Why the ‘Liberal’ Defense of Occupation is Flawed

[This is in response to Neera Chandhoke’s article in Economic and Political Weekly, titled “When is Secession Justified? The Context of Kashmir” (November 13, 2010)].

Neera Chandhoke argues against Kashmir’s right to self-determination. She couches her argument in a way, which suggests that Kashmiris want to ‘secede’ from India. This assumption, formulated as a case of secession, leads to a fundamental flaw in her argument. First, Kashmir is already recognised as an international dispute (UN Security Council resolutions 47 and 91, for instance),[i] and the status of Kashmir as part of the Indian ‘union’ is, therefore, not settled. Apart from this fundamental legal issue, Kashmiris have been collectively demanding the right (based on the universally accepted national and democratic right to self-determination) to decide if they want to become part of India, or not. Since 1949, all countries that constitute the UN, including India, have in the case of Kashmir acknowledged this right—a right, which forms the fundamental basis of international political order. These two issues that Kashmir’s ‘union’ with India has neither legal validity nor a democratic one are the fundamental points of departure for any fruitful discussion of the Kashmir question.

The point is how can one demand the right to ‘secede’ from something of which one has never agreed to be part in the first place? If ‘Instrument of Accession’ signed by Maharaja Hari Singh is the basis of the argument for the pre-existence of this supposed union (Chandhoke, it must be pointed out, doesn’t use it, yet it is implicit in her argument; in any case, the implications of UN resolution 91 quash, retrospectively, the validity of Maharaja’s authority in this regard) then it goes against Chandhoke’s own invocation of General Assembly Resolution 2625 (1970), which puts a rider on the territorial integrity of nation-states (ironically Chandhoke sees this resolution in the opposite sense). The resolution says: “Nothing in the foregoing paragraphs shall be construed as authorising or encouraging any action which would dismember or impair, totally or in part, the territorial integrity or political unity of sovereign and independent States conducting themselves in compliance with the principle of equal rights and self-determination of peoples…and thus possessed of a government representing the whole people belonging to the territory without distinction as to race, creed, or colour” (Chandhoke’s emphasis). This means that the ‘peoples’ within the nation-state must have democratically chosen to be part of the nation-state in the first place; otherwise the claims of territorial integrity are not valid. In Kashmir’s case this clause of self-determination of peoples has not been adhered to.

Even if we take Chandhoke’s case for this assumed pre-existing ‘union’ to be hypothetically correct, there are other insurmountable legitimacy issues. Chandhoke lays down two conditions before the right to ‘secession’ can be considered: 1/ There must be institutionalised injustice, or infringement of regional autonomy originally agreed upon; 2/ this injustice is irrevocable, “the state is not likely to reverse its policies, compensate the victims for harm done, and institutionalize just procedures and institutions before we proceed to justify secession” (again her emphasis). She acknowledges that in the case of Kashmir the first condition is met, while the second isn’t.  Chandhoke’s claim is that since India is ‘formally’ a democratic country, it somehow should be naturally interpreted to mean that its institutions couldn’t logically bar any national/minority group from seeking and receiving justice. The larger claim in this argument then is that there is never any justification for secession/separation from formally democratic nation-states. It is quite surprising that writing in India, Chandhoke ignores completely the morally legitimating distinction between formal and substantive democracies. On what basis can simply a formalistic democracy claim any moral superiority over any other regime of government?

My issue with Chandhoke’s argument, however, is not only that she absolutely ignores the role of majoritarianism in Indian democracy (it is kind of the proverbial elephant in the room!), but also how she makes her second condition for justified secession an absolute condition. One has to absolutely exhaust all other options, it seems, but it leaves ambiguous what would be considered absolute exhaustion of options. In fact, this second condition is never fully realizable even in dictatorial regimes, as all regimes need to be seen as at least dispensing some justice if not all (for who is to say a dictator cannot be persuaded to change his policies, recompense the victims, and institutionalise just procedures and institutions?) Formally speaking, Kashmiris have citizenship rights, but for the last 63 years these rights have been regularly violated, infringed upon, and, effectively, hollowed out. Does the non-reversal of Indian policies in Kashmir for 63 years not count as a sufficient enough time and reason, or the “before” of Chandhoke’s second condition, to conclude that Kashmiris cannot hope to get full justice under Indian sovereignty? How many years more must Kashmiris wait (and lose their lives and means) to satisfy and prove this second condition?

It is strange that Chandhoke refers to League of Nations (archaic, yet respectful of right to self- determination) instead of UN Charter whose second article calls for the right to self-determination of nations “big and small.” She also doesn’t deem it fit to talk of the International Covenant on Civil and Political Rights, whose Article 1 says (and which India has signed):[ii]

“1. 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.

2. All peoples may, for their own ends, freely dispose of their natural wealth and resources without prejudice to any obligations arising out of international economic co-operation, based upon the principle of mutual benefit, and international law. In no case may a people be deprived of its own means of subsistence.

3. The States Parties to the present Covenant, including those having responsibility for the administration of Non-Self-Governing and Trust Territories, shall promote the realization of the right of self-determination, and shall respect that right, in conformity with the provisions of the Charter of the United Nations.”

It’s strange that UN isn’t invoked at all, especially since Indian national leadership puts so much emotional and diplomatic purchase on permanent membership of the Security Council, whose numerous resolutions on Kashmir India stands in violation of.

Chandhoke also wrongly claims that the right of secession is in contravention of the international law. Recently, UN sought opinion of International Court of Justice (ICJ) in the case of Kosovo’s declaration of independence, to see if, as it worded it, “the unilateral declaration of independence by the Provisional Institutions of Self-Government of Kosovo is in accordance with international law?” And, this is what the ICJ’s verdict was:

The Court has concluded…that the adoption of the declaration of independence of 17 February 2008 did not violate general international law, Security Council resolution 1244 (1999) or the Constitutional Framework. Consequently the adoption of that declaration did not violate any applicable rule of international law.” [iii]

The judgment noted that the decision to declare independence was taken on behalf of people of Kosovo and was therefore legal. It is interesting that Chandhoke ignores such recent important and relevant judgment. Instead, she chooses to focus on a Canadian court’s judgment on the Quebec question. But here too she ignores the fact that people of Quebec were nevertheless allowed to vote in a referendum to decide their future, thereby reaffirming their right to do so.

Further on, Chandhoke claims that secession in case of Kashmir is “partition of territory” between Kashmiris and the ‘rest.’ This is prima facie an invalid assertion, because Kashmiris are not dividing anyone’s territory but claiming right over where they already live; they are indeed not asking for more than Kashmir. In any case, she says it is dangerous to divide territory (as her examples show this): “For instance, in Sri Lanka, an estimated 7,000 Tamil civilians were killed, and 72,000 civilians were displaced from their homes by the Sri Lankan army, as well as by the Liberation Tigers of Tamil Eelam, in the last phase of the civil war between January 2009 and May 2009 alone. (Also) for 26 years the country was torn by violence, which extracted a heavy toll. In 1971, when East Pakistan declared itself independent of Pakistan, an estimated three million people died in the war between the new state of Bangladesh and the parent country. About 8 to 10 million were rendered homeless.” Chandhoke, sans any logical evidence, sees this bloodshed as a result of the demand for right to self-determination. One could argue, more plausibly, that this bloodshed was a result of dominant states occupying other nations against the will of the latter. Isn’t it correct to assert that thousands of Bangladeshis were killed at the hands of Pakistan army not only after Bangladeshi leaders called for independence, but also before that? Despite her own claims, she contradicts herself by asserting that East Pakistan’s (Bangladesh’s) secession from West Pakistan was justified, the only such case after 1945. But Tamil suffering and demand for justice (from even before LTTE started their awry war for Eelam) doesn’t qualify her justification criteria for secession from Sri Lanka. In the same vein, then, she argues for the continued Indian control over Kashmir even though the Indian occupation of Kashmir has led to the deaths of close to 70,000 Kashmiris. Curiously, her argument shall put the blame of loss of these lives on the dead themselves instead of their killers.

It has become a pastime for some in the Indian intelligentsia to invoke Kashmir’s diversity as a reason to deny it the right to self-determination. Often Kashmir’s diversity is projected as a sign of its fragmentation (while India’s own diversity is celebrated as ‘unity in diversity’). Words have the power to produce reality. Fragmenting Kashmir in texts might produce its own corresponding reality in Kashmir. Knowledge is never far from the tails of power. Chandhoke seems to endorse Panun Kashmir’s demand for homeland in Kashmir as legitimate—she even casually points to the area where they want it, and not pausing even once to think about what will happen to those millions of Kashmiri Muslims who already live in those regions. (‘Pandit homeland,’ if Panun Kashmir’s maps are to be believed, practically takes half of Kashmir Valley!) Chandhoke even suggests that Gujars, who are Muslims, too demand a homeland of their own. She doesn’t tell us which specific group of Gujars has made this demand. She raises the question of people who live in Jammu city and the surrounding foothills (without specifying again which areas she is mentioning); most of Kashmir’s pro-freedom leadership has agreed and often reiterated that they have an absolute right to be part of India, if they so wish in a referendum. One cannot brush aside these questions, however. These are complex issues, yet solvable within the larger resolution of the Kashmir question. But are there are valid grounds these questions create which can allow one to argue against independence (or right to self-determination) for Kashmiris?

Chandhoke raises a speculative scenario for independent Kashmir, which suggests free Kashmir will be disastrous for Kashmir’s minorities. Notwithstanding the fact that this assumption smacks of the old colonial patronizing attitude toward the colonized and is based on the claim that the latter are not fit to rule themselves nor can they be trusted, Chandhoke never logically explains why most of Kashmir’s people must be held hostage to these arguments. On what logical-moral ground can one deny right to self-determination to M (in her own terms), which is the majority living in the dominated country, because some Ds in the dominating country believe that S, a small minority who have historically, and relatively harmoniously, lived with M, will be harmed? A parallel question one could raise is: On what basis must then India see itself more justified in being a state, despite its record with its minorities (not by any stretch of imagination better than Kashmiris’ record with their minorities)? On what basis must Kashmiris’ ability to rule themselves democratically be questioned, if not such purely politically motivated speculation? The matter of Kashmir’s post-independence social and constitutional order, its new institutions, and relations between communities and social groups is a matter internal to Kashmir. All Kashmiris (Muslims, Sikhs and Pandits, and other national groups in regions beyond Kashmir valley) should decide what independent Kashmir should look like, if they happen to choose independence. Indian state cannot deny Kashmiris their right to self-determination on this speculative basis, since there is no logical reason to suggest that free Kashmir will lead to some sort of Gujarat type genocide.

Chandhoke uses SAS Geelani’s politics to argue against Kashmir’s right to be free, even as she herself seems baffled by his increasing prominence. She ignores many progressive voices that call for a plural, democratic, and independent Kashmir. If Geelani has support in Kashmir, it is not because of his Islamist ideas as such but his principled opposition to Indian military occupation—as well as moderation in his own thinking. His popularity has grown as he has begun to rethink his earlier stances, which suggests that even he understands that people will support him only to the extent that they get freedom from India, and not where he begins to set agenda for the post-independent Kashmir. Nevertheless, using Geelani as straw man weakens Chandhoke’s arguments even further. Individual personalities cannot be staged to defeat ideas like right to self-determination that have found universal resonance and legitimacy, and have become the basis of our coexistence in this world.

[i] Official United Nations website:   http://daccess-dds-ny.un.org/doc/RESOLUTION/GEN/NR0/047/72/IMG/NR004772.pdf?OpenElement Last accessed on November 22, 2010.

[ii] Office of the United Nations High Commissioner for Human Rights official website: http://www2.ohchr.org/english/law/ccpr.htm Last accessed on November 22, 2010.


5 thoughts on “Why the ‘Liberal’ Defense of Occupation is Flawed

  1. This is a powerful and solid indictment of Chandhoke’s moribund and transparently partisan argument. It deserves to be published in EPW, Junaid. Do you know anyone there? I can try and send to friends I know who might be able to send it on…

  2. A scholarly response to misleading article.This sort of subversion of just cause of kashmir shall be fought at all levels viz. moral ,political and intellectual as done by Mc.It should be our constant endeavour to expose the subterfuge used by the Indian state through these intellectual debates that have strengthen the occupation of Kashmir in the last 63 years. This response deserves to be published in EPW.

  3. I haven’t read the original article to which this response has come but I think it must have been flawed even in the thought because it is premised on ‘right to secession’.The response has been put objectively and in the context of accepted international laws.I wonder if she is even able to understand all this because she seems to have her own interpretations that are only based on bias and prejudice.I think with a bit of editing we can use it for a braoder purpose.I means sans the text about reply to her.Keep it up.

  4. I think EPW will publish this. They have been publishing quite a bit on Kashmir lately. Gautam Navlakha is the editor there and I am sure he will not let this go by. Good job, Junaid.

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