Kashmir: Legal and Moral History
Dr. Ghulam Nabi Fai
Secretary General
World Kashmir Awareness
Washington, DC
These are my views on the principle of ‘right of self-determination’ and its applicability to the 67-year-old Kashmir conflict to be considered during the United Nations Working Group meeting that is taking place this week at its headquarters in New York. What I do hope to offer is an unstarry-eyed view of the fate of self-determination in Kashmir; and, the indispensability of convincing India that its national and economic security would be strengthened, not weakened, by ending its military occupation.
Self- determination is a principle that has been developed in philosophic thought and practice for the last several hundred years. It is an idea that has caused people throughout the world to rise up and shed the chains of oppressive governments at great risk. Defining the right to self-determination has proven elusive since it was celebrated as one of President Woodrow Wilson’s Fourteen Points to settle World War I. Article I of the United Nations Charter enshrines as a major purpose the development of friendly relations among nations based on respect for the “principle of equal rights and self-determination of peoples.”
The 1960 Declaration on the Granting of Independence to Colonial Countries and Peoples declares, “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.”
Self-determination is the act of a people, expressing their free will to control and participate in their nation’s destiny. A people must be free to express their will without interference or threat of interference from a controlling authority not of the people’s design. This includes alien domination, foreign occupation and colonial rule.
The applicability of the principle of 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 by the Government of India on December 31, 1947.
By all customary moral and legal yardsticks, 18 million Kashmiris enjoy a right to self-determination. Kashmir’s legal history entitles it to self-determination from Indian domination every bit as much as Eritrea’s historical independence entitled it to self-determination from Ethiopian domination. The human rights violations in Kashmir also militate in favor of self-determination every bit as much as Yugoslavia’s human rights violations and ethnic cleansing created a right to self-determination in Slovenia, Croatia, Bosnia, Macedonia, and Kosovo. Kashmir’s history of social and religious tranquility further bolsters its claim to self-determination every bit as much as East Timor’s history of domestic peace before Indonesia’s annexation in 1975 entitled it to self-determination in 1999.
The princely state, after British suzerainty for a century, achieved independence on August 15, 1947 when British jurisdiction lapsed. At that time, Kashmir had chosen neither accession to Pakistan nor to India, which had been created as separate nations through a British partition along largely Hindu-Muslim communal lines. Nothing regarding partition or the lapse of British control required Kashmir to renounce independence for absorption in a neighboring nation.
Kashmir was overwhelmingly Muslim, with Pandits, Buddhists, and Sikhs featured as welcome religious minorities. The ecumenical religious atmosphere in Kashmir found expression in inter-religious friendships, neighborhoods, businesses, and mutual celebration or respect of religious holidays. In other words, Kashmir was neither convulsed by religious strife, nor by religious extremists preaching fundamentalism from every mosque. The Maharaja ruling over Kashmir, however, was an oppressive Hindu whose tyranny had sparked an indigenous insurgency. The then Prime Minister of India, Pandit Nehru, had voiced a consensus view that sovereignty in princely states like Kashmir had devolved on their respective peoples as of August 15, 1947; and, that the peoples’ voice should prevail in a plebiscite over the sovereignty ambitions of ruling maharajas in cases of conflict. In Kashmir, Nehru initially championed a plebiscite to determine its sovereign destiny. But the Prime Minister and his successors reneged on their international law obligation when they realized Kashmir would never vote accession to India in a free and fair election. A commanding majority of Kashmiris covet independence, democracy, the rule of law and religious pluralism.
When India first brought the issue to the United Nations, its representative, Gopalaswamy Ayyangar set out three options for Jammu and Kashmir: (a) accession to India, (b) accession to Pakistan, and (c) independence. When presenting his government's case to the Council on January 15, 1948, he stated, "The question … whether she [Kashmir] should withdraw from her accession to India, and either accede to Pakistan or remain independent with a right to claim admission as a member of the United Nations - all this we have recognized to be a matter for unfettered decision by the people of Kashmir."
The possibility of the third option is reflected in the wording of more than one resolution of the Security Council. Those adopted on March 14, 1950 and March 30, 1951 refer to "the final disposition of the State of Jammu and Kashmir (to be) made in accordance with the will of the people expressed by the democratic method of a free and impartial plebiscite conducted under the auspices of the United Nations." The phrase "final disposition" is inclusive; it has a wider meaning than "accession to India or Pakistan". The Security Council used this expression not for convenience of drafting but because it would not be justified in foreclosing any option for the people of the State.
The idea of independence for Kashmir has in fact never been beyond the mental horizon of its people. Ram Chander Kak, a Kashmiri Pandit leader and the Prime Minister of Maharaja recommended on July 19, 1947 that Kashmir remains independent of both India and Pakistan for a transitional period of at least one year, then take a decision on accession to India or Pakistan, or otherwise, in the light of developments. Rugho Nath Vaisnavi, another Kashmiri Pandit leader stated that "Should not the accredited leaders of India, Pakistan and Kashmir sit together and agree to restore to the state its age-old status of sovereign independence it enjoyed all along before it was invaded and occupied by the Pathans, Mughals, Sikhs and Dogras? … Why cannot Kashmir be granted independent status?”
India’s economy would grow, not contract, with an independent Kashmir. The end of turmoil in that country would attract investment in the region. The free movements of goods and labor between Kashmir and its neighbors could be negotiated. Economics is not a zero sum game, but a win-win game. Prosperity is mutually reinforcing and beneficial between all parties competing on a level playing field.
In the interim, several measures should be taken to ease the misery and tensions in Kashmir. Human rights organizations should be given greater access. India’s security forces should be thinned. All political prisoners should be released. Emergency laws which give India’s security forces immunity for human rights crimes should be repealed. The Cease-fire Line should be monitored by an independent third party, such as the United Nations or the European Union. Kashmiri leaders should be permitted free exchanges across the CFL, and Kashmiri exiles should be allowed to return without hindrance or retaliation.
Note: This submission was made to Ms. Patricias Arias (Chile), Chairperson, UN Human Rights Council: Working Group on the use of mercenaries as a means of violating human rights and impeding the exercise of the right of peoples to self-determination.
