Thanks for your post. My response
UN resolutions are not as a rule, binding. Had that been the case they would have been included as a source of international law under Art. 38(1) of the Statute of the ICJ. As it stands Art 38 does not list UN resolutions as source of international law, nor does the charter provide for any such effect for cause of action based on such resolutions.
In short: If resolutions were binding parties would be entitled to initiate legal proceedings for enforcement of such resolutions before the ICJ - which is currently not allowed.
In the absence of binding force the implementation of resolutions depends on willingness of states to cooperate. The only way to 'enforce' a resolution is if the UNSC directs specific countries (say X and Y) formation of a UN military force and instructs such force to enforce its writ - but that would itself be non-binding on those countries (X and Y)
You may want to see the text of the resolution. It is drafted as a recommendation, not an instruction (as was the case with the Korean war). See page 10 of the official document. http://www.un.org/en/ga/search/view_doc.asp?symbol=S/RES/51(1948)
So how come successive Pakistani governments (civilian and military) have taken no steps to comply with the first condition of that resolution - i.e. Condition (A)(1) - withdrawal from J&K of all Pakistani nationals and tribesmen?
The answer is obvious- those governments never trusted India to carry out its obligation under Conditions (A)(2) and (3). But then it cannot claim (in advance) that India is not complying with the resolution
What legal process? The UNSC is not an adjudicatory body - like the ICJ or PCIA (where the Kishanganga dispute is going on). What you say is applicable for an adjudication (eg. if India and Pakistan agree on settlement of Kishanganga in some particular manner they must go back to the PCIA for modification of the award).
Why do you think nearly so many heads of state go on record to say the dispute is, today, a bilateral dispute? Even China - which would have, no doubt seized on this, to score a legal point has consistently maintained it's a bilateral issue.
You may be interested to know that since 2010 the UN has dropped Kashmir from a list of unresolved international disputes where the UN has a role.
https://tribune.com.pk/story/77671/kashmir-issue-left-unmentioned-in-united-nations/
Final Note: Non-applicability of UN intervention does not mean there is no dispute. There is very much a dispute, people are dying needlessly and money is being wasted in Kashmir that could have been put to better use. I am all for a political solution with or without UN help - but first step in working out a solution is to acknowledge the problem and the limitations.
UN resolutions are not as a rule, binding. Had that been the case they would have been included as a source of international law under Art. 38(1) of the Statute of the ICJ. As it stands Art 38 does not list UN resolutions as source of international law, nor does the charter provide for any such effect for cause of action based on such resolutions.
In short: If resolutions were binding parties would be entitled to initiate legal proceedings for enforcement of such resolutions before the ICJ - which is currently not allowed.
In the absence of binding force the implementation of resolutions depends on willingness of states to cooperate. The only way to 'enforce' a resolution is if the UNSC directs specific countries (say X and Y) formation of a UN military force and instructs such force to enforce its writ - but that would itself be non-binding on those countries (X and Y)
You may want to see the text of the resolution. It is drafted as a recommendation, not an instruction (as was the case with the Korean war). See page 10 of the official document. http://www.un.org/en/ga/search/view_doc.asp?symbol=S/RES/51(1948)
So how come successive Pakistani governments (civilian and military) have taken no steps to comply with the first condition of that resolution - i.e. Condition (A)(1) - withdrawal from J&K of all Pakistani nationals and tribesmen?
The answer is obvious- those governments never trusted India to carry out its obligation under Conditions (A)(2) and (3). But then it cannot claim (in advance) that India is not complying with the resolution
What legal process? The UNSC is not an adjudicatory body - like the ICJ or PCIA (where the Kishanganga dispute is going on). What you say is applicable for an adjudication (eg. if India and Pakistan agree on settlement of Kishanganga in some particular manner they must go back to the PCIA for modification of the award).
Why do you think nearly so many heads of state go on record to say the dispute is, today, a bilateral dispute? Even China - which would have, no doubt seized on this, to score a legal point has consistently maintained it's a bilateral issue.
You may be interested to know that since 2010 the UN has dropped Kashmir from a list of unresolved international disputes where the UN has a role.
https://tribune.com.pk/story/77671/kashmir-issue-left-unmentioned-in-united-nations/
Final Note: Non-applicability of UN intervention does not mean there is no dispute. There is very much a dispute, people are dying needlessly and money is being wasted in Kashmir that could have been put to better use. I am all for a political solution with or without UN help - but first step in working out a solution is to acknowledge the problem and the limitations.
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