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Re-colonisation of Jammu and Kashmir and the Right to Self-determination

Shah, Niaz A.

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Abstract

On 5 August 2019, India unilaterally ended the autonomous status under Article 370 of the Indian constitution 1949. The state of Jammu and Kashmir (J&K) was established under the terms of the Instrument of Accession by the Ruler of j&k. To change the demographic composition of j&k, Article 35A of Indian constitution 1949 was also abolished and new domicile rules were introduced paving the way for non-Kashmiri Indians to settle permanently in j&k. Under the Jammu and Kashmir Reorganisation Act 2019, Kargil and Leh districts were cut from Jammu and recategorized as Union Territory of Ladakh and the state of j&k was relegated to a Union Territory directly governed by the central government. On 5 May 2022, a delimitation report was published giving more seats to Hindus compared to Muslims against the population criterion. This article argues that India had started re-colonisation of j&k since October 1947. Eliminating its autonomous status in August 2019 was not the starting but a tipping point of the re-colonisation. After decolonisation of British India in August 1947, major Indian states such as Hyderabad; Junagadh and j&k were given the option to join India or Pakistan. India saw this as a ‘grave threat’ to her organic unity and invaded Hyderabad on 13 September 1947; j&k on 27 October 1947 and Junagadh on 9 November 1947. It is argued that India secured accession from the Ruler of j&k under compelling circumstances and on the condition that a free and impartial plebiscite would be held to ascertain the wishes of Kashmiri people. Since 1947, the pledge of plebiscite did not materialise. As freedom from colonialism has become a jus cogens, it is argued that the United Nations (UN) and its members have erga omnes obligations to respect and support the right to self-determination of the Kashmiri people.

Citation

Shah, N. A. (2022). Re-colonisation of Jammu and Kashmir and the Right to Self-determination. International Human Rights Law Review, https://doi.org/10.1163/22131035-11020005

Journal Article Type Article
Acceptance Date Nov 7, 2022
Online Publication Date Nov 22, 2022
Publication Date 2022
Deposit Date Dec 5, 2022
Publicly Available Date Dec 8, 2022
Journal International Human Rights Law Review
Print ISSN 2213-1027
Electronic ISSN 2213-1035
Publisher Brill Academic Publishers
Peer Reviewed Peer Reviewed
DOI https://doi.org/10.1163/22131035-11020005
Keywords Organic unity; Accession; Self-determination; Re-colonisation; Settlers’ colonisation; Article 370; Article 35A; Plebiscite and human rights; Jammu and Kashmir
Public URL https://hull-repository.worktribe.com/output/4138720

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© Koninklijke Brill NV, Leiden, 2022.




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