Kashmir & self-determination

Updated October 28, 2019

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The writer is a lawyer.
The writer is a lawyer.

CENTURIES of British colonial rule on the Indian subcontinent ended in August 1947, as Winston Churchill put it, in a “premature hurried scuttle”. The ill-conceived flight of the British left certain far-reaching elements of the decolonisation process unfinished, including the political fate of the princely state of Jammu & Kashmir in accordance with the wishes of its people and consistent with Partition’s underlying principles.

Since then, India has stubbornly stonewalled the free exercise of Kashmiris’ right to self-determination, embodied in a dozen outstanding United Nations Security Council resolutions.

Read: UNSC meeting a reaffirmation of resolutions for Kashmiris' right to self-determination: PM Imran

Besides precipitating an unfolding humanitarian crisis of immense proportions, India’s actions of Aug 5, 2019, with respect to India-held Kashmir represent its latest and to date most brazen breach of its moral and legal obligation to respect Kashmiris’ right to self-determination. The revocation of the Indian constitution’s Articles 370 and 35-A by Prime Minister Narendra Modi’s Hindu-majoritarian government is alarmingly geared towards changing IHK’s demographic profile and its political, economic, social and cultural character. In due course, this would irreversibly thwart any meaningful exercise of Kashmiris’ right to self-determination in flagrant contravention of international law.

The effective realisation of Kashmiris’ right to self-determination is not merely a moral imperative.

The concept of self-determination is an extremely potent one. As Princeton University’s Wolfgang Danspeckgruber has put it: “No other concept is as powerful, visceral, emotional, unruly, and steep in creating aspirations and hopes as self-determination”.

On top of Kashmir-specific UNSC resolutions, the principle and fundamental right to self-determination is firmly established in international law, which recognises that compliance with it is an essential condition for enjoyment of other human rights and fundamental freedoms, be they civil, political, economic, social or cultural. Article I of the UN Charter prominently enshrines it, marking its universal acknowledgment as essential to the maintenance of friendly relations and peace among states.

Moreover, it is recognised as a right in several other international law instruments. These include the International Covenant on Civil and Political Rights, the International Covenant on Economic, Social and Cultural Rights, the Declaration of Principles of International Law Concerning Friendly Relations and Cooperation Among States, the Helsinki Final Act, and the Vienna Declaration and Programme of Action. It has also been resoundingly affirmed by the International Court of Justice (ICJ) in the Namibia, Israeli wall, and Chagos Archipelago advisory opinions, as well as the East Timor case, in which the court confirmed its universal jus cogens and erga omnes character.

Over the years, as far as Kashmiris’ right to self-determination is concerned, India has principally made two assertions. First, it has contended that this right stands exercised in IHK through elections for the constituent assembly of Jammu & Kashmir held in 1951. Second, it has maintained that UNSC resolutions on Kashmir are non-binding in nature.

Both contentions are false.

The elections of 1951, in which Sheikh Abdullah’s National Conference won all 75 seats, 73 without contest, were massively rigged by New Delhi. The manipulated results prompted Josef Korbel, chair for the UN Commission on India and Pakistan, to remark: “No dictator could do better.” The UNSC itself also noted in its Resolution 122 of Jan 24, 1957, that such sham Indian electoral exercises cannot amount to a substitute for impartial plebiscite envisioned by its resolutions.

While it is true that UNSC resolutions on Kashmir were passed under Chapter VI of the UN Charter, they nevertheless acquire a binding character when examined in the context of several oral and written pledges of free exercise of Kashmiris’ right to self-determination made by India’s first prime minister Jawaharlal Nehru. Following the conditional accession of Kashmir to India on Oct 26, 1947, unlawfully obtained under duress to begin with, Nehru, in a famous speech at Lal Chowk in Srinagar, promised Kashmiris that their wishes regarding the future of Jammu & Kashmir would be honoured in a plebiscite or referendum.

Nehru’s telegram to his Pakistani counterpart, Liaquat Ali Khan, dated Oct 30, 1947, completely negates India’s later assertion that Kashmir was strictly India’s domestic matter. In it, Nehru made this explicit promise: “Our assurance that we shall … leave the decision about the future of the state to the people of the state is not merely a pledge to your government but also to the people of Kashmir and to the world.”

Speaking on All India Radio on Nov 2, 1947, Nehru said: “Fate of the state of Jammu & Kashmir is ultimately to be decided by the people. This pledge we have given not only to people of Kashmir but also to the world. We will not and cannot back out of it.” On Nov 25, 1947, Nehru informed the Indian parliament: “We have suggested that when people of Kashmir are given a chance to decide their future, this should be done under the supervision of an impartial tribunal such as the United Nations.”

Under international law, such unilateral declarations made by heads of government in clear, specific terms, and manifesting the will to be bound, have the effect of creating legal obligations. This long-standing rule has been recognised by the ICJ in nuclear tests cases and also by the International Law Commission in its Guiding Principles adopted in 2006, as well as the UN General Assembly in its Resolution 61/34 of 2006.

The effective realisation of Kashmiris’ right to self-determination, therefore, is not merely a moral imperative. It is, in fact, a legal obligation owed by India and Pakistan to Kashmiris and the rest of the world community. Notably, given the highest status and importance accorded by international law to this right, all states have a legal interest in its fulfilment. As the people of IHK continue to reel under the clutches of an ethno-nationalist regime in New Delhi, the global community and its institutions must not shirk from their collective responsibility to ensure that the unresolved Kashmir dispute is finally settled according to freely exercised wishes of the Kashmiri people.

The writer is a lawyer.

Published in Dawn, October 28th, 2019