Text of the Speech made by Mr. Nunez-Portuondo (Cuba) in the Security Council Meeting No. 768 held on 15 February 1957

 Text of the Speech made by Mr. Nunez-Portuondo (Cuba) in the Security Council Meeting No. 768 held on 15 February 1957

As far as the Cuban delegation is concerned, the fundamental element of this problem is that the sovereignty of Kashmir rests exclusively with the people of Kashmir. We are dealing with an ancient State, a State, as the representative of India told us, whose history goes back a thousand years, whose people, in our opinion, have the right to decide whether it should be incorporated with Pakistan or whether it should continue to be incorporated with India.

We cannot accept the standard that it is the sovereign power which should decide alone, by its will contrary to the wishes of the people, whether Kashmir should accede to India or Pakistan. This is the fundamental rule that we have established. In our opinion, this has also been the criterion adopted by the Indian Government in other cases. When the Nabob of Junagadh decided by a resolution of his own to accede to Pakistan and did so, the Government of India declared that was illegal because it violated the principle of the people's self-determination. And when the Nizam of Hyderabad also wanted to remain neutral, that is, not accede to either India or Pakistan, the Government of India similarly declared that the Nizam could not do so because he was violating the freely expressed will of the people of Hyderabad. These are recorded facts which in the opinion of the Cuban delegation, have been proven through documents, and we have no doubt whatsoever that the same principle should be applied to the case of Kashmir as a general basis for judging these problems.

We have listened with great attention to the statements made by the Minister for Foreign Affairs of Pakistan and the representative of India. They were lengthy, documented statements with quotations from many sources in which different positions were, of course, taken; but from those statements we have been able to deduce the following declarations by the representative of India which, in our opinion, are encouraging. First, India does not have the slightest intention of failing to fulfil an international commitment. Second, the plebiscite can only be held when the first two stages have been carried out : (a) a cease-fire and (b) a truce and the withdrawal of Pakistan troops and later the withdrawal of Indian troops. Then the representative of India also told us that the truce is more essential than the plebiscite. A plebiscite cannot be held unless part II of the agreement has been complied with.

In the opinion of the Cuban delegation, this proves that the position of the delegation of India is that the offer made previously by the Prime Minister, Mr. Nehru, will be carried out, namely that the people of Kashmir will decide upon their own future. That in short, is the same thesis that the representative of India brilliantly expressed on 12 February in the First Committee of the General Assembly when he vigorously and enthusiastically contended that Algeria also has a right to determine its own future. In other words, it would be unjustifiable, in the Cuban delegation's view-and I say this with all due respect to the representative of India-that the Algerian people should have the right to exercise freely the principle of self-determination and that the Kashmiri people should not. This is all the more true since in the case of the people of Kashmir there has been no discussion, as in the case of Algeria, whether it was in effect an integral part of another State, because both parties have recognized that Kashmir has existed as a State for ten centuries, though for many years under the rule of the United Kingdom.

From all the statements that have been made here, the fundamental argument of the representative of India, his most important legal argument, is the following conditions have changed from those existing when the plebiscite was agreed upon. That is to say, the Indian representative and his Government seem to contend that the plebiscite was agreed to when certain conditions existed and that since those conditions have changed, the Government of India in some way does not feel bound to carry out the offer to hold a plebiscite.

This doctrine in civil law is well known to those of us who have practised at the Bar for many years. If judgement is given for the distribution of riverine waters between adjacent meadows, and the river dries up, the judgement of course can not be enforced. Where the right of property an island or barren islet is adjusted, and the court decides that it should be delivered to the party that won the case, and the island or islet owing to a natural phenomenon disappears, then again the judgement cannot be carried out. There are many such examples in civil law. But in legal doctrine the following conditions must be present: first, the situation must not have changed on account of any acts by the defendant; second, as a result of the acts or phenomena which take place, it must be physically impossible to carry out the judgement, that is, the situation must have changed in such a way that the judgement of the court-I am referring to private law-cannot be enforced.

In our opinion this situation does not apply here for the following reasons: the resolutions of the Council exist; Kashmir exists; the people of Kashmir exist; the principle of self-determination exists in the Charter of the United Nations ; but above all, Mr. Nehru's statements exist-most laudable ones, we believe-made a few years ago and also very recently, two weeks ago, in which he reaffirmed the Indian Government's offer to accept the plebiscite as a means of deciding to whom Kashmir should finally belong, Pakistan or India.

Therefore, since all these antecedents exist, the Cuban delegation feels that the wise, proper and timely thing to do is to treat the situation so that the plebiscite may be held. That is the aim of the draft resolution before the Council. But of course, if India had stated categorically: "We do not accept a plebiscite in any form; we declare our previous solemn offer to hold a plebiscite to be null and void", then the Security Council would be faced with a different situation and would have to solve it in a different way. But that is not the case. We are faced by a previous offer, reaffirmed in a public statement two weeks ago by the Prime Minister of India, who said that India accepts the plebiscite, although it lays down certain conditions.

The Cuban delegation therefore believes that this draft resolution would lead to the holding of a plebiscite. In view of the present state of the affair, the consent thereto of the Government of India is naturally required. In our view, however, this can be discounted in so far as the holding of a plebiscite is concerned because, I repeat, the Government of India made the offer several years ago, and it was reaffirmed by the Prime Minister of Ladia in a statement two weeks ago.

According to a United Press telegram, Mr. Nehru publicly stated on 6 February 1957 "that India was prepared to hold a plebiscite in Kashmir if Pakistan withdrew its troops and permitted the Government. of Kashmir, supported by the Government of India, to assume control of the whole State "

But in 1947 the Prime Minister of India sent a telegram. in which he stated:

"We have declared that the fate of Kashmir must definitely be decided by its people. We have promised this. The Maharaja has confirmed this promise not only to the people of Kashmir but to the whole world. We do not want to retract our statement and we cannot do so."

In 1947 Nehru said: "We do not want to retract our statement and we cannot do so." Therefore, for us-in accordance with the statement by the Prime Minister of India, whom we very much respect, in which he said regarding the Kashmir plebiscite: "We do not want to retract our statement and we cannot do so"-the problem of the plebiscite is something that has been definitively settled and agreed upon by the parties. All that has to be done is to bring about conditions in which the plebiscite can be held.

From the Indian representative's statement here, and also from the statements I have quoted, it seems clear that India has at no time tried to retract its promise to hold the plebiscite, since it laid down conditions under which parts I and II must be complied with before part III can be carried out; and there would be no reason to speak of the fulfilment of conditions for a plebiscite if no plebiscite were to be held. opinion, is crystal clear. This, in our We therefore believe that the draft resolution we have submitted is an attempt, by entrusting the President of the Council with this task, to bring about the conditions which will allow the holding of a plebiscite.

The Cuban delegation hopes that the parties will contribute to this end, because there can be no doubt about the following the immense quantity of documents and statements which we have studied with great care, to the best of our ability, shows that the Security Council, Pakistan and India have been in agreement on one principle that the people of Kashmir should determine their own future. And since this in our view is the very essence of the matter, we must all do everything in our power to permit the people of Kashmir to determine their own future.