Whenever and wherever there is a discussion on Kashmir, it is almost impossible that the discussants will fail to utter the two golden terms (sometimes confused as synonyms) holding the distinction of being conjoined to the Kashmir issue – ‘Self-determination’ and ‘Secession’. As ordinary as these two terms may seem, the reality remains that these are one of the most contentious concepts under international law, both in theory and practice. So what exactly does right to self-determination and secession under international law mean? And how are these relevant to the problem of Kashmir?
In order to understand these concepts and their relevance to Kashmir, it is extremely important to appreciate the nuances involved. Self-determination, as a concept has two major facets, external self-determination and internal self-determination. While the former reflects a territory emerging as a sovereign State (through secession, that may or may not be unilateral) or merging with some other State, the latter is confined to internal political, social, cultural and economic developments without disturbing the larger political set up with the existing ‘parent State’.
Self-determination as a right, duly recognized by the United Nations Charter and other international legal instruments like International Covenant on Civil and Political Rights, International Covenant on Economic, Social and Cultural Rights, and the Friendly Relations Declaration, gained popularity in the post World War II period, essentially as an antithesis to colonization. While the application of the principle was much simpler in the colonized territories, relying on it in the non-colonial context has been a bone of contention across the jurisdictions. One of the major hitches that right to self-determination faces is that, although Article 1 of the United Nations Charter suggests it as a fundamental right, Article 2 of the same Charter emphasizes over maintenance of the sovereignty and territorial integrity of any State. Plain reading of both the Articles leads to a conclusion that basically emerges as a paradox.
Now in order to bring clarity over this prevailing ambiguity, one needs to do a careful reading of two other important international legal instruments; the United Nations General Assembly’s 1970 Declaration on Principles of International Law Concerning Friendly Relations and Co-operation Among States in Accordance with Charter of the United Nations, and the 1995 Declaration on the Occasion of the Fiftieth Anniversary of the United Nations. Avoiding the legal jargons involved, to put it simply, both the texts reiterate the importance of self-determination as well as that of the territorial integrity of the State. However, these declarations also unambiguously clarify that a State would be entitled to protect its territorial integrity against secession, only if, it conducts itself ‘in compliance with the principles of equal rights and self-determination of the people’. Therefore giving precedence to self-determination (external) over territorial integrity in certain circumstances. Now what does one mean by the conduct in compliance with the equal rights and self-determination of the people? This is something that was lucidly explained by the Supreme Court of Canada in the famous Quebec secession case. The court stated that right to secession exists in colonial context or otherwise in cases where people are under domination, oppressed, subjugated and denied meaningful access to pursue their political, economic, cultural and social development. There was another dimension to this issue that was highlighted by the Canadian Supreme Court. It said that even if secession fails to qualify the legal parameters, it could still emerge as a successful unilateral (non-negotiated) secession if the international community recognizes it. Therefore, hinting towards the significance of ‘international recognition’ in such cases as compared to the relatively ineffective relevant principles of international law.
Applying the logic from the foregoing discussion, one can deduce and make an argument that the desire of the people of Jammu and Kashmir (of a significant number, if not all) to secede (unilaterally or otherwise) very much holds ground under international law. And for fulfilling this desire, people are not necessarily dependent upon the sacred trinity (read India, Pakistan, and the United Nations). Although at the same time, some may argue, and validly so, that people in Jammu and Kashmir have access to pursue meaningful political, social and economic development. But its questionable ‘meaningfulness’, in addition to the flagrant human rights violations at the hands of State and history of temporary accession can carve out a case in favor of secession.
Having said that, it is also important at this juncture to make oneself aware of the stark reality of international practice, where experience shows that international community is not too generous when it comes to secession. Out of hundreds of cases of struggle for secession in the post World War II era, when it comes to unilateral secession, only three, i.e. Bangladesh, East Timor, and Kosovo have succeeded to garner the required international recognition. Given such dismal rate of success in cases of secession, let us now move to the other facet of right to self-determination (the internal self-determination), that is suggested to be desirable for Jammu and Kashmir by many (mostly affiliated to the main stream political parties). Although there is a disagreement in Jammu and Kashmir when it comes to the nomenclature, as for some it is self-rule and for some autonomy. Be that as it may, what is more important is to analyze why internal self-determination is argued to be a more desirable way of achieving right to self-determination in context of Jammu and Kashmir. Following can be the principle arguments in this regard.
One, practically it has a much higher rate of success, if the international practice is analyzed. Two, a diligent and meticulous deal with Govt. of India, while exercising this right, can take care of most of the inhibitions of the people of Jammu and Kashmir. And for ensuring this, Jammu and Kashmir can also go beyond the standard demand of pre-1953 status, if deal is well bargained (given the much higher bargaining power Jammu and Kashmir will have as compared to Union of India). Three, Govt. of India will also most likely prefer to oblige by recognizing this right of the people of Jammu and Kashmir, as it would ensure its entitlement of territorial integrity in the eyes of international law and international community. Most importantly, India will not have to face the badgering it undergoes at various international events for its position on Kashmir. Four, assuming for a moment that Jammu and Kashmir succeeds in attaining secession, on what moral and legal principles can the independent Jammu and Kashmir stop the then potential secession of parts of Jammu, Ladakh or may be few more? Given the diverse demographic nature and history of Jammu and Kashmir, ruling out the possibility of domino effect of secession within Jammu and Kashmir would be a puerile conclusion.
As they say, extraordinary situations require extraordinary measures. The Kashmir conundrum, by all means is an extraordinary situation. The extraordinary measures, to begin with, calls for a choice of approach to be made. Whether people of Jammu and Kashmir have a right to self-determination is something beyond being questioned. But which facet of right to self-determination should be pursued is something that deserves attention and a decision. Both facets are applicable in case of Kashmir and have their own respective pros and cons. But both facets cannot be simultaneously pursued, as that would lead to nowhere. Unless the choice is made between the so-called ‘desire’ and ‘desirable’, be assured, the status quo will never go away.
Wasiq Abass is a Doctoral Candidate of International Business Law at the Central European University, Budapest, Hungary.