By Dr. Ghulam Nabi Fai
This is an opportunity to explore a vexing but significant topic in the field of human rights: self-determination. The right of self-determination has been celebrated for ages. It 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.
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.
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 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.”
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 principle of self-determination and the maintenance of international peace and security are inseparable. For example, 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 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.
It seems to me that when everything is considered, the case for Kashmiri self-determination is overwhelming if historical practice and simple justice are consulted. What is anguishing and dumbfounding to me is not that the world powers resist sending troops to Kashmir to vindicate self-determination at the risk of warring with India. After all, nations are not agents of altruism. What is frustrating and confounding is that world powers withhold even the moral boost of officially proclaiming the right of self-determination for 18 million Kashmiris in accord with Security Council plebiscite resolutions it heartily approved and have never disavowed.
Professor Korbel proved prophetic. India’s insolence has provoked more than 67 years of horrifying conflict in Kashmir, war between India and Pakistan, a nuclear arms and missile race in South Asia, and human rights violations on a scale vastly more gruesome than witnessed by CNN broadcasting in Bosnia, Kosovo, and East Timor, all of which triggered international intervention. In the last twenty-five years alone, approximately 700,000 Indian military and paramilitary forces with impunity have perpetrated more than 100,000 extrajudicial killings, coupled with countless incidents of torture, rape, custodial disappearances, arson, plunder, abduction, arbitrary detentions, and savage repression of peaceful political protest, such as boycotting elections or urging implementation of the Security Council’s plebiscite resolutions.
Today, India confronts a Kashmir Rubicon during current elections which are being held in a four-phase balloting process in the disputed territory to elect members to the Indian Parliament. On April 30, 2104, the Chief Election Commissioner stated that there was only 11.4 % voter turn out in the Srinagar Constituency. We all know that the boycott call was jointly given by Syed Ali Geelani, Mirwaiz Umar Farooq, Mohammad Yasin Malik & Shabir Ahmed Shah and the people of Kashmir responded positively to this call.
If India boldly crosses the Rubicon by conducting free, fair and transparent elections reflective of the genuine sentiments of the Kashmiri people, then a final peaceful settlement of the 76-year-old Kashmir conflict will be in sight. If India balks at a crossing and continues its old bad habit of election rigging and denying Kashmiri self-determination celebrated in United Nations Security Council resolutions, then Kashmir will remain beleaguered by repression, misery and destitution.
India always persisted in its colonial and antidemocratic ways in Kashmir. British historian, Bertrand Russell said in 1964, “The high idealism of the Indian government in international matters breaks down completely when confronted with the question of Kashmir.”
Jay Prakash Narayan who was known as ‘The Second Gandhi of India” confided to Indira Gandhi, in 1960: “We profess democracy but rule by force in Kashmir…We profess secularism but let Hindu nationalism stampede us into trying to establish it by repression…[The Kashmir] problem exists not because Pakistan wants to grab Kashmir, but because there is deep and widespread political discontent among the people.”
Gautum Navlakha, former Editor of Economic and Political Weekly of India said the same thing fifty years later, “Long and short of it is that Indian state has become its own worst enemy. There is no point blaming Pakistan, fundamentalists, human rights activists and the usual alibis used by the Indian state. It is time to acknowledge that ‘national security’ paranoia cannot hide the reality that Muslims of J&K have no confidence in the Indian state.”
P. K. Dave, former Chief Secretary of the Jammu and Kashmir Government, confessed in 1991 that, “Elections in Kashmir have been rigged from the beginning.”
Arundhati Roy, Booker Prizewinner said on September 27, 2009, “Elections in Kashmir have had a long and fascinating past. The blatantly rigged state election of 1987 was the immediate provocation for the armed uprising that began in 1990. Since then elections have become a finely honed instrument of the military occupation, a sinister playground for India’s deep state. Intelligence agencies have created political parties and decoy politicians, they have constructed and destroyed political careers at will. It is they more than anyone else who decide what the outcome of each election will be. After every election, the Indian establishment declares that India has won a popular mandate from the people of Kashmir.”
Dr. Shri Prakash in his book, ‘Twenty Tumultuous Years Insights in to Indian Polity’ on page 568 writes, “The Kashmiri anger actually began with the mass rigging of elections in 1987. There is no use putting life in a corpse. Kashmiri leaders from Farooq Abdullah downwards have lost their credibility , they are totally irrelevant.”
Amy Waldman wrote in the New York Times on August 24, 2002 that “Rigged elections in Kashmir in 1989 helped trigger the armed uprising that India estimates has taken more than 35,000 lives.”
We know it now that the fraudulent elections in 1987 extinguished the last flicker of hope among Kashmiris that India would bow to a free and fair plebiscite as ordained by the Security Council. Indigenous protests erupted in the occupied territory reminiscent of America’s 1961 Freedom Riders protesting racial discrimination in the South.
The cure for counterfeit elections in Kashmir, however, is not more of the same, but providing the genuine democratic article. Thus, the people of Kashmir are eager to participate in the impending elections if they are conducted with the trapping of free and fair choice, monitored and supervised by a neutral agency like the United Nations.
The status of East Timor was resolved in 1999 by a free and fair vote of the East Timorese. The same, championed by the United States and the European Union happened in Kosovo, Montenegro and Southern Sudan. The solution of Kashmir’s indigenous upheaval is no different. The irresponsible coveting of dignity, liberty and pride that comes with self-determination knows no territorial or regional boundaries.
The Security Council has denounced the “subterfuge” of elections in a 1957 resolution. It reminded the concerned governments and authorities “of the principle embodied in its resolution that the final disposition of the State of Jammu and Kashmir will be made in accordance with the will of the people expressed through the democratic method of a free and impartial plebiscite conducted under the auspices of the United Nations.”
The resolution further elaborated that “the convening of a Constituent Assembly…and any action that Assembly may have taken or might attempt to take to determine the future shape and affiliation [of Kashmir]” would be no surrogate for Kashmiri self-determination.
Ambassador Quevedo of Ecuador said it the best during the 539th meeting of the Security Council on March 30th 1951 that, “…in as much as India and Pakistan have agreed that the final status of Jammu and Kashmir should be decided by a free and impartial plebiscite, that must be our point of departure and the legal and political basis for the inferred that: i. In the present circumstances, the constituent assembly of Jammu and Kashmir cannot be considered as representing the people as a whole or as a free manifestation of the people’s will, and the decisions of such an assembly can neither change nor deprive of their effect the international undertakings entered into by India and Pakistan in respect of the plebiscite; ii. A free and impartial plebiscite presupposes that the electors shall be free from pressure, threats, intimidation or compulsion in any form by the local authorities, or by military or police forces (whichever they are called) in the territory during the preparation and holding of the plebiscite; it is therefore our opinion that the United Nations and the parties concerned must provide means whereby the authorities and forces to be set up in the territory where the plebiscite is to be held should be of such size and composition, and should operate and be placed in such a manner, that neither their action nor their presence can affect the genuine and free conduct of the plebiscite either morally, politically or legally.
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.”
Therefore, I propose the following five steps to be taken to make that happen.
i. First, the demilitarization of the State of Jammu & Kashmir on either side of the Cease-fire Line;
ii. Second, an atmosphere of peace and security must be created;
iii. Third, an international and neutral team must be deputed to conduct the elections;
iv. Fourth, the elected officials must be given a mandate to negotiate a final settlement of the Kashmir conflict with India and Pakistan;
v. Fifth, any solution must satisfy democratic principles, the rule of law, and security for every inhabitant of Kashmir.
Kashmir’s suffering is a rebuke to the United Nations for its inaction. The situation is a call on the conscience of the members of the Security Council, particularly to the United States.
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. 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. Fai can be reached at: