JANUARY 5: Kashmir Solidarity Day for its right to self-determination
Anatomy of Issue
On 5th January 1949, the United Nations Commission for India and Pakistan adopted a resolution that guaranteed Kashmir’s right to self-determination through an impartial plebiscite. Pakistan observes Kashmir Solidarity Day on this day to show support to Kashmiri brethren and remind the international community regarding their commitments made to the people of IIOJ&K. Despite the UN guarantees, India has not carried out a free and fair plebiscite in Kashmir even after 75 years, which is an utter violation of international law. Instead, the people of Kashmir are suffering systematic persecution at the hands of Indian occupational forces for demanding right to self-determination. While the international community, especially the UN, has failed to implement its resolutions. The world community must stand up against Indian tyranny and its rouge behaviouar.
Background of the Kashmir Dispute
• The State of Jammu and Kashmir has historically remained independent, except in the anarchical conditions of the late 18th and first half of the 19th century, or when incorporated in the vast empires set up by the Mauryas (3rd century BC), the Mughals (16th to 18th century) and the British (mid-19th to mid-20th century).i
• All these empires included not only present-day Pakistan and India but some other countries of the region as well.ii
• Until 1846, Kashmir was part of the Sikh empire. In that year, the British defeated the Sikhs and sold Kashmir to Gulab Singh of Jammu for Rs. 7.5 million under the Treaty of Amritsar.
Maharaja Gulab Singh
• Gulab Singh, the Maharaja, signed a separate treaty with the British which gave him the status of an independent princely ruler of Kashmir.
• Gulab Singh died in 1857 and was replaced by Rambir Singh (18571885). Two other Marajas, Partab Singh (1885-1925) and Hari Singh (1925-1949) ruled in succession.
• Gulab Singh and his successors ruled Kashmir in a tyrannical and Maharaja Gulab Singh repressive way. The people of Kashmir, nearly 80 per cent of who were Muslims, rose against Maharaja Hari Singh’s rule. He ruthlessly crushed a mass uprising in 1931.
• In 1932, Sheikh Abdullah formed Kashmir‘s first political party, the All Jammu & Kashmir Muslim Conference (renamed as National Conference in 1939).
• In 1934, the Maharaja gave way and allowed limited democracy in the form of a Legislative Assembly. However, unease with the Maharaja’s rule continued.
• According to the instruments of partition of India, the rulers of princely states were given the choice to freely accede to either India or Pakistan, or to remain independent. They were, however, advised to accede to the contiguous dominion, taking into consideration the geographical and ethnic issues.
• In Kashmir, however, the Maharaja hesitated. The principally Muslim population, having seen the early and covert arrival of Indian troops, rebelled and things got out of the Maharaja’s hands.
• The people of Kashmir were demanding to join Pakistan. The Maharaja, Maharaja Hari Singh fearing tribal warfare, eventually gave way to the Indian pressure and agreed to join India by, as India claims, signing’ the controversial Instrument of Accession on 26 October 1947.iii
Mahara Hari Singh
• Kashmir was provisionally accepted into the Indian Union pending a free and impartial plebiscite. This was spelled out in a letter from the Governor General of India, Lord Mountbatten, to the Maharaja on 27 October 1947.
• In the letter, accepting the accession, Mountbatten made it clear that the State would only be incorporated into the Indian Union after a reference had been made to the people of Kashmir. Having accepted the principle of a plebiscite, India has since obstructed all attempts at holding a plebiscite.iv
• In 1947, India and Pakistan went to war over Kashmir. During the war, it was India which first took the Kashmir dispute to the United Nations on 1 January 1948.v
• The following year, on 1 January 1949, the UN helped enforce ceasefire between the two countries. The ceasefire line is called the Line of Control. It was an outcome of a mutual consent by India and Pakistan that the UN Security Council (UNSC) and UN Commission for India and Pakistan (UNCIP) passed several resolutions in years following the 1947-48 war.
• The UNSC Resolution of 21 April 1948 – one of the principal UN resolutions on Kashmir stated that both India and Pakistan desire that the question of the accession of Jammu and Kashmir to India or Pakistan should be decided through the democratic method of a free and impartial plebiscite.
• Subsequent UNSC Resolutions reiterated the same stand. UNCIP Resolutions of 3 August 1948 and 5 January 1949 reinforced UNSC resolutions.
Resolution adopted at the meeting of the United Nations Commission for India and Pakistan on 5 January, 1949
Salient of Resolution adopted on 5 January 1949:vi o Article 1: The question of the accession of the State of Jammu and Kashmir to India or
Pakistan will be decided through the democratic method of a free and impartial plebiscite; o Article 2: A plebiscite will be held when it shall be found by the Commission that the ceasefire and truce arrangements set forth in Parts I and II of the Commission’s resolution of 13 August 1948, have been carried out and arrangements for the plebiscite have been completed;
o Article 3(a): The Secretary-General of the United Nations will, in agreement with the Commission, nominate a Plebiscite Administrator who shall be a personality of high international standing and commanding general confidence. He will be formally appointed to office by the Government of Jammu and Kashmir.
o Article 3(b): The Plebiscite Administrator shall derive from the State of Jammu and Kashmir the powers he considers necessary for organizing and conducting the plebiscite and for ensuring the freedom and impartiality of the plebiscite.
o Article 3(c): The Plebiscite Administrator shall have authority to appoint such staff or assistants and observers as he may require.
Right to Self-determination in International Law
• Self-determination denotes the legal right of people to decide their own destiny in the international order.
• Self-determination is a core principle of international law, arising from customary international law, but also recognized as a general principle of law, and enshrined in a number
of international treaties. For instance, self-determination is protected in the United Nations Charter and the International Covenant on Civil and Political Rights as a right of “all peoples.”
• The United Nations Universal Declaration of Human Rights (Article 15) states that everyone has the right to a nationality and that no one should be arbitrarily deprived of a nationality or denied the right to change nationality.
• Right of Self Determination has particular importance in ICCPR (International Covenant on civil and Political Rights). The most important feature is that the covenants define the right of self-determination widely to all the peoples not only the people of colonized or oppressed people. If we further interpret the common Article 1 of the covenants, it gives the right of free determination of political status to all the people along with free enjoyment and exploitation of their natural economic resources and wealth.
Analyzing Kashmir Dispute under International Law with Special Reference to Right to SelfDetermination
• As noticed above, the basic points about the UN resolution are that:
o The complaint relating to Kashmir was initiated by India in the Security Council; o The Council explicitly and by implications, rejected India’s claim that Kashmir is legally
Indian territory; o The resolutions established self-determination as the governing principal for the settlement of the Kashmir dispute. This is the world body’s commitment to the people of Kashmir;
o The resolutions endorsed a binding agreement between India and Pakistan reached through the mediation of UNCIP, that a plebiscite would be held, under agreed and specified conditions.
o The Security Council has rejected the Indian contention that the people of Kashmir have exercised their right of self-determination by participating in the “election” which India has from time to time organized in the Held Kashmir. The 0.2% turn out during the 1989 “elections” was the most recent clear repudiation of the Indian claim.vii
• Pakistan continues to adhere to the UN resolutions. These are also binding on India. The Simla Agreement of 2 July 1972, to which Pakistan also continues to adhere, did not alter the status of Jammu and Kashmir as a disputed territory:
o Para 6 of the Agreement lists a final settlement of Jammu and Kashmir” as one of the outstanding questions awaiting a settlement.
o Para 4 (ii) talks of a “Line of Control” as distinguished from an international border. Furthermore, it explicitly protects “the recognized position of either side.” The recognized position of Pakistan is the one, which is recognized by the United Nations and the World Community in general.
o Article 1(iv) obviously refers to the Kashmir issue when it talks of “the basic issues and causes of conflict which have bedeviled the relations between the two countries for the last 25 years”
• However, India violated not only UN resolutions by not conducting Kashmir plebiscite but also Simla agreement by changing legal status of Kashmir by revoking Article 370 and 35-A in August 2019.
• The right of self-determination is a basic norm of democratic society which is recognized universally and it provides choice to the certain individuals to decide about their future according to their own wishes. But this right is completely denied by the so claimed largest democratic country India, in South Asia.
• The Indian government’s point of view is that the Indian constitution is bar to holding of a Plebiscite in Kashmir. This view can be negated while examining the provisions of article 3 of the Indian constitution which invests the Indian parliament with the power to create new states and alter the areas, boundaries and names of the existing ones. There is no provision in the Indian constitution for the final decision of Jammu & Kashmir.viii
• The Indian state is bound to observe the international norms as referred by the Vienna Convention on the Law of Treaties. Article 27 of this convention declares that a party cannot invoke the provisions of its internal law as justification for its failure to perform a treaty. This article shows that the state cannot back out from the international commitment on the ground that it is the violation of its national law.ix
• New Delhi’s allegation of assistance to the Kashmiri people from the Pakistan side is unfounded. Objective reports in foreign media testify that the Kashmiri agitation is indigenous.
• Pakistan upholds the right of the people of Jammu and Kashmir to self-determination in accordance with the resolutions of the United Nations Security Council. These resolutions of 1948 and 1949 provide for the holding of a free and impartial plebiscite for the determination of the future of the state by the people of Jammu and Kashmir.
• Despite suffering for 75 years under illegal Indian occupation, Kashmiri people remain committed to their demand for right to self-determination.
• Pakistan stands with the people of Kashmir unequivocally in their rightful struggle for freedom from tyranny and repression.
• To end Kashmir dispute, the only way forward is giving people of Kashmir free will to decide their future, as guaranteed by the UNSC resolutions.
• International community, especially the West, must rise above their economic and strategic interests and put pressure on the Indian government to withdraw its illegal forces from IIOJ&K and give the people their right to self-determination.
846. ii Ibid.
iii https://www.readcube.com/articles/10.2139%2Fssrn.1967296 iv https://www.aa.com.tr/en/asia-pacific/-denial-of-right-to-self-determination-cause-of-kashmir-dispute-/2019646 v https://www.e-ir.info/2020/05/29/the-case-of-un-involvement-in-jammu-and-kashmir/ vi https://www.un.org/securitycouncil/sites/www.un.org.securitycouncil/files/en/sc/repertoire/52-55/Chapter%208/52-55_08-
2-The%20India-Pakistan%20question.pdf vii https://rsilpak.org/wp-content/uploads/2019/08/Legal-Memo-Kashmir.pdf
viii https://www.ijbel.com/wp-content/uploads/2014/06/Right-Of-Self-Determination-For-Kashmiri-People-An-InternationalLaw-Perspective-Muhammad-Mumtaz.pdf ix Ibid.
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