04031959  Letter dated 4 March 1959 from the representative of India C.S. Jha to the President of the Security Council

04031959  Letter dated 4 March 1959 from the representative of India C.S. Jha to the President of the Security Council

The Government of India deplores the practice adopted by the permanent representative of Pakistan to avail himself of the forum of the Security Council to make baseless allegations against India. We regret that his letter dated 17 December 1958 [S/4139] is yet another instance in point.

I do not wish to deal with extraneous and unrelated matters in the letter of my colleague, the permanent representative of Pakistan. My predecessor's letter dated 24 October 1958 [S/4107] states the true position. Pakistan has no locus standi in Jammu and Kashmir, which is Indian territory. This has been made indisputably clear not only in the three resolutions mentioned in my predecessor's letter but also in the various assurances which the United Nations Commission for India and Pakistan gave to the Prime Minister of India. These assurances are recorded on pages 57-63 of the Supplement for January, February and March 1957 (Official Records of the Security Council, Twelfth Year).

The right to maintain an army for the security of the territory is an essential attribute of sovereignty. Has Pakistan been authorized to maintain any armed force in Kashmir under the Security Council resolution of 17 January 1948 or the resolutions of the United Nations Commission for India and Pakistan of 13 August 1948 [S/1100.para 15] and 5 January 1949 [S/1196, para 15]? On the other hand, have these resolutions and the United Nations Commission not recognized India's right to maintain its army in Kashmir for its security and the maintenance of law and order? These are among the tests of sovereignty and the members of the Security Council are well aware of the replies to these questions given by them in the past. In paragraph 228 of its third interim report [S/1430), the United Nations Commission places the matter beyond doubt "Four principles were agreed to by the Governments of India and Pakistan in connexion with the withdrawal of forces from the State by Pakistan, that (a) its troops are to withdraw from the State; and that (b) it will use its best endeavours to secure the withdrawal of tribesmen and Pakistan nationals summary resident. In the State who entered for the purpose of fighting; by India, that (a) it will begin to withdraw the bulk of its forces in stages to be agreed upon with the Commission once the Commission has notified it that the tribesmen and Pakistani nationals have withdrawn and that Pakistan forces are being withdrawn; and that (b) the Government of India will maintain within the lines existing at the moment of the cease-fire such forces as are considered necessary to assist local authorities in the observance of law and order."

The members of the Council are aware that the issue of Kashmir is not a territorial dispute between India and Pakistan. It is a "situation" which has arisen out of Pakistan's aggression against which India complained to the Security Council under Chapter VI of the Charter of the United Nations. The Council described it as such in its resolution of 17 January 1948. The preamble of this resolution states:

"The Security Council,

"Having heard statements on the Situation in Kashmir from representatives of the Government of India and Pakistan..." (Our italics.)

The United Nations Commission adopted the same description in its resolution of 13 August 1948, the preamble of which states:

"The United Nations Commission for India and Pakistan, "Having given careful consideration to the points of view expressed by the representatives of India and Pakistan regarding the situation in the state of Jammu and Kashmir." (Our italics.)

There is nothing in the quotations given in the Pakistan permanent representative's letter to show that Sir Owen Dixon, the United Nations Representative for India and Pakistan, ever revised his opinion about Pakistan's breach of international law when it committed aggression against the Indian territory in Kashmir. The arguments which he has put forward in paragraphs 6 and 7 of his letter [S/4139] require no further comment. As for the view of the representative of Argentina at the 245th meeting of the Security Council, which he has quoted, it is at variance with the views expressed by some other members of the Security Council from time, for example:

The representative of the Netherlands at the 611th meeting :

"We know of course that in 1947 the then ruler of the State of Jammu and Kashmir acceded to India by an instrument which was accepted by the then Governor General of India, Lord Mountbatten. We also heard what the Foreign Minister of Pakistan had to say on that subject.

"We know that this act of accession has had an influence on the position which the Government of India has so far taken on the problem of demilitarization and on India's responsibilities as regards the security of the State of Jammu and Kashmir.

"The final disposition of the armed forces remaining in the State of Jammu and Kashmir after the implementation of the truce agreement was to be left to the impartial Plebiscite Administrator, in consultation with Indian Government on the one side of the cease-fire line and with the local authorities-not the Pakistan Government-on the other side. In this, India's special position in view of the historical development of the case found a certain degree of recognition." [611th meeting, paras. 5, 6 and 10.3

The representative of Colombia at the 768th meeting : "Secondly, the Commission never recognized the legality of the presence of Pakistan troops in Kashmir." (768th meeting; para, 65.)

I request that this letter be circulated to the members of the Security Council as a Security Council document.

(Signed) C.S. Jha

Ambassador Extraordinary and plenipotentiary,

Permanent Representative of India

to the United Nations

(Source: UN Document no. S/4169)