Another Day, Another Thread on Kashmir, And as usual clueless Indians blabbering on about things they know nothing about ......
Which
Instrument of Accession ??
1) International law clearly states that every treaty entered into by a member of the United Nations must be registered with the Secretariat of the United Nations.
"The Instrument of Accession" was neither presented to the United Nations nor to Pakistan. Hence India cannot invoke the treaty before any organ of the United Nations.
2) The legality of the Instrument of Accession may also be questioned on grounds that it was obtained under coercion. The International Court of Justice has stated that there
"can be little doubt, as is implied in the Charter of the United Nations and recognized in Article 52 of the Vienna Convention on the Law of Treaties, that under contemporary international law an agreement concluded under the threat or use of force is void."..... India’s military intervention in Kashmir was provisional upon the Maharaja’s signing of the Instrument of Accession. More importantly, however, the evidence suggests that Indian troops were pouring into Srinigar even before the Maharaja had signed the treaty. This fact would suggest that the treaty was signed under duress.
3) The Maharaja had no authority to sign the treaty, hence the Instrument of Accession can be considered without legal standing . The situation on the ground demonstrates that the Maharaja was hardly in control of the state of Jammu and Kashmir. Hari Singh was in flight from the state capital, Srinigar. And it is highly doubtful that the Maharaja could claim that his government had a reasonable chance of staying in power .....
Thus, an analysis of the circumstances surrounding the signing of the Instrument of Accession shows that the accession of Kashmir to India was neither complete nor legal, as Delhi has vociferously contended for over sixty years.
The Fate of Kashmir
International Law or Lawlessness?
BY VIKAS KAPUR AND VIPIN NARANG
http://web.stanford.edu/group/sjir/3.1.06_kapur-narang.html
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Excerpts from 'The Myth of Indian Claim to JAMMU & KASHMIR ––A REAPPRAISAL'
by Alastair Lamb
THE INDIAN CLAIM TO JAMMU & KASHMIR A REAPPRAISAL
Source:
https://defence.pk/threads/autonomy...ipe-for-disaster.440287/page-12#ixzz4FhRGU9hA
Moreover, further shedding doubt on the treaty`s validity, in 1995 Indian authorities claimed that the original copy of the treaty (letter of accession) was either stolen or lost !!!
The International Commission of Jurists (ICJ), based in Geneva, passed a resolution in 1995 proclaiming Kashmir's accession to India as bogus and null and void.
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Voluntary Resolutions ??
1) UN maintains that "NO SECURITY COUNCIL RESOLUTION CAN BE DESCRIBED AS UNENFORCEABLE."
2) 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)
3) Moreover, 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
The binding nature of these UN resolutions (acknowledgement from India at a government level)
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)
The POWs were repatriated under Delhi Agreement (1973/74), the Simla Agreement (1972) had failed to resolve this issue...
The UN refuses to accept the Indian position. Almost 44 years since the signing of the Simla Agreement between India and Pakistan but the UN refuses to terminate UNMOGIP ..
The Simla Agreement does not preclude raising of Kashmir issue at the United Nations:
1) Para 1 (i) specifically provides that the UN Charter “shall govern” relations between the parties.
2) Para 1 (ii) providing for settlement of differences by peaceful means, does not exclude resort to the means of pacific settlement of disputes and differences provided in the UN Charter.
3) The UN Security Council remains seized of the Kashmir issue which remains on the Council’s agenda.
4) Articles 34 and 35 of the UN Charter specifically empower the Security Council to investigate any dispute independently or at the request of a member State. These provisions cannot be made subservient to any bilateral agreement.
5) According to Article 103 of UN Charter, member States obligations under the Charter take precedence over obligations under a bilateral agreement.
6) Presence of United Nations Military Observes Group in India and Pakistan (UNMOGIP) at the Line of Control in Kashmir is a clear evidence of UN’s involvement in the Kashmir issue.
Moreover, this Indian claim has been refuted by various UN representatives who, on several occasions, have clarified that, only a bilateral agreement, which solves the problem, would legally supersede the numerous existing UN resolutions on that dispute. Also, in the absence of any fundamental change in the circumstances, the UN resolutions can become invalid only when the UN Security Council declares them null and viod. For example in 1956, the then
UN Secretary General, Dag Hammarskjold, had clearly stated that
‘the UN decision is valid until it has been invalidated by the organ which took it. ......In April 1990, the UN Representative,
Francis Guiliani, clarified:
‘a bilateral agreement, which solved the problem, would supersede the resolution aimed at solving the issue. However, as long as the problem remained, the resolutions would remain in effect regardless of when they were adopted .....
