United Nations Commission on Human Rights
60th Session (15 March 23 April 2004)
Item V: The Right of Peoples to Self-Determination and its application to people under colonial or alien domination or foreign occupation.
Intervention made by Dr Shabir Choudhry, BA (Honours), Mphil, PGCE, NVQ Trainer/Assessor and PhD.
Thank you Chairperson.
The 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).
UN General Assembly Resolution 2625 of 1970 stated that “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, I concede that elections have an important role to play in a society. It is a process that could help 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 which was limited on the request of Pakistan was further curtailed by the government of Azad Kashmir/Pakistan. Dr Nazir Gilani Secretary General of JKCHR in a written statement (E/CN.4/ 2003/NGO/135) submitted to the UN Commission on 12 March 2003, stated, and I quote:
“The Kashmir government at Muzaffarabad remains in serious breach of its Provisional Declaration – ‘The question of accession of Jammu and Kashmir to either Dominion can only be decided by the free vote of the people in the form of referendum’, by enacting a legislation under its 1974 Constitution under article 7 (2) stating that ‘ No person or political party in Azad Jammu and Kashmir shall be permitted to propagate against or take part in activities prejudicial or detrimental to the ideology of the State’s accession to Pakistan.” Unquote.
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 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.
The people 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.
I hope this Commission would agree that the people of Gilgit and Baltistan and Azad Kashmir have the same rights and protection under the Universal Declaration of Human Rights as those in other parts of the world. I wish to emphasise that the UNCIP Resolution of 5th January 1949 in which Kashmiri peoples right to exercise full right of self – determination was limited, at least their basic rights were protected in this Resolution. Section 7 of that resolution reads as follows that:
(a) There is no threat, coercion or intimidation, bribery or other undue influence on the voters in the plebiscite;
(b) No restrictions are placed on legitimate political activity throughout the State. All subjects of the State, regardless of creed, caste or party, shall be safe and free in expressing their views and in voting on the question of the accession of the State of India or Pakistan. There shall be freedom of press, speech and assembly and freedom of travel in the State, including freedom of lawful entry and exit;
(c) All political prisoners are released;
Chairperson, in conclusion, I wish to urge this Commission to acknowledge and recognise the denial of the right to self-determination to the people of Kashmir on both sides of the divide, and that both governments in their own way are responsible for the miseries of the Kashmiri people. END