Association of Humanitarian Lawyers


Paper prepared for The International Kashmir Peace Conference: Beyond the Blame Game.
24 July 2003
United States House of Representatives
Cannon House Office Building, Room 345


The Right to Self-determination of the Kashmiri People
by
KAREN PARKER1


Introduction

The United Nations determined many years ago that the Kashmiri people have the right to self-determination and set up a plan for realizing this right and resolving what was then a political and military crisis between India and Pakistan over the disposition of Kashmir. However, this plan has not able to be implemented and the Kashmiri right to self-determine is as yet unrealized. India and Pakistan have continued to fight over Kashmir -- a fight that has generated several wars and many military skirmishes between them. Kashmir situation continues to haunt the world, especially now that both India and Pakistan have developed nuclear weapons capability. The Kashmiri people continue to suffer from serious human rights and humanitarian law violations in the course of India’s military actions against them.

Unfortunately, review of the current situation of the Kashmiri peoples’ right to self-determination shows it reduced to political rhetoric or even absent from discussion. However, ignoring the right cannot annul it. Further, it should be patently obvious that the crisis in and over Kashmir will not be resolved without renewed acknowledgment and international commitment the realization of the right to self-determination of the Kashmiri people. Then and only then can a peace plan go forward that has potential to succeed.

This paper seeks to have the right to self-determination reenter into the discussion about Kashmir, and ultimately to have it restored as the cornerstone to peace. This paper first defines the right to self-determination. It then applies the right to Kashmir, first by briefly outlining United Nations action on Kashmiri self-determination and then by applying the components of the right to Kashmir. It concludes with some observations regarding resolving the Kashmir crisis, stressing the important role that realization of the right to self-determination can play in achieving peace throughout the region.


Defining the Right to Self-determination

The right to self-determination is an individual and collective right of a people to “freely determine . . . political status and [to] freely pursue . . . economic, social and cultural development.”2 The right to self-determination is a fundamental principle of human rights law.3 The principle of self-determination is generally linked to the de-colonization process that took place after the promulgation of the United Nations Charter of 1945: the obligation to respect the principle of self-determination is a prominent feature of the Charter, appearing, inter alia, in both Preamble to the Charter and in Article 1.

The International Court of Justice refers to the right to self-determination as a right held by a people rather than a right held by governments alone.4 The two important United Nations studies on the right to self-determination set out factors of a people that give rise to its possession of the 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.5

The right to self-determination is indisputably a norm of jus cogens.6 Jus cogens norms are the highest rules of international law and must be strictly obeyed at all times. Both the International Court of Justice and the Inter-American Commission on Human Rights of the Organization of American States have ruled on cases in a way that supports the view that the principle of self-determination also has the legal status of erga omnes.7 The term “erga omnes” means “flowing to all.” Accordingly, ergas omnes obligations of a State are owed to the international community as a whole: when a principle achieves the status of erga omnes the rest of the international community is under a mandatory duty to respect it in all circumstances in their relations with each other.

Making the Case for the Kashmiri Right to Self-determination.8

A. United Nations Action on Kashmiri Self-determination

The United Nations interest in the situation of Kashmir began in 1947-1948 during the de-colonization process of the British Empire in south Asia.9 The leaders of what became Pakistan and India reached an agreement with the British that the people of Kashmir would decide their own disposition. Prime Minister Nehru (India) had gone on record publicly saying that the disposition of the Kashmir people would be up to them.10 Due to a great deal of turmoil in the area, including a full-fledged revolt in Kashmir against the British-imposed maharajah, the United Nations began formally to address Kashmir in 1948. That year, the Security Council established the United Nations Commission on India and Pakistan, which, in addition to the Security Council itself, adopted resolutions declaring that the final disposition of Kashmir was to be via a plebiscite of the Kashmiri people carried out under the auspices of the United Nations.11 To carry out the plebiscite, the Security Council appointed a Plebiscite Administrator.12

The Indian government initially backed up its promises that the Kashmiri people would decide the future of Kashmir by indicating to the United Nations that it supported the above-cited United Nations resolutions providing for the plan for a plebiscite under the auspices of the United Nations. 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.13

However, before such a plebiscite could take place, the armed forces of India seized much of Kashmir under the pretext of coming to aid the British-maharajah who was attempting to quell the Kashmiri’s revolt against him. India charged that the Kashmiri people were being aided by the armed forces of Pakistan. The maharajah obtained India’s military help in exchange for an Instrument of Accession giving Kashmir to India.14 The United Nations process focused on trying to defuse these armed confrontations, by implementing a cease fire, by then establishing a truce and a military withdrawal, and finally to carry out the plebiscite. Admiral Chester Nimitz (United States) was named arbitrator of the truce plan. The cease- fire took effect on January 1, 1949, and the Security Council immediately established the United Nations Military Group for India and Pakistan (UNMGIP) along the cease-fire line (now referred to as the “line of control” or the “LOC”) which is still in place today. India refused to accept arbitration over the truce plan in spite of strong pressure from United States President Truman and United Kingdom Prime Minister Atlee, and to date the truce plan has not been accepted.

By 1950 it was clear that India changed its position on the disposition of Kashmir and considered instead that the portion of Kashmir it occupied militarily was part of India. It has to date maintained control of what is now Indian-occupied Kashmir, and continues to refer to this part of Kashmir as an integral part of India. India also points out that elections it organizes in this area indicate the will of the Kashmiri people there to be part of India. However, the United Nations Security Council has repeatedly rejected this argument, and has stated in resolutions on this point that such unilaterally arranged elections do not constitute the free exercise of the will of the Kashmiri people: only a plebiscite carried out by the United Nations would be valid.15

Unfortunately, international affairs over-took United Nations action regarding Kashmir and the holding of the plebiscite. By the mid-1950s, the Cold War deepened and the alliances in the region fell under different spheres of influence in that Cold War. The United Nations Security Council and the Commission maintained the plebiscite administration under the authority of the president of the Security Council, and both directly with the President of the Security Council and the Commission on India and Pakistan, the Plebiscite Administrators were unable to secure a situation on the ground so that a plebiscite could take place. The last plebiscite administrator finished his term somewhere between 1955-1956 and a new one was not appointed.


B. Components of the Kashmiri Right to Self-determination

Even without the United Nations recognition of the Kashmiri’s right to self-determination, the Kashmir claim under the traditional test set out above: (1) a definable territory with a history of independence or self-governance; (2) a distinct culture; and (3) the will and capability to restore self-governance. The area had a long history of self-governance pre-dating the colonial period.16 In this regard it is revealing that under British colonial rule, Kashmir was granted internal autonomy. The territory of Kashmir has been clearly defined for centuries.17

Regarding cultural uniqueness, the 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 other languages spoken in India or Urdu or other languages spoken in Pakistan.18 The Kashmiri culture is similarly distinct from other cultures in the area in all respects -- folklore, dress, traditions, and cuisine. Even every day artifacts such as cooking pots, jewelry have the unique Kashmiri style.19

Most important to a claim to self-determination, the Kashmiri people have had a continuing and at present have a current strong common aspiration for re-establishment of self-rule. The Kashmiri people resisted the British, and maintained autonomy throughout British rule. In 1931 the Kashmiri people and their leadership formed the “Quit Kashmir” movement against the British and the British-supported maharajah that was, unfortunately, brutally put down. But the "Quit Kashmir" campaign against the maharajah continued into 1946, when it reconstituted itself into the Azad (Free) Kashmir movement. As discussed above, during the breakup of British India, the Azad Kashmir military forces began armed attacks against the forces of the maharajah -- prompting the accession to India in exchange for Indian military protection.20 Resistance to Indian occupation has continued unabated throughout Indian occupation, with major uprisings in 1953, 1964 and continuing essentially unabated 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 both Indian-occupied Kashmir and Azed 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 in the Indian-occupied area joined together to form the All- Parties Hurriyet Conference (APHC).

Since it formation, the APHC has sent leaders around Kashmir and around the world to forward dialogue, peaceful resolution of the Kashmiri war, and realization of the United Nations resolutions for a plebiscite of the Kashmiri people. Leaders and representatives of the APHC have regularly attended United Nations human rights sessions, special conferences and the General Assembly.

Consequences of the Failure to Realize the Kashmiri Right to Self-determination

Today we find that the disposition of Kashmir has still not been legally decided. It is not an integral part of any country. Rather, it is a victim of an imperfect de-colonization that, to date, has not led to the realization of the expression of self-determination of the Kashmir people. For all this time the Kashmiri people in the Indian-occupied area are involved in an occupation and, for the past thirteen years a brutal war -- the Kashmiri War – in which 5-700,000 Indian troops are present in the area carrying out military actions against civilians and Kashmiri military forces alike. In the course of that armed conflict, the Indian forces have engaged in grave breaches of the Geneva Conventions and the general laws and customs of war. Violations of the rights of POW’s, rapes, disappearances, summary execution, torture and disappearances related to the conflict are nearly every-day events in Indian – occupied Kashmir. The right to self-determination has been trampled on in “terrorist/counter-terrorist” rhetoric, burdened by military operations across the LOC, and buried as the world’s attention focuses elsewhere. In a nutshell, the Kashmiri people face attempts to militarily obliterate their valid self-determination claim while at the same time equating Kashmiri resistance and Indian military operations as “terrorism/counter-terrorism.”21 Calls for application of the Geneva Conventions and other instruments and rules of the law of armed conflict are non-existent.

Apart from the mud-slinging, the tragedy is that well-meaning people and States are intimidated from supporting the proper legal position regarding the current legal status of Kashmir and the application of humanitarian law. Many States are in open violation of their jus cogens and erga omnes obligations to defend the right of the self-determination of the Kashmiri people as well a their obligations under the Geneva Conventions. Sadly, there is no current action at the United Nations Security Council to reinstate the position of Plebiscite Administrator and to undertake to establish conditions by which the plebiscite can take place. And also, very sadly, not enough people know sufficiently both the law of self-determination and the law of armed conflict to properly redirect the dialogue, adding to the vulnerable position of even non-Kashmiri defenders of self-determination for the Kashmiri people.

Concluding Observations

Restoration of the right to self-determination to its proper status in discussions and actions to resolve the crisis and achieve a final disposition of Kashmir will not be easy, but there is no alternative: without the Kashmiri people deciding for themselves as promised by the United Nations this crisis will continue ad infinitum. As a minimum, both India and Pakistan would have to abandon any permanent claim to Kashmir and allow the Kashmiri people to make their choice -- politically difficult for both India and Pakistan and perhaps for the Kashmiri people themselves.22 For this to occur at all, the international community must return to the original plan with firm resolve and active leadership. Discussions should focus on how to establish conditions for the plebiscite and then on actually organizing it. At all stages the Kashmiri people and their leadership should be involved.

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1J.D. (Honors, Univ. San Francisco, 1983), Diplome (Cum laude, Strasbourg, 1982), non-governmental delegate to UN Commission on Human Rights and its Sub-Commission since 1982. This paper is a modified version of K. Parker, “Understanding Self-determination: the Basics,” in In Pursuit of the Right to Self-Determination, Y.N. Kly & D. Kly, eds., Clarity Press, 2001. The author also indicates that the focus of this paper is on the Kashmiri right to self-determination in relation to India. This is because of the long armed conflict in the Indian-occupied portions of Jammu and Kashmir and a very disturbing pattern of gross violations of human rights and grave breaches of the Geneva Conventions and customary humanitarian law there that is not occurring in Azad Kashmir (Pakistani-controlled Kashmir). Further, as will be seen below, the government of Pakistan supports implementing the United Nations resolutions calling for a plebiscite of the Kashmiri people while India does not. However, this is not meant to indicate that the Kashmiri people do not have a right to self-determination in relation to Pakistan.

2International Covenant on Civil and Political Rights (ICCPR), 999 U.N.T.S. 171, Art.1; International Covenant on Economic, Social and Cultural Rights (ICESCR), 999 U.N.T.S. 3, Art. 1; see also Karen Parker & Lyn Neylon, Jus Cogens: Compelling the Law of Human Rights, 12 Hastings Int. & Comp. L. Rev. 411, 440 (1989), drawing on discussion of the right to self-determination in A. Critescu, The Right to Self-determination, U.N. Doc. E/CN.4/Sub.2/404/Rev. 1, U.N. Sales No. E.80.XIV.3 (1980) and H. Gros Espiell, The Right to Self-Determination, U.N. Doc. E/CN.4/Sub.2/405/Rev.1, U.N. Sales No. E.79.XIV.5 (1980).

3The 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.

4Western Sahara Case, 1975 International Court of Justice 12, 31.

5Gros 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.).

6H. Gros Espiell, op. cit. at p. 12:"[N]o one can challenge the fact that, in light of contemporary international realities, the principle of self-determination necessarily possesses the character of jus cogens." Gros Espiell cites numerous references in United Nations documents referring to the right to self-determination as jus cogens. Id., at pp. 11-13. See also Legal Consequences for States of the Continued Presence of South Africa in Namibia (S.W.Africa) 1971 International Court of Justice 16, 89-90 (Ammoun, J., separate opinion)(recognizes jus cogens nature of self-determination); I. Brownlie, Principles of Public International Law 83, (3d ed. 1979)(argues that combatants fighting for realization of self-determination should be granted a higher status under armed conflict law due to application of jus cogens to the principle of self-determination); See also Karen Parker & Lyn Neylon, op. cit. at 440-41 (discusses, with many references, self-determination as jus cogens right).

7While not using the precise term as it did in an earlier case (Barcelona Traction, Light and Power Co. (Belg. v. Spain) 1970 International Court of Justice 3, 32), many consider the language of the Nicaragua Case reflective of both a jus cogens and erga omnes duty to respect the principle of self-determination. See The Nicaragua Case (Nicar. v. United States) 1986 International Court of Justice 14. The Inter-American Commission was explicit regarding the erga omnes duties of all states to guarantee civil and political rights. Inter-American Commission on Human Rights, Organization of American States, Press Communique no. 13/93 (May 25, 1993).

8See also Karen Parker, The Kashmiri War: Human Rights and Humanitarian Law, (IED/HLP 1996).

9The United Nations established a mandate for de-colonization in the Charter itself, especially in Article 1.2 that provides for respect for the principle of self-determination. This is reinforced by the requirements of the trusteeship system in which governing powers must promote the development towards self-government and independence of the affected peoples. See, U.N. charter, Article 76. The principle of self-determination arises in the de-colonization process because in a colonial regime the people of the area are not in control of their own governance. In these situations there is another, illegitimate sovereign exercising control. De-colonization, then, can be viewed as a remedy to address the legal need to remove that illegitimate power. As a result of the de-colonization mandate, two types of situations emerged: situations I call “perfect de-colonization” and those that I call “imperfect de-colonization”. The situation in Kashmir is an “imperfect de-colonization” because the Kashmiri people did not achieve full sovereignty and were unable legally to express their wishes regarding sovereignty.

10For example, in a 3 November 1947 radio broadcast, Mr. Nehru stated: “We have declared that the fate of Kashmir is ultimately to be decided by its people. That pledge we give not only to the people of Kashmir but to the world. We will not and cannot back out of it.”

11See, especially Security Council resolutions 39 (1948), 47 (1948), 80 (1950), 91 (1951) and 96 (1951).

12Security Council resolution 80/1950. The first Plebiscite Administrator was Admiral Chester Nimitz (United States). He was succeeded by General McNaughten (Canada, who incidently was the Security Council president in 1950 who attempted to work out a plan, called “Demilitarization Preparatory to the Plebiscite” usually referred to as the McNaughten Proposal). Subsequent Plebiscite Administrators were Owen Dixon (Australia), Frank Graham (United States) and Gunnar Jarring (Sweden).

13Resolution of the United Nations Commission for India and Pakistan, adopted on 5 January 1949, reprinted in UN Doc. S/1196 of 10 January 1949.

14An interesting side note to this involves this Instrument of Accession, supposedly signed by the Maharajah Hari Singh and Lord Mountbatten, and rumoured to be missing from the Indian state archives. News reports indicate that the United States, other western and some Arab states wished to view the text because of serious questions of its validity, but that the document could not be produced. See, for example, “Instrument of Accession to India missing from state archives”, PTI News (New Delhi), 1 September 1995.

15See, for example, Security Council resolution 122 of 24 January 1957. India had claimed that the Kashmiri people accepted secession to India because a Kashmiri Constituent Assembly approved it in 1956. However, that assembly was chosen by India and does not meet requirements of a plebiscite as expressed in Security Council resolution 122. As states Rapporteur Gros Espiell: "A people under colonial and alien domination is unable to express its will freely in a consultation, plebiscite or referendum organized exclusively by the colonial and alien power." H. Gros Espiell, op cit. at p. 11.

16Kashmir successfully regained independence when overrun by Alexander's Empire in the 3rd century B.C. and the Moghul Empire of the 16th and 17th centuries.

17Historic Kashmir comprises about 84,000 square miles, making it somewhat larger that the United Kingdom. Its current population is about 12 million.

18Spoken Kashmiri also draws on the Persian and Arabic languages. Written Kashmiri uses a variation of Urdu script.

19Even fabrics, embroidery and carpets have uniquely Kashmiri designs. My organization’s delegates to the area report that recognition of the distinct culture of Kashmir is unanimous in India. Unfortunately, this recognition is in the negative in that every-day Indians show great prejudice against anything Kashmiri. Our delegates confirm the Indian mind-set that Kashmiri people, their culture, cuisine, indeed everything about Kashmiris is inferior. But in these displays, they clearly indicate that Kashmiri is not Indian.

20Kashmiri self-determination is also defended by the principle that the determination of the political future of a colonized people made either by the colonial power itself or a "ruler" established by the colonial power is repugnant to the process of de-colonization and the principle of self-determination. I would challenge the legitimacy of an instrument of accession of Kashmir to India if in fact one were to be found. This rejection of "determination by colonial power" seems to be the guiding principle of the Security Council in its dealing with Kashmir. It is also clearly behind the fact that the government of Spain sought advice from the International Court of Justice on the question of to whom should Spain hand over power when they left the Spanish Sahara. See The Western Sahara Case, 1975 Int'l Court of Justice 12.

21This, of course, leads to “terrorist or freedom fighter” debate. The controversy over Kashmir is one of the main reasons that the international community has failed to agree to a legal definition of terrorism: India wants terrorism defined in a way that will obliterate Kashmiri self-determination and Pakistan want it defined in a way that leaves intact the right to self-determination.

22This paper does not address the issue of what choices will be given to the Kashmiri people in the plebiscite and what would happen with a “divided” result. These in themselves will most likely be contentious issues for all involved. As the plebiscite will be administered by the United Nations and with full respect for the right to self-determination, the choices would have to be in concert with international law and the right to self-determination. How to address the outcome of the plebiscite must await having it in the first place.