The Distinction Between Political and Legal Disputes ‘Vision’, Karachi, October, 1954

A dispute arises when a claim is rejected. Hence a dispute presupposes both a claim and its rejection. The end of a dispute may be brought about either by peaceful means or by means of war. In the history of civilization, the latter method has been employed to the hilt. In recent years, however, sovereign, independent nations have manifested a striking propensity to experiment with the other alternative. Modern warfare’s potential for total destruction has virtually obliged nations to partake in negotiation, discussion and conciliation with an earnestness which was neither necessary nor possible in the pre-atomic era. Albeit, there are still a few among us who tenaciously clutch at the idea that war alone is the most efficacious system of determining disputes. This notion persists regardless of the fact that a resort to arms creates a host of new problems and vendettas instead of terminating the ones which ignited the conflagration. This discussion is solely restricted to the adjustment of disputes by means other than war and. more specifically, to the distinction between political and legal disputes.

The settlement of disputes by peaceful means may be achieved in two ways: (i) by an agreement of the parties to the dispute, and (ii) by a binding decision of international agencies.

In principle both these are legal methods but some authorities are of the view that the determination of disputes by an agreement of the parties is a political issue because the parties invariably apply their own rules in preference to the rules of existing law in determining the dispute. The word ‘agreement’ of course is used in a liberal context for, in the sphere of international relations, it is not a term of art. There is a catena of agreements since the middle of the nineteenth century. Exceptional are the agreements of ‘consensus and idem’ in the true contractual sense in the slippery game of ‘machtpolitik.’

The usual definition of legal disputes is found in the famous treaties of Lorcane, according to which legal disputes are all those disputes in which the parties are in conflict as to their respective rights. This definition is of problematical value. It refers only to rights and not to obligations though obligations are always involved in all disputes.

Perhaps the fairest and most accurate method of distinguishing legal disputes from political ones is by stating that legal disputes are those disputes which are capable of settlement by the application of existing legal norms, whereas political disputes are those which are left to the disputants themselves to determine according to their own norms. It can never be overemphasized that the nature of a dispute is not dependent upon the subject matter but exclusively upon the type of norm used to settle the dispute.

In distinguishing legal from political disputes it is argued that there are disputes to which international law cannot apply because it is not a complete, all pervading body of law. On account of its deficiency, the parties are constrained to apply their own norms. For a dispute to be settled by rules of law there must be pre-existing norms capable of application to the particular dispute. If such norms are non-existent, it is not possible to put international law into operation.

There is an inherent fallacy in this argument. it overlooks the fact that when a party submits a dispute to an international tribunal, it is given the option of requesting the tribunal to settle the dispute either in observance of pre-existing law or by the application of principles of natural justice and equity. In either event, the decision of the tribunal is a legal one.

Even if the tribunal applies principles of natural justice and equity, the result is a legal determination of the dispute. Just as in national law, legal norms are extended by judge-made case law, so also, in international law the decisions of the tribunal, although based on principles of equity and natural justice, become legal precedents for subsequent disputes. In each event the relevant principles are transformed into individual legal norms. Once a dispute is submitted to an international agency, the determination thereof becomes a matter of law irrespective of the type of norms applied.

It must be admitted, however, that the advocates of the distinction between political and legal disputes are greatly fortified by a series of precedents in international affairs. Nonetheless, such precedents are of dubious merit because most of them brazenly ignore the most elementary standards of reason and logic. Furthermore, in any event, a precedent of a decentralized legal order does not carry the same force as that of a relatively centralized legal order.

The framers of the covenant of the League of Nations were the first and foremost delinquents in contemporary international relations to draw a distinction between legal and political disputes. This was done by splitting up the subject matter of disputes into justiciable and unjusticiable disputes; a justiciable dispute being capable of settlement by the application of existing rules of international law, whereas a non justiciable dispute, not capable of such solution, being left to the parties to settle.

The Act for the Pacific Settlement of International Disputes, adopted by the Assembly of the League of Nations, was based on the principle of severance of disputes into justiciable and non-justiciable ones. This Act provided for the submission of legal disputes to arbitration and stipulated that other disputes were to be settled through conciliation. If efforts at conciliation failed, the dispute was to be referred to a tribunal which would apply principles of natural justice and equity if the prevailing norms of international law were found ‘inapplicable. Barring some formal amendments, the Act remains in force.

The Charter of the United Nations also draws a line, between legal and political disputes, by providing that if the decision of the International Court of Justice is not accepted, the Security Council may recommend other means. Thus, there is nothing to prevent such recommendations from being contrary to the legal decision of the International Court of Justice. Article 94 states:

(1) Each member of the United Nations undertakes to comply with the decision of the International Court of Justice in any case to which it is a party.

(2) If any party to a case fails to perform the obligations incumbent upon it under a judgment rendered by the Court, the other party may have recourse to the Security Council, which may, if it deems necessary, make recommendations or decide upon measures to be taken to give effect to the judgment.

Hence in making a recommendation, the Security Council is not prevented from setting aside the judgment of the International Court of Justice with which the party concerned does not comply. In other words, the five veto-blessed powers with permanent representation on the Council have the final word in all international disputes. Such a provision establishes without doubt the supremacy of politics over the rule of law. It is profoundly anomalous to find the Charter on the one hand enunciate in Article 2 paragraph 1 that “The Organization is based on the principle of sovereign equality of all its Members,” and on the other, remain a pawn of the permanent members, entirely on the sufferance of their goodwill.

Despite the Charter’s obvious bias towards political interests, as already stated, the rules of logic and reason cannot be subordinated by the pressure of political considerations. According to a scientific analysis of positive international law, there is absolutely no distinction between political and legal disputes. The distinction arises only because certain elements consider it advantageous to their narrow personal interests. From an objective standpoint it is entirely superficial. The fact that one of the parties may not agree to settle a dispute by the application of international norms does not make the dispute a political one.

For instance, in the initial stages of the seven-year old Kashmir dispute, the contention of the Indian Government was that the ruler of Jammu and Kashmir had legally acceded to the Indian Union and that on the strength of the Instrument of Accession, legally executed between the Maharajah and the Indian Union, the Government of India was legally obliged to render assistance to the State of Kashmir. It was further contended that on the basis of the accession. Kashmir became an integral part of the Indian Union. Hence, it was solely the legal aspect of the dispute which prompted the Indian Prime Minister to submit the Kashmir question to the Security Council. That dispute was submitted to an international agency, and as admitted by India, made the Kashmir dispute strictly a legal one.

Subsequently, however, India had second thoughts. Now the Government of India has, for all intents and purposes, reconverted the dispute into a political one and, thereby, paralyzed international legal machinery. International law is thoroughly competent to determine the dispute but one of the parties morbidly fears that the decision most probably will be inimical to its political interests and so it seeks to thwart every move of the international agency.

The distinction between political and legal disputes presupposes the doctrine of gaps. It is this theory of “gaps in the law” which is the fountainhead of the distinction between political and legal disputes. The raison d’être of the theory is that provisions must be made by the legal apparatus to gradually remedy the lacunae in the law.

The doctrine of gaps is not merely confined to the relatively decentralized international law. It finds place even in centralized national legal orders.

The theory of gaps is a dangerous fiction and it is most unfortunate that it has permeated even through the fabric of highly developed national legal orders. It is utterly erroneous to subscribe to the view that prevailing law cannot be applied to a specific case because there is no general norm which refers to it.

In his General Theory of Law and State, Professor Hans Kelsen says: “The legal order cannot have any gaps. If the judge is authorized to decide a given dispute as legislature, in case the legal order does not contain any general norm obligating the defendant to the behavior claimed by the plaintiff, he does not fill a gap of actually valid law, but he adds to the actually valid law an individual norm to which no general norm corresponds. The actually valid law could be applied to the concrete case—by dismissing the suit. The judge however, is authorized to change the law for a concrete case. He has the power to bind legally an individual who was legally free before.”

It has already been stated that even when a legal tribunal applies the principles of natural justice and good conscience in preference to the rules of existing law, its decision is a legal one. In addition to this, there is an important maxim of general international law which stipulates that that which is not legally forbidden is legally permitted. Hence, there can be no dispute outside the domain of international law. Indeed, international law categorically permits the disputants to frame their own norms in settling their disputes. Therefore, on the strength of this maxim, even when the parties are permitted to settle their own disputes according to their own norms, outside the precincts of an international tribunal, they are complying with a provision of general international law. Thus the disputants are not filling the lacuna in the law but merely complying with pre-existing rules. Where then, is the deficiency in the law?

Those who prescribe to the theory of “gaps in the law” are in reality only anxious to find a rationale for retaining the supremacy of politics over law. Efforts to establish the predominance of one over the other arise because there is a general tendency to confuse the true relationship between the two social techniques. Politics is the end in view, the objective one strives to attain; law on the other hand, is one of the many means to achieve the political end. If this relationship is recognized, then the need to campaign for the supremacy of the one over the other becomes quite redundant.

In the ultimate analysis each individual must ask himself whether political ends should be attained by peaceful means or by the use of brutal, barbaric force. If peaceful means are preferred, then the only logical and decent method is through the application of the rule of law. No other peaceful technique can replace it. The need to quibble over unscientific and transient expedients vanishes once each person acknowledges the permanent and all-embracing quality of law.

In national legal systems, apart from a few exceptions, people have come to accept the supremacy of law over all other means in the achievement of certain ends. In the sphere of international relations, however, humanity has still to travel much farther before such a desired state of affairs is achieved. But here also the relentless mill of law is gradually grinding the wheels of centralization which will eventually solidify the structure of the international community and place the entire burden on the rule of law as the only means of solving disputes.

The most rapid way in which such a condition can be created is by submitting all disputes to the International Court of Justice for compulsory and binding adjudication. Such a shift in the international organization will, of course, be violently denounced by a number of states, but if accomplished, it will not only replace a servile and senile social order by a fresh and invigorating one but will also give this war-sick humanity genuine cause to believe that bloodshed as a means of achieving political or economic ends is dead forever.