A Critical Anaylysis of The Right to Kashmir to Self Determination, by Imtiyaz Ali

A critical analysis of the right to Kashmir to self determination

School of Law
University of East London
Law Postgraduate Programme


by Imtiyaz Ali
Email address:- followleader72@yahoo.com

Course-PG LLM International Law & Criminal Justice.
Module:-Current issues and research in international law

1-Introduction
2-Historical background of Kashmiri independence.
….(I) Indian Independence
….(II)Instrument of Accession.
3-International Involvement (Kashmir & UN)
4-Article 370.
5-Self Determination and International Law.
6-Conclusion.

Introduction
In 1846 Kashmir was sold by British to Maharaja Ghulab Singh. After Indian Independence in 1947, the ruler of the princely state of Kashmir, Maharaja Hari Singh, wanted to be independent. The situation of Maharaja stated by V.P Menon was ‘in a Micawberish state of mind, hoping for best while doing nothing”. When Qabaile (Pathan tribes from Pakistani side) attacked the following year, the ruler of Kashmir sought help from the Indian government and agreed to place Kashmir under the dominion of India without the involvement and will of Kashmiri people. But Jawaharlal Nehru stated, “ if after proper plebiscite the people of Kashmir said me that they do not want to be within India we are committed to accept that…….and will not send any army against them”(1)

Historical background of Kashmiri independence.
I think without some historical background, it is very difficult to know and write about the Kashmir problem, and the right to self determination of Kashmiri people. The crisis and the struggle for freedom and self determination goes back to the time when British gave the power to Ghulab Singh, the Maharaja at that time of the Kashmir ,for only 75lakh Rupees. This was concluded in Amritsar Treaty in year 1846.(2) It was due to two reasons that British sold Kashmir to Maharaja Ghulab Singh, first, Ghulab Singh to protect British interests and second his assistance to British in British Afghan expedition.(3)

(1) Gohar Ayoub Khan Foreign ministry of Pakistan, address to 54th commission on Human rights, Geneva,(16th march to 24th April 1998) www.ohchr.ch.
(2)Turkkaya Ataov ,Kashmir and Neighbors, Tale, Terror, Truce,(London: Ashgate publishing,2001)
(3) Justice A.S Anand, The constitution of Jammu and Kashmir, its developments and comments,( India: Universal Law Publishing Co(I)Indian independence.

On the 14th and 15th of August India was divided into India and Pakistan. India as Hindu state and Pakistan as Muslim state. Now there was the question of princely states, where will they go now. As per Indian act of 1935 and Indian independence act of 1947, princely states could enter into the dominion of India or Pakistan by making instrument of accession. But some conditions were put by Lord Mountbatten for going towards either Pakistan or India and one of those was ‘geographical compulsion.’ Geographically & economically Kashmir was being closely tied to Pakistan (4), and also was more economically linked with Pakistan due to Indus river and Rawalpandi road, and other was that what will be the dominant population of princely state and population of area containing more Hindu and Muslims will accede to India and Pakistan respectively (5). On June 1947,British announced Indian independence Act, and as per Indian Act & Indian Independence Act princely states could join to any domino ,India or Pakistan by Instrument of Accession.(6)

(II)Instrument of accession
As per Indian independence Act 1947,the Doctrine of ‘Paramountcy’ lapsed and all the powers were returned to princely states, because these states were not directly ruled by Government of India. Lord Mountbatten encouraged states to accede either to India or Pakistan.
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(4) Pitman B. Potter, The Principal Legal and Political Problems Involved in the Kashmir Case ,American Journal of international Law.P.361-363 Vol.44(2), 1950)
(5)C.H. Philips; The evolution of India & Pakistan: (London: Oxford University press,1962)
(6) Turkkaya Ataov ,Kashmir and Neighbors, Tale, Terror, Truce,(London: Ashgate publishing,2001)

There was time between June and August 1947 given by British Government to princely states to accede either or both ,India or Pakistan with relation to custom, transit & communication etc. Maharaja delayed the decision to accede either to Pakistan or India ,because Kashmir is with its indigenous identity, different culture, customs ethics as well political reasons ,having its own and great historical background.(7), But the people of Kashmir celebrated 15th August as Pakistan Day (8)

When Qabalie attacked Kashmir, Then Maharaja appealed to Lord Mountbatten for help. He called meeting and decided Indian troops will be sent when maharaja will sign on the instrument of accession. Soon the Maharaja made Instrument of Accession ,Indian paratroopers landed at Srinagar. It was the 27th of October 1947.(9) In response to the Instrument of Accession Mountbatten stated, “My Government has decided to accept the accession of Kashmir State to the Dominion of India. Consistently with their policy that, in the case of any State where the issue of accession has been the subject of dispute, the question of accession should be decided in accordance with the wishes of the people of the State. It is my Government's wish that as soon as law and order have been restored in Kashmir and its soil cleared of the invader, the question of the State's accession should be settled by a reference to the people”(10)
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(7) Shahid Javed Burki: The Continuing Search for Nationhood, (Pakistan: Westview Press Inc; 2Rev Ed edition ,1991).
(8) Turkkaya Ataov ,Kashmir and Neighbors, Tale, Terror, Truce, (London: Ashgate publishing,2001)
(9) James Howley, Alive and Kicking: The Kashmir Dispute Forty Years Later, vol. 9 Dick. J. Int'l L. 87, 87 (1991)
(10) Christopher B. Birdwood, Two Nations and Kashmir ,p.207 (1956) Letter from Lord Mountbatten to Maharaja Hari Singh (Oct. 27, 1947)

International Involvement(Kashmir and UN)
When both nations did not reached to any conclusion, on January 1948 India made complaint before the United Nations Security Counsel under Article 34 and 35 of UN charter. Pakistan did same under Article 35.
United Nation Security Council passed Resolution 47(1948), in which both states had to made immediate ceasefire, Pakistani withdrawn from Kashmir, minimal Indian forces to maintain law and order, and plebiscite.(11) . Also UNSC established United Nations commission for India & Pakistan(UNCIP),which will monitor the conflict in Kashmir under UNSC Resolution 39 (1948).(12).In the resolution UNSC supported the self-determination of Kashmir, which is land mark in the struggle for self determination and their own government. part third containing 15 point on plebiscite, how it would be done. last point is written as.
“The Commission of the Security Council should at the end of the plebiscite certify to the Council whether the plebiscite has or has not been really free and impartial” but till date no plebiscite has been done and never have been will and wish of common Kashmiri put on board.(13)

(11) G.M Alam: peace keeping without conflict resolution, The Kashmir dispute, Vol.6.Fletcher.F.61-64(1982)
(12)http:// www.un.org/Depts/dpko/missions/unmogip/background.html ,( Document on UN website)
(13) http://www.un.org/aboutun/charter, ( UN resolution 39 year 1948 )

Commission tried to make plebiscite in Kashmir but all in vein and at last the commission submitted its report and stopped its work on March 1951without any success. Joseph Korbel, the member of UNCIP stated that this issue can be solved by International Court of Justice under UN charter XIV, Article 96,for an advisory opinion on legal matter.(14)
No party respected UNSC resolution and after that UNSC dispatched Military observer group in both sides of border under resolution 91(1951).(15)
Article 370
An agreement took place between Indian government and National Conference. In the agreement it was envisaged that Kashmir constitution assembly will make laws for Kashmir and there will be different flag for Kashmir. It is the main point which shows that Kashmiri people never wanted to be with any other state India or Pakistan, but only due to political situations this agreement was made.
As per Indian constitution Article 370 limits hands of India on Kashmir state , giving some autonomy to state and gave authority to make Constituent Assembly, which will then make constitution for state(16) .In year 1957 elections were held under new constitution, which is mostly related to Indian constitution. J&K Muslim Conference

(14) Turkkaya Ataov ,Kashmir and Neighbors ,Tale, Terror, Truce, (London: Ashgate publishing,2001)
(15)http://www.un.org/Depts/dpko/missions/unmogip/background.html
(16) Indian constitution article 370 , [In Justice A.S Anand, The constitution of Jammu and Kashmir, its developments and comments]
boycotted the assembly election and National Conference won simply without any opposition.(17).But UNSC did not accepted this election as plebiscite.(18).India again and again presented its ultimate decision that, plebiscite can never be attained ,until Pakistani tribal invaders and forces will not withdraw from Kashmir. Pakistan thought that if plebiscite will be held in Kashmir, people will give their vote to India and it was because of overhand of National Conference.
United Nations Commission for India and Pakistan proposed administrator of the U.S navy admiral Chester Nimtiz, to take some control over disputed territory for the time of plebiscite, but India rejected that. Different plans were given but none worked and accepted by the parties. In year 1957, election was held in Kashmir and constitution assembly declared state part of India.(19)
Now the question is then, why India did not supported plebiscite in Kashmir, if they were knowing that people will give vote in their favour?
From that time, autonomy granted by Article 370 was slowly absconded. Many constitutional provisions previously not applicable to Kashmir were made applicable by amendment of Article 370, with approval of the Constituent Assembly. The powers of the Indian president vis-à-vis Kashmir were drastically increased.(20)

(17) Liyaqat Ali Khan :The Kashmir Dispute: A Plan for Regional Cooperation," 31 Colum. J. Transnat'l L. 495-504 (1994).
(18) http://www.un.org,( UNSC .Res. 91, U.N. SCOR, 6th Session, 539th Mtg., U.N. Doc. S/2017/Rev.1 (1951)
(19) Turkkaya Ataov ,Kashmir and Neighbors, Tale, Terror, Truce,(Hants: Ashgate publishing England,2001).
(20) India Constitution. Articles. 356 and 357.

Self-determination and International law.
Self determination is legal and moral right of state. Its creation goes back to the American Declaration of Independence of 1789. This word became more popular in post 2nd world war, when states started freedom from their colonial states. Russia boasted this new revolution, giving notice to westerners to decolonize and due to this state, ‘Declaration on Granting of Independence to Colonial territories and People’ was passed in 1960 & became the norm of jus cogens and included it as fundamental human right .(21)
Second formal discussion on this topic after Declaration of granting independence to colonial states of year 1960 was Resolution passed by United Nation’s General assembly 1541(XV) of December 1960. Principle II of the resolution states the word ‘full measure of self governance’ and principle III states, ‘Territory which is geographically separate and is distinct ethnically or/culturally from the country administering it.’. Resolution also states that full measure of self governance, if the non-self governing state integrates with independent state, “should be the result of the freely wishes of the territory’s people with full knowledge of change of status”. (22)which is not seen when the Maharaja made the Instrument of Accession after the independence of India. He never told people of Kashmir for the accession to India.
United Nation’s Resolution,(UNCIP) of 13th August 1948 states, that the Kashmiri people
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(21) Joshua Castellino, International Law & Self-determination, Hague: Martinus Nijhoff Publishers,Netherland,2000)
(22) http://www.un.org/documents/ga/res/15/ares15.htm
have the right to self-determination in part III of resolution. Which states, “…future status of J&K state shall be determined in accordance with the will of people.”
The International Covenants for Human Rights(1966) states that the people have right to self-determination for their political status and find their economic, social and cultural development.
Anand Panyarachun, chairman of high level panel on threats, challenges and changes, addressed on December 2004 to the Secretary General, “if efforts are not redoubled to resolve a number of long lasting disputes which continue to fester and to feed the new threats we now face, foremost among these are the issue of Palestine, Kashmir and Korean peninsula”(23)
United Nations has rejected the arguments for accession on basis of historical title, like in case of East Timor ,but in some cases UN has indicated that historical title can oust right to self determination
Spain gave Gibraltar to U.K in the treaty of Utrecher in 1713. In treaty, it was agreed that if UK will do same then first priority will be for Spain, so Gibraltar has no right for self-determination as per that agreement. Spain gave the argument of Para 6 of UN resolution 1514 of year 1960, but UK argued that Para 2 of resolution has top priority. and they have right to decide to do so. there has been many debates on that issue under UN supervision. both have arguments. (24)
In year 2002 on 5th general assembly prime minister of Gibraltar stated that the case should be send to ICJ for advisory opinion. And requested to General Assembly to know the wishes of people of Gibraltar to decide their own future.(25).
(23) Current issues and research in international law, Material 1 given by UEL in class.
(24) Thomas D. Musgrave. Self determination and national minorities,(Oxford university press.1997
(25) www.un.org/news/pres/docs/2002/GA.html.(Statement presented by the PM of Gibraltar on Fifty-seventh General Assembly Fourth Committee 5th Meeting )

In Bangladesh case, Pakistan was given the state at the time of partition, known as Eastern Pakistan. But the people of Bangladesh have been always different in culture, language, ethnicity and geography. The only thing was Islam which was common. Voice for autonomy rose voice of independence.
Pakistani army used force in curbing the violence. But as per the UN Charter, Article 2(7) gives the state of Pakistan the right to conduct its domestic affairs. India intervened which was contradictory to UN Charter. India argued its case by saying that it had acted in self-defense. The Kashmiri case for independence is nearly same as Bangladeshi case. Pakistani support is same as logistic support given by India in Bangladeshi case in 1971. Decleration of 1970 passed by General Assembly on principles of International law, states that state cannot refrain people from self-determination by force, which is similarly India viewed army of Pakistan in Bangladesh. (26).So if the action of India in intervening in case of Bangladesh, which was legally under the Pakistani authority as per international laws, then how is it possible in the case of Kashmir, which became part of India by Instrument of accession made by the Maharaja, without the vote of people of Kashmir, which is against the resolution mentioned above, for the self-determination.
Instrument of accession was made under Indian act 1935 and Indian independence act 1947,but legal point comes out how Instrument of Accession with any of two countries could had been done if British government had already sold Kashmir to the Maharaja and hence forth given independence to state and also gave title of Maharaja to Gulab Singh.(27)

(26) Joshua Castellino, International Law & Self-determination, Hague: Martinus Nijhoff Publishers,Netherland,2000.
(27) Turkkaya Ataov ,Kashmir and Neighbors, Tale, Terror, Truce, (London:Ashgate publishing,2001
Nehru stated in common wealth meeting in London in 1951 that the requirement of plebiscite is not necessary as Kashmir is the part of India and it is now the problem of India alone and any interference in that is internal interference ,he also added that people have elected the government and assembly.(28)
Before that statement, on 3 November 1947 radio broadcast, Mr. Nehru stated: “We have declared that the fate of Kashmir is ultimately to be decided by its people. That pledge we give not only to the people of Kashmir but to the world. We will not and cannot back out of it.”(29)
Karen Parker presented his statement in the first international conference for right to self determination at Geneva. In which she said, that Maharaja obtained the help of India against the instrument of accession. She also spoke that ,what actually was written on the ‘instrument of accession’ was wished by western ,USA & some Arab states to see it.and also adds that it was not found in state archive in J&K, giving the reference of press release of PTI news September 1995.(30)
“Kashmir accord” was signed between Indian P.M and Mirza Mohammad Afzal Beigh in the year 1974 at Delhi. In the same time Mirwaiz Mohammad Farooq denounced Sheikh Abdullah for selling Kashmir cause. After the death of Sheikh Abdullah violence stated again for Kashmiriyat and for independence. (31 )
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(28) Turkkaya Ataov ,Kashmir and Neighbors, Tale, Terror, Truce,(London: Ashgate publishing,2001
(29) http://www.humanlaw.org/kashmir (Association of Humatarian lawyers USA )
(30) The International Kashmir Peace Conference: Beyond the Blame Game.24 July2003, Right to Self-determination of the Kashmiri People by Karen parker at www.humanlaw.org/kashmir
(31) James Howley, Alive and Kicking: The Kashmir Dispute Forty Years Later,vol. 9 Dick. J. Int'l L. 87, 87 (1991)..
In Tashkent agreement it had been agreed that both countries shall withraw all armed forces from borders.(32) But this all was only on documents and nothing was applied.
Article 1 of United Nations convent on economic, social and cultural rights states “all people have the right of self determination” by virtue of that right they freely determine this political state
“State Autonomy Committee report” made recommendations in their report in 1998.First they recommended that the word “temporary” be deleted from the title part 21 and heading of article 370,to word “special” because the state legislative has ultimate right to finalize. Second “matter in union list & the concurrent list, which in consultation with government..” should be excluded, word “election held state will be held as per state constitution” would be excluded and at the time of emergency, not to wait the State government's consent, Article 352 be modified and Articles 355-360 made non-applicable. Fifth separate chapter on fundamental rights be included. Sixth Article 218 be omitted so changes would be done in state constitution(33)
There is no doubt that India changed its position after1951 and started saying that Kashmir is the part of India(34).And repeatedly announced that the elections held in Kashmir were free and fair, but United Nations rejected the elections by saying that they
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(32)Tashkent Agreement ,January 10 1996.
(33) The Hindu Vol. 17.month June- India's National Magazine, India.
(34)http:// www.humanlaw.org

were done unilaterally.(35).So the legislative assembly formed in year 1951 was not as per norms of United Nations ,so definitely not as per international laws.
Now it has been shown by the actions of India, that the right for self determination of Kashmiri people are being hidden by Indian authority and only the Kashmiri people have right to chose their future as per international laws, humanitarian law and customary law.(36) J&K commission for human rights has also wrote in their words about the self-determination of Kashmiri people in the words.
J&K commission for human rights has
written in their words about the self-determination of Kashmiri people in the words.
“It is high time that the leadership of India and Pakistan recognizes the people of Jammu and Kashmir in their proper context ,within the meaning of self determination, instrument of accession, Pakistan’s assumptions of role under UNCIP resolution on the one hand and the control of Gilgit under a different argument on the other, the international commitments of India and Pakistan and the jurisprudence of bilateral agreements “(37)
From the beginning of Kashmiri movement all political parties have pressured Indian government for autonomy of Kashmir. But up to the date no autonomy has been given by union government for which they promised before decades ago . As per UN charter XI Article 73 has respected the self governance of state by their own people which is important for international peace and security (38).
(35) Security Council resolution 122 of 24 January 1957
(36) Ali Khan, The Kashmir Dispute: A Plan for Regional Cooperation, Volume 31 J. Transnat'l L. 495, 504 (1994)
(37) http:// www.ap.ohchr.org/documents/alldocs.aspx
(38) http://www.un.org/charter

The word inhabitant is written in the Article which makes Kashmir cause different from Gibraltar case. Other thing which one must consider that as per Shimla agreement, the Kashmir issue is issue of only Pakistan and India and have to solved by bilateral agreement.(39). Kashmir issue is not bilateral issue this issue had caused 3 wars between countries, and to become nuclear states. How is it possible that this issue can be a bilateral issue. This issue has involved whole sub-continent and is important for international peace and security as per UN CHARTER, and should be addressed by the UN not only by Inida and Pakistan.(40)
In the Bangladeshi case India gave full logistic support to them for the independence in 1971 and ultimately the Bangladesh got freedom, which is being seen legally done for self-determination of Bangladesh, then what will be the question of Kashmir in which Pakistan is acting for the self determination of Kashmir? (41)
So Kashmir issue is the international issue as per UN charter and international law, which must be solved according to international law. UN Resolution 307(Dec.1971) also support this cause. Or both countries can solve their problems like solved in Belfast agreement, which took place between UK and Ireland


(39) Shimla agreement.
(40)http://.www.ap.ohchr.org/documents/all docs ,( UN resolution 39(1945)
(41) Joshua Castellino, International Law & Self-determination, Hague: Martinus Nijhoff Publishers,Netherland,2000)

Conclusion
This paper has examined the historical background of the Kashmir dispute and right for the self determination. main problem started from partition ,but was actually before that.
Meanwhile the unilateral actions of both countries has caused problems and not to respect the resolutions of UNSC, as well as UN charters.
Despite these difficulties, negotiation and international law offer the best opportunity for final settlement of the dispute. Taking into account the principle of self-determination, the parties should work bilaterally and with international community. Kashmiri people’s opinion is must, because they are the inhabitants of Kashmir, culturally and geographically different from both countries, having their own historical as well as political background different from India and Pakistan. .