08091949 -103 Text of the Letter dated 8 September 1949 from the Secretary-General, Ministry of External Affairs, Government of India Mr. G.S. Bajpai addressed to the Chairman of the Commission regarding the Commission Memorandum on arbitration (UN Document No. S/AC. 12/262)
08091949 -103 Text of the Letter dated 8 September 1949 from the Secretary-General, Ministry of External Affairs, Government of India Mr. G.S. Bajpai addressed to the Chairman of the Commission regarding the Commission Memorandum on arbitration (UN Document No. S/AC. 12/262)
As requested in the concluding paragraph of the memorandum (annex 35) that you gave me on the 30th August. On behalf of the United Nations Commission for India and Pakistan, I am communicating to you, in writing, the views of my Government on the suggestion for arbitration described in paragraph 5 of the memorandum.
According to sub-paragraph (i) (a) of paragraph 5, the two Governments are requested to agree that "they will submit to arbitration the differences existing between them concerning all questions raised by them regarding the implementation of part II of the resolution of 13 August 1948, the arbitrator to decide these questions according to equity, and his decisions to be binding on both parties". In the course of the conversation that I had with Your Excellency and Ambassador Colban on the 30th August, I asked two questions:
(i) Whether the Commission would state to the arbitrator the points submitted to arbitration; and
(ii) Whether the Commission would furnish to the arbitrator a clear account of the circumstances leading up to the present position and the Commission's own conclusions on points like the disbanding and disarming of the "Azad Kashmir" forces on which it had already reached a conclusion.
In answer to the first question, Your Excellency said that the Commission would prefer both parties to accept the wording of 5 (i) (a' and to present to the arbitrator the specific points on which they seek his decision. It would then be for the arbitrator to decide whether the issues raised by each party were germane to the truce or not. About the second question, Your Excellency explained that the Commission was now approaching the problem from an entirely new angle and entirely afresh. Therefore, it did not wish to go into the past. Each party must state its own view, in their historical context, on the points that may be referred to arbitration.
The effect of the explanation given by Your Excellency in answer to my first question would be that the arbitrator would be free to determine the points on which he should arbitrate. So far as the Government of India is aware, this procedure is novel and without precedent, and could hardly be justified.
As regards the answer to the second question, the Government of India can only express their surprise and disappointment at the attitude of the Commission. Apart from either party setting out its own version of past events, it would have been just and proper if the Commission, which has dealt with the matter during all these months, gave an impartial and authoritative account of the facts which are within its knowledge and of the assurances given to us. The truce proposals, embodied in part II of the Commission's resolution of 13th August 1948, cannot be divorced either from the events and discussions that preceded the acceptance by the Government of India of that resolution or the events and negotiations that have followed since. The presence of Pakistan troops in the territory of Jammu and Kashmir, which the Commission described as constituting "a material change in the situation since it was represented by the Government of Pakistan before the Security Council" [S/1430, paragraph. 132], is only one instance of Pakistan's aggression in the State of Jammu and Kashmir, which, by reason of its accession to India-accession the legality of which the Commission has not questioned and which is in fact and law beyond question-is part of India. The aggression began with the invasion of the State by tribesmen and other Pakistan nationals whom Pakistan aided and abetted. It has continued ever since, not only by reason of the entry of Pakistan regular forces into Jammu and Kashmir but by the waging of war by Pakistan against Indian and State forces, the enlargement and organization of the so-called "Azad Kashmir'' forces under the operational command of the Pakistan Army, and the penetration of Pakistan troops into the thinly populated and mountainous territory in the north of the State. Pakistan's spirit of aggression has been further repeatedly manifested in the refusal even to discuss the disbanding and disarming of the Azad forces, whose strength constitutes a menace, was pointed out to Mr. Lozano during his conversations with the Prime Minister last December, to the security of the portion of the State now under Indian control and an obstacle to the holding of a free and impartial plebiscite. The same conclusion can be drawn from Pakistan's claim, put forward in the correspondence with the Commission regarding the conference which the Commission recently decided to abandon, that the sparsely populated and mountainous region in the north of the State should be treated in exactly the same manner as the so-called "Azad Kashmir'' area referred to in paragraph A. 3 of part II of the Commission's resolution of 13th August. The Commission will note that this latest claim of Pakistan renders nugatory the assurance given by the Commission in Mr. Korbel's letter of 25th August 1948 to the Prime Minister [S/1100, paragraph 81] that the problem of administration or defence in this large area "could be considered in the implementation of the resolution".
The Government of India has repeatedly affirmed, before the Commission and elsewhere, that no settlement of the dispute over Jammu and Kashmir could be either just or lasting which did not take into account the moral element inherent in an act of aggression. This is as true of a settlement of the dispute over the truce terms as of the overall dispute about the future of the State. The throwing open of the whole of this issue to debate before the arbitrator would, in the
absence of an objective statement by the Commission of all relevant facts, inevitably prolong the proceedings and thus indefinitely postpone "that early and definitive action" to implement part II of the resolution of 13th August 1948 which the Commission and the Government of India desire.
In the Government of India's view, the attitude of the Government of Pakistan towards the large-scale disbanding. and disarming of the "Azad Kashmir" forces is a fatal obstacle to the bringing about of the peaceful conditions. required for a plebiscite. According to our understanding, Pakistan's contention is that, since no reference is made. to such disbanding and disarming in part II of the resolution of 13th August, this matter cannot even be discussed in considering the implementation of part II of the resolution. of 13th August. But the Government of Pakistan forgot that before they agreed to accept that resolution, this matter was discussed between us and the Commission and we were given. a specific assurance on behalf of the Commission that large scale disbanding and disarming of "Azad" forces would take place. When discussing the proposals presented by the Commission to the representatives of India and Pakistan in Paris on the 11th December 1948 with Mr. Lozano on the 20th and 22nd December 1948, the Prime Minister drew. attention to the fact that the "Azad Kashmir" forces which had been armed and equipped by Pakistan and were under the operational command of the Pakistan Army ran into tens of thousands, that their presence in the territory referred to in paragraph A. 3 of part II of the resolution of 13th August, even after demobilization, would be a constant threat to the territory under the control of Indian and State forces, a deterrent to the return of many refugees, and thus, an obstacle to the free expression of opinion regarding the future of the State by a substantial number of persons normally resident in the area concerned. For the purpose of ensuring the security of the State, the Government of India have, in all their discussions with the Commission about the truce, insisted upon the inter-dependence of the phasing of the withdrawal of their forces from the State under paragraph B. 1 of part II of the resolution of 13th August and the adoption of measures to implement the Commission's intention "that there should be large-scale disarming of these (the "Azad '' forces) [S/1196, annex 4]. Such disbanding and disarming is also essential to the holding of a free and impartial plebiscite for reasons which were explained to Mr. Lozano by the Prime Minister in the course of their conversations held on the 20th and 22nd December 1948. Mr. Lozano recognized the force of the Prime Minister's argument on this point and disclosed to us that the intention of the Commission was that there should be a large-scale disbanding and disarming of the "Azad Kashmir '' forces. To allow an assurance of this kind to be reopened even to the extent of placing this disbanding and disarming on the same level with the geographical disposition of the Indian and State forces left in the State, will be to retire from a position reached between us and the Commission. If the arbitrator is free to decide that there should be no disbanding and disarming of these forces, there could be no fair and impartial plebiscite. If, while accepting the need for such disbanding and disarming, the arbitrator is free to postpone consideration of the matter until after the bulk of Indian forces in the State of Jammu and Kashmir has been withdrawn, the security of the State will be in great jeopardy during the period that intervenes between the withdrawal of the bulk of the Indian forces and the adoption of measures for the large-scale disbanding and disarming of the "Azad Kashmir" forces. As has been frequently explained. to the Commission, the Government of India cannot possibly. take this risk, which would be incompatible with their paramount responsibility to protect the portion of the State: under their control against a repetition of the horrors of the invasion of the State in October 1947.
Since the assurance about the disbanding and disarming of the "Azad Kashmir" forces was given on behalf of the Commission to the Government of India, it is understood that the number of these forces has grown considerably. A new situation has thus been created of greater peril to the State and their disbandment has become even more necessary. For all practical purposes, the "Azad Kashmir" forces are a part of the regular Pakistan Army, trained by that Army and under its operational control. A withdrawing aggressor cannot, in reason, proffer any claim for leaving behind him 32 battalions or more, trained and equipped by him and ready for battle.
The Government of India is convinced, therefore, that this outstanding issue of the large-scale disbanding and disarming of the "Azad Kashmir" forces is not a matter for arbitration but for affirmative and immediate decision. Once ways and means for the large-scale disbanding and disarming of the Azad forces have been agreed upon, the Government. of India anticipated no difficulty in reaching agreement with the Commission as provided for in paragraph B. 1 of part II of the resolution of 13th August 1948, about the phasing of the withdrawal of their forces from the State. Nor would they raise any objection to the Pakistan Government being informed of the programme of the withdrawal of Indian forces, once the question of the disbanding and disarming of the Azad forces has been disposed of and Pakistan has begun to withdraw its forces.
To sum up, my Government cannot reasonably be expected to accept a suggestion for arbitration which leaves it to the arbitrator to determine the points on which he should arbitrate and which does not provide for the submission to him, by the Commission, of its own appreciation of the events leading up to the present situation or of the observance by himself the assurances which it has given. The Government of India's main objection, however, to the present suggestion for arbitration is that, as explained in paragraphs 6 and 7, of this letter, the principal issue is one which cannot be solved by arbitration, it follows that they cannot accept the suggestion incorporated in 5 (i) (a) of the memorandum that you left with me on the 30th August (annex 35). Since that suggestion is not acceptable, it is unnecessary to express any views on the other suggestions in this paragraph, which are subsidiary. While unable to agree to the course of action outlined in paragraph 5 of the memorandum, my Government wishes to make it clear that they are not opposed to arbitration in principle. Arbitration is, under Article 33 (1) of the Charter of the United Nations, one of the methods of achieving a peaceful solution of a dispute which is likely to endanger the maintenance of international peace and security. India has subscribed to the Charter and is a firm believer in the principles embodied therein. The reference to arbitration should, however, be on a precise and defined issue which, if settled by this method, will have the effect of creating conditions for ending a dispute that threatens international peace and security. In any case, India does not wish this or any other dispute to be settled by the sword. She will always be ready to consider any method of solution that would lead to a peaceful settlement of the entire dispute.
In conclusion, I am to explain that the Government of India still holds that the people of Jammu and Kashmir should decide their future of their own free-will. They firmly stand by that offer, and shall be ready to leave the question of the continued accession of Jammu and Kashmir State to India to the people of the State, to be decided through the democratic method of a free and impartial plebiscite, provided that the conditions necessary for making the plebiscite really "free and impartial" are created. This, as they have endeavoured to explain on this and on previous occasions will be impossible, if the Commission's assurances in this behalf are not implemented.
(Signed) G.S. Bajpai Secretary-General