Indian Army used artillery & heavy mortars on LOC targeting Civilian Population

[M. Sarmad]

Not as per UN resolutions. Believe me this report is very weak in terms of its comments on right to self determination, it talks more from humanitarian view.

And why should we believe you? India itself is a party to the dispute. Conflict of interest hai

Why not the neutral experts?

First you guys rejected UN for being biased against India

Now you guys are claiming that these ICJ law experts know nothing about law ..

O kaun laug o tussi

 

[Joe Shearer]

It's damn right about Indians having an uncontrollable conflict of interest in this matter. You can't keep picking and choosing which bits of text quoted in your preferred context you wish to adhere to. It reeks of bias.

If you have such difficulties with the deconstruction of the arguments in question, you might like to consider the legality or morality of a case where one of the disputants takes to arms to resolve the dispute in his favour, and simultaneously seeks the protection of the law and of international opinion.

Everybody else seems to be biased, when their point of view does not coincide with yours.

Can rights be abrogated in retrospect then? This is farcical and now your bias is clearly showing.

No, they cannot. But I never argued that. I argued exactly the opposite. A party that was not entitled to a complete freedom of choice is now being projected as possessing that freedom by one of the disputants. Is it my bias showing?

 

[masterchief_mirza]

Then unabrogate 370. Restore Kashmir's autonomy.

 

[M. Sarmad]

Everything wrong with being a patriot; I don't count myself as one. If you want to know more, read La Trahison des Clercs, by Julien Benda.

As for national characteristics, where has the bad language started?

Peace out

 

[Joe Shearer]

Then unabrogate 370. Restore Kashmir's autonomy.

How is Art. 370 relevant here? Have you really thought it through before writing that?

 

[IMARV]

It's damn right about Indians having an uncontrollable conflict of interest in this matter. You can't keep picking and choosing which bits of text quoted in your preferred context you wish to adhere to. It reeks of bias.

Calm down and understand the context. ICJ commission was no court and they simply commented that Kashmiris should have the right of self determination as given by UN resolutions.

At the same time they talk about complete right, including independence, but their basis of argument i.e. UN itself didnt provided them complete right.

That's why I said it was bad in law, emotional one.

Can rights be abrogated in retrospect then? This is farcical and now your bias is clearly showing.

No, rights can not be abrogated in retrospect either

But were rights given by UN to Kashmiris or recommendations given to India and Pakistan to use plebiscite to resolve their dispute?

Chapter VI of UN can not confer rights but only recommendations and that too are non enforceable. One should ask UN why it passes resolution in Chapter VI and not VII.

 

[Joe Shearer]

Calm down and understand the context. ICJ commission was no court and they simply commented that Kashmiris should have the right of self determination as given by UN resolutions.

At the same time they talk about complete right, including independence, but their basis of argument i.e. UN itself didnt provided them complete right.

That's why I said it was bad in law, emotional one.

No, rights can not be abrogated in retrospect either

But were rights given by UN to Kashmiris or//were// recommendations given to India and Pakistan to use plebiscite to resolve their dispute?

Chapter VI of UN can not confer rights but only recommendations and that too are non enforceable. One should ask UN why it passes resolution in Chapter VI and not VII.

Precisely.

 

[M. Sarmad]

Chapter VI of UN can not confer rights but only recommendations and that too are non enforceable. One should ask UN why it passes resolution in Chapter VI and not VII.

Not again


The UNSC Resolutions on Kashmir are neither "Unenforceable" nor "Non-binding" ...


1) UN maintains that "NO SECURITY COUNCIL RESOLUTION CAN BE DESCRIBED AS UNENFORCEABLE."


2) There always has been a general inability of the Permanent Five to agree upon imaginative and expansive applications of Chapter VI ... In Somalia, the Security Council deployed the UN's first operation, UNOSOM I, in mid-1992 to separate warring combatants and help delivery of humanitarian relief ....

UNOSOM I entered and operated without invoking Chapter VII

Further Reading: http://www.ejil.org/pdfs/6/1/1305.pdf



3) India approached UN under Chapter VI of the UN charter , BUT the decision taken by UN reflected that its resolutions were not based exclusively on this chapter .... The resolutions , apart from chapter VI , are based upon other chapters , including chapter VII

The fact that there does not exist any provision for the deputing of UN peace keeping mission under chapter VI makes it obvious that UN resolutions were not exclusively based on chapter VI .... The interim measures which included cease fire and deputation of United Nations Military Observer Group were based on Article 40 of chapter VII ...

Besides chapter VI and VII , UN resolutions are based on other chapters also(i.e Article 1 , Chapter I (2) and Article 55 , Chapter IX) ...

^^ And this is not my personal opinion. That is Rosalyn Higgins' opinion on 'Kashmir Resolutions and under which chapter they were passed' .. Source: 'Higgins, Rosalyn. United Nations Peace Keeping 1946-67: Documents and Commentary. London, UK: Oxford University Press, 1970. (349-51)

(Rosalyn Higgins is an expert on International Law; a Doctor of Juridical Science. She has served as a Judge in the International Court of Justice for fourteen years (and was elected President in 2006). Her competence has been recognised by many academic institutions, having received at least thirteen honorary doctorates)




4) While a recommendation under Chapter VI by itself "may not" be binding, this is not the case in the Kashmir dispute. Here, the parties have consented to be bound by the resolutions of 13 August and 5 January. (13 M. WHITEMAN, DIGEST OF INTERNATIONAL LAW 360 (1968).



5) The UNSC Resolutions endorsed a binding agreement between India and Pakistan reached through the mediation of UNCIP, that a plebiscite would be held, under agreed and specified conditions. A letter dated December 23, 1948, from India's Secretary-General of the Ministry of External Affairs to the Representative of UNCIP, stated that the Indian Prime Minister's acceptance of the 5 January resolution was conditioned on Pakistan's acceptance of the resolution. By this letter, India consented to be bound by the resolution of 5 January and, through this, the resolution of 13 August as well. (Aide Memoire No. 1, Letter Dated 23 December 1948 From the Secretary General of the Ministry of External Affairs and Commonwealth Relations of the Government of India to Mr. Alfredo Lozano, Representative of UNCIP at 23, U.N. Doc. S/1196 (1949)




6) Self-Determination as a Binding Rule of International Law

Four instances may inform the principle of self-determination with a legal dimension.

(i) The principle of self-determination is binding upon the parties, whether they have adopted it as the basis or as a criterion for the settlement of a particular issue or dispute. In the peace treaties after World War I, and in the cases of Kashmir (after 1948), the Saar Territory (1955), and Algeria’s struggle for independence, the principle of self-determination was chosen as a basis for negotiation, and in the Agreement on Ending War and Restoring Peace in Vietnam (1973) the parties expressly recognized the South Vietnamese people’s right to self-determination.


http://opil.ouplaw.com/view/10.1093/law:epil/9780199231690/law-9780199231690-e873





7) The binding nature of these UN resolutions (as acknowledged by Indian officials)



Finally some quotes from Indian officials on Kashmir exemplifying their commitment to plebiscite rather than forced accession as history has found them do :-

We adhere strictly to our pledge of plebiscite in Kashmir; a pledge made to the people because they believe in democratic government; We don't regard Kashmir as a commodity to be trafficked in -Krishna Menon (Press statement in London, reported in the Statesman, New Delhi, 2nd August, 1951)

The Government of India not only reaffirms its acceptance of the principle that the question of the continuing accession of the State of Jammu and Kashmir to India shall be decided through the democratic method of a free and impartial plebiscite under the auspices of the United Nations, but is anxious that the conditions necessary for such a plebiscite should be created as quickly as possible -Letter from Govt. of India to UN Representative for India and Pakistan, 11th September, 1951

I want to say for the purpose of the record that there is nothing that has been said on behalf of the Government of India which in the slightest degree indicates that the Government of India or the Union of India will dishonour any international obligations it has undertaken.
-Krishna Menon (Statement at UN Security Council, 24th January, 1957)

The resolutions of January 17, 1948 and the resolutions of the UNICP, the assurances given, these are all resolutions which carry a greater weight; that is because we have accepted them, we are parties to them, whether we like them or not. -Krishna Menon, (Statement at UN Security Council, 20th February, 1957)

These documents (UNCIP reports) and declarations and the resolutions of the Security Council are decisions; they are resolutions, there has been some resolving of a question of one character or another, there has been a meeting of minds on this question where we have committed ourselves to it. -Krishna Menon, (Statement at the Security Council, 9th October, 1957)


India believes that sovereignty rests in the people and should return to them. -Krishna Menon, (The Statesman, Delhi, 19th January, 1962)



Therefore, India is bound by word and deed to leave the future of Kashmir to the will of its people.

You are so predictable.

How about you tell us the procedure earmarked in Chapter VI to make its resolutions enforceable. Please do so.

So, that's your best reply to my post?
Why am I not surprised

 

[masterchief_mirza]

How is Art. 370 relevant here? Have you really thought it through before writing that?

It's not relevant but you're making sweeping general statements instead of assessing a case on its merits. I demonstrated to you what that looks like in terms of "you can't abrogate retrospectively".

If you assess Kashmir on its merits instead of simplistically banging on about not being able to grant more rights as some generic prime directive, you may be compelled to realise that a painful compromise will be needed from Hindustan. I understand that such a thing is difficult for India. It's a new frontier. But if the mighty British can bash out the highly pragmatic and compromising Good Friday agreement with the IRA, then anything is possible.

Nobody has even mentioned the hypocrisy, hypocrisy over junagadh and Hyderabad....but let's not today as sleep is important.

 

[Joe Shearer]

Not again


The UNSC Resolutions on Kashmir are neither "Unenforceable" nor "Non-binding" ...


1) UN maintains that "NO SECURITY COUNCIL RESOLUTION CAN BE DESCRIBED AS UNENFORCEABLE."


2) There always has been a general inability of the Permanent Five to agree upon imaginative and expansive applications of Chapter VI ... In Somalia, the Security Council deployed the UN's first operation, UNOSOM I, in mid-1992 to separate warring combatants and help delivery of humanitarian relief ....

UNOSOM I entered and operated without invoking Chapter VII

Further Reading: http://www.ejil.org/pdfs/6/1/1305.pdf



3) India approached UN under Chapter VI of the UN charter , BUT the decision taken by UN reflected that its resolutions were not based exclusively on this chapter .... The resolutions , apart from chapter VI , are based upon other chapters , including chapter VII

The fact that there does not exist any provision for the deputing of UN peace keeping mission under chapter VI makes it obvious that UN resolutions were not exclusively based on chapter VI .... The interim measures which included cease fire and deputation of United Nations Military Observer Group were based on Article 40 of chapter VII ...

Besides chapter VI and VII , UN resolutions are based on other chapters also(i.e Article 1 , Chapter I (2) and Article 55 , Chapter IX) ...

^^ And this is not my personal opinion. That is Rosalyn Higgins' opinion on 'Kashmir Resolutions and under which chapter they were passed' .. Source: 'Higgins, Rosalyn. United Nations Peace Keeping 1946-67: Documents and Commentary. London, UK: Oxford University Press, 1970. (349-51)

(Rosalyn Higgins is an expert on International Law; a Doctor of Juridical Science. She has served as a Judge in the International Court of Justice for fourteen years (and was elected President in 2006). Her competence has been recognised by many academic institutions, having received at least thirteen honorary doctorates)




4) While a recommendation under Chapter VI by itself "may not" be binding, this is not the case in the Kashmir dispute. Here, the parties have consented to be bound by the resolutions of 13 August and 5 January. (13 M. WHITEMAN, DIGEST OF INTERNATIONAL LAW 360 (1968).



5) The UNSC Resolutions endorsed a binding agreement between India and Pakistan reached through the mediation of UNCIP, that a plebiscite would be held, under agreed and specified conditions. A letter dated December 23, 1948, from India's Secretary-General of the Ministry of External Affairs to the Representative of UNCIP, stated that the Indian Prime Minister's acceptance of the 5 January resolution was conditioned on Pakistan's acceptance of the resolution. By this letter, India consented to be bound by the resolution of 5 January and, through this, the resolution of 13 August as well. (Aide Memoire No. 1, Letter Dated 23 December 1948 From the Secretary General of the Ministry of External Affairs and Commonwealth Relations of the Government of India to Mr. Alfredo Lozano, Representative of UNCIP at 23, U.N. Doc. S/1196 (1949)




6) Self-Determination as a Binding Rule of International Law

Four instances may inform the principle of self-determination with a legal dimension.

(i) The principle of self-determination is binding upon the parties, whether they have adopted it as the basis or as a criterion for the settlement of a particular issue or dispute. In the peace treaties after World War I, and in the cases of Kashmir (after 1948), the Saar Territory (1955), and Algeria’s struggle for independence, the principle of self-determination was chosen as a basis for negotiation, and in the Agreement on Ending War and Restoring Peace in Vietnam (1973) the parties expressly recognized the South Vietnamese people’s right to self-determination.


http://opil.ouplaw.com/view/10.1093/law:epil/9780199231690/law-9780199231690-e873





7) The binding nature of these UN resolutions (as acknowledged by Indian officials)



Finally some quotes from Indian officials on Kashmir exemplifying their commitment to plebiscite rather than forced accession as history has found them do :-

We adhere strictly to our pledge of plebiscite in Kashmir; a pledge made to the people because they believe in democratic government; We don't regard Kashmir as a commodity to be trafficked in -Krishna Menon (Press statement in London, reported in the Statesman, New Delhi, 2nd August, 1951)

The Government of India not only reaffirms its acceptance of the principle that the question of the continuing accession of the State of Jammu and Kashmir to India shall be decided through the democratic method of a free and impartial plebiscite under the auspices of the United Nations, but is anxious that the conditions necessary for such a plebiscite should be created as quickly as possible -Letter from Govt. of India to UN Representative for India and Pakistan, 11th September, 1951

I want to say for the purpose of the record that there is nothing that has been said on behalf of the Government of India which in the slightest degree indicates that the Government of India or the Union of India will dishonour any international obligations it has undertaken.
-Krishna Menon (Statement at UN Security Council, 24th January, 1957)

The resolutions of January 17, 1948 and the resolutions of the UNICP, the assurances given, these are all resolutions which carry a greater weight; that is because we have accepted them, we are parties to them, whether we like them or not. -Krishna Menon, (Statement at UN Security Council, 20th February, 1957)

These documents (UNCIP reports) and declarations and the resolutions of the Security Council are decisions; they are resolutions, there has been some resolving of a question of one character or another, there has been a meeting of minds on this question where we have committed ourselves to it. -Krishna Menon, (Statement at the Security Council, 9th October, 1957)


India believes that sovereignty rests in the people and should return to them. -Krishna Menon, (The Statesman, Delhi, 19th January, 1962)



Therefore, India is bound by word and deed to leave the future of Kashmir to the will of its people.

For all of these, there is a precise and a specific answer. Even without a plebiscite taking place, the people of that limited portion that fell under Indian administration were allowed to assemble and to give themselves a constitution, something that the other disputant, Pakistan, failed to do until long afterwards, both for the western Poonch region and the Gilgit region.

You might argue that the UN also stipulated that no changes in the constitutional situation that was not founded on a resolution as recommended by the UN resolution should be considered permanent. However, until such time as all the several groups and entities constituting the people of Kashmir as it was constituted at the time of the dispute arising can come to take decisions, severally or jointly, at least one disputant had given constitutional rights to the people that it administered.

You may disagree with the extent of the rights, but that must be judged not by looking at our efforts in isolation but by looking at what you did in your turn. There is nothing contradictory in the present situation and what Krishna Menon said at that time.

 

[M. Sarmad]

No it is not thats why I already deleted my post but seems you are so excited that you already quoted the moment I posted it.

You have added some new content to your standard response on this subject, allow me to read it and respond.

Bro, if I give you a direct quote from the UN that UNCIP resolutions on Kashmir are binding, kafi time nhi bch jay ga apka ? ... manzoor hai ?

 

[Joe Shearer]

It's not relevant but you're making sweeping general statements instead of assessing a case on its merits. I demonstrated to you what that looks like in terms of "you can't abrogate retrospectively".

If you assess Kashmir on its merits instead of simplistically banging on about not being able to grant more rights as some generic prime directive, you may be compelled to realise that a painful compromise will be needed from Hindustan. I understand that such a thing is difficult for India. It's a new frontier. But if the mighty British can bash out the highly pragmatic and compromising Good Friday agreement with the IRA, then anything is possible.

Nobody has even mentioned the hypocrisy, hypocrisy over junagadh and Hyderabad....but let's not today as sleep is important.

Please enlarge the subject whenever you find convenient. My statement was straightforward: that a right cannot be granted retrospectively. Merely to put up the mirror of that, with no basis, is hardly an inspiring argument, and if that is what you consider a demonstration, you are mistaken. Nothing was abrogated retrospectively; using that phrase by itself is merely clever, it is not relevant.

You never got around to talking about the relevance of Art. 370, by the way. Does that sidestep come under the rubric of simplistically banging on?

 

[IMARV]

Not again

I really wished so, but your old habbit wont die, so soon. Long post so I have to go a bit slow and in pieces.

1) UN maintains that "NO SECURITY COUNCIL RESOLUTION CAN BE DESCRIBED AS UNENFORCEABLE."

Offcourse UN would like us to believe so and they can be made enforceable by passing further resolutions under chapter VII. Chapter VI is political and based on peaceful negotiations and resolutions are advisory in nature as stated clearly by Kofi Annan. There is no enforcing mechanism covered in Chapter VI

During his visit to Pakistan and India in 2001, former secretary general of United Nations Kofi Annan had remarked that Kashmir resolutions were only advisory recommendations and comparing them with those on East Timor and Iraq was like comparing apples and oranges, since those resolutions were passed under Chapter VII, which make them enforceable by the UNSC. According to the UN Charter, resolutions passed under chapter VI, like the resolutions on Kashmir, are considered non-binding. Only the resolutions passed under Chapter VII can be enforced by the United Nations through force or other means.

https://dailytimes.com.pk/64203/going-back-to-the-un-on-kashmir/

2) There always has been a general inability of the Permanent Five to agree upon imaginative and expansive applications of Chapter VI ... In Somalia, the Security Council deployed the UN's first operation, UNOSOM I, in mid-1992 to separate warring combatants and help delivery of humanitarian relief ....

UNOSOM I entered and operated without invoking Chapter VII

Further Reading: http://www.ejil.org/pdfs/6/1/1305.pdf

Did you even read what you have quoted yourself? Chapter VI need a consent of state to engage UN missions and in case of Somalia, in absence of defined state government, UN assumed group of militia as de facto authority and took its consent to send its mission, which later on failed as chapter VI rendered useless due to its restrictive nature and council has to dump it and move to chapter VII only

In Somalia, the Council also pushed consent further when it deployed the UN's first operation, UNOSOM I, in mid-1992 to separate warring combatants and help delivery of humanitarian relief. Somalia lacked any true government at die time, so the UN considered the consent of several key warlords in Mogadishu sufficient legal authority for UNOSOM I to enter and operate widiout invoking Chapter VII.31 Subsequent events on die ground, however, showed the limitations of this solution. Fighting continued and armed gangs blocked distribution of food aid, showing that this contrived consent had effectively collapsed. UNOSOM I had no power or authority to do anything about it. The Council's members saw a switch to Chapter VII as their only option, ultimately abandoning consent for peace enforcement in December 1992.32

Dont be so eager to shot down your own foot by quoting a failed attempt in a apple vs orange scenario.

Brace for my next post. I dont even think I need to look at rest of your arguments after this.
@Joe Shearer

Bro, if I give you a direct quote from the UN that UNCIP resolutions on Kashmir are binding, kafi time nhi bch jay ga apka ? ... manzoor hai ?

Whats use of binding which can not be enforced? Yes every nation is binded, morally, to follow their resolutions.

But then proof of pudding is in eating.

 

[Hellfire]

Good Heavens! I just mentioned you! Didn't tag you because I thought you were permanently absent.

I hover, drop in and disappear. Not oft, but sometimes.

Regards

 

[Joe Shearer]

I hover, drop in and disappear. Not oft, but sometimes.

Regards

I do wish you would join in, at least when we have proper learned people to talk to. How are you?

Regards.