The concept of self-determination is an internationally recognized norm. The concept ‘started as a political (or
moral) right’ and later during the decolonization period ‘evolved into a legal right.’ For example, in 1917,
Lenin conceived it as ‘political self-determination that is the right to secede and form an independent state.’
In 1918, the American President, Woodrow Wilson, included it in the famous fourteen points and described it as ‘an imperative
principle of action.’ (Dr. Ijaz Hussain, Kashmir Dispute: an International Law Perspective, p.141-152) A development
in this connection was the UN General Assembly Resolution 1514, adopted in 1960. Paragraphs 2 and 3 of the resolution proclaimed
that ‘all peoples have the right to self-determination and lack of political, economic, social or educational preparedness
could not be a ground for delaying independence.’ Also, Article 1(2) of the UN Charter, (Chapter I ‘Purposes and
Principles’), states: ‘To develop friendly relations among nations based on respect for the principle of equal
rights and self-determination of people, and to take other appropriate measures to strengthen universal peace.’ (UN
Charter signed on June 26,
1945) Other
related important documents are the two International Human Rights Covenants, adopted in 1966. The two Covenants - ‘International
Covenant on Civil and Political Rights’ and ‘International Convenient on Economic, Social and Cultural Rights’
- came into force in 1976. The common article 1 (1), incorporated in both the Covenants, states: ‘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.’ Another important document is the UN General Assembly Resolution 2625, adopted
in 1970, entitled: ‘Declaration on Principles of International Law Concerning Friendly Relations and Co-operation among
States.’ The resolution ‘recognizes the right of self-determination in favor of an oppressed people within an
independent state.’
An important point to note is that various international conventions on terrorism have also pointed out the difference
between struggles for self-determination and acts of terrorism. For example, the UN General Assembly Resolution 3314 (XXIX)
on the ‘Definition of Aggression’, adopted in December 1974, in Article 7 states: ‘Nothing in this definition,
and in particular Article 3 could in any way prejudice the right of self-determination, freedom, and independence, as derived
from the Charter, of peoples forcibly deprived of that right and referred to in the Declaration on Principles of International
Law concerning Friendly Relations and Cooperation among States in accordance with the Charter of the United Nations, particularly
peoples under colonial and racist regimes or other forms of alien domination; or the right of these peoples to struggle to
that end and seek and receive support…’ The United Nations, in December 1979, adopted an International Convention
against the Taking of Hostages (came into force June 1983). It declares that it: ‘shall not apply to an act of hostage-taking
committed in the course of armed conflicts ... in which peoples are fighting against colonial domination and alien occupation
and against racist regimes in the exercise of their right of self-determination, as enshrined in the Charter of the United
Nations and the Declaration on principles of International Law....’ (Article 12) Similarly, the ‘Convention on
Combating International Terrorism’ adopted by the OIC in 1999, states in its preamble ‘the legitimacy of the rights
of peoples to struggle against foreign occupation and colonialist and racist regimes by all means, including armed struggle
to liberate their territories in compliance with the purposes and principles of the Charter and resolutions of the United
Nations’. Recently, ‘The Almaty Declaration’ signed at the
end of the ‘Conference on Interaction and Confidence Building Measures in Asia’ (CICA), held in Kazakhstan in
June 2002, while condemning terrorism in all forms states in para 18, ‘We reaffirm the right of people living under
foreign occupation for self-determination in accordance with the UN Charter and International law.’
At present, there is also the imperative to understand the centrality of the principle of self-determination to international
law because given the present anti-terrorist coalition that is building up, the moves for an international convention on terrorism
are going to reach a conclusion much sooner than would otherwise have been possible. The UN is presently studying a number
of drafts on terrorism, including the one adopted by the OIC, which has been presented on behalf of the OIC. There is also
an Indian draft, which in its present form would be invalid in terms of the Vienna Convention on the Law of Treaties since
it does not distinguish the principle of self-determination. Unless the norm of self-determination is preserved, the fight
against terrorism will become devoid of international legality.’
Taking advantage of the international campaign against terrorism, the Indian BJP government stepped up its two-pronged
efforts to have Pakistan declared a terrorism-sponsoring state, and project the Kashmiri struggle for self-determination in the Indian-held
Kashmir as ‘terrorist’ activity.
Under the circumstances, it is important to understand the real genesis of any struggle, even military struggles, before labelling
them or the organisations involved, as terrorists. The indigenous struggle for self-determination in the Indian-held Kashmir,
recognised also by the UN, is a prime example, where the oppressed people have been forced to take up arms for their right
of self-determination, and as a measure of resistance against the excesses being committed by more than 700,000 Indian armed
forces personnel, deployed all over the Indian-occupied areas, to eliminate the resistance.
(Fahmida Ashraf; J&K Dispute: Examining various Proposals for its resolution)
