- 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.
Correct, they are recommendations and principles that India and Pakistan committed to, pending agreement on the details of both demilitarization and plebiscite. India has reneged on he international commitments made multiple times, and refuses to even engage in negotiations over those principles any longer, whereas Pakistan continues to adhere to her international commitments.
- In any form of negotiated settlement, the mere fact that a party agreed to sit for discussions cannot be held against them.
Multiple UNSC Resolutions made clear what the framework of these discussions was to be - primarily, negotiations towards an agreement on the details of a demilitarization plan. The Indian government's participation in such negotiations would only occur if they recognized that the UNSC Resolutions required a UN mediated agreement on demilitirization, acceptable to all sides, prior to any withdrawal. The argument here is over the claim that the UN Resolutions require Pakistan to withdraw all 'combatants' unconditionally. If that was the case, the UNSC had no reason to set up UN Commissions and send UN representatives to negotiate the details with India AND Pakistan, and India had no reason to accept or participate in UNSC sanctioned discussions that undermined the claim that 'Pakistan was required to withdraw unconditionally'.
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.
You misunderstood my point completely - as I explained in the paragraph above, I'm arguing that the UNSC resolutions do not place any requirement of an unconditional and unilateral withdrawal upon Pakistan. The UNSC Resolutions and UNCIP Resolutions and Reports make clear that any withdrawal is subject to the details of withdrawal being agreed upon between India, Pakistan and UN Representatives. India's participation in the multiple negotiations established by the UNSC validate Pakistan's position (of not being under any requirement of withdrawing unilaterally and unconditionally) by virtue of explicitly accepting the principle (at the time) of 'agreeing to a framework withing which a final settlement is binding on both', as you said in your first sentence. If India hadn't agreed to the 'framework', it would not have participated in the multiple negotiations established by the framework, and it is the 'framework within which a final settlement is binding on both' that debunks the argument that the UNSC Resolutions require Pakistan to withdraw unilaterally and unconditionally.
In fact, even if India did not agree with the framework, the fact that the UNSC set up multiple rounds of UN Commissions and UN Representative led missions to develop agreement over the general principles of demilitirization and plebiscite, clearly establishes that the intent behind the UNSC Resolutions from the beginning was to 'establish a framework within which agreement over the details of demilitirization and plebiscite could be reached' - again, a vindication of the Pakistani position that no unconditional and unilateral withdrawal is required of her.
harping on prior UNSC resolutions when it is convenient and ignoring the change in the UN position on the issue.
This passage of yours is irrelevant to the specific point being discussed, of whether the UNSC Resolutions require Pakistan to withdraw unconditionally and unilaterally.
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.
Lie or 'tactical omission', if the misrepresentation by Pakistan was indeed so grievous, the UNSC was free to strengthen the language in her subsequent resolutions against Pakistan, yet the subsequent resolutions only further establish and detail a framework within which agreement on the details of demilitarization and plebiscite need to be reached.
You can tarnish Pakistan's actions as much as you want, but the facts are that the UNSC did not see things the way you do, as is clear from the language of the UNSC Resolutions and UNCIP reports subsequent to the first UNSCR on J&K.
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.
Pakistan did not contest the need for a full withdrawal of irregular forces to be validated prior to an Indian demilitarization, so this argument is a straw man. Pakistan's disagreements with some proposals were over the massive superiority in conventional government controlled forces that India would be allowed to keep deployed in the valley compared to Pakistan's.
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.
I'm not going to trust you - you did an excellent job of restating my arguments, but you've offered nothing in the way of a rebuttal of those arguments other than saying 'this is how a lawyer would quote it' - I see no 'havoc' being created here by my reasoning, certainly none that you've pointed out so far.
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.
There is no 'legal absurdity' here, just a desire on your part to read the text out of context, chopped up into pieces that support the Indian point of view on your part. The statement in 2.A(1) was the acceptance in principle of Pakistan withdrawing her troops - it did not specify when or how that withdrawal were to take place, and the context and conditions applicable to the statement in 2.A(1) was very clearly established in the opening lines of Part II,
"both the 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."
The introduction to Part II set up the framework for negotiations, and provided clear context that everything stated in Part II of the UNCIPR was subject to a final agreement on the details, and therefore my interpretation of Part II.B(1) clearly flows within the context established by the opening lines of Part II. What would be absurd would be to cling solely to the language of 2.A.(1), ignoring what came before and after.
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?
What exactly about the above do you not understand? Pakistan confirms that it has managed (by force, dialog or both) to secure the withdrawal of irregular forces, which the UN Commission would confirm (and was free to introduce proposals on how best to confirm the withdrawal prior to reporting it to India), after which the withdrawal of regular forces, on both sides, begins in accordance with the details of the Truce Agreement settled upon by all sides.
As far as requirement for a plebiscite is concerned, demilitarization was a must.
I never questioned that.
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).
Then what exactly are you arguing with me for - you yourself claimed earlier that, "
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", and now you've essentially accepted my position.
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?
Because the framework the UNSC had set up required agreement by both parties - it did not consider the possibility of one party's obstructionism as a means of delaying resolution until such time as the status quo could be argued to be the most feasible option, and it probably didn't have the votes to push through a resolution censuring India.
And why did Pakistan not agree to the additional 5,000 troops, if it was so confident of its victory in the plebiscite?
Pakistan's disagreement over troop levels that gave India more than a significant advantage were based on military rationale, and Indian tactics of illegally sparking communal violence, invasion and occupation of the territory of sovereign States such as the Pakistani territory of Junagadh and the State of Hyderabad. India's demands during negotiations that she be recognized as solely having the legal ability to deploy forces throughout disputed J&K in case of violence and threats of instability.To any rationale individual this was clearly a setup to replicate the events of Junagadh and Hyderabad and have Indian forces step into the Vacuum left by withdrawing Pakistani forces, hence the need to maintain, at least, a defensible posture with limited Indian military troop superiority.
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.
I didn't miss anything - I I clearly stated in my earlier post that without a truce agreement interpretations of 'ongoing withdrawal' could be interpreted to mean anything, and the examples I gave were to further establish the fact that the withdrawal was subject to an agreement on the details. You're attributing arguments to me that I did not make.
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 have accepted no ambiguity and you have established no such thing.
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?
The Pakistani government is on record committing to a withdrawal in the UNSC, in accordance with the UNSC framework that calls for an agreement on the details of the withdrawal negotiated under said UNSC framework - it doesn't get any more 'officially on record' than that.
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.
As explained earlier, the UNSC, if it considered Pakistan's 'misrepresentation' regarding the presence of her troops in J&K to be unacceptable, have addressed the issue in subsequent UNSC Resolutions in a manner that outright demanded an unconditional and unilateral withdrawal from Pakistan, period. Instead, it chose to create a framework under which India, Pakistan and the UN were to negotiate a agreement on the details of a verifiable demilitirization leading to a plebiscite, a framework that was accepted by all sides at the time.
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.
It does not, as explained earlier. Again, since a government cannot be expected to have control over all irregulars, it stands to reason that the State may have to resort to both non-violent and violent means to ensure compliance. The use of violence by the State to ensure that irregulars comply with the requirement to withdraw requires the use of government armed forces. Therefore the logical absurdity is to argue that a government 'use its best endeavors to ensure withdrawal of an irregular force', when the government does not have a military that would give it's 'best endeavors' the teeth to ensure said compliance by irregulars. The UNSC and UNCIP knew exactly what it was proposing because a staged withdrawal, with government troops the last to leave, would be the only way to ensure that the GoP had the ability to influence irregulars.
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.
The series of events were negotiations and agreement on the details of demilitirization, that India sabotaged and obstructed by placing unreasonable demands, as detailed earlier.
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.
Actually, Indian rejected the earlier proposal of 5000 fewer troops on her side, even though that would have still left her with a significant numerical advantage over Pakistan. Pakistan compromised on several occasions, with the troop discrepancy continuing to increase in favor of India each time India rejected a proposal and a new one was presented. At some point Pakistan had to draw the line and it justifiable did so. The obstructionism was on the Indian side - why did India reject the earlier proposal with 5000 fewer troops on the Indian side, even though India would have still had a significant numerical advantage?
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.
Irrelevant to the point being argued, on whether Pakistan was required to unilaterally and unconditionally withdraw from J&K by the UNSC Resolutions, which I have clearly explained to not be the case, as Pakistan has argued.
I see a bunch of articles and a reference in some books to this alleged 'removal from the list of the UN disputes', but there is absolutely no reference to a UN published list of disputes that Kashmir was allegedly 'removed from'. One can't 'remove a dispute from a list' if said list doesn't even exist to begin with.
Please provide a reference to a
UN site/source that provides a list of disputed territories, as recognized by the UN.
