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THE KASHMIRI RIGHT TO SELF-DETERMINATION
The United
Nations itself promised the people of Kashmir the opportunity to express their
wishes regarding their governance and the international status of their
country. Even absent that express recognition of the right to determine their
status, the Kashmiri people meet all international law tests for the right to
self-determination.
The right to self-determination, a fundamental principle of human rights law, is an individual and collective right to
freely determine political status and to pursue economic, social and cultural development. The International Court of Justice refers to the right to self-determination as a right held by people rather than a right held by governments alone. The right to self-determination is indisputably a norm of jus cogens.
The two important United Nations studies on the right to self-determination set out factors of a people that give rise to possession of right to self-determination: a history of independence or self-rule in an identifiable territory, a distinct culture, and a will and capability to regain self- governance.
The Kashmiri claim to the right to self-determination is exceptionally strong. The area had a long history of self- governance pre-dating the colonial period. The territory of Kashmir has been clearly defined for centuries. Kashmiri people speak Kashmiri, which, while enjoying Sanskrit as a root language as do all Indo-European languages, is clearly a separate language from either Hindi or Urdu. The Kashmiri culture is similarly distinct from other cultures in the area in all respects -- folk-lore, dress, traditions, cuisine. Even every day artifacts such as cooking pots, jewelry have the unique Kashmiri style.
Most important to a claim to self-determination, Kashmiris have a current strong common aspiration for re-establishment of self rule. The Kashmiri people resisted the British, and maintained a degree of autonomy throughout British rule. In 1931 a major uprising of Kashmiris against the British and the British-imposed maharajah was brutally put down. But the "Quit Kashmir" campaign against the maharajah continued into 1946, when the Azad Kashmir movement gained momentum. During the breakup of British India, the Azad military forces began armed attacks against the forces of the maharajah -- prompting the accession to India in exchange for Indian military protection. Resistance to India has continued unabated throughout Indian occupation, with major uprisings in 1953, 1964 and since 1988.
While resistance to India has played a major role in Kashmiri events, there is also forward-looking political leadership with a clear will and capability to carry on the governance of an independent Kashmir. There are a number of political parties in Kashmir that have been active for some time, even though at great risk. Many of the leaders of these parties have spent time in Indian jails, some for many years, merely because of their political views on Kashmir. In 1993 most of the Kashmiri political parties joined together to form the All- Parties Hurriyet Conference (APHC). According to its 1993 Mission Statement, the APHC seeks
to rebuild the Kashmiri peoples' belief in a peaceful resolution, by energetically pursuing such a settlement. Only such a settlement, reached through tripartite negotiations, can . . . provide lasting peace in the region.
Since it formation, the APHC has carried out its mission as promised, sending leaders around Kashmir and around the world to forward dialogue and peaceful resolution of the Kashmiri war. Leaders and representatives of the APHC have regularly attended United Nations human rights sessions, special conferences and the General Assembly. In addition to the exceptionally strong historical basis for self-determination, the Kashmiri people also have a claim based on the repeated agreement of the government of India during the de-colonization process and in the early days of Indian-occupancy that the final disposition of Kashmiri would be decided by the Kashmiri people themselves.
The Indian government backed up its promises that the future of kashmir would be decided by the Kashmiri people with a commitment to a plebiscite under the auspices of the United Nations. The Security Council resolutions cited above indicating United Nations action to settle the Kashmir question were all supported by India as were resolutions of the United Nations Commission for India and Pakistan. For example, on January 5, 1949, India agreed to a Commission resolution stating:
The question of the accession of the State of Jammu and Kashmir to India or Pakistan will be decided through the democratic method of a free and impartial plebiscite.
In spite of its public commitment to the UN plebiscite, India has attempted to persuade the international community that the Kashmiri people effectively exercised their right to self- determination and chose to be a part of India. To defend this position, India proposes that its sponsorship of the "All Jammu and Kashmir National Conference" and a "Constituent Assembly" which agreed to accession to India constitutes the plebiscite as envisioned by the United Nations. The United Nations did not agree. The Security Council, in its resolution 91 of 30 March 1951, declared that action taken by the Constituent Assembly "would not constitute a disposition of the State [of Jammu and Kashmir] in accordance with the [United Nations plan]."
India also claims a number of events, including the acquiescence of the Kashmiri people to Indian rule, and validation of Indian rule by various "elections" add up to extinguishment of the right to self-determination. For example, in spite of the refusal of the United Nations to affirm acts of
the Constituent Assembly, India refers to Section 3 of the Constitution adopted by the State Constituent Assembly, which provides that Jammu and Kashmir is "an integral part of the Union of India" as being "inviolable and irrevocable." Additionally, India claims that the participation of residents in Jammu and Kashmir in the 1957 general election reinforces the acceptance of the Kashmiri people of accession to India. In light of the above-cited Security Council resolutions, this claim of India is untenable.
India also maintains that Sheikh Abdullah's election victory in what have been called free and fair elections in 1977 along with his so-called prior acceptance of the 1975 Kashmir Accord constitutes a plebiscite on the Kashmir question. HLP/IED is not persuaded. First of all, the Abdullah campaign did not present accession or the Accord to the voters. Secondly, acceptance of the Accord was not presented on the ballot. Third, there is much evidence that some other leaders of Abdullah's own party disagreed with him on the Accord. Therefore, accession to India cannot be considered to be an essential and absolute position of the National Conference Party at the time of that 1977 election.
HLP/IED is also not persuaded that the Kashmiri people have ever acquiesced to Indian rule and no longer as a people seek a UN-arranged plebiscite. As we set out above, political and armed resistance to Indian rule has continued unabated since 1947. Major mass revolts occurred in 1954 and 1964. Even during periods of less turbulence, there has always been protest. Since 1988 there has been a condition of almost continuous war with ever increasing numbers of Indian military personnel.
In 1996 the people of Kashmir are still under colonial or alien domination, and have not yet had the promised right to decide their governance. They will hold the right to self- determination until such time as they (1) indicate by way of plebiscite their wishes and (2) are afforded their wishes in fact.
Because the people of Kashmir have not yet exercised their right to choose their political status, the government of India does not presently have a permanent legal right to Kashmir. There has been no finding in the international community that grants India the legal right to Jammu and Kashmir currently occupied by Indian forces. On the contrary, the above-cited resolutions of various bodies of the United Nations deny any Indian claim to Jammu and Kashmir, and grant the Kashmiri people the right to decide their own status. Jammu and Kashmir must be considered a non-self-governing territory; India must be viewed in violation of Article 1 (3) of both the International Covenant on Civil and Political Rights and the International Covenant on Economic, Social and Political Rights in its refusal to "promote the realization of the right to self-determination" of Jammu and Kashmir.
The right to self-determination, a fundamental principle of human rights law, is an individual and collective right to
freely determine political status and to pursue economic, social and cultural development. The International Court of Justice refers to the right to self-determination as a right held by people rather than a right held by governments alone. The right to self-determination is indisputably a norm of jus cogens.
The two important United Nations studies on the right to self-determination set out factors of a people that give rise to possession of right to self-determination: a history of independence or self-rule in an identifiable territory, a distinct culture, and a will and capability to regain self- governance.
The Kashmiri claim to the right to self-determination is exceptionally strong. The area had a long history of self- governance pre-dating the colonial period. The territory of Kashmir has been clearly defined for centuries. Kashmiri people speak Kashmiri, which, while enjoying Sanskrit as a root language as do all Indo-European languages, is clearly a separate language from either Hindi or Urdu. The Kashmiri culture is similarly distinct from other cultures in the area in all respects -- folk-lore, dress, traditions, cuisine. Even every day artifacts such as cooking pots, jewelry have the unique Kashmiri style.
Most important to a claim to self-determination, Kashmiris have a current strong common aspiration for re-establishment of self rule. The Kashmiri people resisted the British, and maintained a degree of autonomy throughout British rule. In 1931 a major uprising of Kashmiris against the British and the British-imposed maharajah was brutally put down. But the "Quit Kashmir" campaign against the maharajah continued into 1946, when the Azad Kashmir movement gained momentum. During the breakup of British India, the Azad military forces began armed attacks against the forces of the maharajah -- prompting the accession to India in exchange for Indian military protection. Resistance to India has continued unabated throughout Indian occupation, with major uprisings in 1953, 1964 and since 1988.
While resistance to India has played a major role in Kashmiri events, there is also forward-looking political leadership with a clear will and capability to carry on the governance of an independent Kashmir. There are a number of political parties in Kashmir that have been active for some time, even though at great risk. Many of the leaders of these parties have spent time in Indian jails, some for many years, merely because of their political views on Kashmir. In 1993 most of the Kashmiri political parties joined together to form the All- Parties Hurriyet Conference (APHC). According to its 1993 Mission Statement, the APHC seeks
to rebuild the Kashmiri peoples' belief in a peaceful resolution, by energetically pursuing such a settlement. Only such a settlement, reached through tripartite negotiations, can . . . provide lasting peace in the region.
Since it formation, the APHC has carried out its mission as promised, sending leaders around Kashmir and around the world to forward dialogue and peaceful resolution of the Kashmiri war. Leaders and representatives of the APHC have regularly attended United Nations human rights sessions, special conferences and the General Assembly. In addition to the exceptionally strong historical basis for self-determination, the Kashmiri people also have a claim based on the repeated agreement of the government of India during the de-colonization process and in the early days of Indian-occupancy that the final disposition of Kashmiri would be decided by the Kashmiri people themselves.
The Indian government backed up its promises that the future of kashmir would be decided by the Kashmiri people with a commitment to a plebiscite under the auspices of the United Nations. The Security Council resolutions cited above indicating United Nations action to settle the Kashmir question were all supported by India as were resolutions of the United Nations Commission for India and Pakistan. For example, on January 5, 1949, India agreed to a Commission resolution stating:
The question of the accession of the State of Jammu and Kashmir to India or Pakistan will be decided through the democratic method of a free and impartial plebiscite.
In spite of its public commitment to the UN plebiscite, India has attempted to persuade the international community that the Kashmiri people effectively exercised their right to self- determination and chose to be a part of India. To defend this position, India proposes that its sponsorship of the "All Jammu and Kashmir National Conference" and a "Constituent Assembly" which agreed to accession to India constitutes the plebiscite as envisioned by the United Nations. The United Nations did not agree. The Security Council, in its resolution 91 of 30 March 1951, declared that action taken by the Constituent Assembly "would not constitute a disposition of the State [of Jammu and Kashmir] in accordance with the [United Nations plan]."
India also claims a number of events, including the acquiescence of the Kashmiri people to Indian rule, and validation of Indian rule by various "elections" add up to extinguishment of the right to self-determination. For example, in spite of the refusal of the United Nations to affirm acts of
the Constituent Assembly, India refers to Section 3 of the Constitution adopted by the State Constituent Assembly, which provides that Jammu and Kashmir is "an integral part of the Union of India" as being "inviolable and irrevocable." Additionally, India claims that the participation of residents in Jammu and Kashmir in the 1957 general election reinforces the acceptance of the Kashmiri people of accession to India. In light of the above-cited Security Council resolutions, this claim of India is untenable.
India also maintains that Sheikh Abdullah's election victory in what have been called free and fair elections in 1977 along with his so-called prior acceptance of the 1975 Kashmir Accord constitutes a plebiscite on the Kashmir question. HLP/IED is not persuaded. First of all, the Abdullah campaign did not present accession or the Accord to the voters. Secondly, acceptance of the Accord was not presented on the ballot. Third, there is much evidence that some other leaders of Abdullah's own party disagreed with him on the Accord. Therefore, accession to India cannot be considered to be an essential and absolute position of the National Conference Party at the time of that 1977 election.
HLP/IED is also not persuaded that the Kashmiri people have ever acquiesced to Indian rule and no longer as a people seek a UN-arranged plebiscite. As we set out above, political and armed resistance to Indian rule has continued unabated since 1947. Major mass revolts occurred in 1954 and 1964. Even during periods of less turbulence, there has always been protest. Since 1988 there has been a condition of almost continuous war with ever increasing numbers of Indian military personnel.
In 1996 the people of Kashmir are still under colonial or alien domination, and have not yet had the promised right to decide their governance. They will hold the right to self- determination until such time as they (1) indicate by way of plebiscite their wishes and (2) are afforded their wishes in fact.
Because the people of Kashmir have not yet exercised their right to choose their political status, the government of India does not presently have a permanent legal right to Kashmir. There has been no finding in the international community that grants India the legal right to Jammu and Kashmir currently occupied by Indian forces. On the contrary, the above-cited resolutions of various bodies of the United Nations deny any Indian claim to Jammu and Kashmir, and grant the Kashmiri people the right to decide their own status. Jammu and Kashmir must be considered a non-self-governing territory; India must be viewed in violation of Article 1 (3) of both the International Covenant on Civil and Political Rights and the International Covenant on Economic, Social and Political Rights in its refusal to "promote the realization of the right to self-determination" of Jammu and Kashmir.
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