India made a "serious mistake' by going to ICJ, says former Judge

[M. Sarmad]

Lets not dig deeper than needed, what difference it will create if you come up some solicit incidence where there have a disagreement?

The fact is you never went ICJ route over Kashmir, though you did for just an aircraft, tells much.



What that report did is -
1- Stated that Pak has no loci standi on Kashmir. So where will pak stand as a party in ICJ?
2- Argues that Kashmiri people do have a case which can grant them a right to self determine: the acquired one. But since Kashmiri people were no party to dispute, and their will at 1947 were submitted as part of letter of accession by their ruler, they need to start a fresh case, if they can or justify.

In any of the above cases, where do pakistan stands? Apart from simply minding their own case.

We didn't go the ICJ route over Kashmir because the matter was already in the UN Security Council, brought by India itself. The ICJ route ends at the Security Council. And it's the Security Council that decides to enforce (or not) the ICJ's verdicts. Russia repeatedly vetoed the discussion ( and a possible intervention) in Kashmir by the UNSC.

But now as the Pandora Box has been opened, Pakistan might decide to take this matter to the ICJ so that the Security Council starts discussing this dispute (that already is on Security Counci's agenda anyway) again.

That report talks about material/military intervention. But there are other options as well, the elected Prime Minister of Azad Kashmir can become a party, for example.

 

[ShoutB]

@ShoutB @Miripiri

The serious ramifications and unintended consequences I was trying to tell you about in the other thread ..

-----

@MM_Haider ... Source please

He few days back was bashing Pakistani panellists on a news debate.

 

[oOo]

We didn't go the ICJ route over Kashmir because the matter was already in the UN Security Council, brought by India itself.

So its not in UNSC anymore, as per you, and now you will go to ICJ?

Self defeating argument.

The ICJ route ends at the Security Council. And it's the Security Council that decides to enforce (or not) the ICJ's verdicts. Russia repeatedly vetoed the discussion ( and a possible intervention) in Kashmir by the UNSC.

But now as the Pandora Box has been opened, Pakistan might decide to take this matter to the ICJ so that the Security Council starts discussing this dispute (that already is on Security Counci's agenda anyway) again.

Let me go to lower court so that higher courts resume hearing, is that what you mean?

Lets not use words like enforce, intervention on resolutions passed under chapter VI. We are not talking about 3-4 years here but 70 years.

Be practical.

If people of Kashmir can go to ICJ, so as people of Balochistan. Just open the pandora box, will you?

That report talks about material/military intervention.

Cut it please.

Though report talks about militant supports from Pakistan and call it illegal even when they try hard to justify home grown insurgency.

 

[faithfulguy]

If IJV is legitimate, it would rule that Indian invasion of Goa, Hyderabad and Khalistan as illegal. India need to retreat from these invasions.

India also need to quit Kashmir

 

[M. Sarmad]

So its not in UNSC anymore, as per you, and now you will go to ICJ?

Self defeating argument.



Let me go to lower court so that higher courts resume hearing, is that what you mean?

Lets not use words like enforce, intervention on resolutions passed under chapter VI. We are not talking about 3-4 years here but 70 years.

Be practical.

If people of Kashmir can go to ICJ, so as people of Balochistan. Just open the pandora box, will you?



Cut it please.

Though report talks about militant supports from Pakistan and call it illegal even when they try hard to justify home grown insurgency.

Read my post again, I mentioned that this dispute is still on the agenda of the SC ... Maybe you missed it ??

And the Security Council is not a "Court". ICJ is the highest international court. But it has no means of enforcing its verdicts. That's SC's job ... Of course only if all of the big 5 agree.


As for your Chapter 6 mantra, we have discussed that many times before. The UNSC maintains that none of its resolutions can be termed "unenforceable". Law experts outside the UN may disagree, but in the end its the UN that matters.

People of Kashmir were granted the right to self-determination by the UN, people of Balochistan, or any other part of Pakistan (or India for that matter), weren't.

 

[Whirling_dervesh]

There's a recurring theme regarding almost all distinguished Indians who criticise their own government.....the moment they speak out even remotely against India, Indians get paranoid and start labelling them as loonies and pull out all kinds of quotes and 'evidence' and a complete character assassination if that person. Why is that? Insecurity? Or cannot take criticism?

 

[M. Sarmad]

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.

 

[oOo]

Read my post again, I mentioned that this dispute is still on the agenda of the SC ... Maybe you missed it ??

No I dont need to but you for sure.

You first claim that you didn't went ICJ route since case is already in UNSC.

I simply asked, why you want to go to ICJ now. Case is still in UNSC.

Got now?

And the Security Council is not a "Court". ICJ is the highest international court. But it has no means of enforcing its verdicts. That's SC's job ... Of course only if all of the big 5 agree.

For any court to listen, they need two parties. Are you a party anymore? Nopes. Perhaps that's why nobody listen to you anymore and you don't go to ICJ for very reason.

As for your Chapter 6 mantra, we have discussed that many times before. The UNSC maintains that none of its resolutions can be termed "unenforceable". Law experts outside the UN may disagree, but in the end its the UN that matters.

UN does nothing apart from asking Indian permission to mediate. You are right, only UN matters and not cries of someone who is no more a party.

Yes we have enough on this in past. Actions speaks more than speeches.

Chapter VI can not be enforced or else quote chapter where it talks about means of enforcement.

People of Kashmir were granted the right to self-determination by the UN, people of Balochistan, or any other part of Pakistan (or India for that matter), weren't.

Under some circumstances and only if certain conditions were met. None happened.

But why did you think Baloch people can not acquire the same rights? What it needs to create a new dispute? An insurgency coupled with media management.

But as a champion of human rights, do you think Baloch people would have chosen you if given an option of freedom. Lets talk outside of legal ambit.

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.

Articles defining UN resolutions under chapter VI non binding and non enforceable comes in dozen as well. You want me to copy paste here?

 

[Naara-e-Mastana]

He was never Chief Justice of India.
Also his argument is flawed as Pakistan cannot take Kashmir to ICJ as it does not fall under ICJ jurisdiction.

Lolz Pakistan will say the same about indian terrorist kulbushan and hang him .

 

[M. Sarmad]

No I dont need to but you for sure.

You first claim that you didn't went ICJ route since case is already in UNSC.

I simply asked, why you want to go to ICJ now. Case is still in UNSC.

Got now?



For any court to listen, they need two parties. Are you a party anymore? Nopes. Perhaps that's why nobody listen to you anymore and you don't go to ICJ for very reason.

We are very much a party to the dispute regardless of what India says or believes in.

No bilateral agreement between two countries can supercede the UNSC Resolutions.

We can approach the ICJ on the issue of serious human rights abuses by Indian state in a territory whose final accession to India or Pakistan is yet to be decided as per the UN. And this may result in the SC discussing Kashmir issue once again, unless of course someone uses veto.


Got it now ?


Rest of your post has already been answered

 

[Panzerkampf]

Lolz Pakistan will say the same about indian terrorist kulbushan and hang him .

ICJ actually announced that Kulbhushan issues falls under its jurisdiction.
On the other hand Kashmir doesn't as it has already been before UNSC many years ago.
Cases doesnt go from UNSC to INC just like cases don't go from Supreme court to high court.

 

[Qutb-ud-din Aybak]

He was never Chief Justice of India.
Also his argument is flawed as Pakistan cannot take Kashmir to ICJ as it does not fall under ICJ jurisdiction.

this issue is also not under ICJ juristriction. Remmeber simla agreement, india declaration on disputes with common wealth countries.
India just fell into trp as kalboshan will be hanged any way. Infact ICJ juristriction over changing Pakistan's court will be easily challenged.

ICJ actually announced that Kulbhushan issues falls under its jurisdiction.
On the other hand Kashmir doesn't as it has already been before UNSC many years ago.
Cases doesnt go from UNSC to INC just like cases don't go from Supreme court to high court.

ICJ can only decide about counselor access to kalboshan. It don't have juristriction to change the decision made by Pakistan's court and that too in cases related to our national security.

 

[ito]

There is no other way India could have saved Jadhav.

 

[oOo]

We are very much a party to the dispute regardless of what India says or believes in.

No bilateral agreement between two countries can supercede the UNSC Resolutions.

We can approach the ICJ on the issue of serious human rights abuses by Indian state in a territory whose final accession to India or Pakistan is yet to be decided as per the UN. And this may result in the SC discussing Kashmir issue once again, unless of course someone uses veto.


Got it now ?


Rest of your post has already been answered

Good luck.

But it seems Pak is busy with rehearing of spy in ICJ first then fighting for Kashmir.

As I always said "Actions tells you more than text".

You will get it someday.

 

[M. Sarmad]

Articles defining UN resolutions under chapter VI non binding and non enforceable comes in dozen as well. You want me to copy paste here?

Please do post any statement by a UN official, or any press release by the UN, or any other primary UN source that says "Chapter VI resolutions are unenforceable" ....

In fact, it's the ICJ that has declared that no UNSC Resolution can be termed unenforceable.

As for your "copy/paste" jibe, let me tell you my friend that you won't find this on any other website or article except PDF.