Houston, Texas

Dr. Sabyasachi Ghoshray

Resolving Conflict between Self-Determination of Peoples
and the Sovereignty of Nations: Analyzing the Case of Kashmir in India

Introduction

Academic perspective on the issue of self-determination is in abundance as the International Standards with respect to the Rights of Peoples and their Rights to self-determination and sovereignty have taken huge steps and advanced in the last two decades. But with these advances comes the violence that often evolves around self-determination. Furthermore, when these movements of self-determination find themselves linked with terrorism, we find ourselves immersed in a quagmire hitherto seen in the world stage. Against this backdrop, this paper will revisit the issue of "self-determination" within the context of International Law as well as the right of sovereign nation, by making a distinction between "internal" and "external" rights of self-determination. This is critical in our study for both the comprehension of those asserting their rights and for the defense of those being accused of illegally depriving those very rights. Additionally, more often than not, international politics and the alignment of nations either over dramatize or trivialize the legitimacy of claims for self-determination by casting blinders on the real issue, or lumping the two separate branches of this self-determination under one thread. This monograph is an attempt to clarify some of these misconceptions between internal and external rights of self-determination.

The controversy surrounding the legitimate rights of people for sovereignty gets murkier in the quagmire of international politics as the rights of a minority within a Nation State gets misconstrued as the rights of a people. Often times a Nation State is accused of demeaning and degrading the status of People to that of a minority by use of state power and thereby hindering their legitimate right of sovereignty. On the other side of the coin, rogue states, or terrorist outfits utilize the misguided concept of self-determination for the fulfillment of their nefarious intentions. How is this possible, when and if in fact, the status of People is clearly defined in International Law? We will examine this very premise.

An issue that is relevant not only to International Law but also to political scientists, is to what extent a government may redefine fundamental questions with respect to the right of self-determination by the use of referenda and legislation. This is inextricably linked to the idea of a Nation State changing the constitutional ground rules affecting citizens without their consent? Again, this will be best analyzed within the context of whether the issue of self-determination is an external one or an internal one. Because, this will also address the question of legitimacy for various secessionist movements by either recognizing them as a violation of people’s fundamental rights by the Nation State or a treason threatening the sovereignty of a nation.

Finally, international covenants, working groups, legal writings in this regard have been very successful in developing contexts and scopes regarding self-determination and the whole International Law has gone through a tremendous metamorphosis during the last decade. But questions still remain. Therefore, the objective of this study is to establish that self-determination must be addressed in the context of original secession of the relevant Nation State during de-colonization. This will help us examine the right to self-determination in the case of Kashmir, where the evolving legal framework on the very concept of self-determination being pitted against the historical context of the region.

Self-Determination as a Right for the People

The right to self-determination of peoples, alongside the equality of nations large and small, has been recognized as a basic norm of International Law. In this context, we can remind ourselves of the International Covenant on Civil and Political Rights and Self-determination, as currently perceived, entails the following principle:

Religious, ethnic and cultural minorities have come to be recognized in International Law as "peoples" that have a right to self-determination. Although states remain the main subjects of International Law, social institutions other than the state have long been recognized as entities with standing in international relations. Peoples have thus come to be repositories in International Law of a right to self-determination.

History of Self-Determination

Before we begin to apply the concept of self-determination in specific situations, let us analyze the evolution of the theory of self-determination. In this context, our thought process is influenced by three main caveats. First, the concept of self-determination has evolved over the years. As a result, we must clearly distinguish among the different shades of meaning the concept has attained. This then leads us to the meaning to be attributed to the self-determination in any particular instance, such as, to determine the identity of the "people" who have a claim to that right. Finally, the concept of secession should not be considered as a necessary condition for the right to self-determination. Because, right to self-determination is not the only vehicle through which secession is achieved. Current state practices have shown that the right of secession can stand on its own feet.

Delving into the archives of recorded history, we find the right to self-determination dates back to World War I, when it was introduced as a norm of international relations. Since then the concept has evolved in its meaning, and has gone through the maturation process via distinct stages. While trying to develop a legal framework for the secession of peoples from the old empires, the process of legitimizing the right to self-determination witnessed the first phase of its development. It was made clear during the negotiations that ensued, that the right of disposing of national territory is not in conflict with the right of sovereignty. In this context, we must be cognizant of the fact that the positive International Law does not legitimize the rights of national groups to secede any more than the states to dispose of their national territory. Therefore, the right to self-determination cannot be invoked by a simple expression of interest, nor could certain disenfranchised community within a state use it as a political tool. When can then the right of self-determination be exercised? According to Nathaniel Berman,

Thus, the legal framework for the concept of self-determination originated from the end of colonial rules, and was incorporated as a vehicle to provide rights to the peoples dominated by the colonial powers. However, as the colonial powers started crumbling, the right to self-determination started assuming different hues. The right to self-determination was extended to peoples subjugated by racism by expanding the concept of "peoples" from the populations in colonial rule to a larger community under foreign occupation or racist regime. This began the process of an evolving legal framework where the concept of self-determination encapsulates a larger section of people.

The scope of the right to self-determination has further broadened by the United Nations General Assembly's Declaration on the Inadmissibility of Intervention in the Domestic Affairs of States and the Protection of Their Independence and Sovereignty of 1965, in which the United Nations called on all states to:

Self-determination has further been given legal grounds within Article 1 of the International Covenant on Civil and Political Rights of 1966. This constituted a newer development in the rights of self-determination that evolved after the colonization phase has passed. Additionally, this entitlement signified the entitlement of a broader spectrum of peoples, coming from independent, non-racist states. The International Covenant on Economic, Social and Cultural Rights of 1966 was not restricted to only peoples subjugated under foreign powers, but also to peoples belonging to national or ethnic groups. Several important references can be made in this context. The UN Declaration on Principles of International Law Concerning Friendly Relations and Co-Operation Among States in accordance with the Charter of the United Nations of 1970 guaranteed the right to self-determination applicable to "all peoples." Similarly, the Helsinki Final Act of 1975 defines the principle of equal rights and self-determination of peoples as entitlement that belongs to "all peoples always ...in full freedom, to determine, ...without external interference, and to pursue as they wish their political, economic, social, and cultural development" certainly seems to include the peoples of independent states. Again in this context, we are reminded of the definition of self-determination as the right of peoples "freely [to] determine their political status and freely [to] pursue their economic, social and cultural development" does not in itself exclude ethnic sections within a political community. More recently, the peoples within an independent and sovereign state with a claim to self-determination have been more clearly identified as national or ethnic, religious and linguistic minorities.

Changing norms of Self-determination

The above historical exposition has shown that the right to self-determination developed over time and that its substantive meaning has changed over the years. Most of the current threats to international peace and security emanates from the struggles of groups of people claiming or trying to assert their rights to self-determination. Whether legitimate or not, these claims are creating tensions among states, casting doubts in the nature of democracies, to say the least. In this context, the concept of democracy and self-determination are interconnected and we must take a closer look at this concept.

One of the controversies surrounding the concept of self-determination is that it immediately conjures up the notion of territorial secession. But as will be clarified here that self-determination should not be misconstrued to mean session at all times; rather it should lend legitimacy to retention of territorial integrity.

We begin by identifying a path of evolution for self-determination in International Law. Self-determination has originated as enforceable right to freedom from colonial rule. In this context, the UN has recognized three types of situations where the right of self-determination is deemed inalienable and enforceable. First and foremost, the peoples right of self-determination emanating from the colonial rule. Second case arises when people claim self-determination as a result of having been under the occupation of foreign power. Thirdly, the UN has given legitimacy to the situation when racist domination enables the emergence of peoples right of self-determination.

Let us examine the concept of self-determination in the context of de-colonization a bit further. Impregnated in the concern for people under colonial rule was the realization that conflict and chaos as a means to break the shackles of the colonial power could also easily escalate into total chaos and destruction of balance of power in the globe. Therefore, it was asserted in the Declaration on Granting Independence to Colonial Countries and Peoples at the UN General Assembly on December 14, 1960 that, " The subjection of peoples to alien subjugation, domination and exploitation (i.e., the denial of self-determination) constitutes a denial of fundamental human rights ".

Not only does this interrelates with the concept of self-determination and the human rights movement but also enshrines self-determination under solid legal principles. However, this provides legal binding to the idea of peoples right to self-determination only when it relates to peoples rights under colonial rule. Subsequently the word "self-determination" finds its way as an emancipated principle in the UN charter as linked to the notion that "peoples have equal rights". This has alone been incorporated into the preamble to the International Covenant on Economy, Social and Cultural Rights and the International Covenant on Civil and Political rights.

Now going back to our discussion to identify the roots of self-determination in International Law, we talked about three main themes under whether the UN has legitimized the peoples right of self-determination. There are several means through which people can exercise the rights to self-determination. One of which is the Declaration of Principles of International Law concerning Friendly Relations and Cooperation among states that,

In spite of all the above, the international instruments do not provide a succinct definition of the contents of the rights to self-determination of peoples, nor does there exist a perfect definition of self-determination. This has therefore, created more shades of gray in today’s global arena when we are confronted with trying to determine whether a certain peoples claim for the right to self-determination is truly legitimate or not. This therefore, leads us to examine the two distinct divisions of the concept of self-determination. The first is concerned with the right to external self-determination, i.e., the right of a people to undertake external roles, such as foreign policy and defense, issues reserved for sovereign states to deal with. The second is the internal self-determination, i.e., the concept of self-determination that asserts the right of people or minorities to variety of jurisdiction over affairs internal to state, and which could range from enhanced participation in governance to autonomy under a sovereign states control. One such case is the situation in Kashmir in the Indian sub-continent. In the following, we present our analysis of the right to self-determination related to Kashmir.

Self-determination of Kashmir

The present situation in Kashmir presents a faulty de-colonization process that has led to a political quagmire lasting decades. In some parlance, it is viewed as a disputed territory, whereas in some quarters, there is no question about the legality of Kashmir as an integral part of India. The issue before us is then to analyze this situation with respect to the existing concepts of self-determination. Before getting into the legitimacy of the claim for self-determination, let us take a look at the historical context through which Kashmir was annexed as part of India.

History and legitimacy of Annexation

The State of Jammu and Kashmir (J&K) acceded to the dominion of India on the 26th October 1947, as one of the remaining acts of de-colonization of British territory. In order to understand the Kashmiri’s right to self-determination, the legality of this accession of Kashmir has to be analyzed. The accession took place under the provisions of the Constitution of India as in force on 15th August, 1947 i.e., the Government of India Act 1935 as adopted under provisions of the Indian Independence Act 1947, both of which were enactments of the British Parliament. The provision is stipulated as follows:

Consequently, when the ruler of Kashmir executed the Instrument of Accession (26 October, 1947) and Lord Mountbatten, then Governor General, accepted the Instrument (27 October 1947), the whole of Kashmir became an integral part of India. This accession was provided within the stipulations granted by the British Government for the independence of the India. Under this plan, the Muslim majority area in British India would constitute the Dominion of Pakistan and the Hindu majority would constitute the Dominion of India. Additionally, it also was made clear that the decision about Partition related only to British India and the Rulers of the Princely States would be restored their earlier Paramount power. In other words, the Princely States were to become 'independent' and the communal basis of the division of India would not affect those States at all. Therefore, the rulers of the princely states were free to choose where they accede to, as long as the accession is agreed upon by the powers granting them that.

Since, the Act was enacted by the British Parliament to create the Dominions of India and Pakistan, it cannot be questioned either by India, Pakistan or the United Kingdom, parties to the agreement. One of the players sponsoring the current air of illegitimacy of Kashmir as part of India is Pakistan. However, historical events point out that the Government of the Maharaja of Kashmir was recognized by Pakistan. It was with this Government that Pakistan signed a Standstill Agreement by the exchange of telegrams on August 12 and 16, 1947. At that time the Pakistan Government did not question the validity of the Agreement with the Government of Maharaja of Kashmir.
India's right as well as its duties with regard to Jammu and Kashmir flowed from the fact of accession was recognized from the beginning. Mr. Warren Austin, the representative of the United States in his speech on February 4th 1948, during the 240th meeting of the Security Council, where he asserted the following, which further corroborated that,

It is significant that the legality of the accession has never been questioned either by the Security Council or by the United Nations Commissions for India and Pakistan (UNCIP). On the contrary, on the question of accession the UNCIP legal advisor examined this issue and found that it was legal and authentic and could not be questioned. This fact clearly influenced the proposals made by the UNCIP. The most significant recognition of India's legal status in Kashmir was contained in the Commission's reply to protests from the Pakistan Government against the decision of the Indian Constituent Assembly to reserve four seats for the representatives of Jammu and Kashmir. The Commission declined to take up this matter and observed, "In the Commission's view, it is difficult to oppose this measure of the Indian Government on purely legal grounds,"

The issue of armed conflict with Indian Military forces has been raised in several quarters in trying to establish legitimacy of the self-determination of Kashmiri people. However, based on the legality of accession of Kashmir to India, there should be no confusion to the use of force for the law and order situation in Kashmir. Because, an essential attribute of sovereignty is the right to maintain an army for national security. Based on the UNCIP resolutions of August 13th 1948 and January 5th 1949, there has always been recognition of the rights and obligations of the Government of India to maintain a sufficient force "for the support of the civil power in the maintenance of law and order." In this way, the UNCIP, and authorized World body, not only recognized the right of India to retain her troops in Jammu and Kashmir in sufficient numbers consistent with the security of the State but also recognized the responsibility of India for the maintenance of law and order throughout the State.

It is imperative that the right of self-determination in Kashmir is analyzed within the context of the instrument of accession discussed above. Because, the concept of self-determination was born as a result of de-colonization that started the disintegration of empires. The independence of India and Pakistan came about as a result of this de-colonization, which was in essence driven by a broader concept of self-determination. In granting the territory of Kashmir to India via the process of instrument of accession again invokes the concept of self-determination. Any further granularization of this self-determination by legitimizing a call for self-determination of any territory within a sovereign state therefore would question the legitimacy of the de-colonization process that in the first place started this chain of events. It is therefore, of utmost importance to take out the blinders of political rhetoric and try to understand the legitimacy of the accession via historical truths.

The Instrument of Accession executed by the Kashmir Maharaja was in no way different from that executed by some 500 other Princely States. It was unconditional, voluntary and absolute. It was not subject to any exceptions. And as Alan Campbell-Johnson wrote in 1951, "The legality of the accession is beyond doubt..." The legitimacy of Kashmir’s accession to India has further been corroborated as recent as February 11, 1975 Sheikh Abdullah, the Lion of Kashmir, wrote a letter to India's prime minister saying, "The accession of the state of J&K is not a matter in issue. It has been my firm belief that the future of J & K lies with India because of the common ideal that we share." More than twenty years thereafter, the same sentiments are being reiterated by the present chief minister of the state, democratically elected by his people.

Discussions

Taking a peek at history of the United States of America, we can compare the accession of Kashmir to India is with the annexation of Texas by the USA in 1845. Threatened by the menace of predatory incursions from Mexico, independent Texas requested the US government to annex it. The US Congress sanctioned the proposal. When Mexico protested, the US government did not consider its action of annexation as a violation of any of the rights of Mexico. However, when Texas opted out of the Union in February 1861 so as to be unhindered in preserving and propagating slavery, Lincoln battled against the secession, committed as he was to freedom and democracy. If, therefore, a minority of Kashmiris, instigated and nurtured by Pakistan, is alienated against India, should not India act like Lincoln?

Even as arguments on the Kashmir issue lingered in the United Nations Security Council for years, two important events of historical significance has further ratified the issue of accession. Firstly, in June 1949 the Prince of Kashmir, on the advice of his council of ministers, nominated four representatives to the Indian Constituent Assembly which was then framing a Constitution for free India. At that time, it was made clear by the Kashmir government that "while the accession of the J&K State with India was complete in fact and in law," the state would be governed by its own Constitution as permitted by the Instrument of Accession. Secondly, the Jammu and Kashmir Constituent Assembly comprising representatives duly elected in August 1951 on the basis of universal adult suffrage started deliberations, ratified the accession on February 15, 1954 and irrevocably incorporated the state as an integral part of the Union of India in the non-amendable Section 3 of its Constitution that came into effect from January 26, 1957.

Both the above series of acts by the state of Kashmir did not at all violate its legal status vis-а-vis India or the UN Security Council. Moreover, no one, not even the worst critic, ever doubted the representative nature of Jammu and Kashmir's Constituent Assembly. Because as we mentioned earlier self-determination is a one-time slot, and because the elected representatives of the people of Jammu and Kashmir had taken a final decision regarding their future status, the question of any further ''self-determination'' or ''plebiscite'' does not arise either legally or morally. Therefore, it must be recognized that the Security Council was exceeding its reach with its plebiscite proposal.

The situation today therefore is that if the accession of Kashmir is reopened, it would imply going 56 years back and reopening the whole question of the independence of India and Pakistan for the simple reason that the same document as provided for the accession of the Princely States, granted independence to India and Pakistan. That reopening and dividing Kashmir on the basis of religious compulsion will surely lead to a replay of the communal Indian holocaust of 1947.

We are reminded by a more recent reaffirmation by the United Nations General Assembly where the conflict between the peoples’ right to self-determination and the sovereignty of a nation has been addressed. The declaration says:

Conclusion

The concept of self-determination has broadened since the formative days of the post World War I. Along the way, various international bodies, human rights groups and the comity of nations worked hand-in-hand to ensure freedom for all groups. The issue of Kashmir however opened up a whole set of new questions. Firstly, can the right to self-determination be conferred upon a community, a group of people more than once? This situation is somewhat akin to attaching double jeopardy in common Law criminal jurisprudence when a defendant cannot be tried twice. If the right to self-determination is enshrined in the framework of International Law, can people’s right of self-determination be judged more than once.

This brings us to the legitimate issue of considering whether the current modalities of determining the right of self-determination can actually work in the future. When the claim of self-determination is mixed with terrorism, as has been in the case of Kashmir, can the sovereign State ignore the threat to fracture its territorial and political unity? Especially, if we consider that the legitimacy of the instrument of accession has once fulfilled the Kashmiri’s right to self-determination. Because, re-opening the issue of Kashmir’s self-determination vis-а-vis the sovereignty of India would mean nullifying the instrument of accession. Which in turn would nullify the independent status of both India and Pakistan. Can the world body afford to open that Pandora’s box?

Finally, the right to self-determination has to be analyzed in the context of the regions original secession from the colonial rule. Because, the rise of certain fundamentalist idealism coupled with political agendas of States have indeed created a fertile ground for communities in every nook and corner to cry for "peoples’ right of self-determination". The issue of Kashmir, and so many other territories in the world should be dealt with as internal self-determination. Any future legal framework should therefore address it as such. Otherwise, the whole issue of self-determination, in the worlds of President Woodrow Wilson’s Secretary of State, Robert Lansing, "would likely breed discontent, disorder and rebellion". And the world would indeed be a less safer place than today.

РАЗРЕШЕНИЕ КОЛЛИЗИЙ МЕЖДУ НАЦИОНАЛЬНЫМ САМООПРЕДЕЛЕНИЕМ
И СУВЕРЕНИТЕТОМ ГОСУДАРСТВ:
анализ проблемы Кашмира в Индии

С. Хошрай
Хьюстон, Техас

Резюме

В работе доктора Сабясачи Хошрая анализируются вопросы, посвященные праву на самоопределение в контексте кашмирской проблематики. Автором в частности подчеркивается, что право на самоопределение возникло, как право освобождения от колониального ига. В этой связи ООН выработала, по словам автора, три основных ситуации при наличии которых осуществление права на самоопределение является неотъемлемым и позволяющим применение силы. Первая ситуация охватывает случаи, которые исходят из необходимости освобождения народа или нации от колониального ига; вторая охватывает случаи освобождения от иностранной оккупации и третья ситуация включает случаи освобождения от расистского господства. Автор отмечает, что международные договоры не устанавливают четкого определения права на самоопределение, что вызывает множество проблем при выяснении правомерности борьбы того или иного народа. В связи с этим предлагается рассмотреть два различных аспекта реализации права на самоопределение - внутренний и внешний. Под внешним аспектом права на самоопределение подразумевается право народа осуществлять внешние функции, включая внешнюю политику и оборону, а также вопросы входящие в компетенцию суверенного государства, под внутренним аспектом права на самоопределение имеется ввиду концепция самоопределения, в соответствии с которой народам или национальным меньшинствам предоставляется определенный объем юрисдикции в отношении вопросов входящих во внутренние дела государств и могут включать различные проявления начиная с права участия в управлении государством и заканчивая правом создания автономии в рамках данного государства.

В работе тщательным образом исследуется решение Верховного суда Канады 1998 года относительно права Квебека в одностороннем порядке отделится от Канады, в котором в частности подчеркнуто, что как правило право на самоопределение осуществляется в форме внутреннего самоопределения, право же внешнего самоопределения возникает лишь в экстремальных случаях и даже в этом случаях при наличии строго определенных обстоятельств. Суд отметил также, что нет никаких обязательных противоречий между сохранением территориальной целостности существующих государств, в том числе и Канады и правом «народа» достичь всех уровней самоопределения. Государство, чье правительство на равных началах и без дискриминации представляет все население или все народы проживающие на его территории и соблюдает принцип самоопределения в внутригосударственных отношениях в соответствии с международном правом, имеет право на сохранение территориальной целостности.

С особой тщательностью в работе представлена история присоединения Кашмира к Индии в контексте основных правовых проблем. Автор проводит параллели между аннексией независимого Техаса со стороны Соединенных Штатов Америки в 1845 году и присоединением Джамму и Кашмира к Индии, отмечая далее, что самоопределение является единичным актом и учитывая тот факт, что избранные представители населения Джамму и Кашмира приняли окончательное решение относительно их будущего статуса, то вопрос о последующем «самоопределении» или «плебисците» невозможен ни в юридическом, ни в моральном отношении.

В работе отстаивается точка зрения согласно которой гарантированное нормами международного права право на самоопределение должно предоставляться определенному народу или нации не более одного раза.

Автор выражает сомнения относительно того могут ли современные рамки понятия права на самоопределение действительно применятся в будущем, отмечая, что если право на самоопределение взаимосвязано с терроризмом, как в случае с Кашмиром, то может ли суверенное государство игнорировать угрозу разрушения своего политического или территориального единства.

В заключении подчеркивается, что право на самоопределение должно анализироваться в контексте первичного освобождения территорий от колониального господства, а проблема Кашмира также как и проблемы иных территорий на земном шаре должны быть разрешены в рамках внутреннего самоопределения.