‘THE KASHMIR ISSUE’ — ANALYZING CONTENTIOUS STATEHOOD AND SELF-DETERMINATION

Picture Credits: KINDLE

* Mahima Balaji

BACKGROUND

The root of the issue surrounding Kashmir tends to take on a discourse concerning itself with the territorial tussle between India and Pakistan. However, the geopolitical, economic, and social relevance of Kashmir as a region has to be realised to flesh out the matters even more. To name a few — water, considering agriculture is a backbone of the Pakistani and Indian economies, trade, and strategic routes for warfare. There have been many discrete armed conflicts (in 1947, 1965, and 1971) between India and Pakistan since the partition and their independence. Despite multiple Security Council Resolutions preparing for a plebiscite that never happened, the recent advance taken by the Indian Government revoking Kashmir’s ‘special status’ calls for revisiting the tenets of sub-national self-determination in the context of contentious statehood.

For long, the Kashmiri population has been subject to a ‘proxy war’, and gross human rights violations. The  Pulwama attack in February of 2019 only intensified the matters, as it was described as one of the deadliest terror attacks striking Jammu and Kashmir in the three decades of the insurgency there. Kashmir, as observed today, is a part of the Indian territory, and the recent revocation of Article 370 of the Constitution of India as received widespread community (condemnation? ) – nationally, and internationally. While the issue has been deemed to be an ‘internal’ bilateral issue by India, it is worthwhile to engage in the question of the right to self-determination borne by the population of Jammu and Kashmir, given that a resolution of the conflict seems elusive.

LEGAL BASIS OF SELF DETERMINATION

While the concept of self-determination ages back to the American and French Revolutions, it was embodied in the UN Charter later, in Article 1(2). It realises the need to develop friendly relations among nations on the fundamental basis of “equal rights and self-determination of peoples.” This, thus, became binding on the basis of convention for its incorporation into the Charter and  was further worded similarly in the International Covenant on Economic, Social and Cultural Rights (1966)(‘ICESCR’) and the International Covenant on Civil and Political Rights (1966) (‘ICCPR’) [Articles 1(3)], to which India is bound.

Moreover, strictly speaking, the United Nations Commission for India and Pakistan (‘UNCIP’), was to mediate matters between the two states, also incidentally, on matters concerning Kashmir. As per this, in 1949, the UNCIP came about with a Resolution that was accepted by both, India and Pakistan. As per Part III, it clearly dictates that both the countries would realise the future status of Kashmir, “in accordance with the will of the people,” where it would depend on “fair and equitable conditions [whereby] such free expression will be assured.” However, while these rights seemingly exist on paper, there is a need to analyse the political climate and India’s stance.

As per the UN Security Council Resolution 47 (1948) [The India Pakistan Question], India never held a referendum allowing Kashmiri self-determination. The right to self-determination in this context would allow the population of Kashmir to choose between accession to India, or Pakistan, or complete independence. Recently, with Article 370 being scrapped from the constitution of India, it seems to be that there is no real ‘autonomy’ recognised for the Kashmiri population. This provision in the Indian Constitution conferred ‘special status’ to Kashmir, and was described as to be the ‘only constitutional link’ between Jammu and Kashmir, and India. This further undermines the fact that self-determination was the basis of negotiation in the case of Kashmir’s accession to India, and the Security Council had voiced its support for the same.

Aside of the Security Council Resolution, an aspect that leads to uncertainty amongst scholars of the International community is with regard to the definition of ‘people’ for the purposes of exercising the right to self-determination. Where there is a necessity to recognise subjective and objective elements of what constitutes the ‘self’ in self-determination, where ethnic groups need to more than just qualify as a group of ‘people’. Rather, they must “demonstrate the subjective element of awareness to preserve their distinct identity.” With this regard, it has been realised in re Reference re Secession of Quebec, that an ethnic group would constitute ‘people’ for the purposes of the right to self-determination.

INDIA'S INSISTENCE ON TERRITORIAL INTEGRITY

It is murky to envision exercising the right to self-determination on grounds of human rights violations alone — mainly because a crucial aspect of statehood is also about recognition of sovereignty by the international community. Where even in the case of the secession of South Ossetia and Abkhazia from Georgia has not been legitimately recognised by the international community owing to the importance of realising territorial integrity. In fact, as of 2008, India did not recognise Kosovo for similar reasons — namely that recognition in the international community comes from legitimate exercise of sovereignty and territorial integrity.

Where India has insisted on peaceful negotiations, even in the context of Kosovo in 2008, this is a similar stance taken up with regard to Kashmir — where there is an insistence on bilateral negotiations with Pakistan. However, this often camouflages the rampant human rights violations in the region, especially on account of AFSPA. Further, with the argument of promoting and fostering India’s sovereignty and territorial integrity — pressurising the International community to recognise Kashmir as a part of the Indian state, reduces self-determination to minority protection in an area near the border.  Where the ICJ in its advisory opinion has recognised the ergaomnes right to self-determination, given the revocation of Article 370 and the current political climate, this right can be said to have lapsed without realisation.

Mahima Balaji is a 4th Year law student at Jindal Global Law School, Sonipat. She is currently studying droit économique [Economic Law] at the Sciences Po School of Law, Paris in 2019-20. She can be contacted at: mahima.balaji@sciencespo.fr

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