I come to this place after such a long time and its still the same. The LOC is still the same and both sides are still claiming losses of the opposition and are celebrating it. An ammo dump being targeted is being paraded as D-Day and the loss of 5 indian commandos to militants is being claimed as great victory by Pakistan. still the same. ( heard
@Nilgiri say
@Joe Shearer is 'kicking butt' again lolzz).
I am just going to touch this joe that the concept that all resolutions are under chapter 6 and not 7 is flawed due to several reasons and they must be understood. I am not going to touch whether the UN resolutions are extremely binding, strongly binding, not binding or incapable to be binding. I am simply going to state whether the resolutions between the year 1947-1957 ( 16 to 17 resolutions i think) were under chapter 6 or chapter 7.
First of all in layman terms, Chapter 6 of the united nations is composed of 6 articles and each of these articles speak on settlement of disputes.
Article 33 section highlights that any dispute whose continuation can create threats to international peace shall first of all seek resolution through negotiation e.t.c. e.t.c
The remaining articles highlight how the united council can investigate the disputes, nations can bring froth any dispute and the UN provide recommendations those states in dispute.
Basically the concept is that these are not binding upon states. This is a major legal question that is being argued to this day since there are several legal schools that believe that chapter 6 has binding power whereas another argues that they do not have binding power.
Before i enter into this let me state that united states charter is basically the constitutional framework for the united nations or something meant to be like that and the first thing we study in constitutional law is that it is not to be cherry picked nor to be read in isolation but as a whole document from section to last since each section creates an effect upon the other and any contradiction highlights the incompetence of state structure. Let me highlight. We, in our constitution, had judicial review in article 199 and and article 8 which highlight laws inconsistent with or in derogation of islam or fundamental rights will be void and article 199 is judicial review thus we see here that the constitution is saying one thing here that the courts can strike down laws passed by parliament if they contravene islam or fundamental rights however Zia added another article which was Article 239 (5) which barred the courts from questioning any amendment to the constitution now this is in contradiction to article 8 which empowers the court to strike down any law or amendment that is against islam or fundamental rights. This was struck down by courts in 2015 but the fact is that constitutions are read as a whole and each section connects the other and must empower the sections rather than hinder them.
The reason why i used this example is to help you understand some basics of law so that when we read the UN charter, we can come to understand why two opinions exist and how they effect the UN resolutions.
So The Namibia judicial advisory highlighted that the legal opinion stating that chapter 6 is non binding is in contradiction to several articles of the UN charter. The first that they highlighted was that it goes against the concept on Article 24 shose first section placed responsibility upon the security council to act on behalf of member states to maintain international peace and they shall be given powers in accordance to chapter 6,7,8,9. Now here we see that member states have given primary responsibility to the security council in maintenance of international peace. So if there is any threat to the international peace, they need to provide prompt and effective action to solve such threat on behalf of member states. Ofcourse we can all argue, how, when , where but that is not what i am saying. The reason why the jurist opinion pointed that chapter 6 being recommendation would make article 24 superfluous is bcz you have one article that is stating prompt responses to solve problems and then you have one chapter that says recommend and then leave. I understand that the balance of state independence and having to create a unilateral world organization was not easy but such contraventions create hindering effects in dispute resolution and even the working of the UN. They then highlighted Article 47 and 48. Now what are these two articles? Another Article was mentioned which was article 25 which states that member states must agree to accept and carry out the decisions of the security council.
Article 47 states that action required for the carrying out of decisions for the maintenance of international peace shall be taken by all members and mutual assistance to each other or through the organizations that they are part of.
Now this thought process of binding nature is supported by some jurists whereas others state that they are non binding who state that such separation of chapters was made to differentiate between consent of parties and binding resolutions and that chapter 7 does not have the matter of consent that is present in chapter 6. They also argue that the chapter 6, the disputed parties cannot vote upon the dispute resolution thus if such binding nature is given then the two parties are not given the power to bring forth their vote upon a resolution that is binding upon them.
There are some that take a more moderate view that Chapter 6 is not just advisory opinion and they are still directives of the security council which must be respected and are the responsibility of the security council to be implemented however they do not have the stringent military options attached to them which resolutions under chapter 7 have. Now rosalynn higgings stated that these chapters are highly ambiguous in nature and the binding nature of a dispute resolution must be seen through the words and the content that the resolution attaches and most importantly upon whether the parties wanted recommendations or decisions rather than look upon chapters. The united nations, in all its wisdom, did not brand chapters on resolution in its early stages.
The reason why i posted above was to help you understand how polarized the charter of UN is and how grand the legal questions are and yes there are legal questions and interpretations. all of you are looking at things from contract law or guardian law ( his example) or local law but international law is very different from muncipal law and it is very ill defined. Nobody is lying over here but interpreting things to your concepts and basis atleast to the argument of chapter 6 and chapter 7.
Now with the hope that the complexity of international law shall be respected let us dive into whether the resolutions of 1947-1957 fall into chapter 6 or chapter 7. i have great respect for kofi annan but he was not a lawyer and the complexity of the UN charter was not his domain. Whatever he states whether they were binding or not cannot be taken on face value. such complex questions require legal history.
Now first of all the 17 resolutions did not have a specific chapter mentioned which means that where those that state that they were under chapter 6 cannot disapprove those that state that they were under chapter 7 since chapters were not specifically mentioned.
In such a lost situations, we need to take guidance from rosalyn higgins who stated that content of the resolution and the will of the parties determine whether the resolution is binding or recommendation.
Resolution 47 that constituted a committee had the words instructs the commission to proceed at once and place its good offices and mediation at the disposal of the governments of India and Pakistan. Now this is the resolution that India keeps talking about and here we see the UN constituting a commission, highlighting its powers, uses and directed it to do it immediately so there was an element of binding within it. It cannot be called a recommendation since nowhere did it state "subject to approval". So we can clearly see that the concept that they were recommendations contravenes the language of the resolution. Infact the increase in powers of the commission in terms of Ceasefire line highlights that they were not recommendations but binding in nature. How can we say that a resolution is recommendatory and at the same time the commission is empowered to oversee the cease fire and the cease fire line agreement. Resolution 96 also has similar language where it instructed the representative to continue its efforts of bringing forth demilitarization of Kashmir by both parties and report after 6 weeks of all the problems that he is facing in creating this effect.
Resolution 98 was more recommendatory since it repeatedly used the words 'urges'to bring forth demilitarization of the area with having a set number of forces...
the point is that to state that all resolutions were chapter 6 ( a very disputed chapter and home to multiple interpretations), is flawed since the resolutions contained other aspects which were implemented and instructions to those commissions and offices. I am reminded of professor Stephens zunes that stated that the chapter is not merely advisory but are directives of the security council and thus they have binding power although absent the although absent the stringent enforcement options such as military force which are available in chapter 7. If we look at it from his point of view then we can understand the resolution language even more that since there are no stringent enforcement in place thus the language must be in a form or urges and requests rather than absolute orders.
Now i am reminded again of article 24 and article 25 which places responsibilities upon both security council in its directives and upon member nations upon the directives...
Some have highlighted that these are general laws and chapter 6 and 7 are special laws but the constitution must be general and must not play the legal relationship between special and general with its own articles as i highlighted the relationship between article 8 and article 199 and article 239(5). This highlights flaws in the nature of the framework.
I hope that you guys when bringing forth arguments respect the polarity of the framework of the united nations and refrain from calling each other liars, deceivers and stuff.
Frankly in the end this is useless. The united nations cannot and will not be able to solve this. they are not empowered enough and frankly all of us would be quite worried in a world where the security council is empowered enough to force two nuclear nations with armies larger than most of the world's armies to be enforced because then they can enforce alot of other stuff then as well. As we argue that you didnt follow this and you didnt follow that and you signed this agreement and you signed that agreement and this resolution is chapter 6 and that is chapter 7 and all of it, the people of kashmir are suffering. One is under lockdown and before that was being pushed down whereas the other is struggling with representation within a country is so hoped to join with empty promises that it did not fulfill. We can argue and win discussions here in front of 20 people but the people on the ground dont care. they dont care how many resolutions were passed, they dont care who is right and who is wrong and what is the legal procedure and what are the legal questions. They dont care. they see two armies entrenched firing against one another and justifying each bullet and each death with a thousand excuses. they see those crazy nations building bridges over incidents that took a million lives whereas on their end they see fences, posts bring increased daily.
Your discussions were very informative but the legal position had flaws but it doesnt matter. We are not in court here but i hope the above sample will help you understand the complications of law and how difficult it is for the people of the region.
@Joe Shearer we have learned much in this discussion. Alot but the only thing we can take home is "you did this" "I did this" " you should have done this" " you didnt do this" and Joe that wont solve the problem. Not At All.
In the end nothing has changed
