23011957 Text of the speech made by Mr. Krishna Menon {India) in the Security Council meeting No. 762 held on 23 January 1957.

23011957 Text of the speech made by Mr. Krishna Menon {India) in the Security Council meeting No. 762 held on 23 January 1957.

The Government of India has given consideration to the statement made by the Foreign Minister of Pakistan before the Security Council on 16 January (761st meeting), that is, a statement coming from a neighbouring country with which it is our desire to establish,1 maintain and continue the most intimate friendship, and made by a person who has been associated with the service of India for well over a generation and who today occupies a place of prominence in his Government.

Before I deal with the subject that is before us, I again like to make this preliminary observation. Yesterday in India, India and Pakistan signed a trade agreement. If this were merely a trade agreement for the exchange of commodities, as might happen, between any people it would not be of any importance. This, like as many other agreements reached between our two countries, which marks a further step forward In the effort, injustice, to get over the difficulties which have arisen from time to time, touches not the feelings as much as the standards of living of our people on each other. With that background I will endeavour, therefore, not to introduce invective or anything irrelevant to the subject before us or which would in any way swim against the current of co-opera­tion and fraternity between our two countries.

The present consideration of this matter arises from a letter dated 2 January 1957 from the Minister for Foreign Affairs of Pakistan to the President of the Security Council [S/3767]. It is important for me to mention this because, as I develop the position on behalf of the Government of India. It will be obvious to the Security Council that in this matter it is necessary to place developments, phases, incidents and events in their right perspective. It is not possible to understand a problem, especially a complex problem which has engaged, in the first instance, the attention of the two countries, and the attention of other parties, including the Security Council, over the years—to which I shall refer later—without having the whole picture so that the significance of documents, arrange­ments and declarations can become realistic and true to fact.

The statement made in this Council by the representative of Pakistan on 16 January began, it is true, with a brief mention of the partition of India. It then went on to the position that India accepted "a spurious offer of accession" of the State of Kashmir, and it would appear that what was sought to be conveyed was that we are here in regard to a dispute about territory.

Mr. President, I believe that you and all but one or two members of the Security Council are newcomers to this subject. It is quite true that it is not individuals but States that repre­sent Governments here. And even with regard to States, apart from the five permanent members of the Security Council, most of them, if not all of them, are newcomers to this subject. I have the duty to the Security Council and to my Government, as well as to the cause of international peace and security, to present this problem, even at the risk of trying the Council's patience with detail, in such a way as to enable the picture to be true to fact. It will be recalled that the last time the Security Council considered this matter was on 23 December 1952, which is more than four years ago, a fact which is not without signi­ficance because, at a later stage in his remarks, the representa­tive of Pakistan attempted to convey to the Council the feeling that there was a crisis developing in this matter. I shall refer to that factor in a moment.

It was the Government of India that came here in the first instance. The Government of India came here on 1 January 1948. It is not usual for a Government of average ability and intelligence, as mine is, to come before the Security Council and to invite its attention to the wrongs it has done. In this particular case it has done nothing wrong, and in any case the matter is clear in itself.

Therefore, I shall now refer to documents S/l 100, annex 28, page 139, contained in the Supplement for November 1948 of the Official Records of the Security Council. The original text is in English, and it is dated 1 January 1948. I hope the Secretary-General will bear with me when I say that it is essen­tial for us to quote these documents, with all the details, be­cause, at variance with the practice of the General Assembly, the Security Council's documents require considerable research if you wish to find some particular point in them. There is no volume of resolutions on this subject; you have to search for the resolutions and put them together. That may be a good thing, because one learns more about them. I should like to read the beginning and the end of this :

"Under Article 35 of the Charter of the United Nations" —which means that we did not come here with a request for drastic action as we were entitled to do— "any Mem­ber may bring any situation"—and I emphasize this word "situation", for we did not bring a dispute but a situation—"whose continuance is likely to endanger the maintenance of international peace and security to the attention of the Security Council. Such a situation now exists between India and Pakistan--" [S/ 1100, annex 28, para. 1].

We felt,- as indeed my predecessor in this chair pointed out to the Council at that time, that there is no dispute about territory. I say with great respect that the Security Council would be incompetent to deal with it because that would be either a political or a juridical question, and under Chapter VI or Chapter VII of the Charter the Security Council would only deal with questions of international peace and security. So we brought here a situation and not a dispute.

But that is not the most important part. We went on to say :

"The Government of India requested the Security Council to call upon Pakistan to put an end immediately to the giving of such assistance,"—immediately, on 1 January 1948, and today we are nine years away from it—"which is an act of aggression against India" [Ibid.].

I shall quote these words more than once before I have concluded, in order to discharge my responsibility as the repre­sentative of my Government : "—which is an act of aggression against India". That is the crux of this question. What we are considering here is not merely various resolutions or the method by which a problem may be resolved otherwise. What is before us, as I shall point out later, is this question of aggression, because the whole United Nations is founded upon the basic principles of international law and behaviour. That is based upon equity, and he who asks for equity must come with clean hands.

Therefore, our starting point is that we came here in order to file a complaint, to ask for redress on a charge of aggression. If Pakistan does not mention this starting point, then we have to point out why we were so concerned about it. After all, there are difficulties sometimes. Even today we have frontier raids one way or another. But why did we then ask the Security Council to deal with this matter ? If Pakistan does not do so, that is to say, halt the aggression, the Govern­ment of India may be compelled in self-defence—and inter­polate that self-defence is not only a right of the Member States of the United Nations but, I submit, it is an obligation that Member States have under the Charter because they have an obligation to maintain the sovereignties of their own countries—the Government of India may be compelled in self-defence to enter Pakistan territory, which we did not do, in order to take military action against the invaders. The matter is, therefore, one of extreme urgency and calls for immediate action by the Security Council for avoiding a breach of international peace.

As the delineation of this picture becomes more comp­lete it will be clear that the efforts of India and of the Security Council and the approaches made to Pakistan by mediators and soon have at earlier stages been primarily addressed to the halting hostilities.

Therefore, our country was faced with the position that part of its territory was invaded, and that invasion had to be resisted; it had to be pushed back. The normal practice of war would have been to defend by attacking the invader. But this was in 947, and it was a fact, which remains true to us at any rate today, that these were the same people who were part of our country but ten years ago. What is more, between January 1947, when we came here, and October, when these things started, our two countries had only just passed through the holocaust of fraetricide, that is, of Indian people killing Pakistanis, and Pakistanis killing Indians. We had witnessed an orgy of violence, and it was the desire of our Government that nothing should be done to rekindle these embers which were still burning at that time.

That was the original position, and I shall keep coming back to it. We are here on a complaint of aggression. That aggression has not been resolved; it has not been got rid of. So long as there are forces of other countries in a place where they have no right to be, irrespective of our rights, I think the Security Council is called upon under the provisions of the Charter to act accordingly.

In this context, so many trees have grown, and a very considerable amount of undergrowth, that it is impossible to see the wood properly, and it will be my attempt to present it as best we can. We shall try to assist the Security Council to see this picture as it was. As I said, five years ago we debated this, and in five years—even apart from the nine years—a great many things happened. It is part of the inevitable practice of nations that the changes in conditions that time brings about and which may go to the root of a question have also to be taken into account.

From there, with great respect to my colleague, the Foreign Minister of Pakistan. I shall follow his example of looking at this problem from the time of the partition of India.

India became an independent country on 15 August 1947. We are not concerned here with the political issues but with the constitutional and other issues relevant to this problem. The independence of India was attained by an act of the United Kingdom Parliament. The Indian Independence Act of 1947 is that Act, and at later stages we shall draw attention to the causes relevant to these matters. On 18 July 1947 the United Kingdom Parliament passed the Indian Independence Act whereby India was created as a self-governing dominion and as a successor State to British India. Popularly, we speak about the British Parliament partitioning the country in two; constitutionally that is not correct.

What happened was that British India obtained indepen­dence. India, under the British Crown, obtained independence and in that process Parliament constituted certain territories— on which we had agreed politically before hand—into another dominion. Therefore, as regards our State, for example, in the United Nations, we did not have to be admitted anew. We came here as a successor State to India that signed the Covenant of the League of Nations, that signed the Treaty of Versailles, and which also went to San Francisco to help in establishing this Organization at which time my distin­guished colleague from Pakistan was one of the representatives. So India became the successor State by this Act of 1947. The 1935 Act. That is to say, the Government of India Act the British Parliament passed in 1935 and which became effective somewhere around 1937, became the Constitution Act. It was amended by us in order to deal with certain anomalies, such as the reference to the Crown as the Viceroy, and so on. Various amendments were made during that period. That is the Constitution Act. Now this Act—and it is important to remember it—deals with the Federation of India.

British dominion in India or British suzerainty in India consisted of the over-lordship of what is now called by that very ugly word, the sub-continent, that is, the Indian peninsula. That territory consisted of two political groups; one was the British provinces directly ruled under the ultimate direction of the Secretary of State from London; and the other was the Indian states. So far as I recollect, there were 562 of them when we obtained independence. Therefore, the problem arose as to what was to be done with the states, because the states were not directly ruled; they were indirectly ruled.

The British Government, with the wisdom which is often not credited to it but which in fact exists, had foreseen that India was likely to become independent. Therefore, as early as the third decade of this century they had tried to define the relations between the British Crown and these states by what is called a doctrine of paramountcy. It is necessary, for pur­poses of the record and for any future troubles that may arise —not in this particular—issue—to state that we do not neces­sarily accept everything that everybody says about the doctrine of paramountcy. It does not appear anywhere else in inter­national law.

Roughly speaking, for this purpose, the doctrine of para­mountcy is this : that when we speak of the relations between the Indian States—and here again let me emphasize that when the British speak about the relations between the Indian States or we speak about constitutional law—it is the relations bet­ween the Crown and the head of the State, because all treaties were between the Crown and the Princes. There were no treaties ratified by any parliaments or legislatures. Therefore, it is argued that the relationships were established on account of the treaties, which are really a kind of charter between the British Crown and the Princes. And the British Government of the day, the Viceroy of the day, argued that this established a privity between them, a privity of contract, a privity of rela­tionship between them, and expounded for the first time, in 1926, this doctrine of paramountcy.

Under the doctrine of paramountcy, when India gained independence the British Government proposed that the Crown should withdraw. The Crown was withdrawing from the penin­sula. The Crown was withdrawing from effective control of British India. And that is a point which I particularly would like the representative of the United Kingdom to take special note of.

Why were these changes necessary in the^ relations bet­ween the Princes and the Crown ? Because the Crown was going on a legal theory fixed in a two-fold way, through the Viceroy on the one hand and the Governor-General on the other. It was the fact that he had the Indian Army, it was the fact that he had Indian revenue, it was the fact that he had Indian police, it was the fact that he had the Indian customs organization which enabled him to arrange the relations with the States.

Some gentlemen around this table are well aware, in constitutional practice, of the difference between status and function. Functionally, therefore, it was the British Govern­ment of British India that maintained these relations. It is quite true that there was a constitutional aspect. Therefore, for the purpose of the record we want to read into it that whatever remains in us, in the British Government, by virtue of this function, remains in the Government of India by virtue of its succession. Therefore, the doctrine of paramountcy is limited by this phraseology.

In order that there may be further support for this argu­ment. I wish to draw the attention of the Council, and parti­cularly the representative of the United Kingdom, to the fact that a distinguished jurist who was Viceroy of India in this period when these changes were dreamed of in 1926, told the Princes that they no sovereignty and that they had no inde­pendence at any time. There is a classic phrase which says : "Over and above all treaty obligations are certain rights that rest in the Government." Therefore at no time, as has been brought in so many times, even by us, the independence of the Indian States was not the kind of sovereign independence that would enable them to become Members of the United Nations. It is quite true, as it is said in the Cabinet Mission's Memorandum, that they were competent to discuss some other political relationship other than accession; that is possible. But they would not have been independent, like Colombia, or Cuba, or France or any of the countries around here, because they had no international status. The British Government, or any Government in the world, cannot just make a country like that. Independence rests upon function, upon territory, upon the capacity to exercise sovereign rights and, what is more, upon the recognition of the world. Therefore, when we speak about the three alternatives, this has to be borne in mind.

My Government, in view of the complications that arise in these matters, is anxious that this should be on the record somewhere, even though it might not have an immediate bearing on what you are going to consider. The Mission of the British Cabinet was in India in 1946, and on 12 May 1946 it issued a statement in the form of a memorandum. The memo­randum to which I have just referred appears in our annex IV as document No. 1. For the convenience of the Council, my delegation has prepared these documents for the purpose of ready reference. I shall, at some stage, ask for these documents to be circulated as United Nations documents. I believe we are entitled to ask that. But, for the purpose of reference, the President has a copy, and copies have also been given to the other members of the Council.