Self-Determination right of Kashmir
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 international disputes. The concept played a significant part in the post-world war I settlement, leading for example to plebiscite in a number of disputed border areas, even though no reference was made to self-determination in the League of Nations Covenant.
After the Second World War, the concept began to acquire much greater importance. Article 1.2 of the Charter of the Untied Nations as one of the purposes of the UN reads: "To develop friendly relations among nations based on respect for the principle of equal rights and self-determination of peoples."
From 1952 onwards, the General Assembly of the UN adopted a series of resolutions proclaiming the right to self-determination. The two most important of these are resolution 1514 (XV) of 14 December 1960 and resolution 2625 (XXV) of 24 October 1970.
In the 1950's and 1960's the right of self-determination was seen almost exclusively as part of process of decolonization. Resolution 1514 is entitled: Declaration on the Granting of Independence to Colonial Countries and Peoples." It includes the following statement of principle: "All peoples have the right to self-determination; by virtue of that right they freely determine political status and freely pursue their economic, social and cultural development."
The resolution 2625 of 1970, adopted a document entitled "Declaration on Principles of international Law Concerning Friendly Relations and Co-Cooperation among States." In a section entitled "The principle of equal rights and self-determination of peoples", the declaration states: "By virtue of the principle of equal rights and self-determination of peoples enshrined in the Charter of the United Nations, all peoples have the right freely to determine, without external interference, their political status and to pursue their economic, social and cultural development, and every State has the duty to respect this right in accordance with the provisions of the Charter."
In 1966, the General Assembly of the United Nations adopted the International Covenants of Civil and Political Rights (the ICCPR) and on Economic, Social and Cultural Rights (the ICESCR). Article 1 of each of the Covenants states:
"1.1. All peoples have the right to self-determination. By virtue of that right they freely determine their political status and freely pursue their economic, social and cultural development....
"1.3 The States Parties to the Present Covenant, including those having responsibility for the administration of Non-self-governing and Trust Territories, shall promote the realization of their right of self-determination, and shall respect that right, in conformity with the provisions of the Charter of the United Nations."
The Covenants came into force in 1976. They take effect as treaties and (unlike resolutions of the General Assembly) are binding, in international law on the ratifying States, subject to any reservations at the time of ratification. India ratified both Covenants on 10 April 1979.
The Vienna Declaration, adopted by the UN World conference on Human Rights on 25 June 1993, repeated Article 1.1. of the Covenants and continued: "Taking into account the particular situation of peoples under colonial or other form of alien domination or foreign occupation, the World Conference on Human Rights recognizes the right of peoples to take any legitimate action, in accordance with the Charter of the UN, to realize their inalienable right to self-determination. The World conference on Human Rights considers the denial of the right of self-determination as a violation of human rights and underlines the importance of the effective realization of this right."
Article 20(1) of the African Charter on Human rights and Peoples Rights reads: "All people shall have the right to existence, they shall have unquestionably and unalienable right to determination. They shall freely determine their political status, and shall pursue their economic and social development according to the policy they have freely chosen."
International Court of Justice considered the several resolutions on decolonization process and noted: "The subsequent development of International Law in regard to non-self governing territories as enshrined in the Charter of the UN made the principle of self-determination applicable to all of them." This opinion establishes the self-determination as the basic principle for the process of de-colonization.
The principle of self-determination in modern times can be defined as the right of peoples to determine their own political status and pursue their own economic, social and cultural policies. Self-determination in its literal meaning or at a terminological level implies the right [of a people] to express itself to organize in whatever way it wants.
The concept seems to be as old as Government itself and was the basis of French and American revolutions. In 1916, President Wilson stated that self-determination is not a mere phrase. He said that it is an imperative principle of action and included it in the famous 14-point charter. This gave a prominence to the principle. Self-determination as conceived by Wilson was an imprecise amalgamation of several strands of thought, some long associated in his mind with the notion of "self-determination," others hatched as a result or wartime developments, but all imbued with a general spirit of democracy.
The Atlantic Charter of 14 August 1941, which was issued by the British Prime Minister Churchill and the US President Roosevelt, affirmed the right of all people or peoples to choose their own form of Government. They further added that they wished to see the sovereign rights restored to those who had been forcibly deprived of them. Finally, in 1945 the establishment of the UN gave a new dimension to the principle of self-determination. It was made one of the objectives which the UN would seek to achieve, along with equal rights of all nations.
The principle of self-determination and the maintenance of international peace and security are inseparable. The denial of this right to self-determination to the people of Kashmir has brought two neighboring countries in South Asia - India and Pakistan - to the brink of nuclear catastrophe. Although, the applicability of the principle of the 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. 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.
The idea that the dispute over the status of Jammu and Kashmir can be settled only in accordance with the will of the people, which can be ascertained through the democratic method of a free and impartial plebiscite, was the common ground taken by all the three parties to the dispute, viz., the people of Kashmir, Pakistan, and India. It was supported without any dissent by the United Nations Security Council and prominently championed by the United States, Britain and other democratic states.
It became a matter of controversy only after India realized that she could not win the people's vote. Due to the cold war, she found a firm ally for her obstructionist position in the Soviet Union. With the end of the cold war, the original perspective should be recovered.
There was much in these submissions that was controversial between India and Pakistan, but the proposal of a plebiscite was not. This is clear from the statement made on 28 January 1948 by the President of the Council. He said: " ... the documents at our disposal show agreement between the parties on the three following points:
i. The question as to whether the State of Jammu and Kashmir will accede to India or to Pakistan shall be decided by plebiscite;
ii. This plebiscite must be conducted under conditions which will ensure complete impartiality;
iii. (3) The plebiscite will therefore be held under the auspices of the United Nations."
Led by the United States and Britain, the Council adopted a resolution on 21 April 1948 which noted "with satisfaction that both India and Pakistan desire that the question of accession ... should be decided through appointed a Commission of the United Nations, of which the United States became a member, to work out a plan for the demilitarization of Kashmir prior to the plebiscite.
The United Nations Commission for India and Pakistan (UNCIP) submitted proposals to the two governments. Formulated as resolutions, they constituted an international agreement upon being accepted in writing by both governments. Part III of the Commission's resolution of 13 August 1948, agreed to by both India and Pakistan, states: "The governments of India and Pakistan reaffirm their wish that the future status of the State of Jammu and Kashmir shall be determined in accordance with the will of the people and, to that end, upon acceptance of their truce agreement, both governments agree to enter into consultations with the Commission to determine fair and equitable conditions whereby such free _expression will be assured."
What prevented the plebiscite's holding was India's refusal to accept any proposals that called for her to withdraw the bulk of her forces from Kashmir and thus conclude a truce leading to the induction of a Plebiscite Administrator. When the Commission reported this to the Security Council, Sir Owen Dixon, and eminent jurist from Australia, was appointed as United Nations Representative to negotiate the synchronized withdrawal of all Indian and Pakistani forces in order to prepare the stage for an impartial plebiscite under United Nations supervision. After an intense effort, he reported to the Security Council on 15 September 1950 that: "In the end I became convinced that India's agreement would never be obtained to demilitarization in any form or to the provisions governing the period of plebiscite of any such character, as would in my opinion, permit the plebiscite being conducted in conditions sufficiently guarding against intimidation and other forms of influence and abuse by which the freedom and fairness of the plebiscite might be imperiled."
The same was the substance of the reports of Senator Frank Graham (United States) and Gunnar Jarring (Sweden) who succeeded Sir Owen Dixon as United Nations Representatives.
Since the plebiscite could not be impartial unless both India and Pakistan withdrew their forces from Kashmir, a statement ensured. This stalemate has now lasted for more than fifty-nine years.
The United States, Britain and France have traditionally been committed supporters of the plebiscite agreement as the only way to resolve this issue. They sponsored all of the Security Council resolutions which called for a plebiscite. Their commitment was indicated by a personal appeal made by America's President Truman and Britain's Prime Minister Clement Atlee that differences over demilitarization be submitted to arbitration by the Plebiscite Administrator, a distinguished American war hero: Admiral Chester Nimitz. India rejected this appeal and, later on, objected to an American acting as the Plebiscite Administrator. As mentioned earlier, American Senator Frank Graham visited the Subcontinent as the United Nations Representative to negotiate the demilitarization of Kashmir prior to the plebiscite. India rejected his proposals as well.
The American position was bipartisan and maintained equally by Republicans and Democrats. Secretary of State John Foster Dulles stated on 5 February 1957 that: "We continue to believe that unless the parties are able to agree upon some other solution, the solution which was recommended by the Security Council should prevail, which is that there should be a plebiscite."
On 15 June 1962, the American representative to the United Nations, Adlai Stevenson, stated that: "... The best approach is to take for a point of departure the area of common ground which exists between the parties. I refer of course to the resolutions which were accepted by both parties and which in essence provide for demilitarization of the territory and a plebiscite whereby the population may freely decide the future status of Jammu and Kashmir. This is in full conformity with the principle of the self-determination of people which is enshrined in Article I of the Charter as one of the key purpose for which the United Nations exists."
India's obdurate stand has been effective in creating the impression among policymakers in America, Britain and elsewhere that the idea of a plebiscite is unworkable. This, however, cannot be a considered conclusive.
In the first place, the commonsense appeal and justice of the idea is undeniable. There is no way the dispute can be settled once and for all except in harmony with the people's will, and there is no way the people's will can be ascertained except through an impartial vote. Secondly, there are no insuperable obstacles to the setting up of a plebiscite administration in Kashmir under the aegis of the United Nations. The world organization has proved its ability, even in the most forbidding circumstances, to institute an electoral process under its supervision and control and with the help of a neutral peace-keeping force. The striking example of this is Namibia, which was peacefully brought to independence after seven decades of occupation and control by South Africa. Thirdly, as Sir Owen Dixon, the United Nations Representative, envisaged five decades ago, the plebiscite can be so regionalized that none of the different zones of the state will be forced to accept an outcome contrary to its wishes.
India's position, though plainly untenable and unjust, appeared to gain some plausibility during the cold war. To demilitarize Kashmir under those circumstances was to expose it to unpredictable dangers-this was the undertone of India's pleas. Since India was supported by the Soviet Union and Pakistan had allied itself with the United States the insinuation was that Kashmir would somehow become an American base and thus a detriment to India's professed non-alignment.
With the end of the cold war, this line of argument-if argument it ever was-is no longer sustainable. In the post cold war era, the demilitarization of Kashmir will not cause a power vacuum because a peacekeeping force under United Nations command will immediately replace Indian and Pakistani troops and remain there until Kashmir becomes a part of either India or Pakistan or chooses independence. The imponderable element was a fiction contributed by India that can no longer stand against reality.
It is clear from this historical narrative that there is nothing fuzzy about the modalities of holding the plebiscite. These were exhaustively worked out during the negotiations concluded by the United Nations about the implementation of its peace plan for Kashmir. The phased withdrawal of forces on both sides, the appointment of the Plebiscite Administrator by the United Nations Secretary General, his induction into office, the institution of the electoral process under his authority, the exercise of powers deemed necessary by him-all these are fully known to the parties. If a credible peace process is instituted, some t's will need to be crossed and some i's dotted, but given the political will of India and Pakistan to implement their international agreement, and the will of the Security Council to secure that implementation, these can present no obstacles. It is not the inherent difficulties of a solution, but the lack of the will to implement a solution, that has caused the prolonged deadlock over the Kashmir dispute. The deadlock has meant indescribable agony for the people of Kashmir and incalculable loss for both India and Pakistan. The peace that has eluded the South Asian subcontinent, home to one-fifth of humanity, should be made secure.
The question arises: what should be the point of departure for determining a just and lasting basis? The answer obviously is (a) the Charter of the United Nations which, in its very first article, speaks of "respect for the principles of equal rights and self-determination of peoples" and (b) the international agreements between the parties to the dispute.
Therefore, a sincere and serious effort towards a just settlement of the Kashmir dispute must squarely deal with the realities of the situation and fully respond to the people's rights involved in it. A peace process mounted on a fragile platform is bound to collapse. Indeed, any process that ignores the wishes of the people of Kashmir and is designed to sidetrack the United Nations will not only prove to be an exercise in futility but can also cause incalculable human and political damage.
Dr. Ghulam Nabi Fai is the Executive Director of Kashmiri American Council/Kashmir Center. He can be reached at: [email protected]
Topics: Government And Politics, Human Rights, United Nations
under the formula of two nation theory, muslim majority would
be Pakistan and Indue majority would be India. Unfortunately
India being stronger took Kashmir, Hydrabad and Jungar and
greater part of Bangal. So the example given by Mr Chander is
not correct and be should be look into the actual context.
However I dont disagree with him that Pakistan should also do
an referendum in their disputed area if situation demands. Quite
similarly India should do it in Assam, Mizo land and Punjab Sikh
land and South India the Tamil.
Great, let me apply this principle. Will Pakistan allow the self-determination by the Balochis in Balochistan, Sindhis in Sindh, and Pathans in NWFP? Will Iraq allow self-detrmination by Kurds? (This point is really moot; the Kurds have already separated in fact). Will Nigeria allow separation of North and South Nigeria? Will US allow separation of California from the Union?
If the author cannot answer 'yes' to any one of the above questions, then he has no credentials to discuss the subject.
In fact, having the Pandits as neighbors makes it much harder to demonize Hindus, and might show the Kashmiri people the best choice for them, which is to fully join prosperous, democratic and free India rather than becoming the small, weak neighbor of militant Pakistan.