ARMY VETERAN’S ‘SPLIT PAK INTO 4’ TALK SPARKS OUTRAGE

[Nicky G]

Pakistan signed away nothing - I just quoted the actual text of Simla highlighting my point, to which you have not responded.

It's not that a bilateral agreement can't supersede the UN, it is the fact that the Simla Agreement does not contain any language that supersedes the UNSC Resolutions on Kashmir. Indian negotiators should have been more careful and specific about the language of Simla if they want it to supersede the UNSC Resolutions on Kashmir.

You are wilfully ignoring the keyword mutually agreed. If India does not agree to something, its not obligated to anything, including the UN resolutions, unless of course you can quote the way out of this phrase for Pak.

The Pak negotiators must have been delusional to agree to this text, or in reality out of options considering the background of the agreement.

We can go 50 rounds on this, but lets make it easy - has the UN ever backed Pak that India must agree to third party negotiators or simply requested India time and again? That in itself should be sufficient.

 

[Trichy]

The UNSC Resolutions on Kashmir (there are quite a few, not just one) set up a framework within which India, Pakistan and UN mediators are to enter into negotiations on the nature and timing of any military withdrawal. Pakistan agreed to multiple proposals presented by UN Mediators/commissions tasked to reach such an agreement, and India rejected almost all of them. There is no requirement for a unilateral or unconditional withdrawal upon Pakistan.

then first read the original Resolutions with the help of some one and come back to this arguments, and there is no 3rd party in discussion for this ever, is the simple stand by INDIA, so whom we going to speak? pak or UN?????? we have no interest to accept or allow what ever pakistan ask or cry about it.... lol

 

[AgNoStiC MuSliM]

then first read the original Resolutions with the help of some one and come back to this arguments, and there is no 3rd party in discussion for this ever, is the simple stand by INDIA, so whom we going to speak? pak or UN?????? we have no interest to accept or allow what ever pakistan ask or cry about it.... lol

I've had this debate multiple times: First, Simla does not negate or supersede the UNSC Resolutions in any way. There is no language in Simla to support the Indian contention, as I have already pointed out.

Second, on the UNSC Resolutions on Kashmir, read through the following thread - the text of the Resolutions is present along with my arguments on them.
https://defence.pk/threads/pakistan...agreement-sources.392233/page-11#post-7533725

You are wilfully ignoring the keyword mutually agreed.

The Indian government agreed and committed to the UNSC Resolutions multiple times when they were passed. As I said, if India now wants to violate its commitments and its obligations under the UN Charter, have the Indian government officially and explicitly declare so in the UN.

Simla therefore does not in any way supersede the UNSC Resolutions on Kashmir that the Indian government had already, multiple times, officially committed to implement.

 

[-xXx-]

The UNSC Resolutions on Kashmir (there are quite a few, not just one) set up a framework within which India, Pakistan and UN mediators are to enter into negotiations on the nature and timing of any military withdrawal. Pakistan agreed to multiple proposals presented by UN Mediators/commissions tasked to reach such an agreement, and India rejected almost all of them. There is no requirement for a unilateral or unconditional withdrawal upon Pakistan.

AM, I do not understand why do we keep on talking about UN resolutions after 70 years, its not practical anymore.

Our leaders have moved on, your's have moved on (in reality, Mush is example), UN chiefs have moved on as well and always ask India and Pak to engage bilaterally to find a solution.

UN resolutions were merely recommendations which were neither binding nor enforceable. A solution suitable at one time may not be suitable 7 decades later. While on the other side Simla Agreement is an agreement between two sovereign states and is binding in nature.

Its really a waste of time and bandwidth, and progressive individuals should look out for something workable and not harp on a dead horse.

 

[Nicky G]

The Indian government agreed and committed to the UNSC Resolutions multiple times when they were passed. As I said, if India now wants to violate its commitments and its obligations under the UN Charter, have the Indian government officially and explicitly declare so in the UN.

Simla therefore does not in any way supersede the UNSC Resolutions on Kashmir that the Indian government had already, multiple times, officially committed to implement.

Repeat of what you have already argued without adressing the key point I made. I'll leave it here unless you can show if ever in the 40+ years since Simla, the UN demanding India agree to any third party negotiations.

 

[-xXx-]

I've had this debate multiple times: First, Simla does not negate or supersede the UNSC Resolutions in any way. There is no language in Simla to support the Indian contention, as I have already pointed out.

Yes it does. Any binding agreement between two states will supersede non binding resolutions under chapter VI. Simla agreement mandate Pak to engage bilaterally with India with no third party intervention on all pending issues.

Since Simla agreement has no jurisdiction on UN, the resolutions still exists but as a dead horse.

 

[AgNoStiC MuSliM]

Yes it does. Any binding agreement between two states will supersede non binding resolutions under chapter VI. Simla agreement mandate Pak to engage bilaterally with India with no third party intervention on all pending issues.

Since Simla agreement has no jurisdiction on UN, the resolutions still exists but as a dead horse.

That is incorrect, the text of Simla reiterates both States commitment to the UN (and therefore also to the UNSC Resolutions) and the UNSC Resolutions remain a 'mutually agreed upon peaceful means of resolving disputes', since the Indian Government officially and explicitly agreed to implement the UNSC Resolutions multiple times after they were passed.

Repeat of what you have already argued without adressing the key point I made. I'll leave it here unless you can show if ever in the 40+ years since Simla, the UN demanding India agree to any third party negotiations.

I've answered your point - the Indian Government agreed to implement the UNSC Resolutions multiple times, as did the Pakistani government, therefore Simla does not negate or supersede those commitments.

AM, I do not understand why do we keep on talking about UN resolutions after 70 years, its not practical anymore.

The current Indian leadership has made clear that it is not interested in any compromise on Kashmir nor has it proposed any alternate means of resolving the dispute, therefore the only 'mutually agreed upon means of resolving the Kashmir dispute' are the UNSC Resolutions on Kashmir.

 

[-xXx-]

That is incorrect, the text of Simla reiterates both States commitment to the UN (and therefore also to the UNSC Resolutions) and the UNSC Resolutions remain a 'mutually agreed upon peaceful means of resolving disputes', since the Indian Government officially and explicitly agreed to implement the UNSC Resolutions multiple times after they were passed.

Not UN but UN charter which is a guideline for conduct for nations, to be precise.

There is a reason why UN has two types of chapter: VI and VII.

VI is non binding and there UN provide recommendations and if they are not enacted, its not violation of UN mandate.

VII is binding and enforceable and denying implementation of it is violating UN.

Simla is binding and do not violate UN charter of conduct. UN charter itself ask nations to respect bi lateral agreements.

Moreover even if a resolution is mutually agreed upon, the UN allow disagreement if comes further on. That's beauty of chapter VI. Since we got issues in implementation of original Aug 13, 1948 resolution, we have in all right, provided by UN, not to implement recommendation and still respect UN charter. I wont even go into detail why issues came in implementation and whose fault was that, its waste of time.

The current Indian leadership has made clear that it is not interested in any compromise on Kashmir nor has it proposed any alternate means of resolving the dispute, therefore the only 'mutually agreed upon means of resolving the Kashmir dispute' are the UNSC Resolutions on Kashmir.

Now you understand what damage Simla agreement did to you. A war lost always cause some harm, isn't it?

 

[Soumitra]

since the Indian Government officially and explicitly agreed to implement the UNSC Resolutions multiple times after they were passed.

When was the last time Indian govt agree to implement the UNSC resolutions? Was it before or after the Shimla agreement?

If you can show Indian govt agreeing to UNSC resolutions after signing the Shimla Agreement then the point of following the resolutions comes. As far as I know after Nehru no other PM has agreed to this.

@hellfire @Joe Shearer is there any agreement to implement UNSC resolution after Shimla?

 

[Joe Shearer]

When was the last time Indian govt agree to implement the UNSC resolutions? Was it before or after the Shimla agreement?

If you can show Indian govt agreeing to UNSC resolutions after signing the Shimla Agreement then the point of following the resolutions comes. As far as I know after Nehru no other PM has agreed to this.

@hellfire @Joe Shearer is there any agreement to implement UNSC resolution after Shimla?

The specific part about the Shimla agreement was that all disputes should be addressed mutually.

The question then and thereafter is whether or not Kashmir remains a dispute. It was not said in the pact that Kashmir no longer is a dispute, so in terms of the pact, Pakistan may still raise it as an issue, but with India directly.

Over and above this, some experts in international law state that the UN's resolutions cannot be voided by two member states agreeing mutually to solve their differences by themselves. While this is something they may implement by not referring any matter to the UN from that point onwards, it does not stop the UN from reminding these two states, separately and collectively, about its prior resolutions and asking about the implementation. Other experts differ.

According to my interpretation, the following is the status:

1. Pakistan may ask India for action to resolve the dispute over Kashmir, or any other past or future dispute;
2. India may ask Pakistan for action to resolve the dispute over Kashmir, or any other past or future dispute;
3. Neither Pakistan nor India ought to approach the UN over Kashmir or any other past or future dispute;
4. If either party does approach the UN for resolution of Kashmir or any other past or future dispute, it will at that point be in breach of treaty, and the other party may claim to have been damaged by this action.
5. The question is, how is this damage to be rectified or repaired? There is no provision for payment of indemnity, nor would such a thing be enforceable.
6. The party suffering damage can only enforce its claims by waging war and winning it, and enforcing payment of a war indemnity.
7. It is also not clear whether any member of the UN can by treaty abnegate its right of reference to the UN Security Council or the General Assembly.
8. The UN may at any time remember its Resolutions and call the parties to implement those.

So Pakistan is in breach of the Treaty by referring the Kashmir matter to the UN; Pakistan has not committed any breach of the treaty in calling Kashmir a disputed issue, disputed between the two nations, and has not committed any breach of the treaty in calling on India to take action to resolve the dispute. How India is to claim damages from Pakistan for this breach of treaty, and enforce those claims short of war and subsequent victory, is not clear.

The UN, despite its right to recollect the Resolutions and to refer these to the parties concerned, has clearly, through its Secretary General, indicated its willingness to intercede, in the person of its Secretary General, if both parties wish the UN to do so, or wish him directly to do so. In effect, the UN seems to have abnegated its ability to recall the Resolutions.

A very untidy state of affairs.

PS: An afterthought, added after reading previous posts: I quite agree with @AgNoStiC MuSliM's analysis, but have interpreted the position slightly differently. I would be glad to work on aligning the two points of view, and to isolate irreconcilable issues where those exist.

 

[-xXx-]

The specific part about the Shimla agreement was that all disputes should be addressed mutually.

The question then and thereafter is whether or not Kashmir remains a dispute. It was not said in the pact that Kashmir no longer is a dispute, so in terms of the pact, Pakistan may still raise it as an issue, but with India directly.

Over and above this, some experts in international law state that the UN's resolutions cannot be voided by two member states agreeing mutually to solve their differences by themselves. While this is something they may implement by not referring any matter to the UN from that point onwards, it does not stop the UN from reminding these two states, separately and collectively, about its prior resolutions and asking about the implementation. Other experts differ.

According to my interpretation, the following is the status:

1. Pakistan may ask India for action to resolve the dispute over Kashmir, or any other past or future dispute;
2. India may ask Pakistan for action to resolve the dispute over Kashmir, or any other past or future dispute;
3. Neither Pakistan nor India ought to approach the UN over Kashmir or any other past or future dispute;
4. If either party does approach the UN for resolution of Kashmir or any other past or future dispute, it will at that point be in breach of treaty, and the other party may claim to have been damaged by this action.
5. The question is, how is this damage to be rectified or repaired? There is no provision for payment of indemnity, nor would such a thing be enforceable.
6. The party suffering damage can only enforce its claims by waging war and winning it, and enforcing payment of a war indemnity.
7. It is also not clear whether any member of the UN can by treaty abnegate its right of reference to the UN Security Council or the General Assembly.
8. The UN may at any time remember its Resolutions and call the parties to implement those.

So Pakistan is in breach of the Treaty by referring the Kashmir matter to the UN; Pakistan has not committed any breach of the treaty in calling Kashmir a disputed issue, disputed between the two nations, and has not committed any breach of the treaty in calling on India to take action to resolve the dispute. How India is to claim damages from Pakistan for this breach of treaty, and enforce those claims short of war and subsequent victory, is not clear.

The UN, despite its right to recollect the Resolutions and to refer these to the parties concerned, has clearly, through its Secretary General, indicated its willingness to intercede, in the person of its Secretary General, if both parties wish the UN to do so, or wish him directly to do so. In effect, the UN seems to have abnegated its ability to recall the Resolutions.

A very untidy state of affairs.

@Joe Shearer Perfectly summed up. Just to add if may I -

1- UN acknowledges the bilateral treaties and their binding nature. To follow treaties comes under UN charter of conduct. This is the reason no UN chief presses UN resolutions over Ind and Pak but call for bilateral settlement and offer their resolution as one of the possible middle ground if mutually agreed by both parties.

Since Simla agreement has no jurisdiction on UN, those resolutions still exists but as a dead horse.

2- Bilateral agreements are binding, and if a party breaches that, in absence of any provision of indemnity, the other party can inflict damage by dishonoring other agreements, here perhaps Indus water treaty could come under line of fire.

Anyways presence of provision may not discourage the breach, since if one party can breach the agreement, it can breach the provision of indemnity too.

Not to forget, breach may cause loss of credibility and bear greater consequences in future conduct of business.

 

[Joe Shearer]

@Joe Shearer Perfectly summed up. Just to add if may I -

1- UN acknowledges the bilateral treaties and their binding nature. To follow treaties comes under UN charter of conduct. This is the reason no UN chief presses UN resolutions over Ind and Pak but call for bilateral settlement and offer their resolution as one of the possible middle ground if mutually agreed by both parties.

Since Simla agreement has no jurisdiction on UN, those resolutions still exists but as a dead horse.

2- Bilateral agreements are binding, and if a party breaches that, in absence of any provision of indemnity, the other party can inflict damage by dishonoring other agreements, here perhaps Indus water treaty could come under line of fire.

Anyways presence of provision may not discourage the breach, since if one party can breach the agreement, it can breach the provision of indemnity too.

Not to forget, breach may cause loss of credibility and bear greater consequences in future conduct of business.

Well said, but I disagree with the possibility of extracting compensation for damage by dishonoring other agreements. Each agreement must be considered whole by itself, and not as a component of a superstructure containing other existing agreements, each to be affected by any of the others.

Consider, for a moment, the possibility of extracting compensation for violation of a ruling under UNCLOS by repudiating the Geneva Convention on treatment of Prisoners of War. Sounds a bit strange, doesn't it? But that is what it amounts to.

It could be a nightmare for an ordinary citizen. But it could be a glorious, full-colour LSD hallucination for another not-so-ordinary citizen. An example follows.

Consider, for a moment, the situation if one of either India or Pakistan repudiates the India Independence Act, and insists that its existence is due to the acquisition through war of the territory that it exercises sovereignty over. In effect, it extinguishes the recognition of the other state, its sovereign status, and any recognition of its territory.

Does that sound strange? That is actually the position taken by some commentary on the contemporary situation of the two countries.

 

[-xXx-]

Well said, but I disagree with the possibility of extracting compensation for damage by dishonoring other agreements. Each agreement must be considered whole by itself, and not as a component of a superstructure containing other existing agreements, each to be affected by any of the others.

Consider, for a moment, the possibility of extracting compensation for violation of a ruling under UNCLOS by repudiating the Geneva Convention on treatment of Prisoners of War. Sounds a bit strange, doesn't it? But that is what it amounts to.

It could be a nightmare for an ordinary citizen. But it could be a glorious, full-colour LSD hallucination for another not-so-ordinary citizen. An example follows.

Consider, for a moment, the situation if one of either India or Pakistan repudiates the India Independence Act, and insists that its existence is due to the acquisition through war of the territory that it exercises sovereignty over. In effect, it extinguishes the recognition of the other state, its sovereign status, and any recognition of its territory.

Does that sound strange? That is actually the position taken by some commentary on the contemporary situation of the two countries.

I never suggested a disproportionate reaction but considering business will continue as usual is expecting too much of fairness. Isn't it?

A calculated, proportionate damage infliction would be warranted in such case which will put the onus of possible "war" on other side and we never have to come up as an aggressor. That's how it works.

Remember in 65, India did not stick to conflict on LoC only as envisioned by pak hawks but expanded the theatre to IB.

 

[Joe Shearer]

I never suggested a disproportionate reaction but considering business will continue as usual is expecting too much of fairness. Isn't it?

A calculated, proportionate damage infliction would be warranted in such case which will put the onus of possible "war" on other side and we never have to come up as an aggressor. That's how it works.

Remember in 65, India did not stick to conflict on LoC only as envisioned by pak hawks but expanded the theatre to IB.

Let us proceed backwards. If I have understood @hellfire correctly, Pakistan's Grand Slam attack on Chhamb was in fact a breach of the International Boundary, because the LOC starts further north. He has been pointing out for some time now the factual position and the mistake made by all commentators due to overlooking this small detail. I could be wrong; best to check with him.

Second, war is a period when treaties and obligations are suspended; in commercial terms, it is a force majeure condition. Any condition or relationship short of war is not such a period of suspended animation. We have to be clear about what is breach of international agreement and what is not.

The right to overfly our territory is a right given to airlines and operators of commercial and civilian non-commercial flights by us freely, and without obligation; this right may be withdrawn by our sovereign decision, without reason, without compensation: no damage is caused by withdrawal of a gift. Other rights, the right to enjoy downstream water of the Indus and its tributaries, are addenda to the existing underlying rights of a downstream riparian state. These may not be withdrawn. Any breach of treaty may lead to a move for adjudication of the issue. Pakistan has, several times, sought adjudication (and lost every time) and India has contested Pakistan's plaint without hesitation. Abrogating that treaty, a totally unwholesome remark made far too often, is not abrogation of a right given away, it is judiciable.

 

[Hellfire]

Let us proceed backwards. If I have understood @hellfire correctly, Pakistan's Grand Slam attack on Chhamb was in fact a breach of the International Boundary, because the LOC starts further north. He has been pointing out for some time now the factual position and the mistake made by all commentators due to overlooking this small detail. I could be wrong; best to check with him.

@-xXx-


Attention is drawn to the Text of the Karachi Agreement at Para 'B' sub section 2.

2. The cease-fire line runs from MANAWAR'in the south, north to
KERAN and from KERAN east to the glacier area, as follows:

http://peacemaker.un.org/sites/peacemaker.un.org/files/IN PK_490729_ Karachi Agreement.pdf


The alignment is as under

The Pakistanis made a blunder at the treaty, thereby recognising the accession as they did not contest the Kathua-Jammu-Sambha-Akhnoor boundary, which ended up being uncontested, hence an International Border.

This may have been due to their aim to simply take control of the Kashmir valley only, which would, in a military sense, have made a perfect sense, as in those days, it would have led to Ladakh being forced to accede as being contiguous area (my speculation), and also denied concentration of forces for further offensive operations into Poonch and south.

Whatever be the reason, the Pakistanis realised their blunder (especially in aftermath of the Dixon Plan) and have since tried to project the boundary as 'Working Boundary' which finds no mention in any agreements till date. And whenever they have fired on Indian positions over the past few years, it has been across this region, in order to highlight it as a ceasefire violation of the ceasefire of 2003 signed across LOC, which, it is not.

All the incidents of firing across this area are violations of International Border, an act of war.

Unfortunately, due to sheer ignorance and inability to appreciate this very vital point, our media is playing right into Pakistani hands by perpetuating it as a ceasefire violation thereby slowly allowing the narrative to shift from violation of an International Border to a non-existene LOC there.

These are mere tactics of Pakistan to renege from its own mistakes in the aforementioned agreement.