 The states were disputing sovereignty over the Bokassi Peninsula and
areas surrounding Lake Chad.121 In 2006, Kofi Annan, the UN Secretary
General at the time, brokered an agreement between Cameroon and Nigeria
focused on the implementation of an International Court of Justice decision
that recognized Cameroon's rights to the territory.'2 An important factor in
the success of this mediation was the political willingness to cooperate and
resolve the dispute with the aid of a third party.'"
Another example of a previous successful mediation was between
Argentina and Chile. The two nations had been involved in a long-term dispute
over the Beagle Channel; several countries had attempted to mediate the
dispute in the past, but were unsuccessful. 124 In 1979, the Act of Montevideo
requested Papal intervention and mediation.'25 As a result of the Pope's
mediation efforts, Argentina and Chile signed a Joint Declaration of Peace and
Friendship in 1984.126 By using peaceful methods to settle the dispute, Chile
granted Argentina certain rights to navigation, and both parties agreed to allow
third-state vessels to pass through without any obstacles. 12 Factors that
contributed to the success of this mediation were Argentina's predominantly
Catholic population and the moral authority of the Pope in predominantly
Catholic countries.12
V. THE FAILED ROLE OF MEDIATION IN INDO-PAKISTANI DISPUTE
International disputes, particularly those that are territorial, have been

mediated successfully in the past. This success can be attributed to several
factors including the position of the mediator relative to the parties involved,
the underlying reasoning behind the conflict, the parties trusting the mediator,
and the states' willingness to resolve this conflict with the help of a third party.
India and Pakistan's volatile history will prevent attempts of mediation,
regardless of the type of actor involved, from being successful.
12 Id at 26.
121 Id at 7.
12Id at 26.
2 Id. at 63.
2
4 Id at 23.
125Id
16 Id at 24.
127
2
Id at 24.
1CARNEGIE COMMISSION ON PREVENTING DEADLY CONFLICT, WORDS OVER WAR:
MEDIATION AND ARBITRATION TO PREVENT DEADLY CONFLICT 31.5-16 (Melanie C.
Greenberg et al. eds., 2000).
239
Mediation will not be a viable option in resolving the tension between

the two states for a multitude of reasons: (1) the deep-rooted animosity is
difficult to alleviate; (2) the issue of sovereignty prevents the acceptance of a
mediated resolution; (3) the lack of a viable actor to serve as a mediator due
to a large sense of distrust; and (4) India's focus upon bilateralism as the sole
means of achieving peace between India and Pakistan.
A. The Deep-RootedAnimosity Between India and Pakistan
India and Pakistan's relationship can be characterized by interspersed

periods of stability among tumultuous, hostile periods. Applying mediation
techniques may have worked with India and Pakistan if the root of their
conflict was only one factor. However, as this paper has previously described,
the conflict between India and Pakistan is largely historical, stemming from
the partition of British India to current day; between this time, the two states
have been engulfed in clashes between religions, largely Hinduism and Islam,
and territorial disputes over Kashmir. The culmination of the several factors
listed above have contributed to the deep-rooted animosity between the two
states that will ultimately prevent any third-party attempts to resolve the
conflict.
The underlying tensions have led the two states to treat their
relationship as a zero-sum game, which is defined as "a situation in which one
person or group can win something only by causing another person or group
to lose it."' Both India and Pakistan have held polar opposite views on their
nationalism and security, making it difficult for them to reach an amenable
agreement.130 As far as either side is concerned, there is no third party existing
that has enough influence over them to persuade them to modify their
perception of the opposing state.1 3 1 As ruled out previously, no international
organization (e.g., the UN), state (e.g., The United States or China), or singular
person has the power or influence over these two states. Therefore, it seems
unlikely that a powerful enough third party exists to alleviate the tension
between the two states.
2 Zero-Sum Game, MERRIAM-WEBSTER, available at

https://www.cnn.com/2018/03/30/asia/india-tibet-china-dalai-lama-
intl/index.html (last visited Oct. 30, 2018).
10 DHOLAKiA, supra note 2, at 94 ("When the interests of two parties are not
fundamentally divergent, and the issues of the conflict revolve around the means of
achieving the same goals, it is easier to convince them about the need for an agreement.").
131 Id at 109-10 ("Mediation succeeds when an external actor has controlling
influence over the conflicting parties. Success of a third-party mediation in the case of the
India-Pakistan conflict is doubtful since no single actor ... exercises such controlling
influence over both governments.").
240
B. The Principleof Sovereignty
Similar to many, if not all, of the states in the international community,

both India and Pakistan perceive the notion of state sovereignty to be
sacrosanct. This is illustrated in the Simla Agreement, which, as previously
stated, called for a cease fire in the Indo-Pakistani War of 1971.132 Under this
agreement, which was brokered by the UN, both states promised to resolve
their disputes by peaceful means, which included not interfering in the other's
domestic affairs and respecting territorial bounds and sovereignty. 33 India and
Pakistan take deep pride in preserving their respective sovereignty.
While there is no official definition of sovereignty, multiple variations
exist that can be applied to India and Pakistan. These include sovereignty as
political legitimacy, self-determined national independence, international
recognition, and governance.Y However, generally, India and Pakistan both
regard state sovereignty as the "non-interference in the domestic affairs of
other states."13 5
Interestingly, while both states hold this ideal to highest regard in
terms of the rest of the international community, both have been found to
violate each other's sovereignty at some point.'3 However, India and Pakistan
assert their sovereignty and independence when a third party seeks to intervene
without their permission in either internal affairs or disputes between the two
states.
India and Pakistan have a history in each asserting their own states'
sovereignty on the international realm. As stated previously, India and
Pakistan both conducted nuclear tests in 1998, leading the United Nations
Security Council to pass a resolution condemning both states and strongly
3
m Sandeep Gopalan, India-Pakistan Relations: Legalization and Agreement Design,
40 VAND. J. TRANSNAT'L L. 687, 702 (2007).
33
Id ("[T]he two countries recognized that 'the prerequisite for reconciliation, good
neighborliness and durable peace between them is a commitment by both the countries to
peaceful coexistence, respect for each other's territorial integrity and sovereignty, and
noninterference in each other's internal affairs, on the basis of equality and mutual
benefit."' (quoting Soimla Agreement, India-Pak., para. 2(iii), July 2, 1972, 858 U.N.T.S.
71)).
" Winston P. Nagan & Craig Hammer, The Changing Character of Sovereignty in
International Law and International Relations, 43 COLUM. J. TRANSNAT'L L. 141, 142-44
(2004).
"s Gary J. Bass, The Indian Way of Humanitarian Intervention, 40 YALE J. INT'L L.
226,231 (2015).
136 See generally id In 1970, India intervened in East Pakistan (current-day
Bangladesh) by supporting a Bengali guerilla insurgency, citing humanitarian reasons,
when Pakistan cracked down on the population after a contested election. Id Pakistan has
in the past violated India's sovereignty through the territorial dispute in Kashmir). Id
241
OHIO STATE JOURNAL ON DISPUTE RESOLUTION [Vol 34:1 20191
urging them to sign the Non-Proliferation Treaty. However, despite several

requests to become a signatory to the Non-Proliferation Treaty, India and
Pakistan have both refused to sign it. The terms of the Non-Proliferation
7 which neither India nor
Treaty call for surrendering nuclear capabilities,
Pakistan is willing to do as it results in. giving up partial sovereignty and
security. As past instances have illustrated, neither state is willing to give up
sovereignty if it puts their security and military capabilities at risk. Therefore,
the ideal of state sovereignty will impede the progress and acceptance of any
resolution proposed through mediation efforts.
Applying mediation techniques to an international conflict vastly
differs from applying them to situations such as marital and civil unrest
3
disputes."' As mentioned previously, the international system rests upon the
notion of sovereignty and therefore lacks a formal and binding authority. 9
Mediation requires the voluntary acceptance by both India and Pakistan of a
third party to intervene in a manner in which force is not used and the
agreement is amenable to both parties. Furthermore, unlike arbitration which
is usually binding, a third party can ultimately successfully mediate a dispute
with the outcome being that neither party, or only one, refuses to accept the
resolution."'
Ultimately, if a state, individual, or organization were to successfully
mediate the various disputes between India and Pakistan, it would run the risk
of either party refusing to accept the result. This is highly likely given the
history of failed efforts by the international community of dispute resolution
between these two states. The previous attempts by third parties to mediate the
dispute only temporarily brokered peace between India and Pakistan; they did
not fully resolve the tensions between the two states. It is unlikely that
mediation efforts will resolve this multi-faceted, deep-rooted dispute between
two longtime rivals.
1" See generally Treaty on the Non-Proliferation of Nuclear Weapons (NPT),

NUCLEAR THREAT INITIATIVE (July 25, 2017), http:/www.nti.org/learn/treaties-and-
regimes/treaty-on-the-non-proliferation-of-nuclear-weapons/ (summarizing the Non-
Proliferation Treaty's three elements: 1) states without nuclear weapons will not seek to
acquire them; 2) states currently with nuclear weapons will take steps towards disarmament
and; 3) all states have the ability to access nuclear technology for peaceful purposes).
138 TERRIS, supra note 56, at 2.
139Id ("Constituting sovereign entities, actors in the international system enjoy
exclusive autonomy in internal affairs as well as in foreign policy decisions; thus, they are
largely independent in their conduct of the two most fundamental activities that
characterize relations among actors in the system, cooperation and conflict.").
14 Id at 5 (explaining mediation is susceptible to a high risk of failure and is costly to
all parties involved, including mediators, who put their reputations at risk and might have
to expend invaluable resources).
242
C. No Viable Candidatesfor Mediator
The most pressing reason as to why mediation will fail in resolving

the multitude of disputes between India and Pakistan is that there simply is no
viable state, individual, or organization that can serve as an effective mediator.
As mentioned in Part III, the third parties with the potential capabilities of
serving as an effective mediator are the UN, the United States, and China.
However, as also mentioned in Part III, none of these candidates have the
capabilities of mediating the all-encompassing, multi-faceted dispute between
India and Pakistan with definite and long-lasting results. They either lack the
ability to influence India and Pakistan or they will not be perceived as a trusted
mediator; both of these characteristics are essential in mediation.
In mediating international disputes, the two most important traits a
mediator must possess are (1) impartiality and trustworthiness and (2)
influence over the parties involved to deliver on promises."' An impartial
mediator should not have a material interest in the outcome of the resolution.
Neither the United States nor China are trusted by both India and Pakistan.
The United States has a stronger relationship with India, as it is economically
and politically tied to it. However, with the uncertainty that the Trump
Administration poses, it is nearly impossible to project the future of United
States-India relations.4 2 In regard to the United States' current relations with
Pakistan, the Trump Administration has taken a colder approach. In January
2018, Trump accused Pakistan of "lies and deceit;" this tweet was drafted in
regards to Pakistan giving refuge to terrorist groups while the United States
has provided Pakistan with billions of dollars in aid. 3 Thus, India and
Pakistan will not view the United States as an impartial and trustworthy third
141 Id at 9 (stating that mediator credibility plays a vital role in successful resolution
of disputes, because parties are unwilling to accept offers from a mediator who is deemed
to be untrustworthy or unable to provide resources necessary to carry out the resolution).
142 See generally David Yanofsky, Trump's Steel and Aluminum Tarfs Will Now
Exempt Most of US Imports, QUARTz (Mar. 22, 2018), https://qz.com/1235803/trumps-
steel-and-aluminum-tariffs-which-countries-are-exempt. The United States has announced
tariffs placed on steel and aluminum imports, placing a 25% tariffon steel and a 10% tax
on aluminum. Id Although the United States has announced that certain states and the
European Union will be exempt from this tariff, India will still be impacted by this new
economic policy. Id
143 Shaiq Hussain & Annie Gowen, 'No More!' Trump Tweets to Pakistan, Accusing
It of 'Lies & Deceit', WASH. PosT (Jan. 1, 2018),
https-//www.washingtonpost.com/world/asia_pacific/no-more-trump-tweets-to-pakistan-
accusing-it-of-lies-and-deceit/2018/01 /01/2d185032-efle-l 1 e7-95e3-
efl284e71c8dstory.htmlutmterm=.2ed7090abbc4 (explaining that Trump suspended
security aid to Pakistan, prompting a quick response from Pakistan stating that the United
States has given Pakistan nothing but "invective and mistrust").
243
party to serve as a mediator, as the United States is not only muddling relations
with both states, but also has vested economic, military, and diplomatic
relations with the respective states.
As stated previously, China cannot be trusted by India and thus is
effectively ruled out as a potential mediator. If one party does not trust the
mediator, it undermines the process, and the resolution is not likely to be
accepted. The UN lacks the influence and binding authority to serve as an
effective mediator.
Furthermore, it is unlikely that mediation will play a role in resolving
the territorial disputes, and thus those stemming from the tension in Kashmir,
because there is no actor in existence that has the capacity to play this role. In
the past, individuals have been able to resolve disputes (for example, the Pope
in the Beagle Channel dispute). However, no individual leader or public figure
currently holds enough influence over India and Pakistan. In regard to other
states, no state is trusted by both India and Pakistan to be neutral and impartial.
Finally, non-state organizations lack the influence and power to compel India
and Pakistan to successfully mediate the dispute and accept the resolution.
Mediation will not resolve the dispute between these two states
because they-especially India-are simply not willing to accept any offers to
mediate. India, a strong proponent of bilateralism, continues to reject offers to
mediate by actors such as the United States and China." In 2017 alone, India
rejected two efforts to mediate, one each by the United States and China." In
April 2017, Nikki Haley, the United States Ambassador to the UN, made this
remark that was rebuked instantly by India: "[The United States] very much
wants to see how we deescalate any sort of conflict [between India and
Pakistan] going forward."'4 The Indian government released a statement in
response to Haley's remarks reinforcing India's stance on third party
interference.'4 7
144 See generally Pakistan Welcomes US Offer to Mediate After India Rejects It,
HUFFINGTON POST (May 4, 2017), https://www.huffingtonpost.in/2017/04/05/pakistan-
welcomes-us-offer-to-mediate-after-india-rejects-it_a_22026666/.
145 India Rejects China's Mediation Offer on Kashmir, AL JAZEERA (July 13, 2017),
https://www.aljazeera.com/news/2017/07/india-rejects-china-mediation-offer-kashmir-
170713205330786.html. After increased tensions at the Line of Control between India and
Pakistan, China extended an offer to "play a constructive role." Id In response, the
Ministry of External Affairs for the Indian government stated, "We are ready to talk
Kashmir with Pakistan, but no third-party mediation." Id
14 6
Saleem H. Ali, Peace Between India and PakistanShould Be a PriorityforTrump,
HUFFINGTON PosT (Aug. 24, 2017), https://www.huffingtonpost.com/entry/peace-
between-india-and-pakistan-should-be-priority_us_599ed38ce4bOa62d0987adl5.
47 India Rejects US Offer to Mediate, supra note 104. The statement reads, "The
government's position for bilateral redressal of all India-Pakistan issues in an environment
free of terror and violence hasn't changed." Id
244
In July 2017, China extended an offer to mediate the Kashmir conflict

for India and Pakistan, but India refused once again.'' It should be noted that
India rejected this offer partially because it was in conflict with China at the
time over the Doklam region.1 49 Pakistan was willing to accept China's offer,
claiming that it is willing to resolve this conflict through dialogue. 1 1
In analyzing the territorial dispute between India and Pakistan over
Kashmir, it is evident that there is no viable option for a neutral and impartial
mediator. Not only are the potential candidates inherently biased or powerless,
but one of the parties, India, vehemently opposes third party intervention in
resolving the Kashmir dispute; rather, India seeks to calm tensions with
Pakistan over the disputed region bilaterally.
D. India FavorsBilateralismas Opposed to ThirdParty

Mediation
Since the Kargil War ended in 1999 with the United States diplomatic
intervention, India has consistently rejected offers by third parties to mediate
the Kashmir conflict with Pakistan. Instead, India advocates for a resolution
founded upon efforts of bilateralism. Following the United States' offer to
mediate the Kashmir conflict via Nikki Haley, India reinforced its
commitment to resolve tensions with Pakistan bilaterally, without the
intervention and influence of any other state.' 5' India has been adamant about
refusing third party intervention in resolving disputes, maintaining the
Kashmir conflict is between India and Pakistan solely.5 2
Logically, if one party is adamant about resolving the dispute
bilaterally, mediation is not even considered an option. Due to the fact that
India is determined to resolve the Kashmir territorial dispute bilaterally
through diplomatic relations with Pakistan, it would never consent to
mediation efforts or accept a resolution. Therefore, the possibility that Indo-
Pakistani relations will improve with mediation techniques is bleak.
' India Rejects China'sMediation Offer on Kashmir,supra note 145.

149 Id
'5 Id Nafees Zakaria, a spokesman of the Pakistan Foreign Office, stated, "The UN
chief, the US president, the Chinese leadership and others have offered to play a role in
resolving the Kashmir issue." Id
15 India Rejects US Offer to Mediate, supra note 104 (explaining India believes the
issues between the subcontinent neighbors should be resolved bilaterally).
152 Pakistan Welcomes US Offer to Mediate, supra note 144 (explaining that while
India rejects offers of third-party involvement, Pakistan has expressed interest at several
UN forums in the past).
245
VI. CONCLUSION
The contentious history and unparalleled conflicts between India and

Pakistan have deemed mediation an insufficient tool for resolving the deep-
rooted tension between these states. The multitude of issues that plague this
dynamic include the development of nuclear weapons, religious tension
predominantly between Hindus and Muslims, and the territorial dispute over
Kashmir that has instigated several major wars. Several actors, such as the UN,
the United States, and the Soviet Union, have attempted to mediate the issues
between India and Pakistan in the past, but have yielded largely unsuccessful
results. Their resolutions admittedly have productive results in the short term;
however, they resemble a Band-Aid; they cover up and temporarily shield the
wound but fail to heal it completely.
Several factors underlying this conflict are often underrated and not
considered in conjunction with each other. India and Pakistan differ from
several other international rivalries because of the vast amount of issues that
plague their relationship. Mediation simply will not be a solution to these
issues because of the mutual political unwillingness to compromise and the
persistence upon bilateralism.
246
OHIO STATE JOURNAL ON
DISPUTE RESOLUTION
VOLUME 34
ISSuE 2
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II. A LOOK AT THE HISTORY BEHIND THE INDIA-PAKISTAN RELATIONS

III. THE ROLE OF INTERNATIONAL MEDIATION AND PAST EFFORTS OF

IV. EXAMPLES OF SUCCESSFUL MEDIATION IN BORDER DISPUTES

V. THE FAILED ROLE OF MEDIATION IN INDO-PAKISTANI DISPUTE

The states of India and Pakistan, whose bilateral relationship has

II. A LOOK AT THE HISTORY BEHIND THE INDIA-PAKISTAN

Britain gained control over India through the passage of the

3 M. Ramaswamy, Constitutional Developments in India 1600-1955, 8 STAN. L. REv.

British Crown failing to ensure a peaceful transfer of power.s Britain was

A. Mutual Religious Intolerance andExtreme Nationalism

intolerance towards each other; Hindu-dominated India versus Muslim-

Ironically, religious minorities in Pakistan continue to be persecuted and

B. The Race to Developing Nuclear Weapons and the

2 Rabia Mehmood, Bigotry Against Ahmadis, a Constant in Pakistan, AL JAZEERA

into Jammu and Kashmir.29 In response to the presence of Pakistani soldiers,

TRANSNAT'L L. 631,634-35 (2000).

One of the major points of contention between India and Pakistan is

There a Way to Re-engage India in a FacilitatedDiscussion?, DIGITAL COMMONS MICH.

D. The Border Dispute Over the Territory of Jammu and

The deepest underlying cause of the animosity between India and

Soviet Union, seeking to expand their influence in the Indian subcontinent,

III. THE ROLE OF INTERNATIONAL MEDIATION AND PAST EFFORTS

Mediation, one of the most commonly used alternative dispute

expected to both assume an operational role in helping the parties reach an

B. Mediation on an InternationalDispute Level

Mediation is one of the more successful alternative dispute resolution

1. THE UNITED NATION'S MEDIATION EFFORTS IN INDO-

8s Guidance for Effective Mediation, UNITED NATIONS (2012),

2. THE UNITED STATES' MEDIATION EFFORTS IN LvDO-

Throughout history, the United States has played an active role in

94 India-Pakistan Background, supra note 88. As previously discussed, Resolution

3. CHINA'S MEDIATION EFFORTS IN INDO-PAKISTANI

China's potential role as a mediator is interesting because, while the

Pakistan by guiding Pakistan on nuclear development and providing the

IV. EXAMPLES OF SUCCESSFUL MEDIATION IN BORDER DISPUTES

International border disputes have been successfully mediated in the

An example of a successful mediation of border disputes is the UN's

V. THE FAILED ROLE OF MEDIATION IN INDO-PAKISTANI DISPUTE

International disputes, particularly those that are territorial, have been

Mediation will not be a viable option in resolving the tension between

A. The Deep-RootedAnimosity Between India and Pakistan

India and Pakistan's relationship can be characterized by interspersed

2 Zero-Sum Game, MERRIAM-WEBSTER, available at

B. The Principleof Sovereignty

Similar to many, if not all, of the states in the international community,

urging them to sign the Non-Proliferation Treaty. However, despite several

1" See generally Treaty on the Non-Proliferation of Nuclear Weapons (NPT),

C. No Viable Candidatesfor Mediator

The most pressing reason as to why mediation will fail in resolving

In July 2017, China extended an offer to mediate the Kashmir conflict

D. India FavorsBilateralismas Opposed to ThirdParty

' India Rejects China'sMediation Offer on Kashmir,supra note 145.

The contentious history and unparalleled conflicts between India and

Volume 34 2018 - 2019 Issues I-V