Right of self - determination and Kashmir

Right of self - determination and Kashmir
Dr Shabir Choudhry

Although right of self – determination is a right of nations to determine their future without any threat or coercion, but over the years its meaning has changed, and this right has internal and external dimensions. The UN and its various resolutions are very clear on the concept of peoples right to self – determination, but in practice do little to help people to get that right.

Recognition of this right is one thing and its achievement is the other. There are many nations whose right to determine their future has been recognized by the UN and the world community, but despite this recognition these unfortunate nations are still suffering and are deprived of this basic human right.

Tragic events of 9/11 have changed the course of world history, and has in many ways worked against collective interest of these nations who are still struggling to achieve independence, as distinction between a ‘freedom fighter’ and a ‘terrorist’ has become blurred.

The UN Charter of the UN declares that one of its purposes is to promote the right of all peoples to self determination (article 1 paragraph 2). And the right to self – determination is defined as ‘the ability of a people to collectively determine its political status and to pursue its own economic, social and cultural development’ (resolution 2200 A parts 1 and 2).

Similarly the UN General Assembly Resolution 2625 of 1970 stated, “Every state has the duty to promote, through joint and separate action, realization of the principle of equal rights and self – determination of peoples”.

Recognition of this right is particularly important if we want to create conditions under which individual human rights could be appropriately protected and promoted. Denial of right of self - determination is, in fact, denial of all other human rights because it is through this right people could give meaning to other political, social and cultural rights.

And when a government is established as a result of exercising peoples right of self – determination, then that government can protect rights and interest of its people; but a government which is exercising control over foreign people will pursue policies to further its own interest, and that is likely to undermine rights and interests of the indigenous people.

It is unfortunate to note that some states, even though they are signatory to the UN Charter, deny indigenous people right to self - determination under international law. These states actively and explicitly deprive people of their basic human rights, and oppress and subjugate those who seek right of self - determination; and it should be of great concern to the UN and all organizations supporting human rights.

The citizens of State of Jammu and Kashmir are unfortunate people who have been denied of this basic human right - a right which is bestowed to every human being by nature, and which is supported by relevant UN resolutions. The State of Jammu and Kashmir was forcibly divided in 1947 before the people could exercise their right of self determination. To date the State is forcibly divided between India and Pakistan and people of Kashmir have had no opportunity to exercise this basic human right to determine their own future.

The UN Security Council Resolutions on Kashmir are very clear that no elections, whether fair or rigged, could substitute right of self-determination. However elections have an important role to play in a society, as it is a process that helps people to elect their representatives who could work for the welfare of the people.

When the case of Kashmir and its future was discussed in the UN Security Council, unfortunately it was Pakistani government which suggested that the Kashmiri peoples right to determine their future should be limited to either acceding to Pakistan or India, hence depriving the people to enjoy and exercise full right of self determination, which is fountain of all other rights.

This right of Kashmiris was further curtailed by Act 1974, as it has institutionalized the role of Pakistani governments who could dictate their terms and ‘appoint’ and ‘dismiss’ governments in Muzaffarabad as they please. Furthermore it deprives all those parties and individuals to take part in the political process who disagree with State’s accession to Pakistan.

UNCIP Resolution of 5th January 1949 in which Kashmiri peoples right to exercise full right of self – determination was limited, was applicable to all of the State, even those areas which Pakistani government partitioned in to three and gave one part to China. Section 7 of that resolution provided full protection to social and political rights of the Kashmiri people, and it is unfortunate that people do not enjoy fruits of those rights.

The Kashmiri people could not exercise their right of self determination because both India and Pakistan failed to agree on issues related to demilitarization, but consequence of that is subjugation and oppression and forced division of the Kashmiri people. It is the Kashmiri families who have been separated by force for the past 56 years; and it is the Kashmiri people as a whole who have been deprived of basic human rights.

The elections in Azad Kashmir held in July 2001 were marked by complete apathy on the part of the international community in the mistaken belief that the Kashmir issue involves only denial of political rights by India. The leadership that has emerged in Azad Kashmir as a consequence therefore comprises only of those committed to making Kashmir a part of Pakistan.

The majority of the people, who disagree with the stipulation that they should accept accession to Pakistan, are made to suffer in different ways, including denial of employment, government contracts and opportunities to undertake private enterprise. This stipulation is even against the UN resolutions, which Pakistan time and again speak about and demands their implementation knowing full well that parts of those resolutions have not been fully implemented by Pakistan; and this provided India a pretext later on to call Kashmir as its ‘integral part.’
Whereas after the forced division of the State, areas under India remained one political entity; but the areas under Pakistan were divided in to three parts. One area is known as Azad Kashmir where Pakistan has indirect control, other area is under direct control of Pakistan and is known as Gilgit and Baltistan, but this area was further divided and area consisting of more than two thousand sq miles was given to China.

The people of the Northern Areas of Gilgit and Baltistan, spread over an area of 28,000 sq. miles, do not have even those rights enjoyed by the people of Azad Kashmir. And leaders of Gilgit and Baltistan National Alliance who I have met during my recent visit to Azad Kashmir and Pakistan were furious over the conditions under which they had to live. They were unanimous in their demand that they are not part of Pakistan and would like to, at least, get status enjoyed by the people of Azad Kashmir.

No one will disagree that the human rights violations are taking place on the Indian side of the divide, and that must stop and political prisoners released without any delay; and I hope that government of Pakistan will also respect rights and dignity of people of Gilgit and Baltistan and Azad Kashmir as they also have the same rights and protection under the Universal Declaration of Human Rights as those in other parts of the world.

Apart from this I hope that both governments will show increased sense of responsibility and examine the ground realities with interest of the Kashmiri people in mind, and honour their commitments that people could determine their future. Both governments need to review their respective stands on Kashmir; and for the sake of peace and stability of the region make such changes that a new era of peace and harmony could start.

And if they fail to rise to occasion and cling to their old stands which failed to provide solution and brought South Asia to the brink of a nuclear war, then both governments in their own way would be held responsible for the miseries of the Kashmiri people and that of South Asia.

Writer is a Chairman of Diplomatic Committee of JKLF and author of many books and booklets. Also he is a Spokesman of International Kashmir Alliance. Email: drshabirchoudhry@gmail.com