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Self-Determination in Kashmir context
Dr. Abdul Majid Siraj
I am prepared to reiterate that the principle of Self-determination (SD) set in positive law sphere is a human right; therefore a discourse on the principle is pertinent to deliberations on human rights. Self-determination can be read in the total corpus of human rights law including Article 1 or the gateway of International Covenant on Civil and Political Rights and Economic, Social and cultural Rights 1966. Notwithstanding the status of jus cogen conferred upon the principle of SD by international jurists so no one can derogate from its obligations, India, in the drafting stages, entered reservation on Article 1 saying that SD is applicable to people in colonies only. The reservation was fiercely contested by the international community especially Germany and Netherlands and the conventions adopted. SD law is carried robustly by the Article 1 (2) and 55 (c) of the UN Charter 1945 in which friendly relations between States is based on SD of its people. UN Declaration 1514 ( XV) 1960 on World Peace and Cooperation stipulates that All People determine their political status fully endorsed by 1970 (XXV) Declaration even though like Final Act Helsinki 1975 they are not legally binding.

Emphasizing magnitude of the obligation on States the General Assembly adopted without reservation Declaration on Right to Development on Dec. 4, 1986 and in A-1(2) this right implies right to SD and exercise of their inalienable right to full sovereignty over all their natural resources. SD has implicit support from the regional conventions of Europe, American and African Charter. Self-determination is ingrained in conventions on the Prevention and Punishment of the Crimes of Genocide 1948; Convention Against torture 1997 or the Rights of the Child 1992 and Convention on Elimination of Discrimination Against Women (1979). In a few words it will be correct to paraphrase facts in international law that SD is sprinkled in the total gamut of laws regulating behaviour between States and between States and its people.

In Kashmir realization of the aphorism of self fulfilling prophesies in a vicious circle, denial of the right to self-determination is a violation of human rights and breaches of human rights norms against citizens entitle them to seek self-determination. Indian benevolent posturing has very little resonance in the streets of Kashmir to such time as peace with justice objectives is realized. The Working Group proposal spearheaded by Justice Sagir Ahmad on permanency of A-370 is feeble eyewash and will have little impact on the peace process. How will such recommendations remedy the breach in relationship between people of Kashmir and the Union of India? Such reports only serve to perpetuate the agony and suspense suffered by the people of the subcontinent. In my quest for a direction to adopt for culmination of a durable outcome I sought wisdom from the written law cognate with the freedom from slavery and colonization. It is imperative that the legitimate inhabitants of Jammu & Kashmir State are vindicated by restoration of legal title on their lost territories and restitution of human rights in all its complexities. In my monograph Kashmir Case-law I have tried to document and codify temporal and inter-temporal laws that have a bearing on the burning issues of the conflict.

In the austere hope that human rights discourse has a chance to be taken earnestly and self-determination taken on board we need to expound the principle by imparting a structure on the principle. We understand the world around us by dividing it into manageable and nameable segments or invoke structuralism. At the entry point of understanding the structure of Self-determination we also have to understand and identify polarities like opposites; hot and cold, soft and hard etc. Taking into cognizance that metaphor on polarities, SD at one extreme end will be complete independence and a complete submission to a merger at the other. In my critical analysis SD being a protean concept it stands on a broad base pyramid with at least three dimensions, the internal, ongoing and external.

The first dimension we must emphasis is not even negotiable. In Kashmir case India has to concede to a reconciliation and release political prisoners, lift all constraints to everyday life, and restore all assets like buildings, airports, water and forest resources, highways and energy sources to people. This internal dimension of self-determination is a guaranteed right entitlement to all free citizens of international communities.

The second dimension of SD is also not negotiable and that is the 'ongoing governance'. There has to be guaranteed, effective and completely transparent governance. A citizen from anywhere in the State must be able to leave home in the hope of returning safe, with no harm to his body, livelihood, dignity and future. As a citizen he will be treated with respect, he does not get trampled over by autocratic intimidating onslaught of repressive governance. The administration will be free of rampant corruption and anarchic chaos in offices, roads, and institutions. The political and civil rights including free and fair adult franchise will be enforced to the letter.

When the two stages of the SD have unilaterally been achieved, the remaining third dimension of external SD will become a reality. There will be questions of restoration of legal title of territory, abolishing barriers between the separated parts of the state and if certain parts choose recourse to a referendum to determine their future then that becomes an option. In the end all peoples of Jammu Kashmir, Gilgit and Baltistan will determine what kind of association, annexation, affiliation, accretion, accession, or federation they will have with the Union of India and in some cases with Pakistan properly debated and sealed and stamped with legal treaties that are durable and internationally recognized. The external dimension envisages all aspects of foreign policy and international relations. I think this is an appropriate time to lay a legal foundation in the peace process. Former Home Minister of India Mr. Palaniappam Chidambaram is an astute lawyer and knows what is involved when he offered to negotiate SD last year and we must take his offer on board. The presentation of our case could take guidance from the structuralism of the right to self-determination as described above. The three dimensions become a pathway to the discourse and perhaps a realist goal to achieve. Mr. Chidambaram also offered a discourse on self-rule.

I think self-rule is a red herring and demeaning to even think in those terms. Some people here also advocate self-rule without realizing its implications. This is a political instrument used for indigenous or tribal people like those living in Amazon jungles or terra nullius people of Tasmania. I think it is a British invention they offered to NWFP to keep that population tamed and yet under a supremacy. People of the State of Jammu & Kashmir are a composite society and pride themselves as a full fledged entity with international personality. They will only reconcile to a political association on equitable and dignified terms.
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News Updated at : Saturday, December 22, 2012
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