A Denial to hold Plebiscite as directed by the UN: A violation of the Right to Self-Determination of the residents of Kashmir

India’s non-compliance to the directions of the United Nations (hereinafter “UN”) issued on August 13, 1949, to conduct a plebiscite in the State of Kashmir, has attracted significant scrutiny and backlash, claiming it to be in violation of in contravention of the Right to Self-Determination of the people of Kashmir, and hence in violation of the International Covenant on Civil and Political Rights (hereinafter “ICCPR”), International Covenant on Economic, Social and Cultural Rights (hereinafter “ICESCR”) and the Universal Declaration of Human Rights (hereinafter “UDHR”).

In this article, the author attempts to analyse the legal obligations on India to conduct such a plebiscite owing to the nature of the right under Public International Law, through an examination of the statutory recognition of the right under various international frameworks, and the implications of such recognition. In addition to this, the author addresses the consequences that arise owing to not conducting the plebiscite in relation to the violation of human rights and brings out the need for the immediate realization of the same.

India’s obligation to implement the Right to Self-Determination

According to Chapter V of the Report of International Law Commission’s Seventy-First Session, the right to self-determination is both a norm of jus cogens status, with the legal status of erga omnes. Peoples’ right to self-determination is an inalienable right of erga omnes character as obligations owed to the international community as a whole. There should be no dispute that all States have an obligation to promote the realization of the Right to Self-Determination of people in the international community. Therefore, as a matter of generally-accepted international law, there clearly existed an obligation on India to realize and recognize the right to self-determination of the people of Kashmir, which it failed to do. The Declaration on Principles of International Law concerning Friendly Relations and Co-operation among States in accordance with the Charter of the United Nations (hereinafter “Declaration of Friendly Relations, 1970”), adopted by the UN adopted by the General Assembly on 24 October 1970, vide Resolution 26/25 (XXV), set out internationally agreed basic principles of international law, that subjection of peoples to alien subjugation, domination and exploitation constitutes a violation of the principle of equal rights and self-determination of peoples, as well as a denial of fundamental human rights, and is contrary to the Charter of United Nations. Under the principle of self- determination, a group with a common identity and link to a defined territory is allowed to decide their political future in a democratic fashion. Under the principle of self- determination, a group with a common identity and link to a defined territory is allowed to decide their political future in a democratic fashion.

In the present case, a plebiscite was due to be held in order to democratically determine whether the people of Kashmir wanted to accede to either India or Pakistan, and the same was necessary to determine its political future. By India’s not holding of the plebiscite, there was never an opportunity given to the people of Kashmir to choose the State they wanted to accede to, and hence were denied their right to self-determination.

Denial of the right as a violation of Customary International Law

The United Nations had directed India and Pakistan to hold a free and fair plebiscite, for the creation of a mechanism to determine whether the people of Kashmir wanted to accede to India or Pakistan. India, however, despite strikes and protests in its territory, opposed the idea of plebiscite in 1990 as it had lost favour with the people of Kashmir. Many claim that India’s intentions have been to disregard the right to self-determination of the people of Kashmir from the beginning as it had failed to hold a plebiscite, as was required by the proviso of the Instrument of Accession and again under the UN. This is in violation of the principle of pacta sunt servanda, which forms customary international law.

Violation of Common Article 1 of ICCPR and ICESCR, the UN Charter and the UDHR

Right to self-determination, recognized in the UN Charter, Declaration of Friendly Relations 1970, ICCPR and ICESCR is a rule of international law as seen by United Nations in its declarations and resolutions, and actual state practice in the process of decolonization. The Common Article 1 in the International Covenant on Civil and Political Rights and the International Covenant on Economic, Social and Cultural Rights define the right of self-determination as, “All peoples have the right of self-determination. By virtue of that right, they freely determine their political status and freely pursue their economic, social, and cultural development.”

It gives a right of self-determination to the people of a country. A person can be said to have realised its right to self-determination when they have either (1) established a sovereign and independent state; (2) freely associated with another state or (3) integrated with another state after freely having expressed their will to do so (hereinafter “Factors of Realizing a Right to Self-Determination”). Thus, having satisfied the aforementioned criteria, the people of Kashmir qualify as people, and have their right to self-determination is protected.

The right to self-determination is the right to decide on the political status of a people and its place in the international community in relation to other states. The consistent state practice in conformity with the UN resolutions formed the international customary rules on the external self-determination of colonial peoples and peoples under foreign military occupation. The United Nations Millennium Declaration upholds the right to self-determination of peoples under colonial domination and foreign occupation. Article 21(3) of the Universal Declaration of Human Rights states that “the will of the people shall be the basis of the authority of the government.”

Holding a plebiscite being of utmost importance to protect the rights of the people of Kashmir 

The holding of a plebiscite in order to establish the will of the people with respect to a change of status and other matters is a widely accepted act of self-determination and is widely supported by state practice. In furtherance of the same, the Office of the High Commissioner for Human Rights (OHCHR), in Chapter 23 of its manual on Human Rights Monitoring, stresses that freedom of a plebiscite requires the absence or at least restraint of military forces of the opposing parties and neutrality of public authorities. The Code of Good Practice on Referendums also provides for a number of general procedural requirements. The code requires the existence of a referendum law that regulates the procedure of the vote, and customary international law demands the presence of domestic and international observers.  As indicated by authors like Christine Griffioen and Kavus Abushov, the application of the right of self-determination requires a free and genuine expression of the will of the peoples concerned. The importance of a plebiscite in the exercise of the right of self-determination has been recognised and it has been said that the issue of independence is possibly the most important decision that a political community may take by democratic means and hence, the matter requires the broadest possible commitment of the citizens to the resolution of the issue.

Non-realization of the Right to Self-Determination

In furtherance of the factors for realizing the Right to Self-Determination discussed above, it can be concluded that the realization by the people is absent as neither of the aforementioned requirements have been satisfied, as (1) Kashmir was not established as a sovereign and independent state; (2) Kashmir was not freely associated with either India or Pakistan by the will of the people, and it was only Maharaja Himmat Singh, who helplessly signed the instrument of accession; (3) Kashmir was not freely at the will of its people after exercising their right, affiliated to India or Pakistan. It hence becomes necessary to call upon the two nations who stand as stakeholders in this issue, i.e. India and Pakistan, and make possible the holding of the plebiscite, which would mark a significant step towards the realization of the Right to Self-Determination of the people of Kashmir.

 

Mr. Tejas Hinder is a third-year law student on the B.A. LLB (Hons) at the National Law Institute University of Bhopal. He aims to specialise in Public International Law after his undergraduate degree.

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