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Invoking International Law to Avoid Nuclear War

Invoking International Law to Avoid Nuclear War over Kashmir

By
William M. Evan* and Francis A. Boyle**

The military confrontation between India and Pakistan, two nuclear-armed neighbors, has the world in a state of jitters. With each country mobilizing its forces - together totaling about a million troops along their 1800 mile border - there is a high probability that the current face-off may lead to the outbreak of yet another war between these two countries. Although such a war - if it eventuates - is likely to involve a conventional exchange of weapons as happened in the 1947, 1965, and 1972 wars, there is reason to fear that it could escalate into a nuclear war. If such a catastrophe were to occur, American intelligence estimates that about 12 million people would be killed and 7 million would be injured.

What has been the response of the international community to this crisis? President Bush has urged President Musharraf of Pakistan and Prime Minister Vajpayee of India to exercise restraint and stop cross-border attacks. President Jacques Chirac, President Vladimir Putin and other European officials have echoed similar sentiments.

In the meantime, Mr. Vajpayee accuses Pakistan of waging a 20-year campaign of terrorism to dislodge India from the predominantly Muslim state of Kashmir. He also rejects Pakistan's repeated requests for dialogue or negotiation. And the U.N. Secretary-General Kofi Annan reiterates his requests to General Musharraf to crack down on Islamic militants penetrating the Line of Control separating the Pakistani sector of Kashmir from the Indian sector.

Forty-three years ago the U.N. put forth a potentially reasonable solution to the conflict by conducting a plebiscite on the status of Kashmir - whether it should remain part of India, or become part of Pakistan. These two options could be supplemented by (1)outright independence for Kashmir; or (2) shared sovereignty between India and Pakistan over Kashmir. Thus far India has dismissed the idea of holding such a plebiscite.

Clearly missing from all responses so far to the looming nuclear crisis is an argument for using international law to resolve the India-Pakistan conflict over Kashmir. This striking omission underscores, on the one hand, the widespread commitment to power politics and the use of war as a means of resolving international disputes and, on the other hand, a fundamental distrust of international law to resolve international conflicts.

As it happens, both India and Pakistan are parties to the 1899 Hague Convention for the Pacific Settlement of International Disputes. The United States is also a party to this 1899 Convention. Article 8 is the brainchild of the United States. It establishes a procedure for special mediation. The states in conflict would each choose a power to which they would respectively entrust the mission of entering into direct communication with the power chosen by the other side for the purpose of preventing the rupture of pacific relations. For the period of this mandate, which could not exceed thirty days, unless otherwise agreed, the states in conflict would cease all direct communication on the subject of the dispute, leaving it exclusively to the mediating powers. In case of a definite rupture of pacific relations, the mediating powers were charged with the joint task of taking advantage of any opportunity for peace.

The threat of nuclear war between India and Pakistan directly affects the vital national security interests of the United States: The nuclear fallout would poison America and its people as well as the peoples of other countries. So the U.S. government, joined by others, must formally and publicly invoke Hague Article 8 against both India and Pakistan, and demand the required 30-day cooling-off period so that this special mediation procedure could take place.

The U.S. government joined by others must also invoke the requirement of Article 33(1) of the United Nations Charter providing that the two parties to the dispute over Kashmir "shall first of all, seek a solution by negotiation, inquiry, mediation, conciliation, arbitration, judicial settlement, resort to regional agencies or arrangements, or other peaceful means of their own choice." U.N. Charter Article 33 expressly by name requires the pursuit of the "mediation" procedure set forth in Hague Article 8, including the mandatory 30-day cooling off period.

Time is of the essence when it comes to invoking Hague Article 8 and averting a nuclear war!

*Williams M. Evan, Professor Emeritus of Sociology and Management at the University of Pennsylvania, is the author of several books, the most recent of which (with Mark Manion) is Minding the Machines: Preventing Technological Disasters, published by Prentice Hall.

**Francis A. Boyle, Professor of Law, University of Illinois, is author of Foundations of World Order, Duke University Press, and The Criminality of Nuclear Deterrence, Clarity Press.

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