Dr. Ghulam Nabi Fai
United Nations support for the right to self-determination — while slower than it was at its historic peak in the twentieth century — remains both a source of pride for the Organization and a crucial pillar of its work going forward,” António Guterres, Secretary General of the United Nations. February 21, 2020.
“I encourage this committee (Special Committee on Decolonization” to ensure the self-determination of all colonial countries and peoples is implemented in accordance with the Charter of the United Nations.” Ambassador Volkan Bozkir, President, the United Nations General Assembly, October 14, 2020.
Self-determination leapt into common diplomatic parlance in the twentieth century with President Woodrow Wilson’s so-called “Fourteen Points.” They included a right to self-determination for all peoples. But on close examination and application, the concept seemed to approach meaninglessness. The critical deficiency was the failure to provide earmarks for identifying the universe of peoples who enjoyed the right. And the earmarks are far from intuitively obvious. Is it common language, culture, art, history, ethnicity, religion, folklore, or education? Nothing in the Wilsonian self-determination principle offered even a clue to an answer.
At the Paris Peace Conference, the Irish pleaded with President Wilson to insist that the British recognize their right to self-determination. The Irish enjoyed a common language, heritage, ethnicity, history, and had universally celebrated the 1916 Easter uprising and its dead martyrs. President Wilson, however, nixed the idea. He had larger aims in mind at Versailles, such as the ‘League of Nations’ and an ‘International Court of Justice’ which demanded British support. After a virtual civil war, the Irish gained self-determination in 1921, but sans the six counties of Northern Ireland which were predominantly but far from exclusively Protestant.
The Peace Conference also gave birth to Yugoslavia, composed of Serbs, Croats, Slovenes, Bosnians, Montenegrins, Macedonians, and Albanians. But there was no clear reason why self-determination did not justify seven nations instead of one. Indeed, post-Tito Yugoslavia quickly fractured into seven nations.
Czechoslovakia was another child of the Peace Conference, although Czechs and Slovaks were akin to oil and water. In 1992, they went their separate self-determination ways, and split into two discrete nations.
Self- determination is a principle that has been developed in philosophic thought and practice for the last several hundred years. It is an idea that has caused people throughout the world to rise up and shed the chains of oppressive governments at great risk.
Self determination, despite its ambiguities, has blossomed into a pivotal element in international relations in recent times. It has proven the key to resolving long festering disputes and unforgiving conflicts. Exemplary have been Namibia, East Timor, Bosnia, Eritrea. Kosovo, Montenegro, Southern Sudan, etc.
In each case, self determination was fueled by oppressive rule, whether foreign or otherwise. They also derived strength from international law and resolutions of the United Nations Security Council.
Although the idea of self-determination defies Euclidean exactness, it enjoys universal support. Self-determination is celebrated in the United Nations Charter, in the International Covenant on Civil and Political Rights (ICCPR) , and in the United Nations General Assembly resolutions.
Article I of the United Nations Charter enshrines as a major purpose the development of friendly relations among nations based on respect for the “principle of equal rights and self-determination of peoples.” The United Nations General Assembly resolution # 1514 (1960) declares the self-determination from colonial rule or foreign domination.
In modern international law, self-determination is considered a collective “peoples’ right.” It is generally defined as the right of a people not only to preserve its language, cultural heritage and social traditions, but also to act in a politically autonomous manner and — if the people so decide — to become independent when conditions are such that its rights would otherwise be restricted.
I would submit the following criteria as generally favoring a right to self-determination claimed by a people, but they are far from conclusive:
*A common language and history, which tends to unify through shared customs, experiences, and stories;
*A common race or ethnicity, which tends to avoid the intractableness of racial and ethnic bigotries and demeaning stereotyping;
*A common culture, which tends to unify through shared values, celebrations, remembrances, heroes, arts, and literature;
*A common religion, which tends to avoid clashes over ideas and practices that are highly combustible;
*A common suffering or persecution under a prevailing dispensation; and,
*A common willingness to endure hardships and to fight for self-determination, which are good barometers of the strength of public sentiment behind discrete nationhood.
With these yardsticks in mind, let us turn to Kashmir. Kashmir was one of more than 560 princely states during the long years of the British raj. It was ruled non-democratically by a Maharaja, subject to British control over defense and foreign affairs, sometimes called indirect rule or paramountcy.
Within Kashmir’s boundaries lived Muslims, Pandits (or Hindus), Sikhs, and Buddhists, but a commanding majority 80 percent subscribed to Islam. It was the Islam of the Holy Prophet and the Quran teaching that in matters of religion coercion is unacceptable. The four religious groups in Kashmir thus lived in common neighborhoods, forged common friendships, shared in one another’s celebrations and joys, and generally avoided religion as a point of contention, unlike in so many other places in the world, like Northern Ireland, etc.
British paramountcy over Kashmir ended on August 15, 1947. On that date, only three of the hundreds of princely states had desisted from choosing accession to either India or Pakistan: Kashmir, Hyderabad, and Junagadh. Under international law, all became independent on August 15. But where did sovereignty then lie? In the people of the new states, or in the non-democratically selected rulers?
The Prime Minister of India, Jawaharlal Nehru subscribed to these sentiments. He declared that in cases where the religion of a princely ruler was at variance with the religious creed of the majority, then the views of the latter must prevail on all matters of sovereignty. And Nehru did not limit himself to rhetoric. It was reinforced by bayonets. In Hyderabad, the Muslim ruler had opted for independence despite presiding over a predominantly Hindu population. The Prime Minister dispatched India’s military to ensure that the will of the Hindus — accession to India — was honored. Ditto for Junagadh where a Muslim ruler had chosen accession to Pakistan for his largely Hindu population.
Kashmir was a corollary case of Hyderabad and Junagadh. The majority Muslim population had been persecuted by a Maharaja for decades prior to August 15, 1947 day: discriminatory laws, state control of mosques, backbreaking taxation, deficient educational facilities, prohibitions on arms of self-defense, the death penalty for slaughtering cows, and brutal suppression of peaceful political dissent. An indigenous revolt was in full swing and on the verge of toppling the Maharaja when statehood arrived. Under the “Nehru” doctrine, sovereignty over Kashmir instantly devolved on the people, and not on the tyrannical Maharaja. But Nehru cynically and opportunistically violated his own doctrine. He schemed to forge an instrument of accession to India signed by the Maharaja, and then dispatched Indian troops to Kashmir to prop up his collapsing regime. Of course, under Nehru’s own theory of sovereignty, the Maharaja lacked authority either to sign the forged accession document or to request Indian military intervention in Kashmir.
Nehru apparently felt initial guilt over his villainy, and raced to the United Nations clamoring for a self-determination plebiscite in Kashmir conducted by the United Nations in a free and unintimidating electoral atmosphere. But the Prime Minister forgot a wise proverb, “Be careful what you wish for, because you may get what you ask.” The Security Council, with the express approval of both India and Pakistan, adopted twin resolutions on August 13, 1948 and January 5, 1949 mandating a self-determination plebiscite in Kashmir after demilitarization of the territory.
Nehru was soon deceived of his delusion over Indian popularity in Kashmir. When he recognized that Kashmiris would never vote accession to India, the idea of a plebiscite was jettisoned. India contrived excuse after excuse for refusing to cooperate in holding the Kashmir plebiscite. Then, in the 1950s, the Prime Minister dropped all pretense of complying with the Security Council’s mandates by unilaterally proclaiming that Kashmir had fallen into India’s burgeoning sovereign orbit.
Nothing much has changed since then on the self-determination front. India has been insolently defying the Security Council’s plebiscite resolutions for more than 73 years. But the United Nations continues to list Kashmir as a disputed territory. Antonio Guterres, the Secretary General of the UN said about the situation in Kashmir on August 8, 2019, that “the position of the United Nations on this region is governed by the Charter of the United Nations and applicable Security Council resolutions.”
As Dr. Nazir Gilani, President, JKCHR argues that “We have to work hard to argue before the world that after 5 August 2019 India has aggressed in Kashmir and has re-occupied it. According to UN mechanism on Kashmir, India has committed a ‘very grave offence.” December 29, 2020.
In sum, Kashmir is too important to international peace, security and human rights to be left to either the ignorance of Amit Shah, The Home Minister or the fanatical and whimsical ambition of Narendra Modi, the Prime Minister of India
[Dr. Fai is the Secretary General, Washington-based World Kashmir Awareness Forum. He can be reached at: 1-202-607-6435 or [email protected]]