Right to self-determination of people of J&K
THE people of the state of Jammu and Kashmir have been observing 5th January as the Right to Self-Determination Day since 1949 to remind the international community to implement the UN resolutions regarding Kashmir.
The Kashmir conflict is created by the United Nations. In 1947, the entire Kashmiri state was close to being independent of Dogra and India, on the request of India, the United Nations called for a ceasefire which partially implemented the UNCIP resolution of 13 August 1948, but the referendum part could not be implemented till date.
The UNSC has passed 19 resolutions and UNCIP has passed 2 resolutions on Kashmir. The right to self-determination of the people of Kashmir was accepted by Pakistan and India.
On 21 April 1948, UNSC adopted the first resolution on right to self-determination which states, “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.
” The text of the resolution shows that it is an agreement as well and the same wording is also used in the 13 August resolution of UNCIP.
The right to self-determination of the people cannot not be snatched even there is not any UN resolution or agreement.
It is a basic human right as it is also included in common article 1, paragraph 1 of the International Covenant on Civil and Political Rights and the International Covenant on Economic, Social and Cultural Rights, 1966 as “All people have the rights of self-determination, by virtue of that right they freely determine their political status and freely determine their economic, social and cultural development. ”
India herself promised before the international community that the future status of the state shall be decided by the people of Kashmir.
In a telegram of 31 October 1947, to PM Liaquat Ali Khan, Nehru said: “Our assurance that we shall withdraw our troops from Kashmir as soon as peace and order are restored and leave the decision about the future of the State to the people of the State is not merely a pledge to your Government but also to the people of Kashmir and to the world.
” One of the basic purposes of the establishment of UN is to create friendly relations among nations based on adherence to the principle of equal rights and self-determination of peoples and to take other necessary measures to strengthen universal peace as it is provided in Art. 1 (2) of UN Charter.
Likewise, in Article 73, it is also implicitly referred to the principle of self-determination in the part concerning colonies and other dependent territories.
Common article 1 of both covenants the International Covenant on Civil and Political Rights and the International Covenant on Social, Economic and Cultural Rights, 1966 provides, “All people have the right of self-determination, by virtue of that right they freely determine their political status and freely determine their economic, social and cultural development.
” The Declaration on the Granting of Independence to Colonial Countries and Peoples adopted by the United Nations General Assembly in 1960 clearly says that all peoples shall have the right to self-determination due to which they freely determine their political status and freely pursue their economic, social and cultural development.
Declaration on Principles of International Law concerning Friendly Relations and cooperation among States in accordance with the Charter of the United Nations 1970 adopted by UNGA also ensures the right to self-determination of the people.
Besides many UN resolutions and conventions, international jurisprudence also confers this right.
In the Nicaragua case about the right to self-determination, it was declared that the right to self-determination is jus cogen.
Similarly, the ICJ in the East Timor case took notice of the fact that both parties to the dispute agreed that the people of East Timor had the right to self-determination and thereby underscored that the population of East Timor is a people.
Even outside the context of decolonization, where it is not self-evident that the right to self-determination applies to the existence of a people is sometimes accepted without further argument.
On 5th August 2019, India annexed the occupied Jammu and Kashmir and divided the state into two union territories which is a clear violation of UN resolutions on Kashmir, bilateral agreements and international law.
The nature of the Kashmir conflict is an international armed conflict and people are resisting foreign occupation by India.
It is not an internal issue of India because the UN considers Kashmir as a disputed territory and UNMOGIP is monitoring the cease-fire line.
The notion of international armed conflict is defined in Article 2 common to the four Geneva Conventions of 1949 which states that the Conventions: “shall apply to all cases of declared war or of any other armed conflict which may arise between the two or more of the High Contracting Parties, even if the state of war is not recognized by one of them”.
Under Article 1, paragraph 4 of the 1977 Additional Protocol I to the Geneva Conventions, the application is extended to: “armed conflicts in which peoples are fighting against colonial domination and alien occupation and against racist regimes in the exercise of their right of self-determination.
” It is the responsibility of international community to fulfil its promise for a plebiscite in Kashmir.
—The writer is Director Kashmir Policy Research Institute, Director JKLC.
