[Reader-list] (Part II) When Is Secession Justified? The Context of Kashmir

Aalok Aima aalok.aima at yahoo.com
Sat Nov 20 20:18:37 IST 2010

a well argued essay that (in the context of kashmir) differentiates between "self determination" and "secession",  explores the justifications for "secession", the associated "rights" and the "conflicting rights"
............ aalok aima 
(Part II) When Is Secession Justified? The Context of Kashmir
Neera Chandhoke
Economic & Political Weekly  november 13, 2010 vol xlv no 46
(continued from Part I)

The Case in Kashmir 
We can conclude that the people of the state have been subjected to institutionalised injustice. The special status allotted to the state by the Constitution, and by subsequent political contracts, has been wilfully subverted, and the core moral rights of the people of the Valley have been seriously violated by security forces after the outbreak of militancy in J and K. Yet can we also subscribe to the view that this injustice, although serious, is irrevocable? Injustice cannot be seen as irrevocable if people have the right to access the judiciary, and if civil society organisations possess the capacity to press for the repudiation of injustice. Since the latter years of the decade of the 1990s, processes of electoral democracy have been re-established in the state, and regional parties have come to power. The political space has also been opened up with a new political party emerging onto the scene in 2002. Both the regional parties are committed to
 negotiate for the reinstatement of the special status of J and K. Some civil liberty groups in India have powerfully highlighted the deliberate violations of civil rights of the people in the Valley by the security forces and draconian laws, and demanded the restoration of justice. And in the Valley a number of civil society organisations have made human rights issues, encounter deaths, rapes, and disappearances, their major concern. 
Admittedly, the re-establishment of full democracy (lifting of all coercive laws) and the reinstatement of the special status of the state is a process that is precarious, and, therefore, in constant danger of being subverted. Nevertheless the onus for sorting out the Kashmir issue is, I suggest, on India’s chaotic but occasionally inspired, energetic, and resourceful civil society. But too many civil society agents have been infl uenced by offi cial dismissal of the struggle in the Valley as terrorism, and as the handiwork of neighbouring countries, and far too many agents have been prejudiced against the militants by reasons of a corrosive nationalism, and a biased media. In the process they have forgotten what the mandate of a democratic civil society is. If there is one thing that democratic civil societies worth their name cannot afford, it is indifference to institutionalised injustice. If our democratic civil society is prepared to mount an
 onslaught on the Indian state for sins of omission and commission, and if the state is prepared to acknowledge the extent of historical injustice visited on the heads of the Kashmiri people, and make amends, the right of secession in Kashmir is a weak one. 
A right can be typed as a weak right when substantial moral considerations mediate the realisation of the right. The process of justifying a right implies that this right has to be balanced against relevant moral considerations, which have a bearing upon the right. Some of the moral considerations that have an immediate bearing upon the right of secession in Kashmir are (a) injustice might not be irrevocable even if the Indian state is imperfectly just and inadequately democratic, (b) the infl iction of major harm, (c) the illiberal nature of the group that demands a state of its own, and (d) the presence of third party agents who coming in from neighbouring countries have hijacked protests against the way-laying of democracy, and bent them towards jehad. Above all, and this is the fi fth moral consideration, what about the rights of people in the state of J and K who do not want to secede? 
According to the 2001 Census in J and K, Muslims form 66.97% of the population, Hindus 29.63%, the Sikhs 2.04%, and Buddhists 1.2%.6 The Muslims constitute a majority in the state but the community is divided by language and sect. Sunni Muslims live mainly in the Kashmir Valley and in two districts in Jammu, in Poonch Muslims speak Punjabi, and Kargil is peopled by Shias. Jammu and the foothill are dominated by Hindus, and Leh by Buddhists. For all these groups as well as for numerous smaller groups such as Gujjars, Bakkarwals, Kashmiri Pandits, Dogras, and Buddhists the state of J and K is homeland.7 
The demand for secession has erupted mainly in the Valley of Kashmir, and in the two Muslim-dominated districts of Jammu. But though the Muslim community forms an overwhelming m ajority of the population in Kashmir, for the Kashmiri Hindus and Sikhs the Valley is home as well. In the wake of the 1990 popular uprising in the Valley, 95% of the Valley’s 1,50,000 to 1,60,000 Hindus were forced to leave their homes and their work places, because they were threatened by poster campaigns, the use of Islamic slogans during processions, and newspaper declarations that J and K was poised to be an Islamic state.8 Notably, Sikhs and moderate Muslims have also been forced to leave the Valley that has been their home for centuries (Evans 2002: 19-37). 
More significantly, the demand for secession by militant Muslim groups in the Valley has propelled the politicisation of other identity groups. The Buddhist community in Ladakh had begun to assert a distinct identity as far back as the 1930s, when the Muslim-dominated National Conference had mobilised to c hallenge the discriminatory policies of the Hindu ruler.9 The Buddhists held that they preferred to be governed directly by the Government of India, or be amalgamated with Hindu majority regions in Jammu, or join East Punjab, or be reunited with Tibet. With the outbreak of militancy in the state in 1990, the Buddhist population in Ladakh began to agitate for union territory status under the direct control of the Government of India.10 
In Jammu, the predominantly Hindu community had, from the time of accession, been uncomfortable with regional autonomy granted to J and K, given that the state is dominated by the Muslim community. Developments after 1947 fuelled suspicions that the Government of India preferred to deal with the Muslim leadership in the Valley, and that it tended to neglect the interests of other religious groups. These fears led to the politicisation of the Hindu community under the leadership of the Hindu right, which demands integration of J and K into the Indian Union, and abolition of the special status of J and K. 
Whether the politicisation of identities in Jammu and in Ladakh on religious lines is politically desirable is a relevant question, but not the issue at hand for this argument. Without defending right wing Hindu fundamentalism, we can acknowledge that the crucial issue is that of competing identities. Over the years the regional divide has been exacerbated, generating both plural and incommensurate voices on the future of the state, and the intensifi cation of intra-state tensions.11 Ironically, whereas the Valley-based leadership calls for either independence or restoration of regional autonomy, it seems to oppose the grant of subregional autonomy to other groups. 
Matters have become even more complicated because the former residents of the Kashmir Valley, the exiled Hindu Kashmiri community have begun to agitate for a separate homeland comprising the region to the east of the Valley and the north of river Jhelum (The Hindu 2007: 5). The homeland should have, it is claimed, the status of a Union Territory governed by the central government. The other group that has demanded autonomy from Kashmir is the Gujjar community that constitutes 9% of the state’s population. The Gujjars who form the third-largest community in J and K are Muslim nomads. They were granted in 1991 the status of a scheduled tribe (ST). This has led to the politicisation of the Pahari people who speak a distinct language, and who consider themselves as possessing a separate identity. The group has begun to demand separation from the Valley, as well as a distinct political status. The residents of the Chenab Valley have also put forth a claim
 for an Autonomous Hill Council (Behera 2006: 128-30). In sum, not only is there no consensus on the issue of secession in the state, different groups of residents conceptualise the future of the state in incommensurable ways. 
Let us now reflect on the two factors that have signifi cant bearing on the right of secession. One, even if the separatist leadership commits to minority rights in the new state, groups other than the Muslim majority in the Valley simply do not subscribe to the project of secession. Two, all these groups have begun to lay claim to (a) a distinct administrative status within the region, and (b) closer integration of the state into the country. In other words, not only do these groups desire a dilution of the special status granted to the state, they also desire a looser form of subfederalism within the state, with some units being administered directly by the central government. We can, of course, hold that only the residents of the Valley of Kashmir should be allowed the right to secede. Since their civil liberties have been violated, we can argue, they have been subjected to double injustice. But this course of action carries adverse implications for
 the moderate Muslims who do not share aspirations for a separate state, as well as for Sikhs and Hindus for whom the valley is home. Most of them have been practically forced out of the Valley. However given their historic links with Kashmir, should they not be consulted on the future of the Valley? Do the rights of the secessionists outweigh the rights of minorities completely? 
The Problem of Conflicting Rights 
What we see here is the making of a serious moral dilemma born out of the confl ict between P’s right of secession, and the rights of other groups in the territory not to secede. Conflict between rights is, of course, not peculiar to the right of secession alone; it is endemic to rights. Since rights are asserted and claimed in a context that is indisputably social, and, therefore, one that is marked by both a scarcity of resources and imperfect altruism, the rights of P can affect the rights of Q. How do we then trade off the P’s right with Q’s right? 
Two courses of action can be adopted to resolve the issue. It can be argued that P’s R to G is more signifi cant than Q’s R to Gi. But this would mean that P’s rights override Q’s rights. A tradeoff between rights is simply not a desirable option because it infringes the basic assumption of rights; that is inviolability. Much more desirable is a second option; that the scale of the good P and Q lay claim to is reduced for both. The advantage is that the rights of both agents are realised, albeit to a lesser degree than initially envisaged. What is signifi cant is that the trade-off in this case is not between two sets of rights. The trade-off is between the full realisation of the good the right is a right to (for one agent), and a realisation of a reduced scale of the good (for both). If we follow the second course of action, the one alternative to the right of secession, which if realised will harm other agents, is to fulfi l the substance of
 the right within the existing state, in the form of the institutionalisation of self-determination through r egional autonomy, representation, and protection of minority rights. But then what exactly does self-determination mean? 
A Brief Biography of Self-Determination 
It is well known that after the end of the fi rst world war, US President Woodrow Wilson placed the principle of national selfdetermination squarely onto the global agenda. The principle however proved to be contentious. For by the beginning of the 20th century, the concept of the nation had come to be pluralised, between what came to be known later as civic and as organic nations. Wilson, however, simply did not seem to be aware of either these complexities in the concept of the nation, or of the knots in the fi lament that tied nations to self-determination, or properly states of their own. For him, the concept of a selfdetermining people, as Lynch has noted, was rooted in the Anglo- American tradition of civic nationalism, or the right of communities to democratic self-government. The idea that the principle could also emanate from traditions of collective or ethnic nationalism (Lynch 1999) in which nations are held to be collective agents that
 possess a distinct identity from their individual members, was quite alien to Wilson. It is not surprising that the moment he began to confront diffi culties in implementing the idea of national self-determination in eastern and central Europe, Wilson began to voice reservations about the concept, “in point of logic, of pure logic, this principle which was good in itself would lead to the complete independence of various small nationalities now forming part of various Empires. Pushed to its extreme, the principle would mean the disruption of existing governments, to an undefi nable extent” (Lynch 1999: 19). Ultimately, the ambiguous and the troubled principle of national self-determination was not incorporated into the Covenant of the League of Nations even though it was employed to split up numerous defeated territories in eastern Europe, Balkans and the west Asia to create new states. Notably who got their state and who did not was contingent on
 the political calculations of the great powers and not on the will of the nation concerned.12 
The irony is that even though the League rejected the concept of national self-determination, the principle came to strongly shape the popular aspirations of colonised people. It was foregrounded as the main rallying cry of nationalist movements against colonialism. Leaderships of freedom struggles across the colonised world set out to construct nations out of a plurality of different and diverse social groups. By the time the moment of decolonisation came around, however, national self-determination had been practically banished from the domain of international law. Though the right of colonised people to independence via the principle of self-determination was recognised as the cornerstone of the new order, now the entity that possessed this right was “the people” who inhabited a territory under colonial rule. The substitution of the concept of the “people” for that of the “ nation” as the bearer of the right of self-determination carried
 at least three power ful messages. One, territorial borders were s acrosanct via the principle of Uti Possideti Juris; two, the UN clearly privileged the liberal democratic notion of people as the locus of popular sovereignty over ethnic nations and ethno- nationalism, and, three, national groups within the territory did not have the right to their own state. The only successful case of secession in the period after 1945 has been that of Bangladesh. But Bangladesh was not placed in the category of national self-determination outside the colonial context. Recognised by the UN some three years after the country had seceded from Pakistan, the independence of Bangladesh was seen as a fait accompli. A fter Bangladesh, the UN has recognised four countries that a cquired independent status as a result of unilateral secession and armed confl icts: Slovenia in 1991, Croatia in 1991, Eritrea in 1993, and East Timor in 2002. But the emergence of the first three
 states was attributed to causes other than secession (dissolution of a state or of a federation). East Timor was placed in the c ategory of non-self-governing territory which had the right to self-determination. 
The irony is, however, that secessionist movements continue to invoke the principle of national self-determination to justify s ecession, and post-colonial states continue to legitimise themselves by creating nations out of a welter of heterogeneous populations. In country after country language policies, or religion, or ethnicity, have been employed as a tool to forge nations out of plural populations. This has proved as we have seen in the case of Pakistan and Sri Lanka, politically suicidal. The problem is that no agent apart from the state concerned has the authority to i ntervene in gross forms of injustice regularly meted out to m inorities by states. The UN is proscribed from interfering in the domestic affairs of its member states via Article 2 (7) of the Charter. Significantly, the UN has begun to take cognisance of the, often, endangered rights of minorities within nation states. For instance, in General Assembly Resolution 2625 (1970), the
 ritual invocation of the principle of territorial integrity carried an important addendum: “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” (italics added).13 The UN General Assembly’s “Declaration in Commemoration of the Fiftieth Anniversary of the United Nations” of 9 November 1995 echoed this warning.14 The implication of these declarations is plain; the international community will not tolerate any violation of the principle of territorial integrity, as long as states conduct themselves in compliance with the
 principle of equal rights and self-determination, and as long as the government represents the entire people. 
If we follow the logic of this interpretation of self-determination, the realisation of the principle does not have to involve the violent renegotiation of territorial boundaries, except when the existing state denies self-determination to the people. Two implications follow this renegotiation. One, there is no essential link between self-determination and the right of secession; only a contingent one. That is, if states do not institutionalise appropriate conditions for the realisation of self-determination, then groups might have a right to secede. Two, if the argument that self-determination is best realised through institutions such as regional autonomy is acceptable, then the restoration of constitutionally sanctioned autonomy to J and K should not be seen as sui generis, or as exceptional to the state but as part of a larger plan of devolving power to territorially settled minority groups. Arguably self-determination is not only a means of staving
 off secession, it is good in its own right because it is part of a larger political pact that seeks to r ealise democracy through decentralisation of power and devolution of resources. 
Therefore, the restoration of the special status granted to J and K by the Constitution of India and by a number of political agreements will not be only about redressing historical wrongs, the institutionalisation of self-determination might also serve to deliver justice in the context of the clashes of rights mentioned above. Notably, if the scale of the good P has asserted a right to is pruned from secession to self-determination, Q will also have to scale down the good it asserts a right to, say from non-secession to self-determination within the country. The advantage of such a mode of reconciling confl icting claims is that (a) the rights of both agents are realised, albeit to a lesser degree than initially envisaged, (b) it is recognised that P has been subjected to historical injustice, and (c) this injustice has to be reversed. This measure is but the start of a fuller process of restoring and realising justice in the beleaguered state of J and
 K. Fortune might be persuaded to pedal back to the region just as furiously as it pedalled away. 
Finally, let me ask one question of our right-thinking friends who defend secession. Is the alternative to the depredations of the n ation state the setting up of another nation state, which will inevitably be embedded in the same problems as our original model? States across the world suffer from pretty much the same malaise; an inherent tendency to accumulate and abuse power. State power can be controlled only through constitutions, rule of law, institutionalised rights, an independent judiciary, and above all a vibrant civil society, and systems of checks and balances. Secession is hardly a solution to the problem that besets groups; it might even be a part of the problem. Moreover, if often coercive efforts to build nations out of plural populations are the source of secessionist movements, the setting up of a state of one’s own, which cannot be but a clone of parent nation state, is hardly a s olution. The problem of the nation state is not
 resolved in this way; it is merely deferred. If the nation state has proved one of history’s most grievous mistakes, then many nation states can only reproduce this mistake. Instead of focusing on secession per se, we perhaps need to think out alternatives to the nation state; how the aspirations of minorities can be best realised within the state, and how sovereignty can be diluted through p olitical arrangements within the state. 
Buchanan has put this point across well. He argues that secession challenges the ability of the political philosopher to reimagine the sort of political institutions and practices that govern individual and collective lives. The impulse to secede from an existing state, he alleges, betrays a fundamental lack of political imagination, because paradoxically, secession is one of the most conservative of political acts. The secessionist tends to assume that his problems are due to the state in which he fi nds himself, and that the solution is to get his own state. The anti-secessionist tends to be equally unimaginative, seeing in every demand for autonomy a threat to the existence of the state. The imaginations of both are cramped by the narrow horizons of the statist paradigm. What the usual rhetoric of both parties overlooks is that sovereignty can be unbundled in many ways, and that the only choice is not to stay in the state, or get away. Once we take
 seriously the indefi nitely large range of possible regimes of political differentiation within state borders, the rich menu of intra-state autonomy arrangements, we liberate ourselves from the confining assumptions of self-determination. There are various inter- and intra-state autonomy regimes that can cope with, or serve to avoid secessionist confl icts. Therefore, international legal institutions should support, and even mandate intra-state autonomy regimes (Buchanan 2004: 7). Buchanan’s argument gives us cause to ponder and refl ect. Perhaps the seductions of a state of one’s own need to be unpackaged. Perhaps the virtues of demo cracy and justice and the need to redress injustice need to be giftwrapped and presented more attractively. 
In conclusion, the right of secession has to be taken seriously both by its practitioners and its defenders, used sparingly, and justified rigorously. For that I suggest that the right can best be likened to the right of euthanasia. The right to life is inalienable, and no one has the right to take her own life. Yet when the health of persons is so impaired that they live a life below the threshold of what we consider distinctively human, when their future seems to be ridden with nothing but pain and suffering, some states allow the terminally ill to choose to put an end to their misery. But just because a case can be made out for the right to put an end to one’s life, it does not mean that we defend euthanasia per se, except in the very last instance. What is needed is the investment of more energy into fi nding a solution to the problem, more funds for medical research, and more energy into preventive medicine. Euthanasia might be a last option when
 everything fails, but easy resort to premeditated and intentional death is best avoided. Similarly, even though secession might become a necessary course of action if injustice is irrevocable, it is best that the invocation of this right is forestalled through the realisation of self-determination in another avatar. 

1 Case summary, http://csc.lexum.umontreal.ca/en/1998rcs-2-217/1998res-2-217html accessed on 9 December 2008.
2 http://www.guardian.co.uk/world 18 May 2009, accessed on 16 June 2009.
3 Cited in Praveen Swami (2008), “Kashmir: The War for Hearts and Minds”, The Hindu, 4 June, lead article.
4 The Aaland Islands, a group of about 6,000 islands that lie between Sweden and Finland, had belonged to Sweden until 1,809, when these islands were ceded to Russia. Finland was incorporated into Russia in the same year. With the outbreak of the Russian revolution, Finland declared itself independent of Russia. The representatives of the Aaland Islands at the Versailles Peace Conference expressed a desire to be reunited with Sweden. The Government of Finland held that the Aaland Islands had been incorporated into the state of Finland in Russia. The League a ppointed a Committee of Jurists to examine whether the organisation was competent to consider this petition. A Commission of Rapporteurs was also appointed to assess the merits of Sweden’s petition asking for a referendum. The Aaland Islands, the members of the Commissions concluded, were undoubtedly part of Finland during the period of Russian rule.
5 Report submitted to the Council of the League of Nations by the Commission of Rapporteurs, League of Nations, Document B7.21/68/106, 16 April 1921 cited in Antonello Tancredi (2006).
6 Census of India 2001, data on religion, www.censusindia.net/religion accessed on 19 April 2007.
7 On the Pakistani side of J and K, Balti, Shina, Khowar, Burushashki, Wakhi, and Pahari speaking people are part of the state, and in the Northern Areas, Ismaili, Sunni, Shia, and Nur Bakshi sects live together. For a detailed discussion of the ethnic composition of the state see Behera (2006).
8 Most of the groups that carried out ethnic cleansing had come into the Valley from the outside, for example the Jaish-e-Muhammed and the Lashkar-e-Taiba.
9 The leadership of the National Conference was to sometimes resort to the regional idiom, and sometimes the religious idiom Zutshi (2003), has charted out the flip fl op between the religious and the regional idiom well.
10 Bazaz (1954: 553) in sum, the Ladhaki leaders sought federal status for the region, so that the relationship of Ladhakh to J and K would be on the same lines as that of J and K to India.
11 For instance, in May 1995, the government in New Delhi passed the Ladakh Autonomous Hill Council Act. The Act created autonomous councils in Leh and Kargil, along with an inter-district council to promote coordination and communal harmony. This partly met the aspirations of the Buddhists for a measure of autonomy from the valley. But Kashmiri Muslims condemned the initiative because they saw it as a move towards the territorial disintegration of the state.
12 For instance, under the 1919 Treaty of St Germain, Italy annexed the German speaking South Tyrol, an act that was a clear breach of the principle of self-determination.
13 Annex to GA Resolution 2625 (XXV), UN GAOR 25 Session, UN Doc A/8082. http://daccessdds.un.org/doc accessed on 23 November 2008, 124, italics added.
14 GA Resolution 50/6, 9 November 1995, http://daccessdds.un.org/doc accessed on 23 November 2008, p 3.
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