Law is usually perceived as “unbending”, and to prevent it from reshaping itself to accommodate reality, it is usually shown as blindfolded. States deal with one another on the basis of law, pretending that this law between states is identical to municipal or national law. The truth is, international law is very different from the internal legal order of a sovereign state, and the reason is embedded in the concept of sovereignty itself.
International law has gelled around bilateral and multilateral treaties signed by states, but its greatest flaw is the lack of an all-powerful prosecuting authority. Of course, it can be enforced through the UN Security Council, but the justice that comes from there is political rather than strictly legal. This in itself is not a flaw. It simply means states have to be pragmatic and flexible rather than literalist. When the League of Nations handled justice under international law, it died stretched on the wheel of the principle of state sovereignty. In the League, every state had a veto!
India and Pakistan are fighting an epochal war for over half a century. Because of this war they don’t have “normal” relations. A process of normalisation has been in place, but bilateral diplomacy has failed to achieve it on the basis of what the two sides think it means. Pakistan makes normalisation conditional to “meaningful progress” on the resolution of outstanding disputes. India thinks normalisation of relations through free trade under WTO and free movement of people across borders will facilitate the resolution of disputes later. The world is on the side of India; so are most intellectually inclined Pakistanis, including the prime minister of Pakistan.
Problems arise out of the remarkable mental similarity among officials who man the two foreign offices.
Both are hardline and both lean on textbook “nationalism” and “national consensus” to scare the elected leaders off. They are known as “connoisseurs of the stalemate”, addicted to deadlocks. Indian diplomats don’t fear arbitrary dismissals or punishment posts but Pakistani diplomats do, yet their opposition to innovative statesmanship is the same. They even look alike and have the same costive style of blocking the flexible response diplomacy has been known for over centuries. India and Pakistan suffer from the permanent “enmity of the civilisationally related”, which Freud put so neatly in his phrase “the narcissism of small differences”, and their diplomats best represent it.
But today, the change of mind in Pakistan vis-a-vis India is real. The serving diplomat, scared of arbitrary punitive action of the ruling government, should normally be obedient, but he is not. He lines up behind the army’s entrenched and understandable anti-Indian orientation and is able to even be defiant and obstructive. Ex-foreign minister Sartaj Aziz, in his book Between Dreams and Realities: Some Milestones continued…