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Commentary

Call an International Time-Out Over Kashmir

June 04, 2002|WILLIAM M. EVAN and FRANCIS A. BOYLE | William M. Evan, professor emeritus of sociology and management at the Wharton School at the University of Pennsylvania, is the co-author of "Minding the Machines: Preventing Technological Disasters" (Prentice Hall, 2002). Francis A. Boyle, a University of Illinois professor of law, is author of "The Criminality of Nuclear Deterrence (Clarity Press, 2002).

Clearly missing from all responses so far to the looming nuclear crisis in South Asia is an argument for using international law to resolve the 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, India and Pakistan both are parties to the 1899 Hague Convention for the Pacific Settlement of International Disputes.

The United States is also a party to this convention.

Article 8 of the convention, which was the brainchild of the U.S., establishes a procedure for special mediation. Each state involved in the conflict would choose a power, and those two powers would be entrusted to talk on behalf of the conflicting nations. The goal would be to prevent a rupture in peaceful relations.

For the period of this mandate, which could not exceed 30 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 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 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 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.

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