Memorandum by the Assistant Secretary of State for Near Eastern, South Asian, and African Affairs (McGhee) and the Assistant Secretary of State for United Nations Affairs (Hickerson) to the Secretary of State
Subject: Kashmir Dispute
The origin of the dispute, together with a brief account of the case in the UN and an analysis of the major issues and the position of the parties is contained in Annex A. Annex B consists of a legal analysis of the conflicting claims concerning the contested accession of Kashmir to India.1 India’s position is based on the claim that a lawful and effective accession took place.
1. Importance of settlement: Early settlement of the Kashmir problem is essential to the maintenance of peace and security in South Asia, the one area of relative stability in Asia today. Lacking some immediate progress, the present Pakistan Government might well collapse and the present uneasy truce break down, leading to open hostilities between the Indian and Pakistan armies and the outbreak of communal strife throughout the subcontinent.
2. Principal difficulty: Although both India and Pakistan have proved difficult and recalcitrant and both are far from blameless in the matter, it is the intransigent attitude of India which has been primarily responsible during the past year for holding up progress toward demilitarization of Kashmir and final settlement within the framework of UNCIP (United Nations Commission for India and Pakistan) resolutions. Some recent indications of India’s attitude are:
- the various steps taken by India to complete the incorporation of Kashmir into India;
- India’s responses to the UNCIP truce terms in which it departed from the previously agreed basis for the truce;
- India’s rejection of the proposal for arbitration;
- India’s rejection of McNaughton’s proposals.
3. Legal aspects of Kashmir’s contested accession to India: India has always insisted that the Maharajah’s execution of an Instrument of Accession to India in October, 19472 was a valid and binding act which determined the legal status of Kashmir. On the basis of this contention, it has asserted that Pakistan was an aggressor and has from time to time sought to persuade the Security Council to make a finding of aggression against Pakistan.
In the opinion of the Office of the Legal Adviser, execution of an Instrument of Accession by the Maharajah in October, 1947, could not finally accomplish the accession of Kashmir to either Dominion, in view of the circumstances prevailing at that time; the question of the future of Kashmir remained to be settled in some orderly fashion under relatively stable conditions; this question is an important element in the dispute; and, in proceedings before the Security Council, neither party is entitled to assert that rights were finally determined by the Maharajah’s execution of an instrument of Accession. [See Annex B.3]
It is the view of the United Kingdom Attorney General and Foreign Office legal advisers that the Maharajah’s execution of the Instrument of Accession to India was inconsistent with Kashmir’s obligations to Pakistan, and for that reason perhaps invalid.
Since the agreed and fair solution is to restore peaceful conditions so that the question of Kashmir’s future may be decided by the freely expressed will of the people, efforts to deal with the Kashmir question on the basis of legal considerations alone—or to assess original responsibilities for the difficulties that have arisen in Kashmir—would not be fruitful. India’s insistence on its legal position renders difficult the attainment of the solution referred to above. For this reason, and because as a matter of law India is not entitled to assert that rights in Kashmir were finally determined by the Instrument of Accession executed in October, 1947, the Security Council should not permit this question to divert it from its basic task of bringing about a political solution of the Kashmir problem.
4. Analysis of specific points at issue:
- Demilitarization in general: A large scale demilitarization of the state is essential as a prelude to the conduct of a plebiscite, [Page 1380] (whether over-all or partial), to insure against an outbreak of hostilities and to promote a peaceful atmosphere conducive to the reestablishment of more normal conditions of life for the people of Kashmir, pending final settlement. Agreement on demilitarization has been impeded in part by the artificial division of the problem in the UNCIP Resolutions into a “truce” and “plebiscite” period. Agreement should now be pursued through a unified plan for the synchronized withdrawal of regular Indian and Pakistan troops now in Kashmir and the reduction or disbandment of the local forces—the pro-Pakistan Azad troops and the pro-Indian State troops.
- Withdrawal of regular Indian and Pakistan forces: From the point of view of the maintenance of law and order or of threats of external aggression there is no need for the military forces of either country to be within the state. Reduced Azad and State troops, aided in their respective areas by local police forces, would be adequate.
- However, the factors of geography would permit the Pakistan troops to re-enter the state very easily where as (except for the southwest section) Indian forces must either be flown in or cross a formidable mountain pass. It would therefore be reasonable that all Pakistan and Indian troops be withdrawn except a small defensive Indian force garrisoned in the Valley. Pakistan has in effect agreed to this: India has rejected this.
- Azad and State forces: India’s position that the Azad forces must be completely disbanded coincident with the initial withdrawal of its own regular troops contravenes the Commission’s Resolution of 13 August 1948 which was accepted by both parties. India, however, is justified in its demand that the Azad forces be substantially reduced before any plebiscite is held, a contention accepted by Pakistan if similar reductions are made in the State forces. India’s position that the State forces should not be reduced is unreasonable, although they should probably not be completely disbanded.
- Garrison of northern area: There is no reasonable ground for granting India’s request to garrison the northern area. It is not necessary from the point of view of external security or protection of trade routes; it is not necessary to maintain local law and order. The populace, entirely Moslem, is pro-Pakistan and in the view of United Nations military observers who have visited the area, the entry of Indian troops would be forcibly resisted by the inhabitants.
5. Overall Plebiscite
The theory underlying the original SC action and the Commission’s efforts has been that the fate of Kashmir should be decided by an overall plebiscite. This was originally agreed to by both India and Pakistan. Pakistan continues to insist on this as the only acceptable method of solution. However, it now has become clear that the Indian concept of a plebiscite is that of a referendum with a minimum of international participation, to confirm or reject the accession already made.
The GOI now appears determined, despite its previous commitments, to avoid an overall plebiscite in Kashmir. This appears to be based on (a) the conviction that it would lose the whole state should [Page 1381] the issue be decided by a majority vote of the whole population, and (b) fear that appeals to communalism during the plebiscite period would rekindle religious strife throughout the subcontinent. India may thus be expected to reject any proposal, however reasonable, predicated on an overall plebiscite. Rather, it may be expected to seek a settlement through partition, or partition with a plebiscite limited to the Vale of Kashmir.
There is no feasible way of partitioning the Vale, which is the heart of the State. The remaining areas could, however, be divided—a southern sector to India, western and northern areas to Pakistan and the eastern area either to India or to follow the disposition of the Vale. Any such scheme, however, should be accompanied by a completely impartial plebiscite in the Vale. This would require its complete neutralization, perhaps with international administration, and to this end it would be equally necessary to obtain the demilitarization of the surrounding Pakistan-held areas. The Vale is now heavily garrisoned by Indian troops backed by the local State forces and the administration is in the hands of the pro-Indian faction headed by Sheikh Abdullah.4 The following two major difficulties would impede efforts to press for solution along the above lines: (1) it is contrary to the concept of the plebiscite as agreed to by both parties in UNCIP resolutions and it might be difficult for the Pakistan Government to accept it and remain in office; (2) furthermore, neither India nor Sheikh Abdullah would be willing at this time to accept the degree of neutralization which Pakistan would insist on and which would be necessary to insure a free and fair plebiscite in the Vale.
7. Independence for Kashmir
Neither India nor Pakistan has supported the independence of Kashmir as a possible solution. Recently, however, it has been advocated by the Yugoslav SC representative in informal conversations at Lake Success. It should be resisted because an independent Kashmir (a) would not be economically viable; (b) would quite possibly be taken over by the Communists; and (c) might otherwise weaken the security of the subcontinent.
8. Immediate objective
The immediate objective should, therefore, be to achieve progress toward the demilitarization of Kashmir and agreement upon the method to determine its final disposition, by bringing about some modification of India’s position through a combination of: [Page 1382]
- continued pressure by the UK and other Commonwealth nations who have a special responsibility to resolve this essentially intra-Commonwealth problem;
- the operation of general public opinion and the views of other SC members, brought to bear through early SC debate;
- friendly, but firm and frank, statements of US views on appropriate occasions;
- some concession to Indian aversion to an over-all plebiscite; and
- a clear and reasonable program of action for the SC.
[Here follows a listing of substantive and procedural recommendations for subsequent United States action on Kashmir. The recommendations were discussed and approved by Acheson in a meeting on February 9 (memorandum of conversation not printed), and the resulting policy decisions are summarized in telegram 664 to London, infra.]