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Kashmir Dispute Redux: What of the Right of Self-Determination?

Introduction

The conflict over Kashmir has tenaciously impeded prospects of peace and stability in the South-Asian region for decades.[1] Since the partition of British India, Kashmir has been the subject of a complex dispute regarding rightful accession, with Pakistan and India both maintaining claims to the territory,[2] and many of those native to Kashmir harbouring marked preferences for independence.[3] An official plebiscite under the auspices of the United Nations to determine the status of Kashmir was never held.[4] Despite multiple UN Security Council Resolutions,[5] three Indo-Pakistani wars,[6] and a bilateral treaty agreement between India and Pakistan,[7] a successful resolution of the conflict has remained elusive. Now, the issue has aggressively come to the global fore again.

What Has Changed in Kashmir?

Recently, unilateral actions by India have drastically augmented the dispute.[8] In early August 2019, India’s nationalist Bharatiya Janata Party (“BJP”) -led government effectively placed Indian-administered Jammu and Kashmir (hereafter “Kashmir”) under total lockdown. A complete communications blackout was imposed, and phone lines and the internet were shut down; Kashmir was entirely cut off from the outside world.[9] Indian paramilitary presence was increased exponentially, and an extensive network of checkpoints and barricades along with curfew regulations were foisted on the Kashmiri population, drastically limiting the time and manner of their movement.[10]

The purpose of the foregoing measures was to prevent public backlash against what was to come, for immediately following the lockdown, the BJP government through a presidential order revoked, almost in their entirety, Articles 370 and 35-A of the Indian Constitution.[11]  

Essentially, Article 370 regulated India’s relationship with Kashmir. Article 370 vested India’s federal government with control over Kashmir’s foreign affairs, defense, finance, and communications, but left other matters to its provincial representatives.[12] Kashmir was, therefore, granted a special limited degree of autonomy, and the revocation of Article 370 stripped it of that status.

Meanwhile, Article 35-A precluded non-Kashmiris from buying property, holding governmental jobs, and permanently settling in Kashmir. The obvious implication of jettisoning Article 35-A is that non-Kashmiris can now freely settle in the territory.[13] This raises concerns of a change in the demographics of Kashmir, a Muslim-majority region. Could a change in the region’s demography have implications for the Kashmiris’ right of self-determination? After all, if an influx of settlers manages to shift or alter the dominant discourse by diluting religious, ethnic, and political affiliations and ideologies, it stands to reason that a collective claim of self-determination by those indigenous to the region of Kashmir may be compromised. But first, what exactly do we mean by self-determination?

The Right of Self-Determination

Self-determination denotes the right to freedom from foreign domination, and the right to choose one’s own political future.[14] In contemporary times, it is difficult to oppose the contention that the right of self-determination has acquired the status of jus cogens.[15] While internal self-determination involves the selection of both the desired system of governance and the substantive nature (i.e., democratic or otherwise) of the selected regime, external self-determination concerns the act by which a people determine their future international status and liberate themselves from foreign rule or occupation.[16] With independence a perennially live issue in Kashmiri politics,[17] understanding the contours of the external variant of self-determination is, in context, of obvious importance.

Despite self-determination’s firm entrenchment in the international law paradigm, a great deal of ambiguity underscores the content and scope of the right. The Declaration of the Granting of Independence to Colonial Countries and Peoples, and the two international human rights covenants – the International Covenant on Economic, Social and Cultural Rights, and the International Covenant on Civil and Political Rights echo the proposition that “[a]ll peoples have the right to self-determination.”[18] A natural question that arises then is what qualifications determine the categorization of “peoples” for the purposes of self-determination? During the era following the Second World War, the United Nations continued to champion the right of all “peoples” to self-determination. However, this rhetoric may be misleading, for in referencing self-determination in such a context, the United Nations actually meant to denote the right of colonial territories to independence.[19] Within such definitional strictures, external self-determination for Kashmir was partially achieved in 1947 with the withdrawal of the British from the state.[20]

The post-colonial period, in contrast, has been characterized by a steady movement towards the extension of the right of self-determination: “Peoples” categorized ethnically, culturally, or religiously may have the right to an independent state.[21] However, this remains a proposition that is largely in a scholarly gestational phase, and currently, remains unrecognized by the law. It is only in the severest of circumstances (such as an active genocide) that external self-determination may allow a people to secede, and even then, secession is only tolerated rather than actively supported.[22] Similarly, where a state abuses the democratic rights of its citizens so grievously that the situation becomes tantamount to classic colonialism, it stands to reason that such circumstances might engage the same legal consequences of a colonial self-determination paradigm, thereby permitting independence.[23] Whether the situation in Kashmir fits this description, or approaches the severity required for international law to refrain from prohibiting secession is doubtful. The BBC, however, has reported that human rights abuses and excesses in Kashmir are certainly occurring,[24] and if they are a harbinger of continued callous repression, then one of the foregoing exceptional paradigms could possibly materialize. If this were to happen, and consequently, were the Kashmiris were to be vested with the right to an independent state, how would the situation shift when non-Kashmiri settlers get factored into the equation?

Self-Determination, Kashmir, and a Changing Demographic

Once again, the key to the question of self-determination is which people get to exercise the right. Kashmir is a melting pot of distinct religions, and professedly, multiple groups. Based on this understanding, scholars have at times suggested that the solution to the Kashmir dispute lies in its partition by reference to religious affiliations.[25] After all, people categorized religiously could have the right of self-determination. Ostensibly, the Muslim majority area of Kashmir could be partitioned from the Hindu majority area of Jammu and the Buddhist majority area of Ladakh, and the two districts could, following plebiscites, accede to the state of their choosing, or opt for independence.[26]

However, advocating division along such lines is facile. Despite religious differences, the Kashmiri people share a common culture.[27] They have lived together in relative harmony, and major hostilities between native Muslims, Hindus, Sikhs, and Buddhists have been relatively rare.[28] Under the somewhat broad international law definitional standard of “people”, they could certainly qualify as such.[29]

With the revocation of Article 35-A, there is talk of non-Kashmiri mobilization for settlement in Kashmir. The Telegraph, for instance, reports that Google searches for “land rates in Kashmir” and “plots in Kashmir” recently surged.[30] In the same vein, an article in The Washington Post asserts that the rationale undergirding the abrogation of 35-A was to dilute the Muslim majority in Kashmir and consolidate India’s political power in the disputed region.[31] Some have prognosticated the emulation of a West Bank manner of settlement.[32] Assuming, arguendo, that non-native settlement in Kashmir does materialize, would it weaken the right of self-determination of those indigenous to the region?

In probabilistic terms, the answer is that in the short-term it does not damage the Kashmiris’ right of self-determination. An influx of non-Kashmiri settlers may alter the region demographically, but it would not dilute or alter the composition of the “people” that may exercise self-determination. Arguably, a group’s subjective perception of its own identity as distinct from the identity of other groups is critical in the categorization of a “people,”[33] and the identity of the Kashmiris, as evidenced from a significant proportion of the population’s resolute and long-standing claims for independence, is certainly distinct from that of the prospective settlers.[34] Even if one were to contend that by virtue of geographical proximity, the characteristics of the Kashmiris and Indians have blended, the legal touchstone of the matter is not the degree of differences that exist today, but the fact of the differences in culture, history, and tradition over the years.[35]

Over the long term, however, the demographical alteration of Kashmir may have grave implications for Kashmiris’ claims of independence. As discussed above, with the world divided between sovereign nations, international law refrains from tolerating secession absent truly exceptional circumstances. But even if secession were to become permissible in the context of the Kashmir dispute, practical limitations may arise. When diverse people have mixed to such an extent that geographical division or independence is no longer a meaningful solution, secession is hardly possible.[36] Moreover, circumstances may arise that render territorial division impossible, or incapable of resolving underlying social and political problems.

Theoretically, extensive non-native settlement in Kashmir would not deprive those indigenous to the region of their right of self-determination. Pragmatically, however, it would be difficult to make a realistic case for secession if settlers and the Kashmiris intersperse to such an extent that geographical segregation proves challenging. This is not to say that territorial demarcation and independence would not be achievable, but simply that the confluence of settlement with many other factors—such as the economic sustainability and political desirability of an independent Kashmir—may tilt against the likelihood of secession.     

Conclusion

Quite obviously, a solution to the Kashmir dispute requires far more than the simple exercise of self-determination rights. This is not to say that self-determination does not have a central role to play, but holistically, there are multiple dimensions to the conflict that must be taken into account. Challenges aside, however, it is clear that the issue has now escalated to a point where some form of external diplomatic intervention is necessary. In recognition of recent events, the UN Security Council, after steering clear of the issue for the greater part of forty years, picked it up again.[37] On August 16, 2019, for the first time since 1965, a closed-door consultative meeting solely focusing on the situation in Kashmir was held. Not much came of the meeting though. Not even the lowest level of Council action – the release of a press statement – took place. Given Pakistan’s and India’s nuclear arsenals, tensions at their peak, and the future of the Kashmiris hanging in the balance, passivity is simply not an option. Any action, however, would have to skilfully navigate south-Asian politics, while simultaneously placing Kashmiri human rights considerations at its center.

Ahmed Farooq is a 2019 graduate of Harvard Law School’s LL.M program.

This is a personal blog post and in no way represents the views of the Fordham International Law Journal.

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[1] See Holger Wenning, Kashmir: A Regional Conflict with Global Impact, 1 N.Z. J. Pub. & Int’l L. 197, 228 (2003).

[2] See generally Yasmin Khan, The Great Partition: The Making of India and Pakistan (2008); Henry Vincent Hodson, The Great Divide: Britain – India – Pakistan (1997).

[3] Reuters, Majority in Kashmir Valley Want Independence: Poll (Aug. 13, 2007), https://www.reuters.com/article/us-kashmir-poll/majority-in-kashmir-valley-want-independence-poll-idUSDEL29179620070813.

[4] See Brian R. Farrell, The Security Council and Kashmir, 22 Transnat’l L. & Contemp. Probs. 343, 367 (2013).

[5] Id at 343.

[6] See generally A Brief History of the Kashmir Conflict, The Telegraph (Sep. 24, 2001), https://www.telegraph.co.uk/news/1399992/A-brief-history-of-the-Kashmir-conflict.html.

[7] Simla Agreement on Bilateral Relations, 858 U.N.T.S. 71 (1972).

[8] See e.g., Article 370: Kashmiris Express Anger at Loss of Special Status, BBC NEWS (Aug. 7, 2019) https://www.bbc.com/news/world-asia-india-49261322; Jeffrey Gettleman, Suhasini Raj, Kai Schultz and Hari Kumar, India Revokes Kashmir’s Special Status, Raising Fears of Unrest, The New York Times (Aug. 5, 2019), https://www.nytimes.com/2019/08/05/world/asia/india-pakistan-kashmir-jammu.html; Ahsan I. Batt, India just pulled Jammu and Kashmir’s autonomy. Here’s why that is a big deal for this contested region., The Washington Post (Aug. 7, 2019), https://www.washingtonpost.com/politics/2019/08/07/india-just-pulled-jammu-kashmirs-autonomy-heres-why-this-is-big-deal-this-contested-region/.

[9] See Meenakshi Ganguly, India Needs to Step Back in Kashmir, Human Rights Watch (Aug. 12, 2019), https://www.hrw.org/news/2019/08/12/india-needs-step-back-kashmir.

[10] See Aijaz Hussain, Kashmir's Main City is a Maze of Razor Wire and Steel Barriers as the Lockdown Continues, TIME (Aug, 14, 2019), https://time.com/5651610/india-kashmir-srinagar-security-lockdown/; Azhar Farooq and Rebecca Radcliffe, India Independence Day Celebration Takes Place Under Strict Security in Kashmir, The Guardian (15 Aug, 2019), https://www.theguardian.com/world/2019/aug/15/narendra-modi-defends-indias-decision-to-end-kashmir-special-status.

[11] A provision of Article 370 which asserts that Kashmir is an integral part of India has been left untouched.

[12] See Ahsan I. Batt, India just pulled Jammu and Kashmir’s autonomy. Here’s why that is a big deal for this contested region., The Washington Post (Aug. 7, 2019), https://www.washingtonpost.com/politics/2019/08/07/india-just-pulled-jammu-kashmirs-autonomy-heres-why-this-is-big-deal-this-contested-region/.

[13] See Claire Parker, Kashmir’s New Status Could Bring Demographic Change, Drawing Comparisons to the West Bank, The Washington Post (Aug. 8, 2019), https://www.washingtonpost.com/world/2019/08/08/kashmirs-new-status-could-bring-demographic-change-drawing-comparisons-west-bank/.

[14] See Joshua Castellino, International Law and Self-Determination 149 (2000).

[15] See Erica-Irene A. Daes, Some Considerations on the Right of Indigenous Peoples to Self-Determination, 3 Transnat'l L. & Contemp. Probs. 3, 12 (1993). But see generally Matthew Saul, The Normative Status of Self-Determination in International Law: A Formula for Uncertainty in the Scope and Content of the Right, 11 Hum. Rts. L. Rev. 609, 644 (2011).

[16] See Erica-Irene A. Daes, Native Peoples' Rights, 27 Cahiers De Droit 123, 126-27 (1986).

[17] Michael Kugelman, India’s Sudden Kashmir Move Could Backfire Badly (Aug. 5, 2019), https://foreignpolicy.com/2019/08/05/indias-sudden-kashmir-move-could-backfire-badly/.

[18] Declaration on the Granting of Independence to Colonial Countries and Peoples, G.A. Res. 1514, U.N. GAOR, 15th Sess., Supp. No. 16, at 2, U.N. Doc. A/4684 (1961); International Covenant on Economic, Social and Cultural Rights, G.A. Res. 2200, U.N. GAOR, 21st Sess., Supp. No. 16, at 49, art. I, 1, U.N. Doc. A/6316 (1967); International Covenant on Civil and Political Rights, G.A. Res. 2200, U.N. GAOR, 21st Sess., Supp. No. 16, at 52, art. I, T 1, U.N. Doc. A/6316 (1967).

[19] See, e.g., Declaration on the Granting of Independence to Colonial Countries and Peoples, G.A. Res. 1514 (XV), U.N. GAOR, 15th Sess., Supp. No. 16, at 66, U.N. Doc. A/4684 (1960) (discussing independence of colonial countries and peoples).

[20] See Brian Farrell, The Role of International Law in the Kashmir Conflict, 21 Penn St. Int'l L. Rev. 293, 314 (2002).

[21] See Hurst Hannum, the Right of Self-Determination in the Twenty-First Century, 55 Wash. & Lee L. Rev. 773, 776 (1998). External self-determination must also be tempered against the principle of “Uti Possedetis”—a general international law norm that safeguards the sanctity of state boundaries when they have been determined by former colonial rulers.

[22] See Milena Sterio, Self-Determination and Secession Under International Law: The Cases of Kurdistan and Catalonia, ASIL Insights (Jan. 05, 2018), https://www.asil.org/insights/volume/22/issue/1/self-determination-and-secession-under-international-law-cases-kurdistan#_edn11.

[23] See Erica-Irene A. Daes, supra note 15, at 8.

[24] See Sameer Hashmi, Don’t beat us, just shoot us: Kashmiris allege violent army crackdown, BBC NEWS (Aug. 5, 2019), https://www.bbc.com/news/world-asia-india-49481180. See also Dr. Gregory H. Stanton, Genocide Alert for Kashmir, India, Genocide Watch (Aug. 15, 2019), https://www.genocidewatch.com/single-post/2019/08/15/Genocide-Alert-for-Kashmir-India.

[25] See Robert G. Wirsing, India, Pakistan And the Kashmir Dispute 218 (1994).

[26] Id at 220.

[27] See Sikander Shah, An In-Depth Analysis of the Evolution of Self-Determination under International Law and the Ensuing Impact on the Kashmiri Freedom Struggle, Past and Present, 34 N. Ky. L. Rev. 29, 47 (2007).

[28] Id.

[29] Id.

[30] See Joe Wallen, Indians Mobilise for 'Resettlement' Amid Warnings Over Hindu Nationalist Occupation of Kashmir, The Telegraph (Aug. 11, 2019), https://www.telegraph.co.uk/news/2019/08/11/indians-mobilise-resettlement-amid-warnings-hindu-nationalist/.

[31] See Claire Parker, supra note 13.

[32] Id.

[33] See Erica-Irene A. Daes, supra note 15, at 5.

[34] See Snehal Shingavi, Understanding Kashmir’s Struggle for Independence, International Socialist Review, https://isreview.org/issue/83/understanding-kashmirs-struggle-independence.

[35] See Erica-Irene A. Daes, supra note 15, at 6.

[36] Id at 5.

[37] See Richard Roth, UN Security Council Has its First Meeting on Kashmir in Decades -- and Fails to Agree on a Statement, CNN (Aug. 16, 2019), https://www.cnn.com/2019/08/16/asia/un-security-council-kashmir-intl/index.html.

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