15091949 -112 Text of the Letter dated 15 September 1949 from the Secretary-General, Ministry of External Affairs, Government of India Mr. G.S. Bajpai addressed the Chairman of the Commission, regarding arbitration (UN Document No. S/AC, 12/265)
15091949 -112 Text of the Letter dated 15 September 1949 from the Secretary-General, Ministry of External Affairs, Government of India Mr. G.S. Bajpai addressed the Chairman of the Commission, regarding arbitration (UN Document No. S/AC, 12/265)
I have the honour to reply to Your Excellency's letter, dated the 10th September 1949 (annex 38), which you were good enough to leave with me on the 12th instant.
The Government of India notes that, in the view of the Commission, my letter No. 584 PASG/49, dated the 8th September (annex 36), "does not exactly reflect the intention. of the Commission", presumably in respect of points (i) and (ii) which are stated in paragraph 2 of your letter, dated the 10 September (annex 38). The Government of India regrets that there should have been this misunderstanding. They wish to assure the Commission that they endeavoured to interpret its memorandum (annex 35), which Mr. Chyle delivered on the 30th August 1949, to the best of their ability, with due regard to the language of the memorandum and my understanding of certain elucidations which I sought from Mr. Chyle and Ambassador Colban.
The Government of India has given the fullest consideration to the Commission's memorandum in the light of Your Excellency's letter. I wish to point out, in the first place, that our original reply to the proposal contained in the Commission's memorandum of 30th August 1949 was based not on any minor considerations but on the fundamental condition that the creation of public confidence and of a peaceful atmosphere is a necessary preliminary to preparation or a plebiscite. This is a condition which both my Government and the Commission have accepted and it cannot therefore be left to the decision of an arbitration.
I shall deal now with paragraph 7 of Your Excellency's letter. As explained in my letter of the 8th September, one of the most important issues, namely that of the large-scale disbanding and disarming of the "Azad Kashmir" forces, is one which cannot be settled by arbitration. To quote from paragraph 6 of that letter:
"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 interdependence of the phasing of the withdrawal of their forces from the State under B. 1 of part II of the resolution of the 13th August and the adoption of measures to implement the Commission's intention "that there should be large-scale disbanding of these (the Azad) forces". 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.``
Paragraph 7 of Your Excellency's letter of the 10th September states that: "The Commission wishes to point out that both Governments have agreed to a large-scale disbanding and disarming of these forces as one of the conditions precedent to the holding of the plebiscite. The difference which has arisen between the two Governments with respect to decisions on this matter has not been one of substance but of scope, method and timing. Arbitration would apply to this aspect only". In answer to this, I wish to repeat the view expressed by the Government of India in paragraph 6 of my letter of the 8th September, viz., that "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", especially when, according to their information, the number of these forces has grown. considerably. The Government of India, therefore, maintain that the large-scale disbanding and disarming of the "Azad Kashmir'' forces on which, apart from other considerations, depends the phasing of the withdrawal of Indian forces under B. 1 of part II of the resolution of the 13th August 1948, is no more a matter for arbitration than the complete withdrawal of the Pakistan forces. Any lack of certainty on this issue would open the door to the aggressor to benefit by his aggression.
Paragraph 4 of your Excellency's letter refers to sub paragraphs (i) (d) and (ii) of paragraph 5 of the Commission's memorandum, and Your Excellency was good enough to explain that the question as to what the points for arbitration should be would be dealt with, as a matter of procedure, in consultation with the two Governments. Explaining the Commission's intentions in this regard further, Your Excellency said that if, as a result of these consultations, the two Governments could not reach agreement on the points to be referred for arbitration, arbitration would be regarded as having failed. In the Government of India's view, the process of consultation with the two Governments to determine the points of reference to arbitration should precede and not follow acceptance of the proposal for arbitration. Since whether or no arbitration takes place will depend upon agreement between the two Governments upon the points to be referred to arbitration, this would be the more logical and appropriate course. It is also in conformity with the accepted procedure in respect of arbitration.
The Government of India does not feel called upon at this stage to comment upon the choice of an arbitrator. The stage for that will be after the points for arbitration have been precisely defined and accepted by the Governments of India and Pakistan.
(Signed) G.S. Bajpai