Kashmir's Right to Secede

A Critical Examination of Contemporary Theories of Secession

Matthew J. Webb

• Publisher: Taylor & Francis
• Year: 2012
• eBook ISBN: 9781136451447
• Edition: 1
• Topic: Politics & International Relations
• Subtopic: Politics
• Index: Politics & International Relations

A separatist conflict has been ongoing in India-administered Kashmir since 1989. Focusing on this region, this book critiques the existing normative theories of secession, and offers a comprehensive examination of the right of sub-groups to secede.

The book looks at the different accounts of the moral right to secede, and assesses both the theories themselves as well as the claims of those who want to separate Kashmir from India. Included within this analysis are the three main types of normative theory that ground the right of groups to secede in principles of national self: determination, consensual governance and rectificatory justice. Previous studies have discussed the causes behind the uprising in Kashmir against Indian authority and examined some of the legal and geo-political implications of the conflict for India and the wider region. This book provides a new way of looking at the Kashmir dispute, by asking what these theories tell us about Kashmir, and in turn what the example of Kashmir allows us to learn about these theories. It is of interest to students and scholars of South Asian Politics and International Relations.

1 Introduction

Introduction

The issue of secession

Secessionist conflicts are a defining feature of international politics that bedevil attempts at their resolution, blight relations between states and condemn whole regions to conflict and deprivation. Commonly understood as the creation of a new state through the appropriation of a portion of an existing state’s territory, secession calls into question the principle of state unity which has served as a basic building block of the international system since the Treaty of Westphalia in 1648. It can also have wide-ranging effects that extend beyond the seceding territory and parent state through the disruption of treaties, trade agreements and the regional balance of power. Consequently, it is no surprise that most states ferociously resist attempts at their dismemberment by engaging in repressive measures including the suspension of civil liberties, incarceration, torture and extra-judicial execution. This, however, frequently only reinforces the claims of secessionists, prompting an equally uncompromising and violent response that initiates a cycle of reprisal and war of attrition. A small minority of secessionist movements have pursued their agendas relatively peacefully, such as the Québécois in Canada, the departure of Norway from Sweden in 1905, the secession of Singapore from Malaysia in 1965 and the separation of the Czech Republic and Slovakia in 1993 (Young 1994). However, the majority of secessionist movements – successful or otherwise – have been accompanied by bloody wars, flagrant human-rights abuses and the widespread destruction of property. A cursory glance over recent history reveals a disheartening array of death and destruction as separatist groups have battled governments determined to resist their secessionist agendas no matter what the cost. Included within these are Katanga’s attempt to secede from the Congo in 1960 and later Biafra from Nigeria in 1967, the partition of Northern Cyprus in 1974 and Yemen in 1994, the collapse of the Soviet Union and Yugoslavia in 1991, Eritrea’s separation from Ethiopia in 1993, East Timor’s departure from Indonesia in 1999, the Basque movement in Spain and the terribly destructive separatist conflict in Sri Lanka from 1983 to 2009.

While secessionist violence is far from being a new phenomenon, it is an increasingly frequent one. Recent events such as the decline of European colonialism and fall of Communist regimes in Eastern Europe have initiated a process of political fragmentation that has seen an explosion in the number of secessionist conflicts around the world that continues to threaten the stability and prosperity of states and whole regions. Previously dormant national identities and cultural groups have suddenly reasserted themselves to demand that they be afforded their own independent state, often resorting to a campaign of violence when what they see as their rightful political inheritance is denied them. One region in particular – South Asia – has been afflicted by an array of overlapping and brutal secessionist struggles. In Pakistan, for example, both Baluchi and Pashtun separatist organizations have demanded the right to form their own states, while Sri Lanka fought a bloody war against Tamil separatists for more than two decades. Bangladesh, which was then East Pakistan, seceded from West Pakistan in 1971 before itself facing down a separatist movement in the Chittagong Hills region, demonstrating that, even when successful, secession may simply replicate similar demands for political independence at a sub-level. This is also evident in the case of India, which has confronted more secessionist movements than any other country in the region. Partitioned from Pakistan following the departure of the British in 1947, this separation merely internationalized rather than resolved the many issues that had precipitated it, and was followed by three major wars between the two new nations in 1947–8, 1965 and 1971. Domestically, India has also faced a series of separatist groups determined to tear apart its often fragile union. In the east it continues to face well-organized movements seeking political independence in Assam, Bodoland, Nagaland, Tripura, Manipur and Arunachal Pradesh that have at times also threatened to involve neighboring Nepal. However, it is in its western regions that India has fought what are perhaps its two most well-known secessionist conflicts in the states of Punjab and Jammu and Kashmir.

This books deals with the latter of these conflicts in the Indian-administered state of Jammu and Kashmir. It does so, not as an exercise in comparative politics or international relations, but through the prism of applied political philosophy. This might at first appear to be an odd way to approach what is a very real and deadly conflict in which more than 40,000 people have lost their lives since 1989. However, in addition to raising important strategic, socio-political and legal issues, secession also raises fundamental philosophical questions concerning the justice of existing international boundaries and the right to political self-determination. Until recently, political theorists had discussed these issues only in connection to related topics such as nationalism while largely ignoring the need for a normative theory that tells us which, if any, groups might possess a right to secede. Whereas the right of states to demand obedience from their subjects and of citizens to disobey their state were frequently the subject of scholarly debate, the right of the state to maintain its territorial integrity and of its subjects to remove a portion of that territory were less often discussed. Rather, the composition of the state was taken as given, and debates concerning the nature and extent of the state’s authority over its subjects were conducted in a manner that mostly disregarded questions regarding the unity of the state itself.

This, however, began to change with a series of articles in the 1980s by Harry Beran (1983, 1984, 1987, 1988a, 1988b) and the publication of Allen Buchanan’s Secession in 1991 that spurred a lively debate on these topics and the more general question of how liberalism should respond to separatist disputes and what a liberal theory of secession might look like. Subsequently, a variety of competing theories have emerged that may be categorized into three types. The first of these, which I shall call nationalist theories, premises the right to secede on collective principles and grant it exclusively to groups of individuals known as nations (Miller 1993, 1994, 1995). This, however, raises the problem that if nations are to function effectively as the bearers of a right to secede then they must not only be satisfactorily distinguished from other types of groups which perform similar functions, such as lifestyle communities and religious groups, but also from one another as separate nations. Indeed, as we shall later see, this is no small task and has an enormous bearing upon the satisfactoriness of nationalist theories.

In contrast to nationalist theories that conceive of secession as a group right, liberal-democratic theories understand it as a collectively exercised individual right (Boykin 1998: 70) grounded in the proposition that a group possesses a right to secede if a majority of its members formally express a desire to do so. Thus, these theories support what Buchanan terms a plebiscitary right to secede, i.e. “the right of a majority in any portion of the territory of a state to form its own independent state if it so chooses, even if the majority of the state as a whole opposes their bid for independence” (Buchanan 1998: 15). Different types of liberal-democratic theory appeal to different liberal principles to justify a plebiscitary right of secession. For example, some variants emphasize liberalism’s commitment to the freedom of the individual as a self-governing chooser and the related principle that political society approximates as closely as possible a voluntary, or consensual, scheme with the result that if the majority of a group wish to secede then they prima facie should be permitted to do so (Beran 1984: 26; Gauthier 1994). Other liberal-democratic theories appeal to different liberal principles to justify a plebiscitary right of secession. Christopher Wellman, for example, has argued for a general right to secede premised upon the principle of self-determination and a functional account of the state similar to that advanced in this book (Wellman 2005). In contrast, extreme individualist, or libertarian, theorists conclude that an individual right of secession is necessary to restrict an inherent tendency for states to expand their realm of control and infringe individual liberty (Gordon 1998; Rothbard 1998; Hoppe 1998; Livingstone 1998).

The third type of theory – just cause theories – premise the territorial sovereignty of the state upon the treatment of its citizens (Norman 1998: 41–2) and claim that in order to possess a right to secede, a group must first demonstrate that it is the victim of an injustice for which secession is an appropriate remedy of last resort. The most notable proponent of just cause theories is Buchanan who, with the possible exception of Beran, has been the most prolific contemporary writer on the issue of a right to secede. Buchanan’s theory is generally considered to be less permissive than both liberal-democratic and nationalist theories because of the relatively narrow range of injustices which he perceives as sufficient to justify a right of secession. However, there is nothing inherent in just cause theories that render them less permissive than other theories. Rather, depending upon what injustices the theory perceives as sufficient grounds for a right to secede, just causes theories may be more or less permissive.

Permissiveness in this context refers to the weight attached to the right of subgroups to change the territorial boundaries of a state by seceding from it, relative to the state’s right to maintain those boundaries. Theories that are less permissive admit comparatively fewer members to the class of holders of a right to secede and consequently justify relatively fewer instances of secession over time. Between the extremes of an absolute interpretation of a state’s territorial sovereignty under which secession is never a justified form of action, and an absolute right of secession where any attempt to halt a group’s secession is by definition illegitimate, there exists a continuum of permissiveness with divergent theories occupying different positions. Because, under a liberal-democratic theory, a greater number of candidates will meet the requisite conditions to qualify for a right to secede and fewer restrictions are placed upon the right’s exercise, this type of theory is generally thought of as being more permissive than other theories.

After liberal-democratic theories, nationalist theories are generally considered to be the second most permissive. However, there are fundamental differences between the two types of theory. Liberal-democratic theories, for example, base the right to secede on individual principles of self-determination, respect or freedom of association; and then, through the incorporation of a majoritarian thesis, grant a right of secession to democratically self-defined groups. This has led some critics to assert that consistency requires that liberal-democratic theories allow individuals, not just groups of individuals, to secede; a proposition that most would balk at due to the harmful consequences that this would produce (De George 1991; Buchanan 1997a: 315; Brilmayer 1989b: 77). Imagine, for example, if every house in a street was a separate state with the rights, immunities and entitlements that statehood bestows and the effect that this would have upon public order, the provision of essential services and the ability of individuals to conduct their daily business. To avoid this conundrum, liberal-democratic theories must coherently account for how individual principles justify only a collectively exercised group right of secession and typically do so by appending a range of conditions and constraints concerning the viability of states to the exercise of a right of secession that only a group of individuals might be capable of satisfying.

The issue of the conditions that a group must fulfill in order to qualify for a right is an important one. Because states not infrequently behave in an immoral manner, and secession may on occasion be an effective means of remedying a condition of state-perpetrated injustice, most theorists are loathe to grant the state an unassailable right to maintain its territorial integrity and so reject an absolutist interpretation of territorial sovereignty. On the other hand, however, it is equally true that the consequences of a group’s secession are likely to extend beyond the seceding group and parent state to affect the important interests of a large number of individuals. Thus, most theorists also agree that the right to secede should not be absolute and there should be conditions placed upon its exercise. These conditions may be stated both positively (e.g. a group must perceive itself as having a separate culture/tradition) or negatively (e.g. a group’s secession must not infringe the rights of others living in the territory). However, in both cases the effect of these provisos is the same; they restrict the scope of the right’s application to only those groups that are capable of satisfying them. Whether or not these same conditions will apply to other groups and, if so, what sort of groups and in what circumstances will depend upon what these conditions are. Therefore the same conditions that determine in what circumstances there exists a right to secede will also determine that right’s permissiveness, or scope of application.

Structure and purpose of this book

There is, then, a substantial and varied literature on the topic of a normative right to secede. However, the debate is still very much in its infancy, with new theories emerging and existing theories being reinterpreted and clarified. Moreover, much of this debate is conducted within the comparatively narrow confines of political philosophy and international relations theory. A range of empirical studies exist that chart the rise and fall of separatist movements around the globe and detail the various responses to them adopted by states (e.g. Coppieters and Sakwa 2003). However, there has until now been little concerted effort to marry theory to case study in a sustained and comprehensive manner. Philosophers have made reference to various real-life examples to illustrate general points and provide examples. Similarly, empirical studies have employed conceptual approaches from international relations theory and counter-insurgency strategy to evaluate and interpret the tactics of separatists and states. However, the literature still lacks a detailed and wide-ranging account that connects normative theory to a specific case study of a secessionist movement.

The aim of this book is to begin to fill this gap by exploring the issue of Kashmir’s secession within the context of the contemporary debate on a normative right of secession by critically evaluating the three types of theory outlined above that currently dominate discussion; and, using the example of Kashmir, to highlight their various weaknesses and strengths. In doing so I am aware that the application of two distinct fields of inquiry, each with their own body of knowledge and forms of understanding, might seem to some to create problems of incommensurability. To the philosopher, the inclusion of a detailed case study may sit ill at ease with an expected emphasis on theoretical reasoning and principled discussion. Conversely, for regional specialists, analyzing the Kashmir conflict through a normative, rather than explanatory or descriptive, theoretical framework may appear equally anomalous. If, however, normative theories of secession are to achieve their aim of providing comprehensive guidance regarding the morality and justifiability of secessionist demands, then they must be capable of application in the real world. Consequently, if the Kashmir dispute is not a suitable case study with which to analyze these theories, then it is unclear what a more appropriate case study might be. Similarly, an explanatory or descriptive framework neither precludes nor renders redundant a normative approach; to identify what kinds of groups demand a right to secede, in what circumstances and why, does not also address the additional question of the justifiability of these demands. Moreover, in applying the three theories identified earlier, I am not suggesting that these are the only available normative theories of secession or that the Kashmir dispute encapsulates all the normative claims characteristic of separatist disputes. Rather, the aims of the present study are, first, to evaluate these three types of normative theory with respect to the case study of Kashmir in order to reach some general conclusions about each theory’s satisfactoriness. A second aim is to address the moral justifiability of Kashmir’s secession from India when viewed from the perspective of these three theories.

This process of critical engagement, comparison and evaluation unfolds across five chapters and assumes no prior familiarity with either the Kashmir dispute or the philosophical literature on a normative right to secede. Rather, the discussion is aimed at a broad readership that includes not only South Asian specialists, political theorists and international jurists but also those with an interest in the Kashmir dispute and the question of a right to secede. In this introductory chapter, the aims and scope of the book are outlined, key terms are defined and the concept of a right to secede is introduced. In Chapter 2, the case study of Kashmir is examined in detail and various aspects of it are related to the three theories of secession considered in this book. This discussion lays the groundwork for subsequent chapters in which each theory is considered in greater detail vis-à-vis the specifics of the Kashmir dispute. In Chapter 3, I examine and then reject nationalist theories of secession which claim that humankind can be divided into communities called “nations” and that these have a prima facie right to independent statehood. Building upon the work of critics of nationalism and using the specifics of Kashmiri national identity, I argue that while nationalist theories have correctly highlighted a challenge to the unity of the modern state (i.e. the political mobilization of sub-groups within a state under the banner of a distinct national identity), nations qua nations are not suitable candidates for a right to secede. Moreover, rather than identifying a solution to secessionist disputes, nationalist theories instead merely succeed in restating the problem only in a more vitriolic, and therefore harder-to-resolve, form. Indeed, one of the main reasons for secessionist disputes is the existence of competing nationalisms, meaning that national identity cannot be appealed to as the solution to the problem but should more correctly be viewed as a cause of it. In addition, granting nations a right of independent statehood would not only create a perverse incentive for them to threaten to secede, but would also encourage secessionist-minded minorities to further alienate themselves from the majority and entrench whatever differences set them apart in an attempt to claim the mantle of “nationhood” and the right of secession that would accompany it.

Building upon this discussion, Chapter 4 critically evaluates liberal-democratic theories of secession which claim that any (territorially defined) majority in a state that desires political independence has a prima facie right to it. Two variants of the theory are considered: one that bases the right to secede on individual consent, and another that prioritizes the value of collective self-determination. As in the case of nationalist theories, issues pertaining to the specification of the content and justification of a right to secede as logically prior to the identification of the right-holder are investigated, evidenced through the difficulty of ascertaining the electorate in which a plebiscite on a group’s secession might be held. The chapter considers the two most popular forms of liberal-democratic theory premised upon individual consent and the value of collective self-determination. The former attempts to avoid the corollary of a unilateral right of individual secession and the prohibitively negative consequences this would produce through a majoritarian calculus, which I argue is inconsistent with the right’s individualistic justification. Consequently, consent-based theories are rejected in favor of self-determination theories which, while they are conceptually more coherent than consent theories, would also produce a highly permissive right of secession with potentially destabilizing results that would not necessarily mirror the right of secession advocated by Kashmiri separatists. Also included within this chapter is a discussion of the role of territory in a normative right to secede and the associated concept of a territorial right.

In Chapter 5, I examine what I find to be the most promising of the three main approaches – just cause theories – that ascribe a right of secession to groups that have been the victims of an injustice (perpetrated by their parent state) for which secession is an appropriate remedy of last resort. A number of variants of the theory and their application to the case of Jammu and Kashmir, particularly the circumstances surrounding the state’s accession to India in 1947, are analyzed. Finally, I conclude that the most compelling just cause case that can be advanced for Kashmi...

Table of contents

• Front Cover
• Kashmir’s Right to Secede
• Routledge Contemporary South Asia Series
• Title Page
• Copyright
• Dedication
• Contents
• Acknowledgments
• 1 Introduction
• 2 Kashmir
• 3 Nationalist theories
• 4 Liberal-democratic theories
• 5 Just cause theories
• 6 Conclusion
• Bibliography
• Index