29031951 Text of the speech made by Sir Senegal N. Rau (India) in the Security Council meeting No. 538 held on 29 March 1951.

29031951 Text of the speech made by Sir Senegal N. Rau (India) in the Security Council meeting No. 538 held on 29 March 1951.

I have carefully studied the revised draft resolution [SI 2017I Rev. 1] and the speeches of its sponsors. I shall first say a few words on the question of Kashmir's accession to India, on which the representative of the United Kingdom has expressed himself [537th meeting] in language which is far from clear. I dealt with this matter last year, but, as Sir Gladwyn Jebb was not in the Council then, I shall repeat the substance of what I said.

Consider the Constitution which was in force in India bet­ween 15 August 1947 & 26 January 1950, which is the material Period for this purpose, India was a Dominion under the British crown- That Constitution was an enactment of the British Parliament. Under that Constitution, often refused to as the Government of India Act, 1935-as amended under the Indian Independence Act, 1947—an Indian State must be deemed to have acceded to the Dominion if the Governor-General has signified his acceptance of an instrument of accession executed by the Ruler. That is all that is required for accession : an instrument executed by the Ruler and accepted by the Governor-General.

On 26 October 1947, in order to jet India's help to repel an invasion of the State in which Pakistan was aiding, the Ruler of Kashmir actually executed such an instrument of accession in favour of India, and on 27 October 1947, Lord Mountbatten, then Governor-General of India, signified his acceptance of the instrument in the usual formula, "I do hereby accept this instrument of accession". The document itself contains no conditions or reservations of any kind; it is in the same form as any other instrument of accession accepted by the Governor-General of India, and it took effect from the moment of accep­tance. Only, in the case of Kashmir, Lord Mountbatten, after accepting the instrument wrote a separate letter to the Maharaja or Ruler in which he expressed the wish of the Government of India that "as soon as law and order have been restored in Kashmir and its soil cleared of the invader, the question of the State's accession should be settled by a reference to the people". In other words, the acceptance of accession was followed by the expression of a wish to be fulfilled at a future date when certain conditions had been satisfied. Unfortunately, the soil of Kash­mir has not yet been cleared of the invader—the Pakistan Army which joined the invader is still there— and so the fulfilment of the wish of the Government of India has been delayed by Pakistan's own act. Meanwhile, the accession to India con­tinues to be effective, and it will inevitably so continue unless and until the people of Kashmir settle the question otherwise.

1. delayed the plebiscite by an act of invasion, Pakistan cannot take advantage of its own wrong to hold up or suspend the legal consequences of the accession. There is nothing new or strange in this interpretation. It is the view which the United Nations Commission itself evidently took as early as 13 August 1948 [SI 1100} in its resolution of that date which, I need hardly repeat, has been accepted by Pakistan as well as India. The Council will remember that under that resolution, Pakistan is to withdraw all its troops from the State, while India is to with­draw only the bulk of its troops. Why was this distinction made ? Clearly because the United Nations Commission recog­nized that while Pakistan had no right to have any troops in/the State, India by virtue of its responsibility for the defence of the State resulting from the accession, had the right and the duty to retain some troops in the State to ensure its security. There is other evidence of the same view elsewhere, but it is un­necessary to labour this point. The argument to the contrary is in effect only another attempt to reopen settled issues. Indeed, I am not sure that Sir Gladwyn Jebb does not contradict his own doubts for, in one part of his speech he wants the Govern­ment of India to take all possible steps to prevent the Kashmir Government from acting in a certain way in the State constituent assembly, while, almost immediately afterwards, he questions Kashmir's accession to India surely if Kashmir has not acceded to India, the Government of India cannot, on his own view of the matter have any control over the Government of Kashmir. Even with accession, the control is limited; but without acces­sion, what would be the foundation for the various obligations which Sir Gladwyn Jebb seeks to impose upon the Government of India with respect to Kashmir ? In one breach he demands all possible preventive steps from India and in the next he seems to question the very basis for his demand.
2. brings me to the subject of the constituent assembly which apparently continues to disturb some of the members of the Council. I have already explained my Government's views on this subject (536th meeting). Even in a Federation every state has a right to make its own constitution in its own proper sphere and set up a special body for that purpose. For example every State constitution now in force in the United States of America was framed in this way. India cannot, therefore, Prevent Kashmir, which is at present a unit of the Indian federation, from exercising a similar right, which, indeed, is expressly recognised in the Constitution of India. Some members of the Council appear to fear that in the process the Kashmir constituent assembly might express its opinion on the question of accession. The constituent assembly cannot be physically prevented from expressing its opinion on this question if it so chooses. But the opinion will not bind my Government or pre­judice the position of this Council. I have already said this as the representative of the Government of India in this Council and I can do no more than to express my regret that, in spite of the statements which I have made on behalf of my Govern­ment, the references to the constituent assembly in the preamble to the joint draft resolution should have been retained in the revised draft.

I shall now turn to the operative part of the revised draft revolution before us.

Paragraph 3 of the resolution instructs the United Nations representative, after consultation with the Governments of India and Pakistan, to effect the demilitarization of the State of Jammu and Kashmir on the basis of the United Nations Com­mission's resolutions of 13 August 1948 and 5 January 1949 (S/1100, S/1196).

Paragraph 6 calls upon the parties—that is, the Govern­ments of India and Pakistan—in the event of their discussions with the United Nations representative failing, in his opinion, to result in full agreement, to accept arbitration by an arbitrator or a panel of arbitrators to be appointed by the President of the International Court of Justice after consultation with the parties.

I shall now invite the Council to look at paragraph 1 of section B of part 11 of the resolution of 13 August 1948.

"1. When the Commission shall have notified the Government of India that the tribesmen and Pakistan nationals referred to in part II, A. 2 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 agree to begin to withdraw the bulk of its forces from that State in stages to be agreed upon with the Commission."

I shall repeat that last part :

"... the Government of India agrees to begin to with­draw the bulk of its forces from that State in stages to be agreed upon with the Commission."

I shall now continue to read from section B of part 11 of the resolution of 13 August 1948 :

"2. Pending the acceptance of the conditions for a final settlement of the situation in the State of Jammu and Kashmir, the Indian Government will maintain within the lines existing at the moment of the cease-fire the minimum strength of its forces which in agreement with the Com­mission are considered necessary to assist local authorities in the observance of law and order. The Commission will have observers stationed where it deems necessary."

It is clear from these paragraphs that the stages in which the bulk of the Indian forces are to be withdrawn from the State and the strength of the Indian forces to be retained in the State are matters for agreement solely between the United Nations Commission and the Government of India. Let there be any shadow of doubt on this point, the Prime Minister of India obtained explicit confirmation of it from the Commission before accepting the resolution. I invite attention to paragraphs 3, 4 and 5 of the Prime Minister's letter of 20 August 1948 and the Commission's reply of 25 August 1948, both of which I proceed to quote.

Paragraphs, 2, 4 and 5 of the Prime Minister's letter read as follows:

'3. Since our meeting of 18 August, we have given the Commission's resolution our most earnest thought. There are many parts of it which we should have preferred to be otherwise and more in keeping with the fundamental facts of the situation, especially the flagrant aggression of the Pakistan Government on Indian Union territory. We recognize, however, that if a successful effort is to be made to create satisfactory conditions for a solution of the Kashmir problem without further bloodshed, we should concentrate on certain essentials only at present and seek safeguards in regard to them. It was in this spirit that I placed the following considerations before Your Excellency:"— that is, the Chairman of the United Nations Commission for India and Pakistan—

(1) That paragraph A, 3 of part IP of the resolu­tion should not be interpreted, or applied in practice, as so,

(a) To bring into question sovereignty of the Jammu and Kashmir Government over the portion of its territory evacuated by Pakistan troops;

(b) To afford and recognition of the so-called Azad Kashmir Government; or

(c) To enable this territory to be consolidated in any way during the period of truce to the disad­vantage of the State.

"(2) That from our point of view the effective in­surance of the security of the State against external aggression, from which Kashmir has suffered so much during the last ten months, was of the most vital signi­ficance and no less important than the observance of internal law and order, and that, therefore the withdrawal of Indian troops and the strength of Indian forces main­tained in Kashmir should be conditioned by this over­riding factor. Thus, at any time, the strength of the Indian force maintained in Kashmir should be sufficient to ensure security against any form of external aggression as well as internal disorder.

"(3) That as regards part III, should it be decided to seek a solution of the future of the State by means of a plebiscite, Pakistan should have no part in the organiza­tion and conduct of the plebiscite or in any other matter of internal administration in the State.

"4. If I understood you correctly, A, 3 of part II of the resolution does not envisage the creation of any of the conditions to which we have objected in paragraph 3(1) of this letter. In fact, you made it clear that the Commission was not competent to recognize the sovereignty of any authority over the • evacuated areas other than that of the Jammu and Kashmir Government.

"As regards paragraph 3 (2), the paramount need for security is recognized by the Commission, and the time when the withdrawal of Indian forces from the State is to begin, the stages in which it is to be carried out and the strength of Indian forces to be retained in the State are matters for settlement between the Commission and the Government of India.

"Finally, you agreed that part III, as formulated, does not in any way recognize the right of Pakistan to have any part in a plebiscite.

"5. In view of this clarification, my Government, animated by a sincere desire to promote the cause of peace and thus to uphold the principles and prestige of the United Nations, has decided to accept the resolution."

In reply to this letter, the Chairman of the Commission wrote as follows:

"I have the honour to acknowledge the receipt of your communication dated 20 August 1948, regarding the terms of the resolution of the United Nations Commission for India and Pakistan which the Commission presented to you on 14 August 1948.

"The Commission requests me to convey to Your Excellency"—that is, to the Prime Minister of India-its view that the interpretation of the resolution as expressed in paragraph 4 of your letter coincides with its own interpretation, it being understood that as regards point (I) (c) the local people of the evacuated territory will have freedom of legitimate political activity. In this connection, the term 'evacuated territory' refers to those territories in the State of Jammu and Kashmir which are at present under the effective control of the Pakistan High Command.

"The Commission wishes me to express to Your Excellency its sincere satisfaction that the Government of India has accepted the resolution and appreciates the spirit in which this decision has been taken."

Therefore, in the vital matters which I have just mentioned, namely in the matter of the stages in which the bulk of the Indian forces are to be withdrawn and the strength of the forces to be retained in the State—I describe them as vital because they obviously relate to the security of the State—Pakistan has, under the United Nations Commission's resolution of 13 August, no voice and no right to be consulted at all.

This was not due to any oversight or accident of language; it was due to the fact, well known to the United Nations Commission as well as to others that Pakistan had aided and ultimately joined in the invasion of the State. And, of course, no invader can be given any voice in the disposal or disposition of the protecting forces. Such was the position under the resolution of August 1948, a resolution of the United Nations-Commission accepted by Pakistan as well as India.

What is the position under the revised joint draft resolution now before the Council ? Under paragraphs 3 and 6, the position seems to be that, even in these vital matters affecting the security of the State, Pakistan will have a right to be con­sulted. Furthermore, if Pakistan is not in full agreement with India, the point will have to be decided by arbitrators in whose selection Pakistan will, again, have the right to be consulted. Thus, the draft resolution seeks to reopen, in favour of Pakistan, issues which had been settled by the resolution of August I948.

First it seeks to give Pakistan a voice in matters in which Pakistan as an invader of the State, has been rightly denied any voice under the older resolution, and secondly, it seeks to Transfer to arbitrators the right to make vital decisions which under the older resolution, required India's agreement.

These are the new concessions to Pakistan to which I referred in one of my previous interventions. The Council cannot be surprised that Pakistan readily accepts them and India demurs.

Sir Gladwyn Jebb has said that he is unable to see how the proposed arbitration clause can threaten the security of India or work to the detriment of India's rights and responsibilities, I have explained how, and would only ask whether Sir Gladwyn  would agree to a proposal that matters of military security Title to the United Kingdom should be decided not by its own Government, nor even with its consent, but by arbitrates chosen by somebody else after consultation with the country that has invaded British territory.

No one objects to arbitration as a general principle; but when under the guise of arbitration, agreements already arm at are sought to be disturbed in the way I have explained, my Government cannot but object Paragraph 6 of the draft resolu­tion is a violation of the agreed resolution of August 194S and for this and other reasons my Government cannot accept it.

1. developments in Pakistan and what is called "Azad Kashmir" indicate forcibly the dangers of any failure to give adequate security to the State. The Council will doubtless recollect that, according to the United Nations Commission own third interim report the so-called Azad Kashmir forces were built upto the formidable strength of thirty-two battalion clearing the cease-fire period in violation of the resolution of 13 August. The Commission itself remarked that this made the withdrawal of the Indian forces a far more difficult matter than was contemplated in that resolution. The recent army plot in Pakistan has added greatly to that difficulty. Moreover, the talk of jehad, or holy war, to which I have repeatedly referred is as pervasive and persistent as ever in Pakistan.

In such circumstances my Government cannot be expected to leave to a third party, however chosen, the decision as to how the State should be protected against a recurrence of the horrors of October 1947. My Government has no objection to a new United Nations representative visiting India and Pakistan, if the Security Council so desires, to make a fresh attempt to assist, by suggestion, advice and mediation, in determining how proposals regarding demilitarization under the resolutions of 13 August 1948 and 5 January 1949 should be implemented with due regard to the assurances given to my Government in connection therewith. This, of course, is subject to my Government's views regarding arbitration, which I have already explained.

In effect, therefore, the revised draft resolution continues to ignore the basic facts of the situation in Kashmir, and it includes provisions which we have all along made amply clear that we cannot accept. For a peaceful settlement of the problem it is essential that a peaceful atmosphere should be created. The continuous and intensive propaganda in Pakistan for jehad, and the leveling of wild and baseless charges against India, hardly provide a suitable background. Nor is the periodic re-agitation of the matter and the constant reopen­ing of closed issues calculated to promote a peaceful settlement of the question. India desires peace above everything—peace for the world and peace with all its neighbours. But there can' be no lasting peace which is not based on fairness and justice.