Kashmir: Right to Self Determination

By Riya, New Law College, Pune.

Introduction

Self-determination means the process by which a country determines its own statehood and forms its own government. Many years ago it has already been declared by the United Nations that Kahmiris also have the right to self- determination. They have been deprived of their rights from many years because of the political and Military dispute between India and Pakistan over disposition of Kashmir. Self- determination right is yet not given to people of Kashmir.

The fight over Kashmir has led to several wars and loss of lives of thousands of people. Time has changed and powers of countries have evolved and India and Pakistan are nuclear powers now yet the plight of people of Kashmir is still the same. People of Kashmir are suffering from a serious violation of Human Rights till now because of the regular military attacks.[i] Current scenario is Kashmiri people’s right to self-determination has just become a political affair.

The issue can’t be resolved without International commitment. Because rights of people of Kashmir can’t be ignored. It is the only way to have peace. There is an immense need to restore the rights of people of Kashmir because by the help of that only peace can be restored in the region.

Right to Self-determination- Definition

The right to self-determination is kind of an individual and collective right of people under which they are free to determine their political status and are free to pursue cultural, economic and social development. This right is one of the fundamental principles of Human Rights. It is believed to be linked to the process of decolonization after the United Nations Charter came into force in the year 1945. It is one of the prominent features of the U.N Charter that is there in Article 1.

The International Court of Justice declares the right of self-determination as a right that is under the control of people, not the government.[ii]The factors that influence this right to a great extent are the history of independence or self-rule in an identified territory, the ability to govern the state themselves and distinct culture.[iii]

The right of self-determination has been taken from jus cogens. It is a norm of jus cogens which are one of the highest laws of International Law that have to be observed strictly. According to the cases ruled by the 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[iv]. The term ‘erga omnes’ means flowing to all. According to the principle, the state is obliged to abide by the International principles and state is under mandatory duty to respect these laws in every circumstance.

United Nations Actions on Kashmiris Right of Self Determination

The United Nations started showing concern in the plight of people of Kashmir from 1947-1948 itself at the time of the decolonization process.[v]  The leaders of India and Pakistan came to an agreement with the Britishers that people of Kashmir would decide their own disposition that whether they want to be in India or they want to be part of Pakistan or they want to be independent.

Leaders declared it publicly. Security Council established the United Nation’s Commission on India and Pakistan adopted a resolution declaring that the final disposition of Kashmir was to give plebiscite to Kashmiri people. To carry out the plebiscite, a plebiscite administrator was also appointed by the Security Council.[vi] The Indian government promised to support the plebiscite. It was decided that the question of accession of Jammu and Kashmir will be decided through a free and impartial plebiscite.[vii] United Nations tried to defuse the armed confrontations by applying ceasefire.

Before the plebiscite could be achieved, India gave aid to Maharaja of Kashmir. Maharaja got Military help from India and in exchange for an instrument of Accession gave Kashmir to India.[viii] United Nations Military group was established by Security Councils along the cease-fire line that is known of the line of control.

That is still there. India didn’t accept it. By 1950, Kashmir became part of India and till today it is referred to as an important and integral part of India. The argument on part of India is they had organised elections in Kashmir and people living there became part of India by their will. But United Nation’s security Council had not accepted the argument on the ground that the election their contention was the only plebiscite would be binding.[ix]

Kashmiris have a Right to claim Self- Determination.

It has the following components-

  • A definite territory and self-governance.
  • Culture that is distinct, they have their own language.
  • They have the capability and will to restore self-governance.
  • Capable of enjoying autonomy.

People of Kashmir enjoy the uniqueness of culture. Their culture is distinct from India or Pakistan. They have a separate and unique culture which needs to be restored. Their traditions, folklore, dress; culture is completely different and enriching. Their jewellery, pots everything has a unique Kashmiri style. Everything is different. Regarding cultural uniqueness, they have their own style and identity.

The Kashmiri people speak Kashmiri which is different from Hindi and Urdu. The people of Kashmir maintained autonomy all over the regime of the British. They also did ‘Quit Kashmir’ movement. India has always played an important role in giving aid to Kashmir at every step.

Plight of People of Kashmir

Disposition of Kashmir has not been decided legally till now. It can’t be called as the integral part of any country. It has always suffered because of imperfect colonisation. Indian and Pakistani forces have always been engaged in violating the Geneva Convention and customs of war. The Right of Self- Determination of Kashmiris has been lost in terrorist and counter-terrorist attacks. Violation of Rights of people, disappearance, the execution has buried this right . The call for the application of this convention is not visible. They are non-existent.

The current status of Kashmir is the application of Humanitarian Law is not there. No action is taken by the United Nations on the status of Kashmir which has made the lives of people of Kashmir vulnerable. It is the need of people of Kahmir that the United Nations should come forward to implement the conventions. There is a need to revitalize the economy and to promote Industrial growth there. Most of the enterprises are controlled by the Government. So, for growth, there is need of enhancement of Public sectors.

To end the insurgency economic growth is very important. There is a need to change the political situation. The border terrorism has to be stopped completely. Indian developments have been a burden on the lives of people of Kashmir. Effective comprehensive approach is needed. By that only collateral damages will be controlled. Cooperation of Indian and Pakistani Government is needed. Effective economic development has to be promoted that will benefit the people of Kashmir. There is a need to open the blocked roads between the two countries and promote peace and harmony.

Policy- makers can play an important role in it and can resolve the conflict. Plebiscite can be discussed to decide the future of Kahmir. Territorial compromise is not the only solution. Needs of people of both sides living near the border should be taken into consideration. People should be given freedom and liberty. People of Kashmir should be given the opportunity to express their views in the International forum and they should be given chance to be part of the International communities. So, that they can raise their issues in the International forum.

Their dependency from India needs to be minimised. As they have their own legislation that is different from the law that governs the people of India. So, such independence should be given to people of Kahmir to govern the people by themselves and to make policies on their own without any interference. Sovereignty should be given to them. Government of Jammu and Kahmir has taken the following steps-

  • Works are done for economic and socio-economic development of people.
  • Private institution has been enhanced in the region.
  • Solar energy plant of 20,000 MW is going to be established.
  • Government is launching Pro-farmers agricultural program for higher returns.
  • Jammu and Kashmir Government earmarks Rs.1317 Crores for hospitals.
  • IT parks are going to be established for technological development.
  • Steps are taken to increase overseas employment.
  • Government intends to convert Jammu and Kashmir into an independent tourist destination.
  • 140 Crores Magnetic extraction Project is in process.
  • Government is prioritising availability of basic amenities.
  • Government is working on projects to enhance fodder production.
  • Government is working to generate 100000 jobs for local youths.
  • Government has submitted a development plan of Rs. 31 Crores to centre.
  • Government is working on improving infrastructure to attract MNCs to attract the MNCs.

Conclusion

It is immensely needed to restore the self-determination rights of Kashmiris. There is a need to resolve the border issues and conflict over Kashmir. Final disposition of Kashmir has to be decided legally and only International organisations can help in that otherwise there will be a continuing violation of Rights of the people living in Kashmir under Human Rights Act, 1993 who are always in fear because of the war that goes on continuously. Both India and Pakistan needs to agree on some particular term and should resolve the conflict. International communities should play active leadership in that.

Discussions should be done for the implementation of Plebiscite in Kashmir. Kashmir leaders should participate actively in that. Only with these measures, Right of self-determination can be restored and Kashmir will be heaven for people in real terms and they will feel safe and secure at their homes and they can breathe in the air without having the fear to be killed without any fault . Only with these things peace can be achieved and Kashmir can be developed and such insurgency could be controlled otherwise such proxy wars would go on and innocent people of Kashmir would be victamised. So, there is a need to protect their rights and their lives and to give them a sense of security in the state where they are living.

Formatted on February 27th, 2019.

BIBLIOGRAPHY

[i]The Universal Declaration of Human Rights provides that “the will of the people shall be the basis of the authority of government.” Universal Declaration of Human Rights, G.A. Res. 217A (III)(1948), Art. 21; ICCPR, Art. 1; ICESCR, Art. 1

[ii]Western Sahara Case, 1975 International Court of Justice 12, 31.

[iii]Gros Espiell, op.cit. and Critescu, op. cit.. Critescu defines “people” as denoting a “social entity possessing a clear identity and its own characteristics” (op. cit. at p. 41) and implying a “relationship to territory” (id.).

[iv]H. Gros Espiell, op. cit. at p. 12

[v]See, U.N. charter, Article 76. The United Nations established a mandate for de-colonization in the Charter itself, especially in Article 1.2

[vi]Security Council resolution 80/1950.

[vii]Resolution of the United Nations Commission for India and Pakistan, adopted on 5 January 1949, reprinted in UN Doc. S/1196 of 10 January 1949.
8. PTI News (New Delhi), 1 September 1995.

9.See Security Council resolution 122 of 24 January 1957.

One Reply to “Kashmir: Right to Self Determination”

  1. Non implementation of un resolutions can not make them redundant if un affirms at any time resolutions can be implemented it hardly matters whether issue is under chapter 6 or 7 sending un observers across loc is action under chapter 7 that is why india refuses to provide any information to observers and is not allowing them to have proper access to real situations .india’s defence that right to self determination has no relevance in present time as it was relevent in colonisation period and kashmir is not a colony of india is not maintainable as there are various resolutions and is one of the purpose of un’s india’s second defence people of kashmir have ratified instrument of accession by section 3 of j&k constitution but before framing of constitution un passed resolution and declared that any step which may be taken by j&k constiuent assembly in relation to kashmir issue will be invalid as it can not be decided unilaterally.india added proviso to article 253 of indian constitution which is related to implementation of any international treaty in relation to kashmir which means india’s acceptance to right to self determinatin.in kashmir it is not the “clash of religion”between muslims and non muslims or faith or spirituality but it is a clash between justice and injustice it is not the clash between whether to “annex with india or pakistan” but it is clash between emotions of family members who are divided across loc who want to meet with ond another it is the clash of mother’s feeling towards son who is away from decades.it is not the “clash of economic packages” it is the clash of exploitation in kashmir and development in india it is not the “clash between j&k constitution and indian constitution”it is a clash between execution of death sentences on selective approaches and exoneration of culprits of gujrat riots,babri masjid case’maligaon incident etc.it is not the clash between “self radicalisation and influenced radicalisation” but it is a question of cause of radicalisation.it is not the clash whether to cast vote or not but it is the clash of blocking un resolutions by diplomatic channels.Good govt is not a substitution of self govt so good governance can not stop conflict in kashmir.Blocking peaceful means of settlement of disputes gives rise to destructive and voilent means of settlement kashmir is a story of broken promises ,seperate flag is an illusion ,seperate constitution is a deceit and fraud and 370 is a wreck,havoc & destructive.

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