15111957 Text of the speech made by Mr. Noon (Pakistan) in the Security Council meeting No. 802 held on 15 November 1957.
15111957 Text of the speech made by Mr. Noon (Pakistan) in the Security Council meeting No. 802 held on 15 November 1957.
Mr. President, as I submitted the Security Council on the
Last occasion [801st meeting, para, 115], I would now proceed to comment more fully on what has been said during the course of the debate. I thank you, Mr. President, and the members of the Security Council for the consideration you have given to the statements I have so far made in regard to the India-Pakistan dispute concerning the future of Kashmir.
At the outset, I must express surprise that some of the members of the Security Council thought it fit to raise any doubt about the implementation of part I of the resolution adopted by the United Nations Commission for India and Pakistan on 13 August 1948 [S/1100, para. 75]. In regard to part I, paragraph B, of this resolution, I have repeatedly submitted, so far as Pakistan is concerned, of military potential in the State of Jammu and Kashmir. On the contrary, there has been a substantial reduction.
The representative of India has himself conceded that there has been a considerable reduction in our forces, although the figures of military strength quoted by him from time have been contradictory. At one stage he said that the "Azad" Kashmir battalions had been reduced from thirty-five to twenty. That statement is contained in the verbatim record of the 795th meeting, held on 9 October 1957 [795th meeting, para, 91]. Almost in the same breath he added that the reduction had been from thirty to twenty battalions. Not long ago, on 15 February 1957, Mr. Krishna Menon solemnly informed the Security Council that the number of "Azad" Kashmir battalions had been increased to forty-five. That statement is contained in paragraph 58 of the verbatim record of the 769th meeting. Had there been any augmentation, the military observers who are on the spot and whose business it is to watch such matters would have made a report to this effect. No such report has been made because no augmentation has in fact taken place. In any case, as the representative of the United Kingdom has aptly pointed out, the removal or reduction of forces in implementation of part II of the resolution of 13 August 1948 should do away with any further problems about augmentation.
In regard to part I, paragraph E, of the same resolution, on which the representative of the United Kingdom has placed a far wider interpretation than the terms suggest, repeated appeals have been made by my Government to promote an atmosphere which would permit the peaceful holding of a plebiscite in the State of Jammu and Kashmir Indeed, I need hardly assure the members of the Security Council of my sincere and earnest efforts in this direction.
The various statements which the Defence Minister of India has mentioned and which have been attributed to prominent personages in Pakistan were all made in connexion with Pakistan's policy of adherence to regional alliances, such as the South East Asia Treaty organization [SEATO] and the Baghdad Pact. These alliances are basically and entirely defensive in character. Their purpose certainly cannot be represented as that of advocating war with India. Nor have they any bearing on the Kashmir problem. I can quote just as many statements from Indian personages which are hardly conducive to good relations.
My Government has made every effort to maintain, and has succeeded in maintaining a peaceful atmosphere throughout "Azad" Kashmir as well as in Pakistan. Of course, there have been expressions of great dissatisfaction in Pakistan over India's failure to reach a settlement of the Kashmir problem, but there has been no attempt anywhere in Pakistan to disturb the peace.
So far as occupied Kashmir is concerned, peace also prevails there, under the shadow of Indian bayonets, in spite of the alleged bomb explosions which are clearly being enacted by agents provocateurs for obvious purposes and have been followed by stage-managed trials. That this should happen just before the present meeting of the Security Council is significant. I have already categorically denied, and I repeat the denial, that Pakistan has any knowledge of the matter whatsoever. Moreover, I strongly repudiate the irresponsible allegation that I have personally had any contact with subversive elements in Kashmir. Such a charge is not in accord with the spirit of harmony.
Here I would like to point out that Sheikh Abdullah, the erstwhile Prime Minister of the Kashmir State, has been in continued detention for about four years without trial. Recently, his detention was extended by a further period of six months. The Security Council is seized of the Kashmir dispute, and I feel it my duty to appeal to members of the Council to do their utmost to bring to an end this grave injustice perpetrated on a patriot for no other fault than that he wants his people to decide their own political future.
To proceed: it is our firm contention that part I of the resolution adopted by the Commission for India and Pakistan on 13 August 1948 has been fully and faithfully implemented. This fact has been certified by the United Nations Representative for India and Pakistan. Mr. Frank P. Graham, not only in paragraph 29 of his third report [S/2611 Corr. 1], but also in paragraph 44 of his fifth report [S/2967]. Mr. Jarring, in paragraph 16 of his report [S/3821], does not assert that part I has not been implemented. He merely says that the Indians say no. Mr. Krishna Menon misinterprets the position when he contends that Mr. Jarring has established that a deadlock has been reached because of the non-implementation of part I. The deadlock, according to Mr. Jarring, was the result of the Indian rejection of limited arbitration in regard to the determination of certain facts. An artificial deadlock has arisen because it suits the Government of India to create it-and for no other reason.
It is consequently a matter of much regret to my delegation that any note at all has been taken of the patently unfounded allegation of augmentation of forces or of non implementation of part I of the 1948 resolution in other respects.
In his statement, the representative of the United Kingdom has attempted to maintain a delicate balance of praise and blame between India and Pakistan, and in doing so he has, I regret to say, done less than justice to Pakistan. It is a matter of some satisfaction, however, that the Security Council has addressed itself to the question of demilitarization preparatory to the holding of a free and impartial plebiscite under the auspices of the United Nations. We welcome the suggestion made by some members of the Security Council that Mr. Frank P. Graham should visit the sub-continent with a view to creating conditions that would secure full implementation of the two resolutions of the Commission for India and Pakistan.
The representative of the Soviet Union has stated [799th meeting, para. 12] that India's efforts towards the successive implementation of the agreements in the Commission's resolutions of 1948 and 1949, especially with regard to the withdrawal of troops, were frustrated consistently by Pakistan. The facts are to the contrary.
On this very point of the withdrawal of troops, a number of proposals-no less than eleven-were formulated by the Commission for India and Pakistan the United Nations representatives, and the Security Council itself, to effect the demilitarization of the State of Jammu and Kashmir. All these proposals, without exception, were accepted by the Government of Pakistan, and all of them, again without exception, were rejected by the Government of India. I shall not tax the patience of the Security Council by repeating what I have already said on this subject on previous occasions.
The distinguished representative of the Soviet Union has pertinently asked, "Why is the question again being reopened?" The answer is simple. The question required reconsideration by the Security Council at this particular time because India was attempting to complete the annexation of Indian-occupied Kashmir in defiance of the clear directive of the Security Council given in its resolution of 30 March 1951 [S/2017, Rev. 1]. This position the Security Council could not, and, in fact, did not, accept. On 24 January 1957 the Security Council reaffirmed the resolution to which I have just referred, and declared that:
"the convening of a Constituent Assembly as recommended by the General Council of the 'All Jammu and Kashmir National Conference and any action that Assembly may have taken or might attempt to take to determine the future shape and affiliation of the entire State or any part thereof, or action by the parties concerned in support of any such action by the Assembly would not constitute a disposition of the State..." [S/3779]
These are the terms of the Security Council resolution of 24 January 1957.
Since that resolution was passed, India has taken further steps to annex the State of Jammu and Kashmir, as explained by me in my speech before this Council on 24 September last [791st meeting, paras. 47 to 62]. It was this action of the Government of India which prompted the Security Council, at our instance, to take up the matter again. The policy of the western Powers has had nothing to do with it.
The Soviet representative has further stated "that, India in accordance with the obligations it has assumed, has granted self-determination to the people of Kashmir" [799th meeting, para. 12] What are these obligations? These obligations are based, as the Soviet representative has himself admitted, on agreements achieved and on the resolution adopted by the United Nations Commission for India and Pakistan on 13 August 1948 [S/1100, para. 75] and later developed in the resolution of 5 January 1949 [S/1196, para. 15]. I submit that Those resolutions are complete and lay down meticulously the procedure to be adopted for the purpose of ensuring free expression of the will of the Kashmir people. This procedure has been completely disregarded by India. The convening of the so-called Constituent Assembly as well as the holding of the so-called elections were entirely contrary to the letter and spirit of the obligations voluntarily accepted both by Indian and Pakistan.
In regard to the Constituent Assembly, I may add that, Sir Benegal Rau, the representative of the Government of India, officially informed the Security Council at its 533rd meeting that :
"So far as the Government of India is concerned, the Constituent Assembly is not intended to prejudice the issues before the Security Council, or to come in its way" [533rd meeting, para. 19].
Again, at the Security Council's 536th meeting, Sir Benegal Rau said :
"Will that Assembly decide the question of accession ? My Government's view is that, while the Constituent Assembly may, if it so desires, express an opinion on this question, it can take no decision meeting, para. 23] it" [536th
These are official statements made by the Government of India to this august body.
So far as the recent elections in the State are concerned which, according to Mr. Menon "were conducted in India under rules and conditions which would be an honour to any country"-I can do no better than to quote a dispatch of the correspondent of the New York Times who was in Srinagar at the time of the elections. He stated:
"Elections in Indian Kashmir have been decided in favour of the Government, without putting a single voter to the trouble of casting a ballot. There are several interesting circumstances that seem to make the proceedings in Indian Kashmir an exception to the general free and fair elections taking place throughout India."
I have already spoken at length about these rigged elections. We must, therefore, challenge the inaccurate conclusion drawn by the distinguished representative of the Soviet Union, namely, that the people of Kashmir have definitely settled their own destiny in the sense that Kashmir shall be an integral part of the Union of India.
If the Security Council would now permit me I would like to point out some of the more obvious irrelevancies and inaccuracies which have appeared in the statements that the Defence Minister of India has made before the Security Council. I shall only limit myself to the main points. This does not mean either that we accept the validity of any of the other arguments used, or that we in any way subscribe to them.
The representative of India is never tired of repeating irrelevant arguments about Pakistan's military assistance agreement with the United States and its defensive alliances, specifically SEATO and the Baghdad Pact. These alliances, according to him, constitute a change of circumstances which, he contends, justify denial of the right of self-determination to the people of Kashmir.
Let me follow the example of the representative of India, and quote from one of his own countrymen, a distinguished Indian writer of today. In an illuminating article contributed to The Times of London of 25 August 1954. Mr. Nirad C. Chaudhuri gave the following analysis of the outcry in India against Pakistan's alliance with the United States:
"There is a feeling all over India, the more painful because it cannot be admitted, that the country has been checkmated in the most vital moves of its foreign policy and will have to acquiesce in the nullification of the greatest achievement of Indian diplomacy since independence. It is the political and military isolation of Pakistan...Even now India is not reconciled to the existence of Pakistan, and any concern that may exist in the west about the relations between the two countries will never go beyond well-intentioned but perfectly futile platitudes if it does not recognize this fact."
Here, then, is the real reason for the endless repetition by India of baseless charges against Pakistan in regard to her defensive alliances-the failure of Indian diplomacy to bring about the political and military isolation of Pakistan. No doubt, a strong, self-reliant Pakistan, allied to other nations in self-defense, will not be so acquiescent in the reassertion by her larger neighbour of that hegemony which Britain, at the height of her imperial power, exercised in Asia. On the other hand, a weak and isolated Pakistan would be no serious impediment to the achievement of chauvinistic aims, nor would she trouble the conscience of the United Nations as a constant reminder of its duty to redeem its unfulfilled promise of self-determination to the long suffering people of Kashmir.
The representative of India has further made the surprising contention that India is the legitimate and sole successor of British authority in India, and the only inheritor of the rights and liabilities of the former Government of undivided India. The correct position is that under section 1, sub-section (1) of the Indian Independence Act of 1947, as passed by the British Parliament ``two independent dominions" were set up in the sub-continent. One dominion retained the old name of India. The other was named Pakistan. Further, in sections 1 to 5 and 9 to 11 of the same Act, there are clear references to "new dominions' ', "each of the new dominions" and "both the new dominions"-I am quoting from the Act. Therefore, the Independence Act of the British Parliament, the very Act which according to Mr. Krishna Menon confers the right and title to independence, makes it clear beyond doubt that both Pakistan and India, and not India alone, are successor Governments.
Here, for the benefit of my friend, the Defence Minister of India, I would like to quote to the Council the actual wording of this Indian Independence Act. The Act was passed by the British Parliament in conferring freedom on India. Here is the Act in my hands.
The preamble is as follows:
"An Act to make provision for the setting up in India of two independent dominions, to substitute other provisions for certain provisions of the Government of India Act, 1935, which apply outside those dominions, and to provide for other matters consequential on or connected with the setting up of those dominions."
Section I reads:
"The new Dominions" (not the Dominion of India, alone).
"(1) As from the fifteenth day of August, nineteen hundred and forty-seven, two independent Dominions shall be set up in India, to be known respectively as India and Pakistan.
"(2) The said Dominions are hereafter in this Act referred. to as 'the new Dominions', and the said fifteenth day of August is hereafter in this Act referred to as 'the appointed day."
In view of these very clear provisions of the Act, it needs a very fertile imagination to argue that India is the only successor to the British authority, and not Pakistan. This conclusion is further reinforced by the fact that in the United Kingdom Government's statement of 3 June 1947, announcing the plan for the transfer of power, there are clear references in paragraphs 16, 17, 19 and 20 of the statement to "two successor authorities". This view has received support from the Privy Council ruling in the case of the High Commissioner for India v. Lall in 1948. The Privy Council held that virtue of section 15 of the Indian Independence Act, the High Commissioner for India, as well as the High Commissioner of Pakistan, should be treated as appellants in place of the Secretary of State for India. Thus the Act itself, the "Indian Independence (International Arrangements) Order" of 1947, as well as judicial rulings, all show that both Pakistan and India are co-successors to the British Government, and that British India was divided into two successor States.
In accordance with the "Indian Independence (International Arrangements) Order", we have also inherited the rights and obligations flowing from the treaties and international agreements to which undivided India was a party.
The representative of India has more than once put forward the proposition that as the successor State, India had the obligation to go to what he calls the rescue of Kashmir if the Maharaja had not acceded to India. He has sought to base this claim on 150 years of British practice in India, in other words, on what has been called the doctrine of paramountcy.
I would like to point out that with the termination of British rule in India paramountcy over the Indian States lapsed under section 7 of the Indian Independence Act. India, therefore, had no right of intervention in Kashmir. But if it is claimed that paramountcy did not lapse, even then paramountcy devolved not on India alone but also on Pakistan as a co successor. Indeed, Pakistan, by virtue of the standstill agreement executed in 1947 by the Maharaja of Jammu and Kashmir with the Government of Pakistan, was recognized as the sole successor of the British Government of India in so far as the rights and obligations of this Government in relation to the State of Jammu and Kashmir were concerned.
What follows then? The paramount Power for 150 years had built up a tradition of intervention in the affairs of the Indian Princes in cases of tyranny and misrule provoking popular rebellion. The tyranny of the Maharaja of Kashmir had provoked a rebellion of his subjects in 1947, and if Pakistan had intervened in the State to put an end to his tyranny, the doctrine of paramountcy, on Mr. Krishna Menon's arguments, would have justified this intervention as an act of the paramount doctrine of Power in the exercise of its paramountcy over the State of Jammu and Kashmir. So much for this paramountcy.
I hope the representative of the United Kingdom has taken careful note of the representative of India's claim that his Government is the heir and successor to British Interest in the Persian Gulf. The Sultanates of the Persian Gulf, if they wish to preserve their freedom, should, in their own interest, give deep thought to the danger to which their freedom stands exposed.
The charge of aggression against Pakistan has been made by India on previous occasions in the Security Council and has again been repeated. It has been fully answered in the past. It is Pakistan's contention that aggression has been committed by India, not only in Kashmir, but also in Junagadh, Manavadar, and Mangrol, to say nothing of Hyderabad, in size as big as France.
The Security Council, in the words of Sir Pierson Dixon, has not "felt able to pronounce on the Indian case on this aspect of the question" [797th meeting, para. 10] because in the words of the representative of Australia, "pronouncements on such issues would not be likely to provide a solution of the Kashmir problem." [798th meeting, para. 5] Mr. Walker goes on to say: "...we have not made any pronouncement at all on this matter because we do not believe that it would be helpful to do so." [ibid., para. 7.]
The representative of China made the position still clearer when he said at the 767th meeting :
"There never was a proposal made dealing specifically with aggression. In fact, there was no systematic consideration of that charge and of the counter-charge of or serious aggression. The members of the Council, without consultation, all came to the same conclusion that the charge. aggression should be by- passed. That charge was never taken up... never even given serious consideration; I I believe it was very wise of the Council to by-pass that charge." [767th meeting, para. 284].
The representative of India has tried to make moral and political capital out of the fact that India came as a complainant to the Security Council against Pakistan. He ignores the fact that Pakistan has also made a complaint to the Security Council against India. Mr. Krishna Menon says that Pakistan is a defendant and that therefore it does not stand on the same footing with India. I would like to know if there is any presumption of law in favour of a complaint, just because he is the first to come out with a complaint. It is a common experience in courts of law that the guilty party turns complainant in order to fasten the guilt on its opponent and, thus, to create for itself a presumption of innocence. This is precisely the case in regard to India's complaint to the Security Council. Having committed aggression against Junagadh in spite of its accession to Pakistan. India rushed to invade Kashmir and to seize it by force under the cover of a fraudulent accession.
If the Security Council considers it necessary to go into the question of aggression, the Pakistan delegation must insist that all the transactions in connexion with the accession of Indian States, pending before the Security Council, and not only one single case of Kashmir, must be investigated and pronounced upon.
In other words, the principle of res gestae in all its implications must form the basis of the determination, after taking into full consideration all essential conditions relevant to the question of accession, such as the condition that, in deciding upon accession to India or Pakistan, the ruler of a State should take into account geographical contiguity and the wishes of his people. In other words, the related complaints before The Security Council must be examined together and pronounced upon on the basis of a single, not a double, standard of morality or judgement.
Another legalistic contention of the representative of India is that self-determination took place when accession took place; that the so called "accession" was final, therefore, the State of Jammu and Kashmir is an integral part of the Indian Union, and the Constitution of India does not permit the State to secede from India.
If self-determination took place when accession took place, as stated by Mr. Krishna Menon, then what is the meaning of self-determination to which India has pledged itself under the resolutions adopted by the Commission for India and Pakistan? I would beg the members of the Security Council to pause and reflect on this astounding pronouncement. Here we have the thesis that the right of self-determination, which according to the Charter of the United Nations is vested in the people, is to be exercised by a despotic ruler. Such a proposition, coming as it does from a member of the Government of a country which proclaims itself to the world as a democracy, only exposes the political and legalistic extravagance to which the representative of India has been pushed by the logic of his country's inconsistent and indefensible actions.
If such is the case, may I ask whether self-determination took place when Mangrol and Manavadar acceded to Pakistan? Did self-determination take place when Hyderabad chose not to accede to either India or Pakistan? By what rule of logic, law, morality or justice were these territories invaded, occupied, annexed, and their very existence wiped out by India? Why does not India vacate its multiple aggression in these territories? We have been told by the representative of India that Pakistan must come before this Council with its hands clean. What precisely is the colour of India's hands? We are told by the representative of India that, if Pakistan demands equity, it must give equity. Does India, which demands equity, give equity? There cannot be a double standard of conduct-one standard for India, and quite another for Pakistan.
The legalistic argument of one country being an integral part of another against its will and consent is familiar in the halls of the United Nations. Likewise is the argument that the constitution of one's country does not permit a people in bondage ever to escape from political subjugation. We have heard from the representative of India long dissertations on the federal nature of the constitution of his country and how its provisions prevent India from carrying out its international obligation to permit the people of Kashmir to exercise their right of self-determination.
Let me quote to you, in this connexion, a rule of international law of a binding character, which has a direct bearing on this point :
"Every State has the duty to carry out in good faith its obligations arising from treaties and other sources of international law, and it may not invoke provisions in its constitution or its laws as an excuse for failure to perform this duty." [General Assembly resolution 375 (IV), annex, article 13.]
This rule appears as article 13 of the Draft Declaration on Rights and Duties of States adopted unanimously on 6 December 1949 by the General Assembly of the United Nations at its fourth session.
Article 13, which I have quoted, was drafted by the members of the International Law Commission. The Vice-Chairman of this Commission in 1949, when this article was drafted, was a distinguished Indian jurist, Sir Benegal Rau, who represented his country before the Security Council in this very Kashmir dispute.
The latter part of the article, which I quote again : ". it may not invoke provisions in its constitution or its laws as an excuse for failure to perform this duty" is based on the advisory
opinion of the Permanent Court of International Justice delivered. on 4 February 1932 in the well-known case of the treatment of Polish nationals and other persons of Polish origin or speech in the Danzig territory". The Permanent Court held as follows:
"It should however be observed that, while on the one hand, according to generally accepted principles, a State cannot rely, as against another State, on the provisions of the latter's Constitution, but only on international law and international obligations duly accepted on the other hand and conversely, a State cannot adduce as against another State its own Constitution with a view to avoiding obligations incumbent upon it under international law or treaties in force."
No kind of legalistic pretexts on the part of India, based on the Indian Constitution, can absolve it of its solemn international obligation assumed under the two resolutions of the Commission for India and Pakistan. Neither can any specious argument advanced on the basis of the sovereignty of India absolve it from this overriding obligation. For in article 14 of the self-same Draft Declaration on Rights and Duties of States we have the following rule of international law enunciated by the International Law Commission :
"Every State has the duty to conduct its relations with other States in accordance with international law and with the principle that the sovereignty of each State is subject to the supremacy of international law." [General Assembly resolution 375 (IV), anne, article 14.]
The right of the people of Kashmir to self-determination, recognized by virtue of India's obligations under the resolutions of the Commission for India and Pakistan, remains un impaired by any provisions in India's own constitution, and irrespective of the nature of the so-called accession to India. And yet the representative of India has called the resolution adopted by the Commission in 1948-I quote his own words "a mere scroll" The world is familiar with another infamous phrase in history-the description of a treaty as a mere "scrap of paper". Is the Charter of the United Nations also a mere scroll, a scrap of paper ?
Mr. Krishna Menon argues that, since the Commission's resolutions make mention only of arrangements for the future status of the State of Jammu and Kashmir, the present status of Jammu and Kashmir entails recognition of the total authority of the Union of India. He seems to forget that the present situation in the State is the subject of a dispute between India and Pakistan of which the Security Council is seized. This fact has been aptly brought out by the representative of the Philippines who stated:
"It is clear that any claim by one party or the other that any portion of the State of Jammu and Kashmir is Indian or Pakistan territory would be highly prejudicial to the implementation of the two resolutions adopted by the Commission and accepted by the two parties." [798th meeting, para. 31].
Assertions of sovereignty, or lack of it, of India or Pakistan over Kashmir, I must repeat, are inadmissible in view of the whole approach and basic concept of the Commission's resolutions. Though the representative of India has indulged in diffuse argumentation on the point, I find from the record of his speeches that he is not unaware of this concept. It of course suits him to remember this at one time and to forget it at another, but he indicated the other day that he understands it. fully.
At the 799th meeting of the Security Council, when replying to the remarks made by the representative of the Philippines, Mr. Krishna Menon quoted from the resolution of 13 August 1948, and discussed some of its clauses. When doing so, he delivered himself of the following remark:
"So it has nothing to do with discussing the present status at all. It is a matter of a peace arrangement to determine what can be done about the future" [799th meeting, para. 155].
I must draw the attention of the Council to these words of the Indian representative which fairly state the intention of the Commission's resolutions and invalidate much of the interpretation that, at other times, he seeks to impose on them. These resolutions, in his own words constitute, a "peace arrangement"; that is, they are concerned with the settlement of the dispute and not with the adjudication of claims and counter-claims. In view of this, they can be cited only as imposing certain obligations on the two parties for the settlement of the dispute; they cannot be cited as granting any recognition, express or implied, to any claim of sovereignty.
The Commission's resolutions embodied a procedure for the settlement of the dispute, and the responsibility for implementing this procedure naturally developed on whichever entity was physically so situated in the State of Jammu and Kashmir as to be able to shoulder it. In other words, the criterion for placing these obligations on a party was not the party's juridical title, but its physical existence and capability. The resolutions do not contain any recognition of sovereignty; they only contain recognition of actual facts and a consideration of how concretely demilitarization could be effected and the machinery for the plebiscite introduced.
I would now like to turn to some of the arguments put forward by the representative of India-arguments allegedly based on the rules of international law-to justify the obstructive posture of his Government to every suggestion, offer or proposal put forward by the mediators of the United Nations in the interests of a peaceful and just settlement of the dispute. Every time such an attempt is made, all kinds of pseudo-legal and irrelevant arguments are induced by India to mislead and confuse. The latest proposal to be treated by Mr. Krishna Menon in this fashion is the Jarring proposal to refer the question of implementation of part I of the resolution of 13 August 1948 to arbitration. Mr. Jarring proposed that India's allegation about the non-implementation of part I be put to arbitration or arbitrators to determine the facts, so that, if they found that the implementation of part I was incomplete, they would indicate to the parties the measures to be taken to arrive at full implementation. What was India's response ? The Security Council has been treated to a misleading and confusing interpretation of the principles of international law.
I would submit that the contention of the representative of India that the Jarring proposal of arbitration affects the sovereignty, the vital interests, the honour and integrity of India, does not bear scrutiny. Mr. Jarring did not propose that the destiny of the people of Jammu and Kashmir should be disposed of by arbitrators. He did not propose that the territory of the State should be awarded to Pakistan or to India by the arbitrators. He did not propose that the Indian claim to sovereignty over the State should be left to the will of the arbitrators. He merely proposed that the Indian contention of non-implementation of part I of the resolution should be submitted to fact-finding by the arbitrators.
To this proposal, the representative of India reacted as follows:
"There is no case in the whole gamut of international law...where a matter so wide and so intimately connected with a country's integrity, a matter involving so much complexity, has been subjected to arbitration." [795th meeting, para. 61.]
The question of the enforcement of part I of the resolution is by itself neither intimately connected with India's integrity nor does it involve complexity. On the contrary, it is a very limited issue.
I trust that the members of the Security Council will not consider that the Covenant of the League of Nations, one of the most impressive statements on rules of international law, is
outside the gamut of international law or that it is a negation of all the principles of international law. I quote from Article 13, paragraph 2, of the Covenant which lays down the arbitral functions of the League of Nations, namely, that disputes:
"...as to the existence of any fact which if established would constitute a breach of any international obligation ... are declared to be among those which are generally suitable for submission to arbitration or judicial settlement"
The Jarring proposal on arbitration was confined precisely to such an issue; namely, the question of the existence of facts which would establish the breach, if any, of the international obligations of both India and Pakistan fully to implement part I of the resolution of 13 August 1948.
In the light of the above authorities, and I can cite others, it is not necessary for my delegation to offer further proof that the arguments put forward by the representative of India in regard to sovereignty, integrity, honour or vital interests, have been expressly ruled out by international law as valid contentions in the case of the Jarring proposal.
The representative of Sweden has propounded two questions for possible reference to the International Court of Justice for an advisory opinion, and has asked whether India and Pakistan are prepared, in principle, to consider such reference at the proper time.
In our view, the issues involved in the Kashmir dispute are of a political, rather than a juridical nature. In a strict sense, the questions raised by the representative of Sweden are irrelevant to the specific problem which is at present before the Security Council, namely, the implementation of the Commission's regulations whereby both India and Pakistan are engaged. Any reference to the International Court of Justice will merely delay the settlement of a long-standing dispute and such delay, I beg to submit, might endanger peace. In any case, there appears to be no guarantee that any advisory opinion given by the International Court of Justice will be accepted or enforced. I have no doubt, however, that my Government will give due consideration at the appropriate time to the suggestion made by the Swedish representative.
Mr. Krishna Menon's demand for what he calls the de-annexation of the territory of "Azad" Kashmir has no validity, since there has been no annexation of that territory. So far as the Government of Pakistan is concerned, Kashmir is a separate territory whose future relationship with Pakistan is still to be decided. Section 203 of the Constitution of Pakistan says:
"When the people of the State of Jammu and Kashmir decide to accede to Pakistan, the relationship between Pakistan and the said State shall be determined in accordance with the wishes of the people of that State."
There has been no annexation whatsoever of the State of Jammu and Kashmir either in law or in fact.
The reference by the representative of India [801st meeting, para 46] to section 1, clause (2), sub-clause (c) of the Constitution of Pakistan, which reads: the territories which are under the administration of the Federation but are not included in either Province" and his conclusion that the article defines "annexation'. is wholly unwarranted. The clause referred to by the representative of India is a formal clause included in many written constitutions of the world. I shall quote from the Constitution of India its section I, clause 3, sub-clause (c) which states that the territory of India shall comprise "such other territories as may be acquired". Does this imply annexation?
India has demanded that the administration and control of the northern area should revert to the Government of the State of Jammu and Kashmir, and that responsibility for the defence of the area should be assumed by the Government of India.
Pakistan has, on the other hand, contended that under part II, section A. paragraph 3, of the 1948 resolution the northern area should continue to be administered by the "local authorities", and that under part II, section B, paragraph 2, of the same resolution the Indian and State armed forces must remain on their own side of the cease-fire line.
Pakistan's stand has been upheld by the Commission which said, in its third interim report to the Security Council, that;
"The situation in the northern area to-day is such that the posting of garrisons by the Indian Army at any point beyond those which are now held by it would result in an extension of military activity by the Government of India,..."and the Commission concluded:
"Until such time as the conditions envisaged in the resolution of 5 January [1949] have been created and normal life begins to return to the State of Jammu and Kashmir, the [cease-fire] line which is to-day a guarantee against a resumption of hostilities should be scrupulously observed by the Governments of India and Pakistan and the opposing forces should remain behind it."
There is no justification for the Indian contention that the "Azad" Kashmir forces should be disarmed or reduced at this stage. The language of the Commission's resolutions is far too clear to permit any such interpretation.
At the meeting of the United Nations Commission with the Foreign Minister of Pakistan on 31 August 1948, the Chairman of the Commission "asked the Foreign Minister to take note of the fact that even after the withdrawal of the Pakistan Army the 'Azad' Forces would still muster thirty-five battalions of armed people, who were not asked to disarm or withdraw".
In paragraph 2 (c) of its letter dated 19 September 1948,
The Commission assured the Foreign Minister of Pakistan that its resolution of 13 August 1948 did not contemplate the disarmament or disbanding of the "Azad" Kashmir forces, as will be seen from paragraph 108 of the Commission's first interim report [S/1100].
On 28 April 1949, the Commission wrote to the Government of India :
"The Government of India will understand that the Commission cannot deal at this stage with the question of disbanding and disarming the "Azad" Kashmir forces since it did not fall within the purview of part II of the resolution of 13 August [1948]."
I shall now deal with certain subsidiary points referred to by the representative of India in his statements. Mr. Krishna Menon has said, while speaking of Kashmir refugees :
"The present situation is that 450,000 Mulism refugees, refugees of the Islamic religion, have returned from Pakistan-occupied Kashmir and have been rehabilitated by the State Government of Jammu and Kashmir.
"It would be interesting to know how many authentic figures of that character can be produced by the other side" [796th meeting, paras. 7 and 8].
In almost the next sentence, he said:
"The total number of Kashmir Muslims, who migrated to Pakistan at the beginning of the trouble, was not 500,000, as has been said, but 208,818. These are the figures" [Ibid., para. 8].
I am afraid I have been unable to follow these so-called "authentic figures". I leave it to the Security Council to appraise their authenticity.
Again, it is absurd to suggest that the Mangla Dam, which is a nation-building development project, and which is being carried out by the "Azad" Kashmir Government with the assistance of the Government of Pakistan, constitutes "consolidation" or "augmentation" of the so-called "aggression". Of far more significance, in this context, is the construction of the Banihal Pass Tunnel, to which the Indian Defence Minister has himself referred, and which has been constructed not for the alleged purpose of exporting fruit from Kashmir but for the purpose of providing a major strategic highway for Indian tanks and troops to move into the Kashmir Valley throughout the year as the 17,000 feet high Banihal Pass is snowed up during the winter.
One more misstatement of Mr. Krishna Menon should, incidentally, be referred to. While claiming that the conversations between the Prime Ministers of India and Pakistan on the Kashmir issue were not terminated by India, Mr. Krishna Menon quoted [796th meeting para, 83] from a letter from the Prime Minister of Pakistan dated 21 September 1954, which reads as follows:
"In the circumstances I am bound to conclude that there is no scope left for further direct negotiation between you and me for the settlement of this dispute. This case, therefore, must revert to the Security Council."
I shall merely cite from the paragraph preceding the one cited by the Indian representative :
"Here I will mention only one further matter which makes me doubt whether you wish to settle this dispute at all. Since January in practically every letter of mine I have asked for a resumption of negotiations to resolve the preliminary issues that were holding up further progress. You have steadfastly refrained from agreeing to it."
Let the Security Council draw its own conclusions.
As regards the question of genocide, to which references have been made, we have never asserted that India is at the moment indulging in genocide. In his statement to the Council on 25 October, Sir Pierson Dixon said that the deplored charges like that of genocide being made in the Security Council [797th meeting, para. 5]. No such charge has been made by the US. But, there has been a latent threat of genocide in the various statements of the India leaders when speaking of the potential consequences of a plebiscite in the State of Jammu and Kashmir.
As a illustration, I would like to quote what Mr. Krishna Menon himself said in this Council on 24 January 1957:
"With an idea of the problem of the refugees, the Council will be able to see that there is a steady stream coming from the side, with which we have to deal, but any change in this situation, any stirring up of trouble here, any attempt to unsettle conditions today, would start a scare and an influx of refugees. The first thing that happens when there is an influx of refugees is the slaughter of populations of the community in the country concerned." [764th meeting, para. 121.]
The Prime Minister of India was still more specific on this point when, speaking in Madras on 31 January 1957, he said.
"We have always stressed that elections or a plebiscite must be on political and economic issues. We do not want to have communal riots there, and call it a plebiscite, or a tearing campaign based on religious bigotry and rousing people's passions... I do not want Kashmir in the name of a plebiscite to be the scene of fratricidal war which would spread to India."
It is statements such as these that prompted me to warn the Security Council on 24 September [791st meeting] that an atmosphere of instability was being created by Indian leaders by suggesting the possibility of wholesale slaughter-a possibility which, I maintain, will never become a reality, if the Govern India sincerely desires to maintain law and order in the country with all the resources at its command. It is those who suggest threatening possibilities of this kind whose conduct should be deplored by Sir Perison Dixon and not the conduct of those who bring the facts to the notice of the Security Council.
In his statement at the 796th meeting of the Security Council, the representative of India thought fit to condemn the Government of Pakistan for its attitude towards its minorities. He also characterized the Pakistan Constitution as "one of the most peculiar documents of modern times", quoting some misinformed comments about the so-called "theocratic" foundation of our State [796th meeting, para. 19]. In contrast, he claimed that under the Indian Constitution secularism, complete. toleration and freedom of thought obtained.. I have no desire to prolong my intervention by citing all the claims. However, order to set the record right, I cannot pass over his charges in complete silence.
May I remind him that, since the Delhi Agreement of April 1950, more than 400 communal riots involving Hindus and Moslems have taken place in India, and that not a single such incident took place in Pakistan during this period. This record speaks for itself. Let these facts, not my words, refute the charges brought against Pakistan of inciting religious fanaticism and of creating in the minds of the religious minorities a state of insecurity and fear.
What are the minorities in India? In an article entitled "Hindus Battling with Christians" which appeared in the London Observer in November 1955, it was stated:
"In Madhya Pradesh State"-one of the States of India missionaries are being investigated by a government committee which is providing a forum for extremist Hindus to make unsubstantiated accusations against Christianity. They say it is the organ of foreign imperialism, American imperialism in particular."
The report of the government committee moved the Catholics of India to lodge strong protests against what they characterized as "baseless and reactionary" recommendations.
I shall refrain from giving other instances of a similar attitude on the part of the authorities in India toward the religious minorities.
In regard to the nature and spirit of the Pakistan Constitution, I would be happy to furnish, for the benefit of the representative of India, testimony of greater weight and authority than that which he has cited to ridicule it. In particular, I would invite his attention to editorial comment in the New York Times of 5 March 1956 and in the Washington Post of 6 March 1956, stating that the Constitution of Pakistan was based on the sovereignty of the will and consent of the people, and guaranteed the rights and freedoms of the religious minorities.
Here I should like to mention that the Constitution of Pakistan is completely secular. There is no distinction as regards voting, property, freedom of press or freedom of speech, between persons of one religion and persons of another religion. Religious freedom is guaranteed not only by our Constitution but by the Holy Koran, and the only provision we have in this regard is that the President of the Republic of Pakistan must be a Muslim. Every other provision of the Constitution is secular and applies to all the communities without distinction as to religion. I can quote instances of European Constitutions which provide that the head of the State has to be a Christian and not only that but has to belong to a certain church. Therefore, if we have laid down a rule that our President is to be a Muslim, there is nothing wrong and nothing unprecedented about that. In every respect, members of all religions are treated alike under the Constitution of Pakistan. I ask Mr. Krishna Menon to point to one clause in our Constitution which makes a distinction between people of one religion and people of another religion.
The Indian representative has tried to answer the form "demands'', as he chooses to call them, made by me in my earliest statement [791st meeting] and says: "All of them are violations of the Charter" [796th meeting, para. 117]. I would request the Security Council to consider the demands that I had made. All that I had asked in my proposals was the implementation of the international agreement that subsists between India and Pakistan for deciding the question of accession of the State of Jammu and Kashmir to India or Pakistan. The Security Council and the parties to the dispute agree that the demilitarization of the disputed territory is a prerequisite to the holding of the plebiscite. What would, therefore, be more natural for the Security Council to do than to take up the consideration of the dispute from where it had left it, namely, on 23 December 1952? Mr. Krishna Menon calls this a violation of the Charter.
Other proposals I made related to the withdrawal of the forces of India and Pakistan or the withdrawal of our own troops on certain conditions. Again Mr. Krishna Menon calls this a violation of the Charter.
I had explained at length on the last occasion that the object of the induction of a United Nations force into Kashmir was to create confidence in the minds of the two parties and to enable them to proceed without trepidation to the discharge of their obligations under the international agreement. As soon as a United Nations force is stationed in Kashmir, both parties must, in strict accordance with the terms of the agreement, start withdrawing their forces. As the representatives of China and Cuba have suggested, what could be fairer than that? But Mr. Krishna Menon calls this also a violation of the Charter.
Then Mr. Krishna Menon gives a long list of his own demands which are quite contrary to the assurances given by the Commission for India and Pakistan to the Government of Pakistan and also contrary to the Commission's resolutions. But I shall not dwell on them, especially as these points have often been made here before, and replies to all of them are already on the record of the Security Council. What does the representative of India promise to do in return? Would he categorically undertake to fulfil India's part of the obligations under the international agreement, withdraw India's forces, and hold a free and impartial plebiscite under the auspices of the United Nations, as laid down in the Commission's resolutions? No. All that he says he will do is:
"Under conditions of a fair disposition of this matter, we would go out of our way to establish friendly relations with Pakistan and to seek to settle all outstanding problems in the spirit" [796th meeting, para. 130].
There is no guarantee here that India's obligations under the Commission's resolutions will be carried out. My delegation has been amused to hear of the great benefits which the Government of India claims to be conferring on the subjugated people of occupied Kashmir. I do not think,
however, that the Security Council is necessarily interested in these claims. The Security Council has heard such arguments often enough. If India has conferred these great benefits on the people of Kashmir, then they should vote for India in a plebiscite. Why not put this issue to the test ?
But all this is neither here nor there. The Security Council must, in its wisdom, take effective steps towards the implementation of the Commission's resolutions to which both India and Pakistan are parties and to which both proclaim their full adherence. The plain issue is the carrying out of international obligations by which India and Pakistan are engaged. I cannot imagine how the Defence Minister of India reconciles his version of the present position of his Government with his Government's acceptance of the two resolutions and the constant assurances of willingness on its part to seek a peaceful settlement of the dispute given recently to Mr. Jarring. It is for the Security Council to consider what measures it can appropriately take to secure the implementation of international commitments.