04021948 Text of the Speech made by Mr. Austin (United States of America) in the Security Council Meeting No. 240 held on 4 February, 1948
Text of the Speech made by Mr. Austin (United States of America) in the Security Council Meeting No. 240 held on 4 February, 1948
I think we are now in a situation where we can clarify the issues and have a better understanding among all the representatives with regard to what action we are going to take. In the first place, I should like to observe that the Security Council does not try, under the Charter, and is not now trying to decide between litigants, opposite or parties to a situation or difficulty. When the Security Council is addressed, as it is here, by the Members of the United. Nations, it acts purpose to that broad and benevolent purpose which is stated in Article 1 of the Charter. That Article states:
The Purposes of the United Nations are:
"1. To maintain international peace and security, and to that end to take effective measures for the prevention and removal of threats to the peace, and for the suppression acts of aggression or other breaches of the peace, and to bring about by peaceful means, and in conformity with the principles of justice and international law, adjustment of international disputes or situations which might lead to a breach of peace;"
That is the broad purpose and jurisdiction of the matter. By what method are we proceeding to do this? It is under Chapter VI, which provides for the pacific method of settlement or clarification of the situation which, on the allegations of both parties, according to the record, is one that threatens the peace of the world.
Under Chapter VI we have not advanced beyond the stage of procedure in which the negotiation is exercised through the parties themselves, under the guidance and help of the Security Council, aimed at as much agreement between the parties as can be attained. We have never given up the idea that in this case the parties may ultimately arrive at an agreement. One reason for our great hope that they will arrive at an agreement regarding problems in this case is that the parties have agreed in advance on many factors in the solution of this problem. I shall deal with those points of agreement a little later and shall speak of them more specifically.
I wish to continue with the proposition that we must keep our record clear and understandable to all the world, because the world is witnessing the transactions in which we are engaged today. These transactions are so grave that they might affect the advancement and progress of that part of the world, including not only that Sub-Continent, but also the islands of the sea and many other countries in that area where transformations and advancements toward a more liberal and free government are being made by the people themselves.
The Security Council is being watched because all the world is sitting with bated breath the waiting to see whether the sparks in that area will burst into a conflagration that will involve the entire world in another war, a war the horrors of which we cannot conceive, in view of the advancement of scientific methods of mass killing. The Security Council has not arrived at that stage referred to in Article 7 of the Charter.
I refer to Article 37, paragraph 2, which provides: "If the Security Council deems that the continuance of the dispute is in fact likely to endanger the maintenance of international peace and security, it shall decide whether to take action under Article 36 or to recommend such terms of settlement as it may consider appropriate." The Security Council has not arrived at that stage because the conditions mentioned in Article 37, paragraph 1, have not arisen- conditions in which the parties themselves say that. there is no further use of trying to arrive at a solution by negotiation. Certainly the members of the Security Council have not arrived at the judgement that no further efforts should be made toward negotiation in the attempt to reach agreement between the parties. Until we arrive at that stage we do not begin the consideration of resolutions that recommend the terms of settlement.
The Security Council has before it two draft resolutions. I may be wrong, but I have the impression that they are not understood, and I should like to attempt to clarify the matter. Therefore, let us consider exactly what these draft resolutions
are One of the draft resolutions, set forth in document S/662, relates to the operations of the Commission, the establishment of which we have already agreed upon. Although this draft resolution has been characterized as being meaning less and entirely innocuous, and as one that can do neither good nor harm, its purpose is to allay some of the fears and to add a little to the duties of the commission. It does not constitute a decision by the Security Council under Article 37.
The other draft resolution set forth in document S/661, expresses nothing but an opinion. Yet it has been discussed as if it were a recommendation of the type the Security Council. would be authorized to make under Article 37.
Nothing that we have done up to this point in the record has been an action under Article 37. All that we have done up to this point, and what it is now proposed to do under the two draft resolutions before us, comes under the provisions which are designed to bring about a solution by negotiation. Therefore, it is true that we have not brushed aside the claims and allegations of either party. On the contrary, we have them constantly in our minds and they form part of the background for our efforts to guide the parties during their further negotiations If these draft resolutions were to be passed, they would not terminate be consideration of any of the claims. In fact, I should feel that it would be erroneous for the Security Council, in solving this matter if it were acting under Article 37-to undertake to do it piecemeal, by handling the termination of hostilities with one hand and the plebiscite with the other. I believe that method would be entirely incongruous and would not lead to any successful solution of the matter.
It is my opinion that, if and when the Security Council deals with this problem, it must consider has a whole, because unless it does, there cannot be a cessation of hostilities. How is it possible to induce the tribesmen to retire from Jammu and Kashmir without warfare and without driving them out? That is the only way it can be done, unless the tribesmen are satisfied that there is to be a fair plebiscite assured through an interim government that is in fact, and that has the appearance of being, non-partisan. Only by that method could one hope to have that retirement on a peaceful basis.
We know very well that the alternative is force, and force which has not necessarily been successful when the frontier is reached. The passage of the tribesmen across the frontier does not mean that hostilities have been ended. On the contrary, I think that reason indicates that hostilities will have only just begun if an attempt is made to reach a separate solution of this matter and to have the troops get out of Jammu and Kashmir merely because we say so, without our having said to them have we are going to consider all sides of the question and that the plan involves not merely a retirement but also a plebiscite by which the people will register their own choice in the main issue, that plebiscite to be guaranteed to be impartial and just Nothing short of that is conceivable as a peaceful means of accomplishing the withdrawal of these armed forces from Jammu and Kashmir.
I wish to have one point definitely understood. The Security Council is not partial; it is not prejudging; it is not discriminating between the parties and their claims; it is not brashing aside the claims of anyone. The Security Council is welcoming these claims and it is giving careful thought to them, and it will continue to do so as long as the Security. Council has jurisdiction over this matter.
I hope that we may never have to come to a conclusion. and specific analysis of the claims of the parties. I hope, on the contrary, that the parties will agree, before we are through with this question, on the specific terms that will take care of the whole matter, including the removal of troops, the stoppage of transportation of ammunition and weapons, the establishment of an interim government that will guarantee the security of the inhabitants and assure them their freedom in the use of the ballot, "the creation of a peaceful situation that will invite the return of those who have fled from Jammu and Kashmir into other parts of the country, and that will make it possible for the people themselves to say what the solution shall be with regard to the fundamental question as to the country to which Jammu and Kashmir will accede.
The interim government need not exist for a long time It need exist for only such time as is necessary to set up the machinery for the holding of a fair plebiscite. After the plebiscite, what then? That interim government will be functus officio; it will have completed its job and it will have no more authority. There are many such institutions in government and they are especially important in international affairs. Of course, we would not be interested in this matter if it were purely a domestic affair.
What the Security Council is faced with is the fact that two Members of the United Nations have come before it with an international problem. That problem involves the external sovereignty of Jammu and Kashmir. In my opinion, it is entirely appropriate to speak about the pride of sovereignty. That is a characteristic of sovereignty. Even corporate sovereignty has a pride and honour. We used to go to war over a violation of the honour of that sovereignty. But, however much we are concerned about the delicacy of the feelings of a personal sovereign, a person who is a Maharaja or a prince, we must face the legal situation. The external sovereignty of Jammu and Kashmir is no longer under the control of the Maharaja The external sovereignty of Jammu and Kashmir is the sovereignty that is involved here. This is an affair between nations, and with the accession of Jammu and Kashmir to India, this foreign sovereignty went over to India and is exercised by India, and that is how India happens to be here as a petitioner.
I want to refer to the record in his regard. I have before me extracts of certain basic papers that absolutely put beyond question the fact that the particular issue before us is properly. here under the petition of India and Pakistan. Lord Mountbatten, in accepting Kashmir's accession in the special circumstances prevailing, said in his letter to the Maharaja :
......in consistence with their policy that, in the case of any State where the issue of accession has been the subject of dispute, the question of accession should be decided in accordance with the wishes of the people it is my Government's wish that as soon as law and order have been restored in Kashmir and is soil cleared of the invader, the question of the State's accession shall be settled by reference to the people," Thus it became an actual integral part of the terms of accession. Subsequently, in a broadcast from Delhi on 2 November, Pandit Nehru reiterated that India, in accepting the accession of Kashmir, accepted at the same time the position that the ultimate future of the State should be decided by the Kashmir people.
He said: "A neighbouring Government using language not fit for governments, has accused the Government of India of fraud in regard to the accession of Kashmir to the Indian Union. I agree there have been fraud and violence in Kashmir, but the question is, who is responsible for it? I am convinced that what we have done was the right thing. We have no intention of using our troops in Kashmir when the danger of invasion is past.
"We have declared that the fate of Kashmir is ultimately to be decided by the people. That pledge we have given, the Maharaja has supported it, and we wish to give it again, not only to the people of Kashmir but to the whole world. We want it to be a fair and just referendum, and we shall accept the verdict. I can imagine no fairer and more just offer. We are prepared, when peace and law and order have been established, to have a referendum held under international auspices like the United Nations."
I have something else here which bears upon the exercise of the external sovereignty of the State of Jammu and Kashmir by India. At a later time, I hope to be able to point out that. there is no less to the Maharaja in that grant of sovereignty, if it is temporary.
I wish to satisfy the members of the Security Council, and I wish to convince the parties if I can-and perhaps the people of the two great countries involved-that in the formation of an interim government, a thing which the Maharaja has already engaged in, the Maharaja does not lose his sovereignty. On the contrary, he exercises it to meet an emergency.
With regard to this other matter that bears upon the exercise of the external sovereignty of the State of Jammu and Kashmir by the Government of India, I wish to submit the following. I am informed that this is an extract from a telegram sent by Pandit Nehru to the Prime Minister of Pakistan, dated 8 November 1947. The members of the Security Council will notice that this is just ten days after the accession. It is near enough to the accession itself to give colour and interpretation to it. The following purports to be an extract from that telegram.
"It will thus be seen that our proposals, which we have repeatedly stated, are:
"1. That the Government of Pakistan should publicly undertake to do its utmost to compel the raiders to withdraw from Kashmir;
"2. That the Government of India should repeat its declaration that it will withdraw its troops from Kashmir as soon as raiders have withdrawn and law and order are restored; and
"3. That the Governments of India and Pakistan should make a joint request to the United Nations to undertake a plebiscite in Kashmir at the earliest possible date."
That is a very significant exercise of sovereignty. On no other basis can these parties be here and present the claims. that they do except that, on the one hand, Pakistan is exercising the external sovereignty of Pakistan, and, on the other hand, India is exercising the external sovereignty of the State of Jammu and Kashmir.
I do not think that any party present should be asked to get in such a manner as to cause the Maharaja to lose dignity, honour or reputation However sensitive the Maharaja may be, he ought to be able to understand that what is suggested here by way of an interim government is nothing but an exercise of external sovereignty requested by the Government to which he has ceded the exercise of that sovereignty for the time being. A plebiscite may turn it around. I do not know. The Maharaja does not know, but the says that if it does, the result of the plebiscite will be accepted.
I am going to put into the record, perhaps at the risk of taxing the patience of the members of the Council, some ancient authorities which I have used before when this question of external sovereignty was raised on the very important question of whether the United States of America was surrendering its sovereignty by ratifying the Charter of the United Nations. In passing, I might make this general observation. Whenever a sovereign, whether it is a personal sovereign or a corporate sovereign, exercises his sovereignty in a specific manner which is found to be necessary to meet an emergency, he does not lose his sovereignty; he strengthens it. He may be saving it from destruction. He may exercise that sovereignty through an interim government, just as he is doing already, or he may exercise it in some other way. However, the mere exercise of sovereignty or the delegation of certain specific powers does not destroy or weaken his ultimate sovereignty.
Now Mr. Oppenheim is an authority with whom members of the Council are acquainted. In volume I, page 174, he points out that a State does not lose any part of its sovereignty by concluding a treaty of arbitration, and that if we had a general treaty of obligatory arbitration, the contracting States would remain sovereign because all would be equally and reciprocally bound.
Mr. Merignhac, another great authority on international law, urges, in part II, page 43, that treaties of guarantee do not destroy sovereignty. He says that such treaties do not necessarily imply a limitation of sovereignty, not unless the State whose rights are guaranteed binds itself permanently not to exercise important or essential sovereign powers such as other States customarily enjoy.
Here is a curious case which bears some resemblance to that part of the present situation where one speaks of the loss of sovereignty and the reflection upon the dignity of the ruler by turning over an interim government temporarily to someone else. In the case of Duff Development Company, Limited, against the Government of Kelantan, in which the House of Lords affirmed an order staying proceedings against the Government of Kelantan on the ground that the Sultan was an independent sovereign over which the Court had no jurisdiction, Viscount Finlay made the following remarks
"It is obvious that for sovereignty there must be a certain amount of independence, but it is not in the least necessary that for sovereignty there should be complete independence. It is quite consistent with sovereignty that the sovereign may, in certain respects, be dependent upon another Power the control, for instance, of foreign affairs" is there not a resemblance here to this situation with respect to Jammu and Kashmir ?-"may be completely in the hards of a protecting Power, and there may be agreements or treaties. which limit the powers of the sovereign even in internal affairs without entailing a loss of the position of a sovereign Power."
These quotations are used by me as illustrations of the delegation for the time being, of a special, specific function to meet a purpose that was beneficial to the inhabitants, citizens and subjects concerned. The Permanent Court of International Justice, in its judgement rendered on 17 August 1923, in the case of S.S. Wimbledom, involving the refusal by German authorities to permit this British ship to pass through the Kiel Canal, said:
"The Court declines to see in the conclusion of any treaty by which a State undertakes to perform or refrain from performing a particular act an abandonment of its sovereignty. No doubt any convention creating an obligation of this kind places a restriction upon the exercise of the sovereign rights of the State, in the sense that it requires them to be exercised in a certain way. But the right of entering into international engagements is an attribute of State sovereignty "
Then we have a case of our own, which is especially interesting to me. It involves the relationship of the forty eight sovereigns we have in the United States-the forty-eight States themselves-to the Federal Government. Of course, we had some people who asserted strongly that these States just could not let the Federal Government control their international affairs-in other words, their external sovereignty, and they took it to the Supreme Court, that great body created primarily for the business of passing upon constitutional law.
The Supreme Court, through Mr. Justice Sutherland, in United States against Curtiss-Wright Export Corporation and others, upholding the constitutionality of the joint resolution of Congress, approved on 28 May 1934, to prohibit the sale of arms or munitions in the United States, said :
"Rulers come and go; governments end and forms of government change; but sovereignty survives. A political society cannot endure without a supreme will somewhere. Sovereignty is never held in suspense. When, therefore, the external sovereignty of Great Britain in respect of the Colonies ceased, it immediately passed to the Union. It results that the investment of the Federal Government with the powers of external sovereignty did not depend upon the affirmative grants of the Constitution. The power to declare and wage war, to conclude peace, to make treaties, to maintain diplomatic relations with other sovereignties, if they had never been mentioned in the Constitution, would have vested in the Federal Government as necessary concomitants of nationality.
"...The power to acquire territory by discovery and occupation, the power to expel undesirable aliens, the power to make such international agreements as do not constitute treaties in the constitutional sense."-I am not reading the citations although there are many to support each of these phrases from separate and different cases dealt with by the Supreme Court-"none of which is expressly affirmed by the Constitution, nevertheless exists as inherently inseparable from the conception of nationality."
Finally, there is the most notable example of the granting of certain special acts of sovereignty so someone else being assented to without the loss of honour or dignity, or, in fact, any real loss of sovereignty, which is to be found in our own relations in the United Nations. When the great meeting was held at Moscow and the four Power Declaration was made, we found this doctrine readily assented to by those four great Powers, and afterward France joined with them. I think it may be that the three Powers made the original declaration and that France and China subscribed to it later but, however that may be, this is the doctrine. In article 6 of the Moscow Declaration on General Security we find these words after the termination of hostilities they will not employ their military forces within the territories of other States except for the purposes envisaged in this declaration and after joint consultation."
That was a tremendous waiver of the independence of each one of the those great Powers to employ its forces independently of the others at a time when it thought its honour or rights were challenged and that it was necessary to use them. Yet, there was no idea on the part of the great Powers that they were suffering any loss of dignity in honour because of these waivers and special arrangements made for the purpose of specific acts. When we come to the United Nations we have no doubt at all that our act of acceding to a general, universal international organisation, set up for the purpose of abolishing war and assuring peace, and our solemn pledges there to carry out the decisions of the Security Council and the policy and principles contained in the Charter, do not diminish our sovereignty, although they are acts that would be specifically outside the right of any of the other countries except our own.
But we are accustomed to doing this. The United States has especially granted external sovereignty so many times that it is a habit and a custom with us. I shall put some illustrations into this record, because the number of them will show that we certainly did not lose dignity. We do not consider that there was any loss of honour, or any injury to delicate susceptibilities or sensibilities that we might have. We passed over a part of the customary exercise of sovereignty to others outside the United States, working together with us. of course, in collaboration, but nevertheless we regard the exercise of external sovereignty in this matter as actually serving our people, and as making probable their welfare and their security. Of course, if that is not the purpose of this hearing before the Security Council, I have misjudged it. I have judged right along that the purpose of these petitioners, fellow-Members in the United Nations, is to promote the general welfare, peace and security of Kashmir and Jammu.
Among the treaties in which the United States of America has participated, and by virtue of which our nationalism was conditioned or limited, there are those setting up the following so-called permanent international commissions and other organisations Permanent Court of Arbitration, International Institute of Agriculture, International Office of Public Health, International Labour Organisation, international boundary commissions, international fisheries commissions, Permanent International Association of Navigation (Congresses, permanent commissions of investigation) and conciliation, permanent commissions of inquiry provided for by treaties for the advancement of peace and treaties of conciliation. Numerous agreements exist which do not have the dignity of treaties but which condition the nationality of each of the parties thereto, such as the International Office of Public Health. The Pan-American Union, International. Sugar Council, Wheat Advisory Committee, Committee of Experts on the Codification of International Law. Permanent Committee of Jurists of Civil and Commercial Laws, Inter American Committee of Experts on Nature Protection and Wild Life Preservation, Inter-American Financial and Economic Advisory Committee, Pan-American Resources Commission, Inter-American Commission on Tropical Agriculture, Inter American Coffee Board and the Congress of the Postal Union.
In March 1945, the United States and twenty other Republics in the Western Hemisphere promulgated the Act of Chapultepec by which they declared that an attack upon one of us is an attack on all of us and we shall go to the rescue. That was confirmed, for time of peace, by a treaty that was entered into at Rio de Janeiro last August. Did we suffer any loss of honour or dignity by making use of our sovereignty collectively in that manner? No. We see clearly that we gained security, dignity and honour, in our own consciousness and before the world, by such grants to each other as were mutual.
Now here we see the external sovereignty of Kashmir and Jammu possessed, and exercised before us in this petition, by India. A plebiscite is one of the conditions attending the accession and the grant of this part of the exercise of sovereignty from Kashmir and Jammu to India. That is the cold fact in the matter. The Maharaja has already assented to these proposals and India is fully authorised to go through to the end with all the negotiations that are necessary to bring about a solution of this international problem. If this solution involves an interim government, in order to assure the withdrawal of invaders from Kashmir and Jammu, India has full authority, and does not need to go back and reverse the history of this transaction and the settled position which is represented by their appearance here,
The Maharaja has already assigned to a peaceful settlement of this situation and the record on that is, I think, beyond question. Those reference that I quoted from Lord Mountbatten and Pandit Nehru, as well as the statements here of the representatives of India and Pakistan, clearly settled that, up to a certain point, we have agreement that ought to enable us to go on with these negotiations and finish them with a well-rounded plan that will work, and not a plan that requires enforcement by armed measures and violence.
Therefore, I hope we have made it clear, so that all that are interested may know, that those drafts resolutions now pending before us are not ultimate solutions and are not intended to force close consideration of any claims by either party. They are solely a step in the proceedings, under Chapter VI of the Charter of the United Nations, to advance, promote and render a more feasible solution to this difficulty by negotiation and agreement of the parties. That is all. If the time comes-and God forbid that it should; I hope that it will not come when we must act under Chapter VI. Article 37, of the Charter, then these claims and these arguments so ably made will be taken into consideration and given. complete weight, and we shall arrive at a balanced recommendation, one that covers the whole ground and is not. divided into such compartments that we know it cannot work except by force.