I disagree - Pakistan's position is in fact bolstered by reference to the entire gamut of UNSC Resolutions, UNCIP and UN Rapporteur reports. It is the Indian's who have the most to gain by arbitrarily selecting and focusing on one part of one UNCIP Resolution.
The UNCIP Resolution of 13 August itself has clear language that negates the Indian assertion of an 'unconditional unilateral withdrawal required of Pakistan'.
Part II-A (1) and Part II-A (2) of the UNCIP Resolution make a distinction between
'Pakistani Troops' and
'Tribesmen and Pakistani nationals' and the language uses
'Troops' specifically with the intent of representing Pakistani government forces and the term
'Forces' as representing all combatants, whether under the direct control of either government or not.
This deliberate distinction between
'Troops' and
'tribesmen and
Pakistani nationals' is clear from how UNCIP expects the GoP to handle the withdrawals of each. In the case of
'troops' the UNCIP Resolution states that
'the government of Pakistan agrees to withdraw its troops', which is a clear commitment. This makes sense since these are government troops under government control, 'there is no try, just do' (to paraphrase Yoda). In the case of '
tribesmen and
Pakistan nationals', however, UNCIP states that '
the GoP will use its best endeavour to secure the withdrawal'. This also makes sense since the reference is to 'fighting forces' that are not part of the military and possibly composed of independent volunteers, mercenaries etc that the government cannot be expected to completely control.
Second, if UNCIP considered '
Pakistani nationals' and '
troops' to be the same entity, it would not have mentioned them separately in 2 paragraphs committing the exact same 'withdrawal', nor would it have in one case expected a clear commitment of the GoP withdrawing 'troops' and in the other expecting the GoP to 'try its best to withdraw Pakistani nationals'. This distinction, and the addition of a fourth type of combatant, the Azad Kashmir Forces, is further established by the Indian government as part of the proposals she made to Frank Graham which can be seen in his Second Report to the UNSC:
(a) The Indian Government is ready to withdraw the bulk of its army when
(i) the tribesmen, Pakistan nationals not normally resident in the State of Jammu and Kashmir and the Pakistan troops have been withdrawn from the State;
(ii) large-scale disbandment and disarmament of the Azad Kashmir forces have taken place.
I have hopefully clearly explained how and why the terms 'troops' and 'Pakistan nationals' and 'tribesmen' used in the UNCIP Resolution are not the same. The underlined sections of the UNCIP Resolution supporting my argument are quoted below:
A. (1) As the presence of troops of Pakistan in the territory of the State of Jammu and Kashmir constitutes a material change in the situation since it was represented by the Government of Pakistan before the Security Council, the Government of Pakistan agrees to withdraw its troops from that State.
(2) The Government of Pakistan will use its best endeavour to secure the withdrawal from the State of Jammu and Kashmir of tribesmen and Pakistan nationals not normally resident therein who have entered the State for the purpose of fighting.
(3) Pending a final solution the territory evacuated by the Pakistan troops will be administered by the local authorities under the surveillance of the Commission.
Now we can proceed to Part II-B - please keep in mind the distinctions between 'troops, Pakistan nationals and tribesmen' that I pointed out above and note the syntax and grammar used in the following excerpt that Indians and their Western apologists, such as that lying hack Christine Fair, like to distort and dissemble in arguing for an unconditional Pakistani withdrawal:
B. (1) When the Commission shall have notified the Government of India that the tribesmen and Pakistan nationals referred to in Part II A2 hereof have withdrawn, thereby terminating the situation which was represented by the Government of India to the Security Council as having occasioned the presence of Indian forces in the State of Jammu and Kashmir, and further, that the Pakistan forces are being withdrawn from the State of Jammu and Kashmir, the Government of India agrees to begin to withdraw the bulk of their forces from the State in stages to be agreed upon with the Commission.
I've explained how the terms 'tribesmen and Pakistani nationals' are used to represent entities distinct from 'Pakistani troops' in this specific UNCIP resolutions. The section above highlighted in red therefore refers only to
'tribesmen and Pakistani nationals' and not to
'Pakistani troops' or
'government forces'.
The section highlighted in green is the section that refers to Pakistani troops/government forces withdrawal, and it describes said withdrawal in the 'present continuous tense' (being withdrawn) - an event that is
'ongoing and not complete'. And while the process of Pakistani troop/forces being withdrawn is
'ongoing and not complete', UNCIP requires India to
'begin to withdraw the bulk of their forces' (section in blue).
Now, I would expect you to argue that this still means that Pakistan is required to start withdrawing her troops first so India has no responsibilities placed upon her until Pakistan fulfills her commitment of 'starting the withdrawal'. The reason this argument is wrong is because of the last part of the blue highlighted text, "
in stages to be agreed upon with the Commission". This is where the introductory paragraph of Part II is significant, and reinforced by Part II-C (1) - see highlighted sections below:
PART II TRUCE AGREEMENT Simultaneously with the acceptance of the proposal for the immediate cessation of hostilities as outlined in Part I, both Governments accept the following principles as a basis for the formulation of a truce agreement, the details of which shall be worked out in discussion between their Representatives and the Commission.
C. (1) Upon signature, the full text of the Truce Agreement or communique containing the principles thereof as agreed upon between the two Governments and the Commission, will be made public.
So the critical 'principle that was to be the basis for the formulation of a truce agreement' for India and Pakistan boils down to one line in Part II - B (1), which states that:
"and further, that the Pakistan forces are being withdrawn from the State of Jammu and Kashmir, the Government of India agrees to begin to withdraw the bulk of their forces from the State in stages to be agreed upon with the Commission."
India. Pakistan and UNCIP had to come to an agreement on the details of a Truce Agreement that defined the withdrawal plans of both Pakistan
AND India, and it isn't as simple as you would think - the phrase 'Pakistani forces are being withdrawn' doesn't detail what percentage of Pakistani forces need to be withdrawn, and the withdrawal verified, before Indian forces started withdrawing. Technically, Pakistan could withdraw a single soldier, or merely load up a truck full of soldiers ready to drive away and be in compliance with the condition of
'Pakistani forces are being withdrawn', which would then require Indian forces to start their withdrawal.
So the withdrawal timelines, numbers and details had to be negotiated in detail, which is where the process fell apart, primarily because of unreasonable demands from the Indian side. Pakistan was willing to pursue almost every reasonable proposal put forward by UN mediators and representatives, even when Pakistan troops would be at a military disadvantage due to significantly lower troop levels compared to the Indians.
Pakistan's position on the UNCIP Resolution of 13 August 1948 is borne out by the McNaughton Report, which was one of the proposals for a truce Agreement based on Part II of the subject UNCIP Resolution:
DEMILITARISATION PREPARATORY TO THE PLEBISCITE 2. There should be an agreed programme of progressive demilitarisation, the basic principle of which should be the reduction of armed forces on either side of the Cease-Fire Line by withdrawal, disbandment and disarmament in such stages as not to cause fear at any point of time to the people on either side of the Cease-Fire Line. The aim should be to reduce the armed personnel in the State of Jammu and Kashmir on both side of the Cease-Fire Line to the minimum compatible with the maintenance of security and of local law and order, and to a level sufficiently low and with the forces so disposed that they will not constitute a restriction on the free expression of opinion for the purposes of the plebiscite. The programme of demilitarisation should include the withdrawal from the State of Jammu and Kashmir of the regular forces of Pakistan; and the withdrawal of the regular forces of India not required for purposes of security or for the maintenance of local law and order on the Indian side of the Cease-Fire Line; also the reduction, by disbanding and disarming, of local forces, including on the one side the Armed Forces and Militia of the State of Kashmir and on the other, the Azad Forces.
And:
(c) Agreement should be reached on the basic principles of demilitarisation outlined in paragraph 2 above.
(d) Agreement should be reached on the minimum forces required for the maintenance of security and of local law and order, and on their general disposition.
The McNaughton report was accepted and endorsed by the UNSC in Resolution 80, 1950:
1. Calls upon the Governments of India and Pakistan to make immediate arrangements, without prejudice to their rights or claims and with due regard to the requirements of law and order, to prepare and execute within a period of five months from the date of this resolution a programme of demilitarization on the basis of the principles of paragraph 2 of General McNaughton's proposal7 or of such modifications of those principles as may be mutually agreed;
In conclusion, the simple documented fact that the Indian government participated in
every single UNCIP and UNSC appointed rapporteur's mission of negotiating a truce agreement over the process and details of a military withdrawal from J&K is an acceptance of the Pakistani position that the UNSC and UNCIP Resolutions do not require a unilateral and unconditional withdrawal by Pakistani military forces before a plebiscite can be conducted, because if that had even remotely been the case, the Indian Government would have refused to engage in a single UNCIP or UNSC Representatives process of negotiations over the details of a withdrawal.
@Horus @Irfan Baloch @Oscar @Developereo @fatman17 @MastanKhan @Syed.Ali.Haider @MilSpec @Jango@Areesh@genmirajborgza786 @Atanz @Solomon2 @RiazHaq
Please see above and, if you feel like it, offer corrections and/or suggestions to improve and make as complete as possible.
I would like to start with certain preliminary observations:
- Our discussion on this subject is academic as for now, for the reason that ever since Kashmir was removed from the list of disputed territories under UN observation, Pakistan’s claims that it continues to be a disputed territory are based
outside the UN framework. Of course, if and when the UN puts Kashmir back on the list, the UN resolutions would come back into the picture.
- You are right in stating that the 13 Aug 1948 resolution was a mere
proposal, to be taken forward by both parties. At the same time, Parts A and B of Resolution 47 are also just
recommendations, as clearly mentioned in the resolution.
- In any form of negotiated settlement, the mere fact that a party agreed to sit for discussions cannot be held against them. Of course, if the parties have mutually agreed to a framework within which a final settlement is binding on both, then no doubt it is so. In all these negotiations, the fact that India has been a willing party cannot lead to an inference that they must be implicitly agreeable to Pakistan’s position. That is why, before each round of negotiations, it is made clear that the discussions are
without prejudice to any other related issue. So, for instance, the fact that both parties agreed to a ceasefire line in 1949 is binding unless they totally abandon the framework, but cannot be held against either to say that means they have implicitly conceded anything to the other side.
- Finally, there is the issue of moral behaviour to be considered. It is an unfortunate precedence established by the US in the
Nicaragua Case (ICJ, 1986), that international law is nothing but “might is right.” A country can simply ignore international law if it can afford to do so. Pakistan reserves the right to simply abandon the UN framework altogether if it sees nothing fruitful emerging from the process. Like every sovereign country, it has the right to do what it deems to be in its own self interest. But if it places so much emphasis on the UNSC resolutions, then it cannot place any less emphasis on the emerging UN consensus on the subject. Things have moved on from 1950. Today, Pakistan does not find much support when it raises the Kashmir issue at the UN. There is no realistic chance that it will be able to pressure India on the subject through the UN. Yet, Pakistan is claiming Kashmir is a disputed territory. So basically, Pakistan is pulling a US –
harping on prior UNSC resolutions when it is convenient and ignoring the change in the UN position on the issue.
You write:
This deliberate distinction between'Troops'and'tribesmenandPakistani nationals'is clear from how UNCIP expects the GoP to handle the withdrawals of each. In the case of'troops'the UNCIP Resolution states that'the government of Pakistan agrees to withdraw its troops', which is a clear commitment. This makes sense since these are government troops under government control, 'there is no try, just do' (to paraphrase Yoda). In the case of 'tribesmenandPakistan nationals', however, UNCIP states that 'the GoP will use its best endeavour to secure the withdrawal'. This also makes sense since the reference is to 'fighting forces' that are not part of the military and possibly composed of independent volunteers, mercenaries etc that the government cannot be expected to completely control.
Let us look at why the situation came about. In the initial stages of the conflict, the UN was not privy to accurate information. When India initially took the matter to the UN, India itself was not aware of the extent of involvement of Pakistani troops. Reference India’s original complain dated 01.01.1948:
Indian Complaint to the Security Council, lst January 1948
As a response, our government dutifully lied to the whole world, as it often does, by denying any involvement in the matter. Reference UN Report Chapter VIII pg 344:
http://www.un.org/en/sc/repertoire/46-51/Chapter 8/46-51_08-16-The India-Pakistan question.pdf
This lie was challenged by India, and later exposed due to the very first UNCIP mission in July. Until then, the UN was not sure about the presence of Pakistani troops, just that tribesmen had entered. UN Report Chapter VIII pg 348:
http://www.un.org/en/sc/repertoire/46-51/Chapter 8/46-51_08-16-The India-Pakistan question.pdf
This explains the discrepancy between Resolution 47 and Resolution of Aug 13.
By the way, the distinction you drew about how the UN construed the difference between Pakistani troops and irregulars may be valid, but yet, what are its practical ramifications? You have gotten yourself into a logical bind. I will elaborate on that in the second point.
Pakistan has repeated several times that it has no control over what these irregulars do. In fact, that is the basis for the deadlock.
That is the reason why regardless of what conclusion we ever arrive at, India will not de-militarize the Valley. I will come back to that point later.
However, this interesting aside only explains why the UN chose to stop believing anything we had to say, it does not go to the core of the matter. I only mentioned that to explain the discrepancy that you had initially pointed out between the two resolutions. Unfortunately, it’s a blind alley that I also entered despite the fact it has no relevance to the larger issue we are discussing. The dispute derives from the
second point of your argument, so let us focus on that.
You write:
I've explained how the terms 'tribesmen and Pakistani nationals' are used to represent entities distinct from 'Pakistani troops' in this specific UNCIP resolutions. The section above highlighted in red therefore refers only to'tribesmen and Pakistani nationals'and not to'Pakistani troops'or'government forces'.
The section highlighted in green is the section that refers to Pakistani troops/government forces withdrawal, and it describes said withdrawal in the 'present continuous tense' (being withdrawn) - an event that is'ongoing and not complete'. And while the process of Pakistani troop/forces being withdrawn is'ongoing and not complete', UNCIP requires India to'begin to withdraw the bulk of their forces'(section in blue).
I am not quoting the rest of the text. Instead, let me paraphrase your contention. What you are trying to say is that the text shows that there was only an obligation to withdraw irregulars, whereas the withdrawal of troops was supposed to be ongoing. You are also contending that the entire process of de-escalation was to be decided as per the details of the Truce agreement that was yet to be drawn up. What you are also contending is that without the said agreement, the quantum of Pakistani/Indian withdrawal could not be ascertained in the first place, therefore, as per the text, it was for India to agree to initiation of withdrawal, thereby paving the way for plebiscite.
About the part that this was only to be the principle on the basis of which the truce agreement was to be formulated, I have no reason to disagree. You are obviously stating this because you know the flimsy nature of your argument that there was no binding obligation on Pakistan to withdraw troops, both on principles of Statutory interpretation and the interpretation of Treaties. There is this rule called
nosciter a sociss in interpretation, which basically means that the meaning of a word is known from the accompanying words. Actually, since the issue is whether there is a unilateral pre-condition on Pakistan to withdraw, what we need to see is whether there are other words around which show otherwise. The words you chose to show the same are that the process be ongoing, etc. etc.
Now let me quote that text the way a lawyer would quote it:
B. (1) When the Commission shall have notified the Government of Indiathat the tribesmen and Pakistan nationals referred to in PartII A2 hereof have withdrawn,thereby terminating the situation which was represented by the Government of India to the Security Council as having occasioned the presence of Indian forces in the State of Jammu and Kashmir, and further,that the Pakistan forces are being withdrawnfrom the State of Jammu and Kashmir,the Government of India agrees to begin to withdraw the bulk of their forces from the State in stages to be agreed upon with the Commission.
The question is, when is the Indian government supposed to act? The answer is,
When the Commission shall have notified the Government of India .......Now as for your claim that it is to be read separately from the part about troop withdrawal, there is the use of the words
and further,that the Pakistan forces..... that creates havoc with your reasoning. Just trust me, documents are not interpreted that way. Also, 2A1 clearly states that:
A. (1) As the presence of troops of Pakistan in the territory of the State of Jammu and Kashmir constitutes a material change in the situation since it was represented by the Government of Pakistan before the Security Council,the Government of Pakistan agrees to withdraw its troops from that State.
What does that mean? That means that since the Pakistani troops were there, they needed to leave. Their presence was a
material change that upset the premise of Resolution 47. Here again,
Pakistan agrees to withdraw troops. Legal drafting does not follow the haphazard lines that you are suggesting. There is a further rule of interpretation that words cannot be interpreted so as to lead to an absurdity. If the security council had not intended the (ongoing) withdrawal of Pakistani troops, it would have not mentioned it to begin with, especially where the literal meaning includes it as part of what is to be notified by the Commission to India. To mention it in the manner I pointed out, only for it to be interpreted in the manner that you suggest, would be a
legal absurdity.
Now coming to the logical bind that I mentioned earlier. Suppose, I accept your contention about
Pakistan agrees to withdraw its troops vis-a-vis
the GoP will use its best endeavour to secure the withdrawal (of irregulars). The first mention troops in Pakistan’s control and the second those that are not.
So according to you, the resolution says that after it has reported the withdrawal of those irregulars that are not actually in Pakistan’s control, it may or may not do something about the Troops that are actually in its control, depending upon the outcome of the negotiations? How does such a truce agreement work in the real world, can you elaborate?
As far as requirement for a plebiscite is concerned, demilitarization was a must. That can be understood from the fact that the second, third and fourth UNCIP reports focussed heavily on that. At the 570th Meeting dated 17 January 1952, the UN representative opined:
“The United Nations Representative deems it necessary to emphasize that, from his experience, he believes that any negotiations that could be undertaken by the United Nations to obtain the demilitarization of the State of Jammu and Kashmir .... would find almost unsurmountable obstacles ..... unless in one way or another agreed solutions are found for the following: (1) a definite period for demilitarization; (2) the scope of demilitarization and quantum of forces that will remain at the end of the period of demilitarization; (3) the day for the formal induction into office of the Plebiscite Administrator.”
It can also be ascertained from the text that you quoted from the McNaughton Report. Mind you,
I am not saying that there was any requirement of a complete Pakistani troop withdrawal. Nor was there any requirement for a unilateral Pakistani troop withdrawal. That can be understood from the above-quoted text, as well as the fact that the negotiations after UNSC Resolution 98 dated 23 December 1952 were deadlocked due to a disagreement on the question of the level of withdrawal (paragraph 7 of the 12-point proposals). India wanted to maintain more troops than was suggested. Again, UNCIP could have done one of two things – a) come up with a number acceptable to both parties, or, b) reported to the UNSC that India was messing around, so please force India’s hands and ensure demilitarization, which will serve the pre-condition for plebiscite. Now what did it do? It did neither. The talks were called off, and that was the end of that.
Why did UNSC not move a resolution in favour of Pakistan at that point? And why did Pakistan not agree to the additional 5,000 troops, if it was so confident of its victory in the plebiscite?
As for the complexity you quoted, that since neither quantum nor methodology for Pakistani withdrawal was quoted, so it could be fulfilled by a token gesture, completely misses the point. In fact it only adds to the certainty that any truce agreement would mitigate against such a mischief. Just as you stated with regard to the irregulars (since they are not under direct control), the subject of Pakistani troop withdrawal was left open to the satisfaction of the Commission.
You have accepted a convenient ambiguity while rejecting an inconvenient one as showing that the requirement for notifying India means nothing.
I will address the point you made about the McNaughton report. As we noted above, negotiations got stalled on the issue of demilitarization. Now the Pakistani government does contend that it wants resumption of dialogue. Look, there is no reason to believe that dialogue can resume under the UNSC resolutions; none whatsoever. Even if we assume that dialogue under the UNSC framework could resume, apart from Pakistan’s willingness to initiate dialogue, is there any concrete evidence that the Pakistani government was/is willing to commit to troop withdrawal from Azad Kashmir? Sure, Pakistan says that it wants a resolution, but has any official Pakistani spokesperson ever gone on record stating that Pakistan will withdraw troops from Azad Kashmir?
Assuming that Pakistan was even willing to do so, what is Pakistan’s track record? In ’48 we sent irregulars and troops dressed as tribals while denying the fact until caught. In ‘65 again we did the same. In ’99 we again denied that it was our Army men on the Kargil heights, till our lie was exposed. In the interim we have been funding, training and arming trouble-makers who do exactly the same things that UNSC resolution are meant to safeguard Kashmiris from. So even if, by some miracle, Pakistan were willing to withdraw troops, who would believe that Pakistan wouldn’t destabilize the Valley by using its age-old tactics? Because we won’t change our ways, the Indians can keep stating that conditions are not right for a plebiscite until the cows come home.
When UNCIP was dissolved in 1951, giving way to UNMOGIP, that was the last time the UN made a mention of the “will of the people” in its resolution. The Dixon Report was the last serious attempt at a plebiscite, but by then the wheels were already coming off. I assume you are aware of the “doubtful” region formula suggested by Dixon. Pakistan had a narrow window of opportunity in 1948-49, where it could have removed its military when the UNCIP was fully involved and forced India’s hand. By 1951, we had missed the boat.
To recap:
1) The distinction drawn between irregulars and Pakistani troops and discrepancy between the two positions in Resolution 47 and Aug 13 1948 is due to the Pakistani government’s deceit about the presence of its Army. Hence they are to be treated
pari materia, and not a subject matter of clever revisions. No law allows anyone to cheat and then take advantage of the same.
2) The interpretation that irregulars were required to be withdrawn but not troops leads to a logical absurdity and violates all known canons of interpretation.
3) The resolutions were just the principles along which final resolution was to take place. A series of events was to take place, which was stalled initially by Pakistan, and then seized upon by India. It may always have been India’s devious plan to not conduct a plebiscite, but Pakistan misconstrued its own obligations under the resolutions.
4) Pakistan always had the option of accepting India’s contention on the 12-point proposals and force India’s hand on the subject – it chose not to, made demands of its own. Basically, Pakistan rejected the plebiscite on the issue of 5,000 additional troops. The fact that the UNSC allowed the talks to collapse instead of moving a resolution against India shows that the UNSC treated Pakistani withdrawal as a condition precedent.
5) Because India has not accepted ICJ jurisdiction on the issue, the UNSC is its own judge in the matter. The UN has now dropped Kashmir from the list of disputed territories, and has repeatedly asserted that Kashmir is a bilateral issue. So the UN has basically overturned its prior position and laid down a new one. We can no longer seek recourse to Resolution 47, unless the UN changes its position.
6) Since we are being overly legalistic about it and not realizing that ground realities have changed so much in the past six decades that a plebiscite today will have no meaning, we should also know that legal claims have a limitation. After which these claims expire. Or the changes in circumstances make the last position meaningless, necessitating a completely new framework. Even if we were to be able to achieve the impossible task of convincing the UN to intervene, rest assured that it will not be upon our terms where things will be picked up from the collapse of the 12-point proposal.
