Kashmiris and Their Right to Self-Determination

Written By: Tooba Khurshid

Kashmir dispute is a major source of tension between India and Pakistan since 1947. The issue is also one of the oldest items on the agenda of the United Nations (UN). Despite numerous significant resolutions and debates on Kashmir, the issue still stands unresolved. Many people believe that it is a territorial dispute, however, owing to its human dimension, the issue has become a humanitarian crisis which warrants early resolution and demands right of the people to self-determination. 

 

kasmirantheirr.jpgIn Indian Occupied Kashmir (IOK) defenceless Kashmiris are subjected to massacres, encounters, detention, arrests and tortures. Whenever Kashmiris demanded their rights, they have been subjected to massive abuses. Gross human rights violations perpetrated by Indian Occupational Forces since July 8, 2016 had resulted in deaths of 177 civilians. More than 19310 people have been injured in human rights abuses. Indiscriminate use of force and pellets against unarmed civilians has become a state policy of India. An estimated 7398 people have been hit by pellet guns so far, at least 1180 are partially blinded, 309 are on verge of becoming blind and 42 have lost eyesight completely. Unprecedented massacre of Kashmiris by Indian Occupational Forces have made the region a very dangerous place. Indian endeavours to kill the courage and strength of people of IOK are well documented by Indian as well as international human rights organizations. Amnesty International in its 2016 and 2017 human rights report criticized India for excessive and arbitrary use of force against unarmed civilians and called it 'inherently inaccurate and indiscriminate.' Despite, the brutalizing of innocent Kashmiris by Indian atrocities continues with impunity.


The right of self-determination, that people of IOK are demanding, is enshrined in numerous UN resolutions passed over Kashmir which upholds their right to determine their future freely.

UN Resolutions Passed over IOK

UNSCR 47, April 21, 1948

"Noting with satisfaction that both India and Pakistan desire that the question of the accession of Jammu and Kashmir to India and Pakistan should be decided through democratic method of a free and impartial plebiscite"

(http://www.un.org/en/ga/search/view_doc.asp?symbol=S/RES/47(1948))

 

UNCIP resolution August 13, 1948

Part III: “Pakistan and India reaffirm that future status of the state of Jammu and Kashmir shall be determined in accordance with will of the people and to that end, upon acceptance of the Truce Agreement both Governments agree to enter into consultations with the Commission to determine fair and equitable conditions" whereby such free expression will be assured.”

(http://www.un.org/en/ga/search/view_doc.asp?symbol=S/1100)

 

UNCIP resolution January 5, 1949

"Question of accession of Jammu and Kashmir should be decided through the democratic methods of free and impartial plebiscite"

(http://www.un.org/en/ga/search/view_doc.asp?symbol=S/1196)

 

UNSCR 80, March 14, 1950

"To exercise all of the powers and responsibilities devolving upon UNCIP by reason of existing resolutions of the Security Council and by reason of agreements of parties embodied in UNCIP resolutions of August 13, 1948 and January 5 1949"

(http://www.un.org/en/ga/search/view_doc.asp?symbol=S/RES/80(1950))

 

UNSCR 91, March 30, 1951

"Reminding the governments and authorities concerned of the principle embodied in its resolutions 47 (1948) of 21 April 1948... and UNCIP resolutions of 13 August 1948 and 5 January 1949 that the final disposition of the state of Jammu and Kashmir will be made in accordance with the will of people expressed through the democratic method of a free and impartial plebecsite…"

(http://www.un.org/en/ga/search/view_doc.asp?symbol=S/RES/91(1951))

 

UNSCR 98, December 23, 1952

"Recalling the provisions of UNCIP resolutions of August 13, 1948 and January 5, 1949 which were accepted by the Governments of India and Pakistan and which provided that the question of the accession of the state of Jammu and Kashmir would be decided through democratic method of a free and impartial plebiscite conducted under the auspices of UN"

(http://www.un.org/en/ga/search/view_doc.asp?symbol=S/RES/98(1952)

 

UNSCR 122, January 24, 1957

"Reminding the Governments and authorities concerned of the principle embodies in its resolutions 47 (1948) of 21 April 1948... 80 (1950) of 14 March 1950...91 (1951)...UNCIP resolutions of 13 August 1948 and 5 January 1949 that the final disposition of the state will be made in accordance with the will of the people expressed through the democratic methods of a free and impartial plebiscite...Reaffirm the affirmation in its resolutions of 47, 1948, 1949, 91 and 98"

(http://www.un.org/en/ga/search/view_doc.asp?symbol=S/RES/122(1957)

Source: http://www.un.org/en/sc/documents/resolutions/

 

However, India is crushing this fundamental right of Kashmiris through excessive use of force and whatever is happening in IOK is the worst form of subjugation of humanity.


Moreover this right is also inherently available to the people of IOK under other international declarations. United Nations Charter Article (1) acknowledged the development of friendly relations among nations based on respect for the principle of equal rights and self-determination of peoples as one of the Organization’s objectives. This principle is also referred to in Article (55) of UN Charter, Article (15) of the Universal Declaration of Human Rights, Declaration on the Granting of Independence to Colonial Countries and Peoples Adopted by General Assembly resolution 1514 (XV), Article (1) of International Covenant on Economic, Social and Cultural Rights (ICESCR) and Article (1) of the International Covenant on Civil and Political Rights (ICCPR). In these Declarations human rights are deemed universal rights shared by the whole of mankind.


Furthermore, by virtue of right of self-determination to indigenous people and against any colonial subjugation Kashmiris have the right to determine their future. Article (3) of UN Declaration on the Rights of Indigenous Peoples states that “Indigenous peoples have the right to self-determination. By virtue of that right they freely determine their political status and freely pursue their economic, social and cultural development”. Also Article (2) of Declaration on the Granting of Independence to Colonial Countries and Peoples which declares that "All peoples have the right to self-determination; by virtue of that right they freely determine their political status and freely pursue their economic, social and cultural development".


India, through various commitments, had also agreed to hold a plebiscite in IOK.

Indian Commitment to Hold Plebiscite in IOK

October 27, 1947

“In regard to accession also, it has been made clear that this is subject to reference to people of State and their decision.” (Telegram No. 402-Primin-2227 by Jawaharlal Nehru dated 27 October 1947 to Prime Minister of Pakistan repeating telegram addressed to Prime Minister of United Kingdom)

http://www.thehindu.com/news/national/They-can-file-a-charge-posthumously-against-Jawaharlal-Nehru-too-Arundhati-Roy/article15718475.ece

 

October 28, 1947

“…….the people of Kashmir would decide the question of accession. It is open to them to accede to either Dominion then.” (Telegram No.413 dated 28 October 1947 by Jawaharlal Nehru addressed to Prime Minister of Pakistan)

http://www.thehindu.com/news/national/They-can-file-a-charge-posthumously-against-Jawaharlal-Nehru-too-Arundhati-Roy/article15718475.ece

 

November 21, 1947

“We are anxious not to finalize anything in a moment of crisis and without the fullest opportunity to be given to the people of Kashmir to have their say. It is for them ultimately to decide. And let me make it clear that it has been our policy all along that where there is a dispute about the accession of a state to either Dominion, the accession must be made by the people of that state.”

(Letter No. 368-Primin dated 21 November 1947 to Prime Minister of Pakistan by Jawaharlal Nehru), J. C. Aggarwal, S. P. Agrawal, Modern History of Jammu and Kashmir: Ancient times to Shimla Agreement (Concept Publishing Company, 1995), p. 469

 

August 16, 1950

“The most feasible method of ascertaining the wishes of the people was by fair and impartial plebiscite.” (in telegram dated 16 August 1950 Jawaharlal Nehru addressed to the U.N. Representative for India and Pakistan: S/1791 : Anne 1(B))

http://www.na.gov.pk/en/content.php?id=85

 

February 12, 1951

“We have taken the issue to the United Nations and given our word of honour for a peaceful solution. As a great nation, we cannot go back on it. We have left the question for final solution to the people of Kashmir and we are determined to abide by their decision.” (Statement by Jawaharlal Nehru in the Indian Parliament, 12 February 1951)

http://www.na.gov.pk/en/content.php?id=85

 

June 26, 1952

"I want to stress that it is only the people of Kashmir who can decide the future of Kashmir. It is not that we have merely said that to the United Nations and to the people of Kashmir; it is our conviction and one that is borne out by the policy that we have pursued, not only in Kashmir but everywhere. " (Statement by Jawaharlal Nehru in the Indian Parliament, June 26, 1952),

http://www.na.gov.pk/en/content.php?id=85

 

August 20, 1953

“People seem to forget that Kashmir is not a commodity for sale or to be bartered. It has an individual existence and its people must be the final arbiters of their future.”

(Joint press communiqué of the Prime Ministers of India and Pakistan issued in Delhi after their meeting on 20 August 1953), http://www.na.gov.pk/en/content.php?id=85J. C. Agarwal, S. P. Agrawal, Modern History of Jammu and Kashmir: Ancient times to Shimla Agreement (Concept Publishing Company, 1995), p. 469

 

May 18, 1954

“But so far as the Government of India is concerned, every assurance and international commitment in regard to Kashmir stands.” (Statement by Jawaharlal Nehru in the Indian Council of States; 18 May 1954),

http://www.na.gov.pk/en/content.php?id=85

 

March 31, 1955

“We had given our pledge to the people of Kashmir, and subsequently to the United Nations; we stood by it and we stand by it today. Let the people of Kashmir decide.” (Statement by Jawaharlal Nehru in the Indian Parliament, 31 March 1955),

http://www.na.gov.pk/en/content.php?id=85

 

Despite, India over the years backed away from its commitment to hold a plebiscite. All the above legal justification establishes the fact that denial by India of the inalienable rights of self-determination cannot be permitted. No one country can decide the future of the people of Jammu and Kashmir and Indian claims over IOK are illegitimate, repressive and unproven. Indian non-implementation of UN resolutions cannot negate the fact that final disposition of the IOK will be made in accordance to the people's aspirations expressed through democratic methods of an impartial plebiscite.


The right to self-determination for the people of IOK is imperative but is not different than anywhere else. What makes the issue different than other parts of the world is the Indian inflexible attitude and reluctance to agree on any viable course to hold a plebiscite. Such resistance to self-determination, as shown by India, results from the fact that a considerable number of currently existing states still exercise authoritarian power, and hardly respect the aspirations or expectations of people. Indian barbarism in IOK has exposed the Indian democracy as "fake" because democracies never allow or facilitate violence. Despite Indian brutalities events of past years have made it very clear that people of IOK stood firm for their right to self-determination and against Indian tyranny. However, given the level of atrocities perpetrated by India, it is for all civilized and responsible states of international community to ask India to stop the bloodshed and send a clear message of the necessity of upholding the sanctity of UN resolutions. To ensure peace and stability in the region it is pertinent to stand by the Kashmiris in their just cause.

 

The writer is a Research Fellow at Institute of Strategic Studies, Islamabad (ISSI).

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