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Tuesday, 12 June 2012

SELF-DETERMINATION AND THE ISSUE OF KASHMIR BY DR. GHULAM NABI FAI

SELF-DETERMINATION AND THE ISSUE OF KASHMIR BY DR. GHULAM NABI FAI

June 11, 2012

The evolution of the right of self-determination has been one of the great normative narratives of the twentieth century. It was part of the visionary contributions of President Woodrow Wilson, who despite a deep-seated conservatism, seemed to have an uncontrollable tendency to give credibility to normative ideas that contained implications that carried far, far beyond his intentions. Ever since the words of self-determination left the lips of President Woodrow Wilson, the wider meaning of the words has excited the moral, political and legal imagination of oppressed peoples around the world. Although, self-determination even now, decades later, still seems to be a Pandora’s Box that no one knows how to close, and despite concerted efforts there is little likelihood that the box will be closed anytime soon. 

All people appreciate the concept of the right of self-determination. The self-determination of peoples is a basic principle of the United Nation Charter which has been reaffirmed in the Universal Declaration of Human Rights and applied countless times to the settlement of many international disputes. The UN celebrates self-determination in Article 1.2 as a major objective of its Charter. Self-determination has been enshrined in countless international documents and treaties. It is guaranteed under the Article 1 of International Covenant on Political and Civil Rights (ICPCR) and Article 1 of International Covenant on Economic, Social and Cultural Rights (ICESCR). 

The experience teaches that certain factors militate in favor of its exercise: an oppressive ruler; ugly and sustained human rights violations; military support from a foreign country or multinational organization; unwavering resistance; a common culture, history, language, and religion; democracy within the ranks of an oppressed peoples lead by a towering figure on the national or international stage.

From some perspectives, the decolonization process has had some successes in the United Nations machinery. However, the entire process of decolonization was not all-smooth sailing. There were many instances when those states still intent on holding on to their colonies put up a strong resistance against having their dominions stripped from them but the calls for independence - in many cases accompanied with well-motivated insurgent movements - brought home to the international community the importance of achieving self-determination in order to ensure peace and security. 

In modern international law, self-determination is considered a collective "peoples' right." It is generally defined as the right of a people not only to preserve its language, cultural heritage and social traditions, but also to act in a politically autonomous manner and -- if the people so decide -- to become independent when conditions are such that
its rights would otherwise be restricted.


Slovenia, Croatia, Bosnia and Herzegovina, Montenegro and Kosovo exercised self-determination by seceding from Yugoslavia. Ireland achieved self-determination by revolting against Great Britain. Namibia justified self-determination by force of arms against South Africa. The Southern Sudan did the same to obtain independence from Sudan. East Timor commanded strong international sympathy and help from the international community in asserting self-determination because of Indonesia’s repressive rule. The United States earned self-determination by defeating the British in the Revolutionary War. India and Pakistan attained self-determination by a combination of British weakness and exhaustion from World War II, a growing international consensus against colonial domination, and the political and diplomatic skills of the likes of Mahatma Gandhi and Mohammad Ali Jinnah. 

Kashmir may present the strongest facial case for self-determination which has been nevertheless denied. The applicability of the principle of self-determination to the specific case of Jammu and Kashmir has been explicitly recognized by the United Nations. It was upheld equally by India and Pakistan when the Kashmir dispute was brought before the Security Council in 1948. Since, on the establishment of India and Pakistan as sovereign states, Jammu and Kashmir was not part of the territory of either. The two countries entered into an agreement to allow its people to exercise their right of self-determination under impartial auspices and in conditions free from coercion from either side. The agreement is embodied in the two resolutions of the United Nations Commission for India and Pakistan explicitly accepted by both Governments. It is binding on both Governments and no allegation of non-performance of any of its provisions by either side can render it inoperative. These resolutions do not detract from the binding nature of that agreement as far as the obligations of these two parties are concerned. But they do imply recognition of the inherent right of the people of Kashmir to decide their future independently of the contending claims of both India and Pakistan.

It is commonly thought that the United Nations resolutions limited the choice of the people of the State regarding their future to accede to either India or Pakistan. Though understandable, the impression is erroneous because the right of self-determination, by definition, is an unrestricted right. By entering into the agreement, India and Pakistan excluded, and rendered inadmissible, each other's claim to the State until that claim was accepted by the people through a vote taken under an impartial authority. They did not, as they could not, decide what options the people would wish to consider. No agreement between two parties can affect the rights of a third: this is an elementary principle of law and justice which no international agreement, if legitimate, can possibly flout.

To put it in everyday language, it was entirely right for India and Pakistan to pledge to each other, as they did, " Here is this large territory; let us not fight over it; let us make its people decide its status." But it would be wholly illegitimate for them to say, " Let one of us get the territory. Let us go through the motions of a plebiscite to decide which one". That would not be a fair agreement; it would be a plot to deny the people of Kashmir the substance of self-determination while providing them its form. It would amount to telling them that they can choose independently but they cannot choose independence. It would make a mockery of democratic norms.

It must be pointed out that an independent Kashmir would not be a Kashmir isolated from India and Pakistan. On the contrary, it would have close links, some of them established by trilateral treaty provisions, with both its neighbors. Indeed, it would provide them a meeting ground. In this respect, Kashmir could make a contribution to the stabilization of peace in South Asia which no other entity can.

Dr. Fai can be reached at: gnfai2003@yahoo.com