25021949--16 Text of the Aide-memoire handed by the Chairman of the Commission and Mr. Lozano to the Secretary-General, Ministry of External Affairs and Commonwealth Relations, Government of India, on 25 February 1949 (UN Document No. S/AC. 12/137)

25021949--16 Text of the Aide-memoire handed by the Chairman of the Commission and Mr. Lozano to the Secretary-General, Ministry of External Affairs and Commonwealth Relations, Government of India, on 25 February 1949 (UN Document No. S/AC. 12/137)

Point 1

The Government of Pakistan raised the point regarding lack of cooperation in the holding of the plebiscite in connexion with Mr. Lozano's statement to the Prime Minister of India on 20 December 1948, when the question of a solution other than by a plebiscite was brought up by the latter during the discussion of the Commission's proposals of 11 December [S/1196, annex 31. The Prime Minister was concerned lest the acceptance of specific proposals relating to a plebiscite should close all doors to alternative solutions of the dispute. Mr. Lozano explained that the proposals did not supersede part III of the resolution of 13 August, but were an elaboration of it. They did, however, take priority over the consideration of alternative methods and every effort had to be made towards putting these proposals into effect. It was in this connexion that Mr. Lozano expressed the view that if the Plebiscite Administrator should find a plebiscite impossible for "technical or practical reasons", he or the Commission would then recommend to the Security Council a solution different from that of a plebiscite and acceptable to the Governments of India and Pakistan [S/1196, annex 4].

It was not intended at that stage to define what might constitute a "technical or practical reason" for not holding a plebiscite. It is true that a lack of cooperation from either side could create obstacles which, in fact, might make the organization and holding of a plebiscite extremely difficult, if not impossible. However, the Commission feels that the principles embodied in the resolution of 5 January are not only binding on both Governments, but are not based on and call for their fullest cooperation. Therefore, the Commission does not envisage a situation in which either side will withhold its cooperation. It would seem that lack of cooperation, should it occur, would be considered not a "practical reason" but a breach of commitments formally undertaken by the Governments of India and Pakistan. In this event, the Plebiscite Administrator would presumably then report to the Security Council, through the Commission, not that the holding of the plebiscite was impossible for "practical or technical reasons", but rather that the lack of cooperation of either of the parties had rendered it impracticable.

Point 2

The Commission has not undertaken any definition of specific powers to be delegated to the Plebiscite Administrator. However, as recorded in the aide-memoire No.1 of the Government of India [S/1196, annex 4], the Commission does not intend that the Plebiscite Administrator "should usurp the functions of the State Government in the field of normal. administration and law and order", but it is understood that he will have full authority to see that any situation which militates against the freedom and impartiality of the plebiscite is rectified. The Commission is grateful for the reassurance of the Government of India that it and the Government of Jammu and Kashmir may be relied upon to give the Plebiscite Administrator the requisite assistance in ensuring that the plebiscite is free and impartial.

Point 3

The observations contained under point 3 of your letter have been noted.

Point 4

In expressing his view that "contentious cases would no doubt have to be referred to the Plebiscite Administrator for decision", Mr. Lozano did not intend to imply infringement of the authority of the Government of Jammu and Kashmir. Since the Plebiscite Administrator is formally appointed by and derives his power from the State of Jammu and Kashmir, it may be found desirable, in formulating the provisions called for in point 10 of the Commission's resolution of 5 January 1949, to clothe him with the requisite powers of final decision in cases of the nature described in the event that such cases have not otherwise been satisfactorily disposed of.

Point 5

With respect to appeals to religious or communal fanaticism as a means of influencing votes, the Commission wishes to repeat that all subjects of the State of Jammu and Kashmir, regardless of caste, creed, or party, shall be safe and free in expressing their views, but that any political activity which might tend to disturb law and order could not be regarded as legitimate.

Point 6

The general position of the Government of India with regard to this aspect of the problem has been noted.

Point 7

The Commission's letter under signature of Mr. Macatee, the acting Chairman, dated 17 February, covers these points insofar as the Commission at this stage can enter upon them.