An enforceable right

Much has been written on self-determination, both as a right and as a general principle, under international law. Perhaps the earliest recognition of the contemporary notion of the right to self-determination can be tracked back to the American Declaration of Independence of 4 July 1776.

Part of this declaration reads: “We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable rights, that among these are life, liberty and the pursuit of happiness… That whenever any form of government becomes destructive of these ends, it is the right of the people to alter or to abolish it, and to institute new government…”

With the end of the Second World War and the establishment of the United Nations (UN), the right to self-determination was incorporated into the substance of the UN Charter, most notably in Article 1(2), which lists as one of the purposes of the UN: “to develop friendly relations among nations based on respect for the principle of equal rights and self-determination of peoples, and to take other appropriate measures to strengthen universal peace”. Equally important is Common Article 1 of the International Covenant on Civil and Political Rights (ICCPR) and the International Covenant on Economic, Social and Cultural Rights (ICESCR), which stipulates: “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” (Article 1(1)).

Within the context of decolonization, there is no denying the fact that the right to self-determination played a key role. This was affirmed in the International Court of Justice’s (ICJ) Advisory Opinion in the Western Sahara case in 1975. Here, the ICJ, while referring to the Declaration on the Granting of Independence to the Colonial Countries and Peoples (General Assembly resolution 1514 (XV)), stated, at paragraph 55: “The above provisions… thus confirm and emphasize that the application of the right of self-determination requires a free and genuine expression of the will of the peoples concerned”.

The Kashmir dispute is a legacy of the British colonists in the Subcontinent, and as such, shares many parallels with the Israel-Palestine conflict, another legacy of British colonialism. In this regard, the Advisory Opinion of the ICJ in Legal Consequences of a Wall in the Occupied Palestinian Territory is particularly relevant when it comes to countering challenges raised to the exercise of the right to self-determination by the Kashmiri people.

The ICJ, in this case, stated, at paragraph 118: “As regards the principle of the right of peoples to self-determination, the Court observes that the existence of a ‘Palestinian people’ is no longer in issue. Such existence has moreover been recognized by Israel in the exchange of letters of 9 September 1993 between Mr Yasser Arafat, President of the Palestine Liberation organization (PLO) and Mr Yitzhak Rabin, Israeli Prime Minister”.

A similar recognition of the will of the Kashmiri people and the right of the Kashmiri people to self-determination can be ascertained through several international legal instruments, including UN Security Council (UNSC) resolution 47 (1948) of April 21, 1948. In its preamble, this resolution stipulates inter alia that “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”. A relevant excerpt from the operative part of the resolution, on the plebiscite, states: “The Government of India should undertake that there will be established in Jammu and Kashmir a Plebiscite Administration to hold a plebiscite as soon as possible on the question of the accession of the State to India or Pakistan”.

It is a logical corollary of the constant and consistent references that have been made to the right of the Kashmiri people to determine their own collective future that the right to self-determination of the Kashmiri people is not some abstract idea under international law but a very real legal condition for the settlement of the Kashmir dispute. The world has seen the right to self-determination being recognized as a legal obligation in cases where the same is listed as a basis for the settlement of a dispute, for instance, in the Agreement on Ending the War and Restoring Peace in Vietnam of January 17, 1973. This agreement explicitly recognized, in Chapter IV, the right to self-determination of the South Vietnamese people.

Having established the legal obligation upon India and Pakistan to respect the right to self-determination of the Kashmiri people, it is then pertinent to emphasize the urgent need for international action on this front considering the unlawful demographic changes India is attempting to bring about, which will only serve to exacerbate the conflict.

In its Advisory Opinion on the Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, the ICJ found, at paragraph 122: “There is also a risk of further alterations to the demographic composition of the Occupied Palestinian Territory resulting from the construction of the wall inasmuch as it is contributing… to the departure of Palestinian populations from certain areas. That construction, along with measures taken previously, thus severely impedes the exercise by the Palestinian people of its right to self-determination, and is therefore a breach of Israel’s obligation to respect that right”.

In effect, India’s unilateral revocation of Articles 370 and 35-A of its constitution is a leaf straight out of Israel’s playbook on occupation and demographic changes. The ICJ has recognized, with respect to Israel, that such demographic changes are an attempt to obstruct people in the lawful exercise of their right to self-determination.

Pakistan, at this stage, should be lobbying in the UN General Assembly to seek an advisory opinion from the ICJ on the legality of India’s unilateral actions to give legal and moral weight to its case for the right to self-determination of the Kashmiri people.

The writer is a lawyer.

Email: imaanmazarihazir@gmail.com