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

[Aalok Aima]

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 
 
http://epw.in/epw/uploads/articles/15369.pdf
 
(Part I) When Is Secession Justified? The Context of Kashmir
 
Neera Chandhoke
Economic & Political Weekly  november 13, 2010 vol xlv no 46
 
 
Given the turmoil in Kashmir today, a number of right-thinking people have come to defend the right of the people of Kashmir to a state of their own; or more simply that the Kashmiri people possess the right of secession via the right of self-determination. But if self-determination has proved to be the veritable will-o’-the-wisp in recent history – since it begs the question of which entity possesses this right, and by virtue of what do the people of a region possess this right – secession is one of the most difficult of concepts 
that political theorists have had to take on board after the “ethnic explosion” that shook the world at the turn of the 1990s. Do people have the right to establish their own state quite in the same manner as they have the 
right to elect their own government? How do we justify secession? What are the moral considerations that we need to weigh the right of secession against? This essay seeks to negotiate these very questions in the context 
of Kashmir. 
  
When W H Auden penned the following lines: “Abruptly mounting her ramshackle wheel, Fortune had pedalled furiously away. The sobbing mess is on our hands today” (Auden 1945: 3), he could well have been describing the “sobbing mess” that the state of Jammu and Kashmir (J and K), or more particularly the Kashmir Valley is embroiled in today. The thought cannot, but, be overcome by deep grief and regret. Only if democracy had been institutionalised in J and K, only if the Government of India (in sordid alliance with opportunistic state governments in the region) had not majorly violated its own commitment to the state; that of the grant of special status, and only if the Indian state had honoured the basic rights of the people of the Valley, fortune need not have mounted its ramshackle wheel and pedalled furiously away. 
  
It is not as if the Kashmiri people have not spoken back to a h istory that is not of their own making. By the turn of the 1990s, resentment at the manipulation of electoral democracy as well as erosion of the constitutionally guaranteed status of the region broke all bounds, and the Valley erupted in a series of violent demonstrations. Because signifi cant political groups were barred from the electoral arena, they turned to other means, particularly to the gun, and to other political agents, particularly to Pakistan. Resultantly, the abnormal politics of violent confrontation came to subjugate “normal” politics of participation and representation, negotiation and compromise, dialogue and contestation. And violence continues to wrack the Valley to date. 
  
The tale of Kashmir’s tragedy could, perhaps, have been foretold as early as 1953. The Government of India desperate to prevent further balkanisation of the country entangled in a war not of its own making with Pakistan, pilloried in the United Nations Security Council by major western powers that had turned against India, and pressurised by right wing groups to integrate Kashmir into the country, was to adopt extremely short-sighted 
policies in J and K. In retrospect it is surprising that the Government of India failed to recognise that it was not dealing with a population that had been rendered acquiescent under princely rule. It was dealing with a people that had mobilised against the misrule of the Hindu monarch since the 1930s. It was this politically aware population that was to witness a series of cataclysmic events in the aftermath of 1947, the terror and the atrocities inflicted by Pakistan-backed raiders in 1947, the disruption that followed the 1948 Indo-Pak war and the resultant partition of the state between two, and then three countries. Above all this the population bore witness to the deliberate and insistent breach of contractual and constitutional obligations by the Government of India. Yet the Kashmiri people were prepared to give democracy and constitutional commitments a chance. But it was precisely this that was denied to them. Consequently, 43 years after the
 accession of the state to India the widespread belief that the Indian state could deliver to the people of the state neither democracy nor justice generated secessionist demands, nothing short of azaadi. “Though nothing can be immortall, which mortals make; yet, if men had the use of reason they pretend to, their Commonwealths might be secured, at least, from perishing by internall diseases” wrote Thomas Hobbes (1651, 1988: 170). But reason has not proved a constitutive aspect of the Kashmir policy of the Government of India. Therefore, the Commonwealth has not been properly secured. 
  
Given the “sobbing mess” that Kashmir is in today, a number of right-thinking people have come to defend the right of the people of Kashmir to a state of their own; or more simply believe that the Kashmiri people possess the right of secession via the right of self determination. But if self-determination has proved to be the veritable will-o’-the-wisp in recent history, simply because it begs the question of which entity possesses this right, and by virtue of what does it possess this right, secession is one of the most difficult of concepts that political theorists have had to take on board after the “ethnic explosion” that shook the world at the turn of the 1990s. Do people have the right to establish their own state quite in the same manner as they have the right to elect their own government? How do we justify secession? What are the moral considerations that we need to weigh the right of secession against? This essay seeks to n egotiate
 these very questions in the context of Kashmir. 
  
The Right of Secession 
If there was ever an age of innocence when it was believed that the assertion of a right is enough to endow it with moral and p olitical weight, those days have long passed. For the realisation of a right does not logically follow the assertion of a right. If a right has to acquire weight it has to be publicly justified on the basis of certain principles that are self-evidently moral, and which constitute what can be called the shared understandings of a society. Western political philosophers have been able to develop such principles, because they prefer to take as their conceptual referral, what can be termed consensual or procedural secessions, for example the case of Quebec. In 1996, Canadian Prime Minister Jean Chrétien fi led a reference in the supreme court on the issue of Quebecois separatism. In its response in August 1998, the Canadian supreme court established the basic legal framework for secession. The court ruled that secession is neither
 sanctioned by the Constitution nor by international law. Any state whose government represents the whole of the people resident within its territory on a basis of equality and without discrimination, and which respects the principle of self determination in its own internal arrangements, is entitled to the protection of its territorial integrity by international law and institutions. It could not be seriously claimed that the population of Quebec was discriminated against. Therefore, Quebec could not, even if there was a clear result in a future referendum, invoke the right of self-determination in order to dictate the terms of proposed secession to other parties of the federation. 
  
But though the court ruled that unilateral secession has no basis in law, it also held that clear popular support for secession can engender an obligation on the parent state to negotiate with the separatist leadership. All parties to the negotiation, determined the court, should be governed by four principles: federalism, democracy, constitutionalism and the rule of law, and the protection of minorities. The Government of Quebec alone does not have the power to determine what is, and what is not negotiable. Further, the government of a territory that intends to secede would have to address the interests of the federal government as well as those of other provinces, the rights of all Canadians both within and outside Quebec, the rights of aboriginals, and also consent to negotiate on matters of common concern, from the division of debt incurred for Quebec, to the settlement of boundaries.1 In sum, Quebecois can only be granted the right to secede if they
 fulfil certain requirements and adhere to certain processes after a referendum elicits the popular will. The quintessential liberal democratic framework laid down by the court has been adopted by a number of philosophers when they seek to justify secession (Moore 2001; also Philpott 1995). 
  
The problem is that all parent states, and all separatist movements, do not follow a preordained script that has been indelibly etched onto the liberal stone. Most cases of secessions in the B alkans, the Caucasus, and in much of the post-colonial world, hardly fall into the category of consensual secessions. These can best be termed contested secessions. The two features that constitute secession as a contested political act are as follows. One, the state tries to militarily suppress even the intent to secede. Two, violence becomes the handmaiden of the secessionist movement. And since violence tends to breed violence, over time the trajectory of violence outstrips the initial reason for the outbreak of the movement. Violence, in effect, acquires a biography that begins and ends with violence itself. 
  
Since contested secessions are usually stamped with the cloven hoof of extensive and immoderate violence, we do not require an astrologer to tell us that secession will, in all probability, inflict major harm upon populations who live in the disputed territory, as well as on populations who live outside the territory. It is not as if this aspect of secession is not recognised by liberal philosophers. Allen Buchanan (1997), for instance, suggests that the right of secession is a “remedial right only” or a right that acquires salience in very specific circumstances. But at the same time he also suggests that if “the only effective remedy against selective tyranny is to oppose the government, then a strategy of opposition that stops short of attempting to overthrow the government ( revolution), but merely seeks to remove one’s group and the territory it occupies from the control of the state (secession), seems both morally unexceptionable and,
 relatively speaking, moderate” (p 36, italics added). Despite all the wariness he shows on the issue of secession, Buchanan seems to completely underestimate the scale of the tragedy that even attempted partitions of territory and people have led to in major parts of the world. 
  
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.2 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 (Bose 2005). In another historical context, A E Housman (1940) had written: “They say my verse is sad: no wonder, Its narrow measure spans, Tears of eternity and sorrow, Not mine, but man’s” (p 155). These lines may well provide the epigraph of contested secessions. 
  
If the infliction of major harm is one of the fallouts of contested secessions, other features also occasion worry. For example, no one can deny the strong empirical correlation between ethnonationalist groups and demands for secession. But ethnonationalist groups are not precisely known for either their commitment to liberalism, or to democracy. Their justification of secession rests on other (debatable) grounds. Take the Kashmiri separatist leader and Islamic patriarch Syed Ali Shah Geelani, who has for long argued that J and K should join Pakistan because Hindus and Muslims in India belong to two different nations, even if they live in the same territory. For a Muslim to stay among Hindus, he reportedly argues, is as diffi cult as it is “for a fish to stay in a desert”.3 Considering the dreadful history of the two nation t heory, should democrats even consider supporting this particular claim, and this particular leader who has for some strange
 reason shot into prominence during recent protests in the valley? More signifi cantly, if the main legitimacy claim for an i ndependent state of J and K is constituted by the two nation t heory, what will happen to the minorities in the new state? What will be the fate of women in this “Islamic” state? Will they be c ondemned to lead the kind of lives that extremist women organisations in the Valley insist they should be leading? Should we even be considering an ideology whose credentials as justification are so deeply fl awed? In short, when our right-thinking friends defend the right of secession, do they even take into a ccount the illiberal nature of the group that demands a state of its own? 
  
Let us not mistake the matter. Secession not only involves rejection of the sovereignty of the existing state over the territory and the population the separatists claim as their own, and reneging of political obligation, it also involves abdication of moral o bligation to people who do not belong to the community in question. Secessionists are not revolutionaries who dream of a better future for all; they simply do not care what will happen to their former compatriots who will be left behind, all that they want is to opt out of the existing state and create a state of their own. And if perchance secession is demanded by the leaders of a religious group that is both close-minded and chauvinistic, we have cause to fear for the fate of those who will perforce live in this state. This is not to dismiss the right of secession because in some cases there is no other option; it is merely to suggest that (a) the right does not stand on the same ground as other
 rights, and (b) it can be justifi ed on very specific grounds. 
  
When Is Secession Justified? 
Let us assume for a start that our collective agent P (which is s ettled on its homeland) has the right to secede from state S and establish a state of its own Si, provided two preconditions hold. The fi rst precondition is that P should have been subjected to insti tutionalised injustice by the state. The notion of “institutionalised injustice” holds that discrimination and coercion are built into the institutional structures that govern the daily lives of a particular group of citizens. Therefore, members of P are neither p rotected against certain acts that harm them, nor enabled to access the goods they have rights to. We can, for the purpose of this argument, identify at least two categories of institutionalised injustice. 
  
Within the fi rst category of institutionalised injustice falls d iscrimination. That is P is denied the same rights that protect other persons who live under the jurisdiction of S. Therefore, P will not have access to the same opportunities, the same privileges, and the same immunities as other members of say M, or N, or Y that live under the jurisdiction of S. In extreme cases, the lives of the collective can be at risk because they are no longer protected by basic rights. In such cases, P, we can conclude, has been subjected to institutionalised injustice because it has been systemically discriminated against. 
  
The second form of institutionalised injustice that a group can be subjected to follows the breaking of contracts that have granted to the region a specifi c kind of political status, say regional autonomy. Within a federal system, a particular territory may be granted special rights for a variety of reasons. For example, the territory may be inhabited by indigenous people, who are governed by their customary laws. Being a vulnerable community, the group will need to be protected through special contractual provisions, or at least statutory commitments. Or the territory in question may have been previously autonomous, and joined the larger political unit on certain terms and conditions that are specifi ed in a contract. The clauses in the contract stipulate the powers and the limits of the two parties to the contract, grant to the inhabitants of the area certain powers and immunities, and give to them the right to govern themselves within the compass of
 regional autonomy. In case the provisions of the contract are violated by the central government, the inhabitants of the territory, we can say, have been subjected to institutionalised injustice. 
  
Note that in the first of the two cases cited above, our P has been subjected to institutionalised injustice because its members are denied the same rights that are available to the rest of the citizens in the polity. In the second case, P has been subjected to injustice because the contractual provisions that governed the accession of P to the larger country, and that gave to the region a distinct political status, have been infringed. Arguably, if a group of citizens who are settled in a piece of territory they identify as a homeland have been subjected to both these forms of injustice, they have the right to secede. That makes the right of secession, just like the right to protest, the right to practise civil disobedience, and the right to revolution, a contingent right. That is, the right can be justifi ably claimed only in the context of institutionalised injustice. 
  
The second precondition for a justifi ed right of secession is that institutionalised injustice should be irrevocable. That is, we should be able to assess that the state is not likely to reverse its policies, compensate the victims for harm done, and institutionalise just procedures and institutions before we proceed to justify secession. 
 
This interpretation takes as its conceptual referral the report of two commissions set up by the League of Nations to inquire into a dispute concerning the status of Aaland Islands.4 After excluding the existence of a general right to secede, the Commission of Rapporteurs observed that “the separation of a minority from the State of which it formed part and its incorporation into another State may only be considered as an altogether exceptional solution, a last resort, when the State lack either the will or the power to enact and apply just and effective guarantees”.5 
  
When does a state lack either the will or the power to enact and apply just and effective guarantees? For this we need to recognise that there is no such thing as a perfectly democratic or just state. Most formal democracies are imperfectly democratic and weakly just. It follows that the project of democracy has to be realised through determined and intentional political practices. If one objective of these practices is to check abuses of power by the government, the second objective is to press upon the government the need to reverse or withdraw policies and actions that are palpably unjust. The one virtue of democracy is that it can prove self-correcting; provided decisions and policies are subjected to a vigilant and democratic civil society, and scrutinised by institutionalised checks and balances. 
  
Taking these factors into consideration we can suggest that the 
right of secession is justifi ed if: 
  
(i) A group living in a particular region has been subjected to institutionalised injustice that arises out of (a) the deliberate violation of core moral rights and resultant discrimination, (b) violation of contracts that grant to that region a special political status. 
  
(ii) P is unable to access institutions and procedures that can help reverse institutionalised discrimination, such as voice in participative and representative institutions, the ability to hold state offi cials accountable, appeals to an impartial judiciary committed to upholding justice, access to human rights and civil liberties groups in civil society, and to a free media that can highlight injustice. These groups and organisations, it has been suggested, possess the potential to press the democratic state to reverse institutionalised injustice, and thus further realise both democracy and justice. 
  
(iii) Institutionalised injustice is beyond recall and beyond redemption because P does not have access to the safeguardsagainst injustice outlined in B. 
  
The right of secession is, therefore, contingent not only because it can be justifi ed in cases of injustice but when this injustice is irrevocable, that is when the existing state shows no intent of r eversing discriminatory policies and practices that target P, compensating for past injustices or institutionalising procedures that can realise overdue justice for P. 
  
P, in other words, does not have access to condition B. If this argument holds, it follows that injustice can only be irreversible in undemocratic states, because these states have not institutionalised a system of checks that can help curb injustice, or at least compensate for harm done. Nor do these states possess democratic civil societies with the power to intervene in cases of injustice. The case of Bangladesh’s secession from Pakistan can therefore be justifi ed. But India happens to be a formal d emocracy, albeit an imperfect one. In light of this particular consideration let us now see whether the right of secession can be justified in Kashmir. 
 
(continued in Part II)