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Existing Cbms Between India And Pakistan And Their Effectiveness International Law Essay

"I also envisage a situation where the two parts of Jammu and Kashmir can, with the active encouragement of the governments of India and Pakistan, work out cooperative, consultative mechanisms so as to maximise the gains of cooperation in solving problems of social and economic development of the region."

- Manmohan Singh, Prime Minister of India

Amritsar, March 24, 2006

1. In the backdrop of nuclear tests conducted by both countries in 1998, the two traditional regional rivals have more than ever greater stakes in efforts to reduce tensions, build confidence and encourage regional cooperation. Confidence Building measures are steps in this regard, in reducing mistrust and enhancing security. However two fundamental requirements are to be met to achieve success.

(a) They must flow from and form part of a constructive and cooperative relationship.

(b) They must seek to recognise and address the legitimate security concerns of both countries equally.

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2. CBMs should not be seen merely in terms of an arms control approach, or primary related to military postures, but in a more comprehensive framework which begins with a cooperative concept. Both India and Pakistan assert that there is a trust-deficit, but neither country has chosen to generate trust through CBMs voluntarily negotiated. Now that nuclear dangers and regional instabilities have grown, India and Pakistan need to strive to implement existing CBMs properly. Consequently, the string of events, namely the Indian Parliament attack, the blasts on the Samjhauta Express, the Kabul bombing at the Indian Embassy, the 2007 spate of bomb blasts in various cities of India, including the mayhem at Mumbai and the terrorist attacks of 26/11 at Mumbai definitely puts a question mark to the road ahead.

3. Despite events precipitating increased tensions between the two countries, the effort on the part of both governments has been to ensure that the confidence building measures (CBMs) continue to remain in place, to enable the people of both countries, in the border regions in general and in the state of Jammu and Kashmir in particular, to maintain a semblance of normalcy in their lives. However, the impressive range of CBMs, both military and non-military in nature, have been overtaken by conflicts and string of terrorist attacks


4. CBMs reduce the risks of war. As per John Borawski [1] , CBMs are "management 'instruments' that seek to control and communicate about how, when, where and why military activities are employed- functional arms control, in order to multiply the disincentives to the threat or use of force". The US Department of State document defines CBMs as "Agreements made between countries to increase openness, mutual understanding and communication designed to reduce the possibility of conflict through accident, miscalculation or failure of communication; and inhibit opportunities for surprise attack or political intimidation, thereby increasing stability in times of calm or crisis."

5. The global experience has influenced the adoption of CBMs between India-Pakistan [2] . Stockholm (1986), Vienna (1992), Helsinki (1975), and Madrid (1983) agreements between US and Russia (and erstwhile USSR) successfully showcased the utility of CBMs. Similarly, CBMs have fostered peace in Southeast Asia and Latin America. Factors which include bitter Indo-Pak relations, with deep mistrust and their domestic politics, growing Indo-centricity aggravating insecurities amongst India's neighbours and regional socio-economic and ethno-political strife due to caste, sectarian violence and focus on traditional and military sources of insecurity are impediments towards successful CBMs between India and Pakistan.

6. It is necessary to emphasize that the single most important component of a CBM is transparency. Both parties need to be consistently reassured through a series of constraint measures, communications, and verifiability. These are the primary tools which institutions, aided by technology, can make the states' behaviour more predictable. [3] 

Indo-Pak CBMs: Major Achievements & Failures

7. The following may be considered the major achievements [4] of CBMs over the past two decades:

Military CBMs

(a) Agreement on the Prohibition of Attack Against Nuclear Installations and Facilities - signed in 1988, and eventually ratified in 1992. This particular exchange has continued for 18 consecutive years. The agreement also included an informal accord of a moratorium on further testing.

(b) Agreement on Advance Notification on Military Exercises, Manoeuvres and Troop Movements -brought into effect in 1991 and involving 10000 or more troops. It mandates Corps and Div level exercises to be held 45 km & 25 km from border.

(c) Agreement on Prevention of Airspace Violations and for Permitting Over-flights and Landings by Military Aircrafts - signed in 1991, has significantly reduced costs for both nations, and also brought into being a structure of redress in case of violations and mutual trust in matters of requirement.

(d) Joint declaration not to use, produce, or stock chemical weapons, or transfer related technologies to others, concluded in 1992.

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(e) Formal Ceasefire along the LOC/International Border as also the Actual Ground Position Line (AGPL) - brought into effect on 25 November 2003 and has remained in effect since.

(f) Biannual meetings between Indian Border Security Forces and Pakistani Rangers - has been in effect since 2004, and there has been mutual agreement that local commanders should meet more frequently to resolve local problems.

(g) Agreement on Advance Notification of Ballistic Missile Tests - brought into effect in 2005 and required both parties to inform the other 72 hours in advance before testing any ballistic missiles within a 40km radius of the International Border and the Line of Control.

(h) Non harassment of diplomatic personnel - Foreign Secretaries of both countries worked out a code of conduct in Nov 90 to protect diplomatic personnel, guaranteeing them freedom from harassment.

(j) Establishment of a Communication Link between Pakistan Maritime Security Agency and Indian Coast Guard - brought into effect in 2005, primarily to facilitate early exchange of information regarding fishermen apprehended for straying into each other's waters. The agreement also brought into discussion the possibility of holding joint search and rescue operations and collaborating in marine pollution control.

(k) A Hotline between Director General Military Operations of both countries had been in effect since 1965, and was most recently used in an unscheduled exchange to discuss troop movements and allay tensions, in the aftermath of the 26/11 attacks in Mumbai. Also a hotline between the sector cdrs and the foreign secretaries was set up in 1991 & 2004 respectively.

Non-Military CBMs

8. The predominant confidence building measures in the non-military domain have been travel measures to increase people-to-people interaction:-

(a) Delhi-Lahore bus service was started in 1999, but was ceased in light of the Kargil conflict. It was resumed in 2003.

(b) Passenger and freight rail services between Attari and Lahore, and air linkages between the two countries were resumed in 2004

(c) The Samjhauta Express, which runs between Delhi and Lahore, resumed service in 2005, and despite the 2007 blasts, has continued to run since.

(d) The first bus service between Srinagar, the capital of J&K and Muzaffarbad, the capital of POK was inaugurated on 07 Apr 2005.

(e) Bus services from Lahore to Amritsar, Sikhism's holiest city Amritsar to Nankana Sahib, the birth place in Pakistan of Sikhism's founder and train links between Munnabao in Rajasthan and Khokhrapar in Sindh were started in January 2006. Night bus service between Ferozepur and Fazikla to Ludhiana-Chandigarh was also resumed the same year.

(f) The first overland truck route between the two countries was opened at the Wagah border crossing in 2007.

(g) Air links were increased from 12 to 28 flights weekly, triple-entry permit for cross-LoC travel introduced and the frequency of the Srinagar-Muzaffarabad bus service increased from fortnightly to weekly, in 2008.

(h) Resumption of bilateral trade through Wagah border, trade routes on the Wagah-Atari, Srinagar-Muzaffarabad and Poonch-Rawalkot road links, as also the Munnabao-Khokhrapar rail link were also opened up the same year.

(j) Humanitarian assistance in terms of food, medicine etc, and meetings between divided families was extended by India and accepted by Pakistan, in the aftermath of the earthquake in Pakistan in 2005. Five points in the LOC were opened to facilitate the aid.

(k) A Joint Anti-Terrorism Institutional Mechanism to identify and implement counter-terrorism initiatives and investigations in both countries was brought into effect in 2006.

(l) An agreement facilitating regular contact between state-run think tanks, Institute of Defence Studies and Analyses (New Delhi), and Institute of Strategic Studies (Islamabad) was brought into being in 2008. This agreement is meant to contribute to building channels of communication at the level of scholars.

(m) A Joint Working group was set up to explore prospects for Iran-Pakistan-India gas pipeline.

(n) The first meeting of a Joint Judicial Committee of judges belonging to both countries was conducted in 2008. This committee is meant to look into the welfare and release of prisoners jailed in both countries. More than 500 prisoners have been released by both sides in repeated instances in 2003, 2004, 2005, 2007, 2008 and 2009.

(o) Joint Economic Commissions and Joint Business Councils were reactivated to promote commercial activity in 2004.

(p) Foreign Ministers of both countries agreed to a series of Kashmir-specific CBMs to facilitate crossing the LoC in 2008.

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(q) Agreement to restart shipping routes

(r) Both countries agreed to host festivals displaying each others' movies in 2006. The Pakistani Government allowed for the legal release of Indian films in Pakistan in 2008.

(s) Government representatives of both countries have continued to meet over the years, despite troubling circumstances. Case in point is the meeting between Prime Ministers Singh and Gilani in Egypt, and Foreign Ministers Krishna and Qureshi in New York in 2009.

9. Maritime CBMs [5] 

(a) The delimitation of the maritime boundary and relationship with Sir Creek

(b) Restoration of full shipping links and the security of ports and cargos

(c) Fishermen arrests and repatriation

(d) Naval and maritime agency interactions and possibilities for cooperation.

Failures of CBMs

10. The CBM route has met its fair share of failure as well. Although there are hotlines connecting both military and political leaders in both countries, they have been scarcely used when required most. These lines have either become non-functional, or left unattended, as in 1971 war. In1987 Brasstacks ops, there were mutual suspicions, followed by accusations of the spread of misinformation. This neglect is the result of the fact that there are no stipulations for communication during disputes. The hotlines have at worst been used for deception, and at best, for post-crisis management.

11. The Hotlines between DGMOs did not work during the 1999 Indian plane hijacking [6] , it was not useful during crisis, but after it; The Foreign Secretaries could not prevent derailment of the peace process due to 2008 Mumbai attacks, and the maritime security hotline has not prevented the capture of fishermen on both sides.

12. There is a disproportionate emphasis on military CBMs and an inadequate recognition of several momentous non-military CBMs. Military CBMs prevent wars, non-military CBMs remove suspicions and mistrust

13. There has been a tendency on each party to learn about the negotiating position of the opposition, and find vulnerabilities. Thereafter, an alternate proposal is forwarded which is untenable and unacceptable.

14. While the exchange of lists of nuclear-related facilities has been constant, regardless of the state of relations between the two countries, neither side has ever been satisfied that they are being given accurate information. Many CBMs, which were originally crafted to address the stabilization of relations between India and Pakistan, after the 1998 nuclear tests, have been agreed to in principle, yet have never seen implementation because of the belief that major dominant issues, need to be resolved before the CBM process can move ahead.

15. While CBMs can create trust between two nations trust is also required at the inception stage, to bring about CBMs in the first place. One is dependent on the other, and in the current scenario, when political will in both states is shown to be waxing and waning intermittently, CBMs, which are difficult to establish, but easy to disrupt, have not been fully effective. There is a lack of verifiability in many CBMs, which leads both countries to fall victim to mistrust, suspicion and misinformation. Public conciliatory statements, which are meant to be CBMs, can have the reverse effect, if they turn out to be insincere, and worse, if they have been ineptly drafted, as one saw in the outcome of the statement issued after the Sharm el Sheikh meeting.

16. Diplomatic personnel have been time and again harassed, thus violating the code. Indian officials and property in Karachi was not given protection after the 1992 destruction of the Babri Masjid in India, by Pakistani authorities. Diplomatic personnel are often harassed by intelligence services in both countries, and reciprocal expulsions of diplomats occur regularly.

17. Public declarations by leaders, historically by making conciliatory statements have often heightened regional tensions rather than promote security and confidence building. Mere expression of intent needs to be converted into concrete agreements and firm action on ground

18. While there are more than 70 Kashmir-related CBMs such as cross-LoC people- to- people contact and trade that have been agreed to in principle, however only a relative percentage of them have actually seen implementation.

19. The visa formalities for travellers at the borders are not beneficial to confidence building. These include every traveller to register at a police station within 24 hours of his arrival in a city and 24 hours before departing from the same, informing the authorities on the whereabouts and wherewithal of his hosts. These procedures leave inter-country travel to be far from desirable.

20. Pakistan did not declare any chemical stocks, production, or storage facilities when it joined the Chemicals Weapons Convention (CWC). India declared its previously unacknowledged stockpile. Pakistan's declarations have been met with scepticism.

21. There are periodic claims by both countries that the airspace agreement has been violated. In the Siachen Glacier region, where rules of engagement are more stringent, helicopters have been shot down [7] .

22. CBMs have been particularly ineffective, if not absent, during times of conflict, because despite declarations to the effect, neither country has moved beyond the point of 'conflict avoidance', towards actual confidence building measures, and finally, towards strengthening peace. The ceasefire, which was implemented in 2003, was alleged to has been violated on numerous occasions by Pakistan in 2008, 2009.

23. The impact of agreement on advance notification of military exercise is unclear. For instance, while the agreement stipulates that the redeployment of division-size forces within 150 km of the border for either internal security or non-military duties requires prior notification; this provision has been circumvented by introducing troops piecemeal into the specified zone. In total, such redeployments could add up to more than division strength.

24. In the absence of an inspection procedure, it cannot be determined whether the lists of nuclear installations that are exchanged annually without fail are complete, or if sensitive installations and facilities-specifically, small enrichment plants-have been concealed.

Prioritising the CBMs

25. Certain concerns need to be addressed by the governments of both countries, in order to maximize the effectiveness of CBMs:

(a) The military CBMs should not be preferred over non-military CBMs - both have their place in the peace process and both are needed. It is not essential that both states possess equivalent or balanced military capabilities to take the steps necessary towards furthering peace.

(b) While CBMs which focus on improved communication links and people-to-people interaction could create the necessary environment for deeper issues to be tackled, the impact of the CBMs still hinges on political will for their implementation. If the political will is present, the measures can be seen through to their fruition.

(c) The hostilities distinguishing Indo-Pak relations are systemic, and further hampered by newer security threats, socio-politico-economic strife and India's preponderance in the larger South Asian region. Therefore, there is no viable alternative to a gradual and incremental peace process through military and non-military CBMs. The derailment in the peace process occurs when there is an attempt to find instant solutions to old and complex problems.

(d) Policymakers have to consider that war, whether of a conventional or proxy nature will not advance their national interests. Both sides stand to gain both, politically & economically from a stable peace. Motivations do not necessarily need to be in concert. The Indian public was enraged after 26/11, and promises without concrete results have frustrated India for years. On the other side, Pakistan wants faster results and more emphasis on Kashmir, lest the CBMs lose their meaning, and peace in the subcontinent remains elusive. Yet both sides must agree that the peace process continue unabated.

(e) Based on the experience thus far, it is clear that future measures catering to conflict prevention and confidence building, must provide for more explicit means of arbitrating implementation problems. To this intent, it is imperative that all CBMs be made verifiable. Further, the experiences of successes and failures of other regions should be examined, as also the possible role which could be played by non-state actors such as the private sector, professional and business organizations, civil society, so on and so forth.

(f) The participation of Kashmiris would make the process more meaningful. Earlier CBMs, particularly the bus routes, would have been better structured if Kashmiris had been consulted on the modalities. What is required, therefore, is not just CBMs between countries, but among the different constituencies of J & K in their own respective regions, as also on both sides of the LoC. The Kashmiri identity must be addressed via media of community-to-community CBMs, to bring back Kashmiris of non-Muslim faiths, particularly Pandits, to the region. Security aspects in connection with the sharing of political and economic power & other micro issues needs to be factored in, to ensure that they may become true stakeholders.

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