1) Not unless the territory is put under United Nations Trusteeship.
2) In a way, yes
3) That's the tricky part. The UN maintains that 'no security council resolution can be described as unenforceable'
Not so, Sir. Once you distinguish in your own constitution between Chapter VI and Chapter VII, you forego your right to impose your will universally. The sentence you have quoted cannot, constitutionally, legally, apply to obiter dicta; resolutions under Chapter VI come in that category, but with a specific object.
The UN Security Council Resolutions of August 13, 1948, and January 5, 1949, clearly laid down that "the question of the accession of the State of Jammu and Kashmir to India or Pakistan will be decided through the democratic method of a free and impartial plebiscite."
These UN Resolutions are still valid. They cannot be declared "null and void" by India (or Pakistan). That authority lies with the UNSC only.
Incorrect, Sir.
The Resolutions were passed as recommendations, not as directions. There is nothing binding about them.
Their validity is an entirely different matter. A mother's exhortation to her son to obey the law and never be in breach of it is a recommendation; it cannot be binding, although it might have moral force.
What you have argued, about validity, refers to the perpetuity of that exhortation; it does not have a fixed life, it lives on forever, until rescinded by the mother. Such validity has nothing to do with the binding force that it has.
While I do agree that International Law can be interpreted differently by different countries, but saying that Kashmir is not a disputed territory under International Law is not an 'interpretation', it's mere rhetoric.
If one side states that a matter is disputed, and the other side states that it is not, how is the matter then to be defined?
The difficulty is that even a reservation of homoeopathic proportions renders any matter not free of reserve. All Pakistan has to do is to stick to its guns and say that it considers the matter to be a dispute, and it will be a dispute. To put things in logical structure,
if the existence of a dispute is disputed, it then becomes a dispute. That is Pakistan's strength, and that is what she has clung to over the last 69 years. It does not undermine India's position that it is not a dispute.
The difference is that a dispute remains one until adjudication. There has been no adjudication, and Pakistan has stalled the original mechanism for settlement, but retained it in disembodied form to keep alive the disputed status.
And it's not even the Indian official position. India claims that UN Resolutions have been superseded by Simla Agreement of 1972 (Again, something not accepted by the UN).
It does not have to be accepted by the UN.
The UN made a recommendation, the recommendation has to be accepted by both parties, and the moment the two parties reject the recommendations either per se or as a mechanism, they cease to exist between the disputing parties.
Secondly, since Pakistan was a willing, uncoerced signatory of the Shimla Agreement, it is a common position - it has to be a common position - of India and Pakistan.
And even the Simla Agreement categorically mentions Kashmir as a Dispute between India and Pakistan that has to be resolved (bilaterally).
How else would you word the matter? If the existence of a dispute is disputed, it then becomes a dispute.
The very fact that India acknowledged Kashmir as a disputed territory in the Simla Agreement, negated its claims of Kashmir being its integral part. This "Atoot Ang" rhetoric is meant for domestic consumption only.
Sadly, that is not the legal and constitutional situation.
Please recollect sovereignty is an issue here. That says it all. The Atoot Ang is a Sanghi slogan, and what a constitutionalist has to say about Kashmir has no link with such rasta-chhap slogans.
The UN is a weak and ineffective Forum (due to its restrictive administrative structure). A "veto" from any of the permanent members can halt any possible action the Security Council may take. One nation's objection, no matter on what grounds, cripples any possible UN armed or diplomatic response to a crisis.
That is applicable - meaning that is relevant - only when the UN has a thought to take some firm step of binding nature. Its general discussions, the Millennium Goals, various member bodies which exist, and so on, the existence or otherwise of a veto is orthogonal to the purposes sought to be met.
The UN made no serious effort to resolve this dispute after early 1950's. Later, the USSR used "the veto" multiple times to avoid discussion on Kashmir in the Security Council. International Law is nothing but International Morality. Simla Agreement was signed in 1972 only. So its not Simla that has made the UN practically irrelevant. The U.N had already been virtually elbowed out of the Kashmir dispute by Russia.
It was never in. What Russia did was to prevent conversion of a recommendation into a direction.
This issue can be resolved through bilateral means only. But India won't do that.
No, that is not correct.
A bilateral agreement did not come about due to the pettiest of reasons during General Musharraf's visit to India, largely the fright of L. K. Advani that such a great matter would be resolved without his having had anything to do with it. There will be future occasions.
Status Quo favors India (and Pakistani military establishment too). The UN is helpful only in prolonging the status quo. Kashmir remains (and will remain) an internationally recognized disputed territory. And the Kashmiris will continue to suffer
I have no difference with your assessment, except with the last sentence. Of which more anon.
Please do appreciate that my effort in this entire exchange is to put the matter within its legal and constitutional boundaries and not to attempt a resolution, or to interpret recent happenings. It is done with goodwill, irrespective of some unfortunate comments that I have seen.
Talk Kashmir and Indians are literally on fire.
If Kashmir is yours and Kashmiris want to be part of India then why Kashmiris flare up spontaneously and massive demonstrations against India? Why Kashmiris raise Pakistani flags? Why they support Pakistan cricket team in a match against India? Its all terror!!
You talk sense but your audience is not sensible. Your audience is fed on false nationalistic steroids devoid of any substantive arguement.
If you yourself abandon slogans and newspaper column style rhetoric, there is a possibility of discussing the matter. As it stands, on the basis of your post, there is no possibility.