Why Kashmiris seek right to self-determination?
Syed Qamar Afzal Rizvi
KASHMIR’S controversial accession to India in 1947 continues to be criticised legally and politically, as it is seen as violating the principle of self- determination. Today, Kashmir freedom movement has emerged as a strong resistance force against Modi’s policies of suppression and regression in the Indian occupied Kashmir. Kashmiris are determined to take the substance of their freedom via principle of self-determination which stipulates the right of every nation to be a sovereign territorial state. What Narendra Modi has to understand is that his inhumane and immoral policies are doomed to fail in Kashmir and in no way, New Delhi can deny the Kashmiris the right to self-determination protected and guaranteed to them by the UN’s Charter.
The article 1(2) of the Charter of the United Nations 1945 guarantees this right to self-determination to Kashmiris. As for the partition or accession of Kashmir, Kashmiris are highly justified in expressing their grievances chartered over the injustice caused to them via demarcation of Radcliffe line. The people of Kashmir under international law have the right to determine their own political future. But the international community’s attitude toward the Kashmir plebiscite has been to ignore it and maintain the status quo. Article 1 of the Universal Declaration of Human Rights declares: ‘All human beings are born free and equal in dignity and rights. The legality of the Instrument of Accession is rightly questioned by the Kashmiris on grounds that it was obtained under coercion. The International Court of Justice has stated that there “can be little doubt, as is implied in the Charter of the United Nations and recognized in Article 52 of the Vienna Convention on the Law of Treaties, that under contemporary international law an agreement concluded under the threat or use of force is void. Articles 34 and 35 of the UN Charter specifically empower the Security Council to investigate any dispute independently or at the request of a member State.
Given the history of dispute resolution and the contemporary development of international law with respect to self-determination, the case of East Timor appears to be a befitting one. There exist some similar principal arguments to be made in support of international enforcement of the right to self-determination in Kashmir. Like East Timor, Kashmir’s international legal status is uncertain. It is unclear whether Kashmir today exists as part of India, Pakistan or both. Again similarly to East Timor, the Security Council has outlined the right of self-determination to the Kashmiri people through an independent plebiscite. In East Timor, the Security Council pursuant to its powers under chapter VII of the UN charter authorized an International Force for East Timor (interfet) to preserve the freely expressed will of the people. Threats to international peace are arguably greater in Kashmir than they were in East Timor. India and Pakistan have fought three wars over Kashmir, and the nuclear capabilities of both countries add to the dangers of elongating any chances for peace.
The evident relationship between systematic human rights violations or lack of representation within an existing state and the desire for secession clearly supports calls for international intervention in order to serve the interests of stability and peace according to the charter of the United Nations in Kashmir. So UN intervention in support of the right to self-determination is justified through the example of East Timor. According to Article 103 of UN Charter, member States obligations under the Charter primacy over obligations under a bilateral agreement. Presence of United Nations Military Observes Group in India and Pakistan (UNMOGIP) at the Line of Control in Kashmir is a clear evidence of UN’s involvement in the Kashmir issue. It, therefore, has become a principal subject of International relations and international human rights law. The right of self-determination has been taken from jus cogens doctrine. It is a norm of jus cogens which are one of the highest laws of International Law that has to be observed strictly. According to the cases ruled by International Court of Justice and Inter American commission it has been clearly stated that right of self-determination has the legal status of erga omnes. And most significantly, the three dimensional concept of sovereignty-the legal, the political and the traditional- endorses the notion that the vale is an occupying territory, solution of which can only be sought via self-determination principle. Here, history provides a fair reminder to Modi’s political correctitude that India’s renowned statesman Jawaharlal Nehru could not refute the Kashmiris’ right to self-determination when he boldly admitted in 1951 that the fate of Kashmiris will have to be decided through the principle of self- determination. In this backdrop, how can any sane mind in India escape from accepting this embolden truth once legally and morally accepted by India’s secular mind ? The military occupation of Kashmir is a stigma on India’s claim of a secular state.
Undeniably, UN’s lackadaisical approach reflected in political expediency-cum- vested strategic pursuit of great powers’ trajectory is the root cause of procrastinating the peace resolutions of Kashmir and Palestine. It is an admitted fact that creation of Israel in 1948 and Kashmir annexation to India in 1947 are two unfortunate political miscarriages performed by the British diplomacy in Middle East and South Asia. The provisions of article 370 and 35A of Indian constitution, a separate constitution for the state, and various other provisions for the state have fortified the notion that the state of Jammu & Kashmir is the unfinished agenda of partition. The United Nations’ Security Council determined in 1948 that the people of Kashmir should exercise their right to self-determination through an independent plebiscite. These resolutions also recognized the disputed state of Kashmir as the unfinished upshot of partition, and its right to accede either to India or Pakistan.
— The writer, an independent ‘IR’ researcher-cum-analyst based in Karachi, is a member of European Consortium for Political Research Standing Group on IR, Critical Peace & Conflict Studies.