Cite as : (1900) * SCC (Jour) 1
VALIDITY OF U. N. RESOLUTION RELATING TO WITHDRAWAL OF INDIAN FORCES
SHARDA CHANDRA CHATURVEDI, M.A., L.L.B.
Advocate, Supreme Court and High Court
The Resolution of the Security Council directing or calling upon India and Pakistan to withdraw their forces to the borders between them as existed prior to December 3, 1971, and also the resolution of the General Assembly are invalid in law and are in violation of the Charter of the United Nations.
The power of the Security Council to pass such resolution is only when none of the permanent members veto such a resolution. The powers of the Security Council are given in Chapters 5, 6 and 7 of the Charter of the United Nations from Articles 23 to 51. It is required under the Charter that such an action against the defaulting nation to be taken by the Security Council must have unanimity of the permanent members of the Security Council under Article 23 of the Charter. The Security Council under Article 39 of the Charter is the power not only to take action in case of war but also to take action and to "determine whether there is existence of any threat to peace, breach of peace or act of aggression". These are very wide powers given to the Security Council but the rider to the exercise of such power is in unanimity of the permanent members prior to taking of any action. As the USSR had not agreed to the first two resolutions of the Security Council, therefore, the Security Council could not take any action under Article 39 to 50.
The resolution of the General Assembly when the matter was taken up before it, under the "Uniting for Peace Resolution of 1950", was also invalid. The General Assembly under the Charter does not have the powers to discuss or to take action unless there is declaration of war between the two members of the United Nations. Under Article 12 of the Charter it is specifically provided:
"While the Security Council is exercising in respect of any dispute or situation the functions assigned to it in the present charter, the General Assembly shall not make any recommendation with regard to that dispute or situation unless the Security Council so requests". In view of the fact that the Security Council had exercised its powers of determination of threat to the peace in the Indian sub-continent, the prohibited provision of Article 12 applies to the case. The prohibition of the Article 12 was circumvented by discussion of the situation under the "Uniting for Peace" General Assembly Resolution of November 3, 1950, to observe the situation in case of war in any area. Under the so-called "Uniting for peace" General Assembly Resolution, the Peace Observation Commission and Collective Measures Committee and a panel of Military experts were to be constituted so that the members states should hold elements of their forces ready for prompt services as United Nations unit. Under the said resolution further another resolution called the General Assembly Recommendation on November 17, 1950, was also passed for the appointment of a permanent commission of good offices. The powers of General Assembly were further extended by the resolution of February 1, 1951, setting up an additional Measures Committee to report on measures of economic enforcement action against Communist China North Korean Government. But these bodies could not take action either against communist China or North Korea in view of the absence of unanimity in the Security Council and therefore no resolution in the General Assembly could be passed because it was not vested with the powers even to discuss the same under Article 12 of the Charter.
The situation in the Indian sub-continent was similar to that of Korea situation 1950. In Korea also the conflicting powers had not declared war. Declaration of war as a necessary consequence or adjuncts to the declaration of war were wanting under International Law. The declaration of war necessarily follows seizure of the property of the enemy area, contracts with the citizens of enemy being held void and the countries entering into contract with the enemy country can not enter into the international trade through the same ship as well as the cargo for both the countries cannot be carried by the same ship.
With the close of First World War the right to make war has been greatly restricted. The Covenant of the League of Nations as created a general guarantee of the political independence and territorial integrity of the members of the League. Prior to it the Hague Conference of 1907, had also attempted to restrict the consequences of war by the "Laws of Humanity". In 1931, Japan had also not declared war against China by calling the invasion on Manchuria as not war. The same devise was resorted to in 1937. In 1935, Italy undertook military operations against Ethopia without the formal declaration of war, as did Germany against Poland in 1939. The attack by Germany upon Russia on June 22, 1941, was not only without a declaration of war or an ultimatum, but even without preliminary negotiations making Russia aware of the danger. After the formal declaration of war the laws of war permitted seizure and destruction of enemy property by bellingerents when military necessity demanded it. But in case of conflict in the Indian sub-continent the war was declared by Pakistan but not by India. Therefore it was not a war in the sense of war under International Law but it was only a conflict between the two countries with which the necessary ingredients of war had not developed. There was no bombardment on the coast towns nor any blockade of any enemy territory. There was no capture of private property or of merchant ships in the Indian ports. The fishing vessels were also not disturbed. The postal correspondence between the billigerents was also not suspended. The entire conflict was confined to the military forces of the two countries. Even the diplomatic ties were not disrupted. Diplomatic relations continued and India had not disrupted diplomatic relationship with Pakistan. Even the citizens of Pakistan here in India were neither arrested nor were they debarred from access to the court. The property of the Government of Pakistan in India was not confiscated neither the public property nor the private property. Even the trade with Pakistan was not stopped so far as Indian citizens were concerned. The Government of India had not freezed the assets of the Pakistan Government nor was it prevented from the use of financial facilities in India. There was no declaration proclaiming some nationals of neutral countries entering into trade with India or curtailing those activities that might be harmful to India as was done by the United States. The United States had considered it proper and within International Law relating to war that a belligerent country could also restrict the activities of the citizens of the certain neutral countries. On July 17, 1941, a proclamation was made by the United States authorizing the preparation of "the proclaimed list of certain blocked nations". The object of this list was to cut off exportation of goods to persons who might be acting for the benefit of belligerent countries either by direct means or indirect means, whether by transmitting funds or by subversive activities on their behalf. Even by amending the Trading with the Enemy Act of 1917, the United States restricted even the transfer of funds. No such action was taken by the Government of India in relation to the Governments of Jordan, Indonesia, Iran, the United Arab Republic or the United States of America freezing their assets or restricting transfer of funds to those countries either by the citizens of Pakistan with which India had military conflict or by the citizens of the aforesaid countries who had either sent their forces in favour of Pakistan or their Governments had openly said that they shall be so doing.
When none of such actions were taken, then in that case there was no war between India and Pakistan in the sense of International Law. Therefore, when there was no war then in that case the General Assembly could not discuss or deliberate upon such a situation in view of Article 12 of the United Nations Charter and in the absence of a specific declaration of war by Indian the matter could not have been even discussed by the General Assembly, under the "Uniting for Peace Resolution" of May 3, 1950. Thus the resolution of the General Assembly and consequently the third resolution of the Security Council of India and Pakistan to withdraw their forces prior to December 3, 1971, line was invalid in law and is not deserving of being complied with.
6 SUPREME COURT CASES (1972) 1 SCC
JOURNAL SECTION 5