Kashmir- No right of self-determination

Subhash Kirpekar  

(As our readers are aware, the Government of India sought legal opinion last year from Prof Maurice Mendelson, British expert in international law, about the 1994 report of the International Commission of Jurists-ICJ-justifying the Kashmiris right of self-determination. Prof Mendelson has rejected the theory outright Hereunder, we reproduce Subhash Kirpekar's report about it from London. Courtesy "TOI of May 25, 1995 Editor)

British expert in public international law and Queen's Counsel Professor Maurice Mendelson has said the Kashmiris do not have the night to self-determination or secession.

He pointed out that the people of the state had themselves confirmed this fact "by voting. overwhelmingly in favour of Sheikh Mohammed Abdullah two years after he declared that the accession of J&K with India was final and complete". That particular election in the state was the fairest of them all and on which no doubts were ever cast. It was a plebiscite in that sense and clinched the issue once and for all, he said.

The gist of Prof. Mendelson's independent legal opinion, sought by the Government of India, is published in the International Commission of Jurists (ICJ) report titled "Human Rights in Kashmir: Report of a Mission. But it is the first time he has given detailed replies to questions on the Kashmir issue.

Prof. totally disagreed with the ICJ mission's opinion that "the people of the state acquired a right to self-determination at the time of the partition of India in 1947 and that the right still exists because it has neither been exercised nor abandoned".

However, the mission concluded that because of the extent of support for independence within Kashmir, a single plebiscite of the whole state offering a choice between accession to India for Pakistan "would be disastrous". The state a number of different units which should be allowed to exercise the right to self-determination separately-if possible, by a referendum approving a previously negotiated solution", the ICJ mission stated.

Prof. Mendelson questioned Lord Louis. Mountbatten's contention that the accession of Jammu and Kashmir to India be settled "by a reference to the people". "Once the accession was over, Jammu and Kashmir became a part of the Indian Union", Prof. Mendelson said.

Referring to a relevant part of the then Governor- General's letter of October 27, 1947 to Maharaja Hari Singh that "it is my Government's wish that as soon as law and order have been restored in Kashmir and her soil cleared of the invader, the question of the State's accession should be settled by a reference to the people", Prof. Mendelson observed that Lord Mountbatten did not know when the soil would be cleared of the invader, nor was he legally empowered to impose conditions on accession. Only rulers could impose conditions, not the Governor-General, Prof. Mendelson told The Times of India in an interview.

He said: "If what Lord Mountbatten wrote (to Maharaja Hari Singh) was merely an expression of an idea, it is not possible even to begin to argue that it was binding. But even if it was a promise, it could only be binding as a matter of internal law if the Governor-General was legally entitled to make such promises. I doubt if he was." Referring to the use of the word "wish" by Lord Mountbatten, he said he did not go along with the "your wish-is-my- command" kind of thinking.

He asserted that the UN resolutions of 1947-48 had become redundant and obsolete now, especially after the signing of the Shimla Agreement by India and Pakistan. Also, Prof. Mendelson said, the ICJ had in the report of its four-member Mission on Kashmir, drawn an "incorrect inference" that the Indian government made its acceptance of the accession in October 1947 conditional on "a reference to the people".

He also made the significant point-hardly mentioned by even Indian spokesmen and Kashmir experts-that India, while ratifying in 1979 the International Covenants on Civil and Political Rights and on Economic, Social and Cultural Rights, made the following observation: "The Government of the Republic of India declares that the words 'the right of self-determination' appearing in Article 1 apply only to the peoples under foreign domination and that these words do not apply to sovereign independent states or to a section of a people or nation-which is the essence of national integrity". Prof. Mendelson said this meant, in other words, that India was denying the applicability of the right in cases like Jammu and Kashmir. It was thus clear that the ratification of the covenants could not be treated as having conferred on any "peoples" within India a right of secession. Such a right would only exist if a right of secession had become recognised as a principle of international law independent of obligations under the Covenant.

Prof. Mendelson, however, endorsed the view of the ICJ Mission: In Jammu and Kashmir, one is nowhere near the sort of situation which might even arguably trigger a right of secession". But on the whole, he said, the ICJ mission report had advocated "remarkable and unjustified assumptions, conclusions and recommendations".

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Courtesy: June 1995 Kosher Samachar