Self-Determination: What Lessons from Kashmir?

Abstract

This Article takes the example of Kashmir as a longstanding dispute, to illustrate the complexity that is self-determination. The Article shows that even massive human rights violations coupled with seizure of a sub-State group’s right to autonomy may not be enough. The international community appears to be wary of taking a stand on a sub-State group’s right to self-determination because of apprehensions that they may pass into norms, for it is in the interest of every state that their territorial integrity is not permanently altered through the exercise of external self-determination. The success of a sub-State group’s legitimate claims has always been preceded either by coercive military (e.g., Kosovo, Bangladesh) or non-military interventions (e.g., East Timor). In invoking the Responsibility to Protect and the growing importance of the human rights framework, this Article attempts to show that the international community must reassess its stand. * Ishita Chakrabarty received her BA LL.B (Hons.) from Hidayatullah National Law University. She is currently engaged in the role of Research Officer at Quill Foundation, New Delhi, India, where she works over matters related to citizenship, counter-terrorism and minority rights. Her area of interests include refugee laws and international humanitarian law. The Author wishes to thank Ariel Lynn Anderson and the entire editorial team at Indiana International and Comparative Law Review for their support. All errors are the Author’s own. The Author can be contacted at: ishita.chakrabarty24@gmail.com. 36 INDIANA INT’L & COMP. LAW REVIEW [Vol. 31:35 TABLE OF CONTENTS INTRODUCTION I. FROM 1947 TO 2019: A HISTORY OF THE KASHMIRI STRUGGLE A. Kashmir as a Contested Territory between India and Pakistan B. Kashmir as an Autonomous Unit within the Indian Constitution II. THE RIGHT OF SELF-DETERMINATION III. WHAT DOES THIS MEAN FOR KASHMIR? IV. SELF-DETERMINATION: A HOLLOW ‘RIGHT’? CONCLUSION