05021971 Letter dated 5 February 1971 from the representative of Pakistan A. Shahi to the President of the Security Council
Letter dated 5 February 1971 from the representative of Pakistan A. Shahi to the President of the Security Council
Under instruction from the Government of Pakistan, I have the honour to draw your attention to the letter dated 28 January 1971 [S/10094] from the representative of India in answer to my letter of 21 January [S/10084],
The representative of India has sought to deny outright the jurisdiction of the United Nations in the international dispute concerning the status and disposition of the State of Jammu and Kashmir. Regarding the questions involved in this dispute and the situations arising from it, the Representative of India states that "the Government of India has made it clear, both to Pakistan and to the Security Council, that it will not discuss such questions with any other countries or in the United Nations."
The attempted denial of the jurisdiction of the United Nations, particularly of the Security Council, is based on the proposition that "the State of Jammu and Kashmir became an integral part of India by virtue of its accession to India in 1947". The irrationality of the argument, as stark as it is incredible, is apparent from the fact that was after this alleged accession (effected by a feudal Maharajah) that the Government of India:
(a) Declared before the Security Council that it (the accession) was by no means to be considered as unalterable, that it was tentative and that the status of Jammu and Kashmir would finally be determined by a plebiscite to be conducted under international auspices;
(b) Acknowledged that Pakistan was one of the two parties interested in the Jammu and Kashmir question;
(c) Submitted itself to the jurisdiction of the Security Council in relation to the settlement of the problem of the disposition of Jammu and Kashmir;
(d) Signified its acceptance of the principles of settlement embodied in the resolutions adopted by the United Nations Commission for India and Pakistan on 13 August 1948 and 5 January 1949; and
(e) Participated in more than a hundred meetings of the Security Council convened solely for the purpose of discussing the problem concerning the State of Jammu and Kashmir-the India-Pakistan question-and how it could be resolved.
If the instrument of accession executed by a Maharajah who had forfeited his authority over the territory at the time of the execution had made Jammu and Kashmir an integral part of India, it is obvious that India would have taken the earliest opportunity to challenge the competence of the Security Council in making any pronouncement or taking any decision with regard to the disposition of the territory and, indeed, going beyond the principal subject matter of India's original complaint. If such a challenge had been lawful, the question would not have been placed on the agenda of the Security Council. Certainly, India itself would not have made the memerous statements that its representatives solemnly made before the Security Council to the effect that it is agreeable to the determination of the status of the territory through an impartial plebiscite conducted under the auspices of the United Nations. It is also clear that in that event the Security Council would not have adopted as many as twenty-two resolutions and two statements of consensus on the subject.
The most recent substantive resolution of the Security Council on the question is resolution 211 (1965) adopted on 20 September 1965. Paragraph 4 of this resolution reads as follows:
"Decides to consider, as soon as paragraph 1 of Council resolution 210 (1965) [of 6 September 1965] has been implemented, what steps could be taken to assist towards a settlement of the political problem underlying the present conflict, and in the peaceful means, including those listed in Article 33 of the Charter of the United Nations, to this end."
When the resolution was adopted, it was emphatic. stated by the members of the Security Council that the Council had thus committed itself to help bring about a settlement of the problem underlying the conflict between India and Pakistan, i.e. the problem concerning the status of Jammu and Kashmir.
It will be recalled that, after the adoption of the resolution mentioned above, India refused to participate in meetings of the Security Council on the India-Pakistan question. The Council, bearing in mind its similar experience with South Africa, which had set a strikingly parallel example, unanimously took the view that it could proceed to discuss and adopt suitable decisions on the question of Jammu and Kashmir despite India's non-participation. The very basis of the functioning of the United Nations would have been undermined if the Council had agreed to confer on a party to an international dispute a right to veto its proceedings with regard to that dispute. The Council's response to India's withdrawal from the proceedings was clear from the fact that these proceedings continued and, indeed, led to the adoption of a resolution. The following are some statements made in this connection:
(a) At the 1249th meeting on 28 October 1965, the representative of one of the permanent members (Ambassador Seydoux of France) urged the Security Council to keep before it the idea that:
"its mission is in the last analysis, to study possible measures to promote a settlement of the political problem, namely, the problem of Kashmir, which is at the root of this conflict" [1249th Meeting, para. 8],
(b) At the 1248th meeting on 27 October 1965, an African KESH representative (Ambassador Usher of the Ivory Coast) said:
"As the African representative in the Security Council and in view of the fact that we shall be discussing this question at future meetings, I should like to state for the record that we greatly deplore the fact that the two parties...are not taking part in the debate. It is, however, not the first time that this has happened in the Security Council. We shall undoubtedly find that, when we discuss the problem of apartheid, South Africa will, as usual, not be with us, although I could wish that it would be; but its absence has not prevented the Council in the past from taking a number of appropriate decisions. That is why I believe that in the present case the Council can usefully continue its deliberations and take decisions which can be carried out." [1284 meeting para. 5.]
(c) The same view was clearly expressed by an Asian representative (Ambassador El-Farra of Jordan) who said at the same meeting of the Security Council:
"The absence of one of the parties cannot stop the work of the Security Council. It cannot stop the Council from deliberating on the question, taking decisions and finding constructive solutions. Otherwise it would amount to a veto, if the absence of one of the parties could stop the work of the Council." [Ibid., para. 7.]
(d) At the 1251st meeting on 6 November 1965, a Latin American representative (Ambassador Payssé Reyes of Uruguay) stated:
"Thirdly, Uruguay voted for resolutions 209 (1965), 210 (1965), 211 (1965), acd 214 (1965) of 4, 6, 20 and 27 September. In doing so, my delegation stated that it understood that the Security Council was considering the problem of Kashmir as whole: that is, both the present crisis and the need to make some effective contribution to removing the cause of the crisis. This means, in our view, that resolution 211 (1965) implies that the protagonists should make triple commitment: cease fire, withdrawal of troops and armed personnel, decision or desire to consider what steps could be towards a settlement of the basic problem which has been under the jurisdic the Council since 1948." [1251st meeting, para.14.]
The Government of Pakistan has made a positive response to the call contained Security in Security Council resolution 211 (1965) to utilise all peaceful means including those listed in Article 33 of the Charter to settle the political problem-i.e. the dispute concerning the state of Jammu and Kashmir-underlying the conflict between India and Pakistan. Its efforts, however, have been nullified by the attitude adopted by the Government of India. The extreme nature of this attitude has now been clearly revealed in the contents of the letter of the representative of India under reference.
In claiming that the situation in Jammu and Kashmir is a matter of its internal jurisdiction, India takes a position identical to that which has been taken by colonial Powers in regard to territories under their subjugation and which has been categorically rejected by the United Nations. In refusing to discuss an international issue in the Security Council, India faithfully follows the example set by South Africa. But India stands all by itself in denying the jurisdiction of the United Nations over an issue regarding which it participated in negotiations conducted by the United Nations and declared itself engaged by the international agreement to which those negotiations led. Now, by refusing to recognize even the international character. of the dispute concerning Jammu and Kashmir, the Government of India makes it impossible for any international peace making machinery, in or outside the United Nations, to be brought into play for its honourable settlement. Its posture is one of defiance, not only towards the United Nations, but also towards all individual members of the community of nations, who, by virtue of that membership, have a legitimate interest in the resolution of an international dispute which has twice led to war and which affects the welfare and happiness of the inhabitants of the subcontinent of India and Pakistan constituting a large segment of the human race.
In contrast to the attitude of the Government of India, Pakistan wishes to make it plain that it is receptive to any suggestion, and will cooperate with any effort, emanating from any Government or from the United Nations, which would seek to resolve the problem of the State of Jammu and Kashmir in accordance with the wishes of the people of that State impartially ascertained.
Pakistan's anxiety regarding the situation in Jammu and Kashmir has been aggravated in recent weeks by the rapid deterioration resulting from the extremely repressive measures adopted by the Government of India. These measures compel the people of the State to resort to desperate acts which cannot but have an immediate effect on the climate of relations between India and Pakistan. The Government of Pakistan considers it both its duty and its responsibility to draw the attention of the Security Council to such grave and ominous developments.
(Signed) A. SHAHI
Permanent Representative of Pakistan to the United Nations
(Source: UN Document No. S/10102).