20061962 Text of the Speech made by Mr. Sosa Rodriguez (Venezuela) in the Security Council Meeting No. 1014 held on 20 June 1962
Text of the Speech made by Mr. Sosa Rodriguez (Venezuela) in the Security Council Meeting No. 1014 held on 20 June 1962
Although the question of Kashmir has been pending for fifteen years and has been the subject of more than a hundred meetings of the Security Council, this is the first time that my country, now a member of the Council, has had occasion to speak about it. My delegation has therefore carefully analysed all the legal and political aspects of the case, and has made a thorough study of the very exhaustive and brilliant statements made by the representatives of Pakistan and India at the most recent meetings of this body, held in May. I shall ask the indulgence of the representatives of the permanent Member States if, in the course of my statement, I am obliged to refer to some facts regarding this problem which are well known, but which I feel I must mention in order to give an adequate explanation of my delegation's position.
My delegation was pleased to note that the representatives of both Pakistan and India have expressly stated that their Governments have no intention of resorting to force for the final settlement of the problem. This shows the respect of both parties for the principles of the United Nations Charter, as also the ties which, despite all their vicissitudes, must of necessity unite two countries which for ethnic, geographical, economic and cultural reasons are called upon to practise close and friendly cooperation. That is what my country, which feels sincere friendship and goodwill towards them both, would like to see, and it is with that in mind that it will view the problem and co-operate in the Security Council in preparing the way for a prompt, peaceful and friendly settlement of the question of Kashmir, which, unfortunately, is still bedevilling the relations between the two sister countries.
The problem before us derives from the events which took place in Kashmir in August 1947, when that State had not yet decided whether to unite with India or Pakistan after those two countries attained independence.
The Indian version and the Pakistan version of those events are very different. According to the Indian account, what occurred was an invasion by miscreants and tribesmen from Pakistan who, with that country's help, attacked the people and local forces of the Maharajah of Kashmir. According to the Pakistan account, the population of Kashmir rebelled against the tyrannical government of the Maharaja Hari Singh and elements of related tribes in Pakistan came to the aid of the rebels.
In any event, whatever may have been the cause of the events, they prompted the Maharajah to ask for the State of Kashmir to accede to India in order to obtain military aid from that country. In a letter dated 26 October 1947 addressed to Lord Mountbatten, than Governor-General of India, Maharaja Hari Singh explained the situation and agreed to sign the instrument of accession of Kashmir to India. The instrument of accession signed by Maharaja Hari Singh was accepted by Lord Mountbatten. Nevertheless, in a letter of 27 October 1947, addressed to Maharaja Hari Singh, Lord Mountbatten recognized that "... the question of accession should be decided in accordance with the wishes of the people of the State; it is my Government's wish that, as soon as law and order have been restored in Kashmir, and its soil cleared of the invader, the question of the State's accession should be settled by a reference to the people".
India then sent military aid to the Maharajah, with which he was able to gain mastery over the situation in most of the State. Nevertheless, since the fighting continued, India brought the case before the Security Council which, in a resolution adopted on 17 January 1948, called upon the Governments of India and Pakistan to take immediately all measures to avoid an aggravation of the situation. Later, in its resolution of 20 January 1948, the Security Council set up a Commission to investigate the facts and carry out its instructions. That Commission confirmed the presence of regular Pakistan troops in Kashmir and, in discharge of its mandate from the Security Council, laid the groundwork for a solution of the conflict in the resolutions of 13 August 1948 and 5 January 1949. Of the measures recommended by the United Nations Commission for India and Pakistan, only those concerning the cease fire and the line of demarcation of the Indian and Pakistan positions in Kashmir at the time of the cease fire could be implemented. That line has been respected by both parties ever since. They were not, however, able to agree on the interpretation and implementation of the rest of the measures In the resolutions. Later efforts by United Nations representatives who replaced the Commission when it ceased to exist, in conformity with the Security Council resolution of 14 March 1950, were not able to reconcile the two parties.
The present situation and the respective positions of the parties in regard to the problem have been explained with a wealth of detail by the representatives of India and Pakistan in their recent statements before the Council. Those statements have stressed the following points:
(a) Both parties accepted the resolutions of 13 August 1948 and 5 January 1949 of the Commission appointed by the Security Council, but each party ascribes to the other the failure to implement parts II and III of the 13 August resolution.
(b) Pakistan insists that the solution of the problem lies in the progressive implementation of the resolutions of 13 August 1948 and 5 January 1949, and has declared that if it is a mistaken interpretation on its part that is impeding the implementation of those resolutions, it is willing to accept an impartial interpretation of the terms of the resolutions by the Security council or a mediator acceptable to both parties;
(c) India maintains that as Pakistan has rendered the implementation of the resolutions of 13 August 1948 and 5 January 1949 impossible and as the situation has completely changed since those resolutions were adopted, they have become imperative and their implementation cannot be enforced. India further maintains that it can no longer accept a plebiscite to decide the question of the accession of the State of Kashmir to India, because that accession has been complete and irrevocable from the time the corresponding instrument was signed, and that as there have been elections for a Constituent Assembly and, subsequently, elections under the Constitution promulgated in the part of Kashmir which was united to India, the people of Kashmir have had an opportunity to express their wishes and India has thus fulfilled its promise to consult the people and will not now accept a plebiscite on the question of accession.
In view of those circumstances and of the background of the case, my delegation has the following remarks to make.
Firstly, the accession of Kashmir to India took place in special circumstances in that the instrument of accession could not be isolated from the letter of 26 October 1947 from Maharaja Hari Singh to Lord Mountbatten and the letter's reply of 27 October 1947. Consequently, from the time the instrument of Accession was signed the accession of Kashmir to India produced all the juridical effects of accession, but the indefinite continuation of those effects, or in other words the final consolidation of the accession, remained subject to a later act, namely, its ratification through a consultation of the people of Kashmir.
The promise of Lord Mountbatten, or rather of the Governor-General of India at that time, was a promise made to the people of Kashmir and not to Pakistan. However, it was a promise made, as Lord Moantbatten's letter says, "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 of the State".
Secondly, although it might entertain doubts about the desire of the people of Kashmir to be united with India through the accession of their State, Pakistan could not lawfully aid the rebels if rebels they were-or the invaders-if they were invaders, far less intervene directly in Kashmir with its regular forces.
Thirdly, when the matter was submitted to the Security Council for its consideration, both that United Nations organ and the parties to the conflict agreed to settle the case de facto and de jure in the form laid down in the resolutions of 13 August 1948 and 5 January 1949 of the Commission for India and Pakistan.
Both the question of Pakistan's aggression in Kashmir, as India describes Pakistan's action there, and the question of the accession of Kashmir to India, challenged by Pakistan, were precisely the two questions contemplated in the resolutions of 13 August 1948 and 5 January 1949, which laid down the principles and established the procedure for a peaceful settlement of the dispute. As we have seen, those resolutions were accepted by both parties and they therefore constitute an international agreement arrived at with the participation of the United Nations. These resolutions contain various provisions and the implementation of some is dependent on the prior implementation of others. The failure of either party to comply with any provision could therefore justify the other party's refusal to implement the succeeding provisions so long as the non-compliance persisted.
Fourthly, the elections which were held in the part of Kashmir united to India could not take the place of the plebiscite mentioned in the resolutions of the United Nations Commission for India and Pakistan, which both parties have accepted. The agreement resulting from their acceptance of those resolutions was of an international character and cannot be amended unilaterally by any law or constitution. That was the principle which the Security Council upheld in its resolutions of 30 March 1951 and 24 January 1957.
In those elections, however complete and democratic they have been, the people of Kashmir were not consulted may about whether they preferred to accede to India or to Pakistan. Those elections cannot therefore be likened to a plebiscite on the question of accession.
Fifthly, it is a fact that the resolution of 13 August 1948. has been implemented only with regard to its part I concerning the cease fire and the cease-fire line, and that, in the absence of agreement between the parties on the interpretation of the terms of the resolution, part II and III of that resolution could not be implemented. Nor was it possible for the resolution of 5 January 1949 to be implemented, since that required the prior application of all the provisions of the resolution of 13 August 1948. Each parties blames the other for the lack of implementation of these resolutions, but in the face of disputed facts and divergent interpretations it is difficult to apportion responsibility. At all events, these resolutions are still in force and having some effect; for one thing, they provide the legal basis for the present provisional status quo Kashmir which has at least prevented the continuation of armed conflict. It must also be remembered that, whatever the true reason for the failure to implement parts II and III of the resolution of 13 August 1948, and hence the resolution of 5 January 1949, nearly fourteen years elapsed since then and the circumstances which then prevailed have been modified by a series of events. It would be therefore advisable, without departing from the basic principles contained in the Council's resolutions on this question, to take these new circumstances into account in future efforts towards a final solution of the problem. My delegation feels that in such circumstances the best course would be for the two parties to discuss the question between themselves in direct negotiations.
In view of the foregoing considerations and the fact that both parties have stated their intention not to resort to force in settling the question of Kashmir, my delegation considers that on this occasion the action of the Council could be limited to recalling the basic principles contained in its previous resolutions and inviting the two parties to undertake direct negotiations as soon as possible, so that in and atmosphere of understanding and harmony they may arrive at a final solution of the problem of Kashmir.
In conclusion, I should like to reaffirm once again the sincere friendship and sympathy which my country feels towards both India and Pakistan, and to express the grave concern with which it views the continuation of a conflict which darkens the relations between these two great countries, diverting their attention from the work of progress and development which they are carrying out in their Asian subcontinent. My delegation trusts that the clearsightedness and ability of the states men of both countries will enable them to overcome the difficulties which have hitherto stood in the way of a solution to this thorny problem and that they will finally reach that agreement for which their friends so eagerly hope, for the good of the people of Kashmir, of India and of Pakistan.