Demystifying External Self-Determination and Remedial Secession in International Law

Abstract

This article proposes remedial secession as an international legal solution conducive to the protection of the rights of the Kashmiri people. The triggering event for such a proposal is the unilateral abrogation of Article 370 of the Indian Constitution (which guaranteed Kashmir its semi-autonomous status within India) by the Government of India together with the subsequent human rights abuses in the region. External self-determination and remedial secession are not clearly recognised in the existing corpus of international law. This article aims to demystify external self-determination in international law and presents a normative argument in favour of recognising remedial secession in international law, albeit as a remedy of last resort, using Kashmir as a case study for its application. It is proposed that international law borrow from conflict-oriented approaches in political philosophy to garner adequate criteria in order to foreground, legitimise and properly delineate the contours of the proposed right to remedial secession. This article thus also presents possible means of effecting the proposed right to remedial secession, analyses their theoretical justifications and, through application in the context of Kashmir, discusses their practical value.