No case for anyone but ourselves

The currency of international relations is power. It has been so through history and—notwithstanding the attempts of the past 100 years—continues to remain so. The Greek historian Thucydides, writing 2500 years ago, sums up relations between countries as “the strong do what they can and the weak suffer what they must.” The Arthashastra is almost as old, and says quite the same thing. In the twentieth century, starting from the end of World War I, the world’s elite made concerted attempts to change the idiom of international relations from power to law. It aspired to change the way countries deal with each other into something less violent, less crude and more civilised. The United Nations, created after World War II is perhaps the most salient embodiment of that sentiment. Sadly, the strong continue to do what they can—US invaded Iraq, Russia annexed Crimea, China is absorbing islands off its shores. And the weak continue to suffer what they must, as the Iraqis, Ukrainians and Filipinos are doing.

This is not to say there is no space for treaties, agreements and international law: there is, to the extent that it is in the interests of the powerful. Small, weak countries prefer a world where international law prevails. Powerful ones prefer such a world to the extent, and only to the extent, it serves their interests. For instance, a couple of years ago, India and Bangladesh settled their maritime boundary dispute through recourse to a UN tribunal, which awarded much of the disputed territory to the latter. The settlement was made possible not because of the UN tribunal, but because of New Delhi’s perception that such a settlement is in its interests. In contrast, the Permanent Court of Arbitration finding in favour of the Philippines is practically useless given that China does not see it in its interests to comply.

Now, is New Delhi’s recourse to the International Court of Justice in the case of Kulbhushan Jadhav a reversal of its decades-old policy of rejecting the internationalisation of India-Pakistan relations? Yes. But does this mean a paradigm shift in North Block away from hard-nosed realism to liberal internationalism? Quite unlikely. Looking for options to prevent Pakistan from executing Jadhav, New Delhi decided that going to the ICJ might be a good idea. And in the event, it was. It achieved the Modi government’s political objective of pausing the execution and buying time. One unavoidable consequence of taking the ICJ route exposes New Delhi to lawsuits from Pakistan and other neighbours on a number of matters of dispute. The mandarins in North Block perhaps calculate that such risks are manageable. In any case, they should now be prepared to discourage such moves.

Now, even if Pakistan were to take India to an international court on some other matter, and even if that court were to rule against India, nothing will change on the ground unless New Delhi complies. To the extent that it is strong enough, it can reject such judgements. And if it was strong enough during the times of Jawaharlal Nehru and Indira Gandhi, it is certainly strong enough now. If such behaviour occurred between individuals, it would be correct to call it hypocrisy. When it occurs between countries, the word ‘hypocrisy’ has no meaning because international relations occur in an amoral context. Some argue that taking the Kashmir dispute to the ICJ is a good idea. It is not.  It makes sense to take a territorial dispute to an international court only to the extent that we are ready for a territorial compromise. If we are, and if a bilateral settlement is seen as politically inexpedient, then an international verdict provides a convenient way out of the matter. This is what happened in the maritime territorial dispute with Bangladesh.

However, if we are not ready for a territorial compromise for whatever reason, then it makes little sense to go to the international court. In the case of Jammu & Kashmir, India does not see a territorial compromise as being in its interests—not even to the extent of freezing the status quo and converting the Line of Control into an international border. Kashmir is not a mere territorial dispute: it has many dimensions, including the ideological and the self-definitional, in addition to the geo-strategic. As long as India, the more powerful of the two disputants, does not see a territorial compromise as being in its interests, a reference to an international court is a non-starter.

This is to say nothing of Pakistan, which might see international arbitration as a way to obtain what it cannot by force, but will not quite want to accept a settlement that falls short of its great expectations. Its rejection of the arbitrator's award in the Indus Waters Treaty is an indication on how it is likely to behave in case it doesn’t achieve its maximalist objectives. As long as the power differential between India and Pakistan grows wider in our favour—as is the current, but non-inevitable trend—the less is the incentive for India to concede territory in favour of a settlement. We can wait it out. We have a strong position vis-a-vis Pakistan and it will grow stronger if we maintain high economic growth and social stability. It is here that we need to focus and it is here that we need to worried.

Both through commission and omission, the Modi government has allowed the situation in the Kashmir valley to deteriorate to a crisis. It has been uninterested in bridging the affective divide between the Kashmiris and the rest of India, and seems to believe that a more robust security response will suffice. This is a dangerous misreading of ground realities: the time for a grand political overture in Jammu & Kashmir is now. Prime Minister Narendra Modi must initiate an urgent policy review on New Delhi’s approach to what is happening on the streets and in the minds of the Kashmiri people. Neither the ICJ, nor the United Nations, nor Pakistan have any bearing on this task. It is entirely our own business.

Nitin Pai is director of the Takshashila Institution, an independent centre for research and education in Public Policy.