The security of an individual is an indication of the security of the entire society or community. International law provides every individual the fundamental rights to live, cherish and prosper in life. These rights are available to every individual across the globe irrespective of his cast, color, creed, religion, and geography. The provisions of International law and International Covenant on Civil and Political Rights (ICCPR), unambiguously furnish fundamental human rights to the people.
It is an inherent fundamental right of human beings to decide about their future by their own will as per provisions of international law and the UN Charter.
The right to self-determination under international norms and principles is purely vested with people. Kashmir is considered to have almost entire prerequisites necessary for the state to be recognized as a state in the international arena. It possesses a well-defined territory, a population of more than 13 million which is quite greater than the population of many African and European states, and has been exercising a self-governance system throughout history. Besides this, it is a state with multiple resources and also possesses a peculiar language, culture, and history. After the partition of the Sub-continent, India illegally occupied the State of Kashmir and denied them the right to self-determination given by the United Nations under international law. It has deployed massive troops and is on the way to bring demographic changes in the State. In the past thirty years, almost 100,000 Kashmiris have died in their fight against Indian brutalities. India has tried to undermine the freedom struggle of the Kashmiri people by deploying 900,000 troops in the valley and has imprisoned the people in an open jail.
Kashmir: an Integral Part of India?
India has consistently been denying the Kashmiris their right of self-determination declaring Kashmir as an integral and inseparable part of India. Keeping this notion of an integral part in mind it denied conducting an impartial plebiscite in Kashmir and thus stepped back from United Nations resolutions on the Kashmir issue. After the rise of tensions between the Indian government and Sheikh Abdullah on the resolution mechanism of the Kashmir issue, India incarcerated Sheikh Abdullah and spuriously promulgated a legislative resolution that acceded Kashmir to India in 1952. This fraudulent act was considered to be an unambiguous violation of directions under the UN resolution of March 1951. Another resolution was passed by United Nations on January 20, 1957, and reinvigorated the principles encompassed in its previous resolutions that affirm that any future disposition of Kashmir will only be determined by the will of its people.
Right of Self-Determination: A Comparative Analysis
The concept of self-determination is as old as the Greek city-state (s) and remained significant during the French and American revolutions, refined by Woodrow Wilson in his fourteen points, thus incorporated into the League of Nations and got centrality in the Charter of United Nations9. After the termination of World War II, numerous Asian and African states got independence from European Colonialism under the slogan of the right to self-determination. East Timor is considered to be a state that was not autonomous in the past, as it acceded to Indonesia by the will of its people after its break up from Portugal in the 1970s. Nevertheless, persistent allegations have been raised against the Indonesian government for forcefully annexing East Timor without popular support. However, people decided to dispatch from Indonesia, and East Timor got seceded from Indonesia under the umbrella of the right to self-determination. Similarly, in February 2008, Kosovo got independence from Serbia by exercising its right of self-determination. Kashmiri people have persistently been pursuing their freedom struggle for the last seven decades and thousands of people have lost their lives but they are still devoid of their right to self-determination. India has denied them the right given by United Nations resolutions and has perpetually been violating international law.
There are almost two dozen UN resolutions that perpetuate the license of self-determination to Kashmiris. India has chipped these resolutions away on the ground and rebuffed the due right of the people of Kashmir.
Abrogation of Article 370: an International law perspective
After the partition of the Sub-Continent, erstwhile princely states were directed to accede to either India or Pakistan by geographical congruity and people’s desires. The state of Kashmir was among one of these princely states and was a Muslim-majority state. After its conditional accession to India, the Indian legislature inculcated Article 370 in its constitution in 1949 which exempts the Kashmir from Indian Constitution. It provided Kashmir with a special status and allows it to promulgate its laws except in defense, foreign affairs, finance, and communications. This article furnished Kashmir its flag and exclusive property rights and debars any outsider from buying property in the region. This article extends the jurisdiction of the Indian constitution to finance, communications, defense, and foreign affairs and explicitly articulates that any legislation outside the established scope will have to take prior approval from the state government. Besides Article 370, article 35A was introduced in 1954 in Indian Constitution to reinforce the past provisions regarding the status of Kashmir and also define the permanent residents of the state. It also debars outsiders from buying land or properties, permanently settling, securing education scholarships and governmental jobs, etc. Both these articles excluded Kashmir from the Indian dominion. However, Narendra Modi-led BJP regime abrogated Article 370 on the 5th of August 2019 and thus devoid Kashmir of special status once granted under its own Indian Constitution.
Since the 5th of August 2019, it enforced a curfew in the region with a communications blackout and has taken over young boys as well as the political leadership of Kashmir. It has deployed more than 900,000 troops there and made Kashmir a ‘living hell’ by carrying out massive human rights violations with impunity.
Several international law experts have expressed their views straight from the shoulder and berated the Indian unilateral attempt and delineated it as an unequivocal violation of UNSC resolutions. Constitutional law expert, Faizan Akhtar emanated out that this Indian move has restored Kashmir to its original status before the Instrument of Accession. According to him, IOA has the character of an international treaty that was primarily signed between two sovereign states. Henceforth, India’s abrogation of Article 370 is null and void under international law and even under its constitution.
International Law Perspective and Right of Self Determination
Kashmir issue directly comes under the shelter of International Humanitarian Law and International Human Rights Law which proscribe the despotic denial of life under any state of affairs. According to Article 6 of the International Covenant on Civil and Political Rights (ICCPR), states are prohibited to take away the right to life from people even during a state of emergency. Its Articles 4 and 7, explicitly ban torture, even in times of national emergency or when the security of the state is threatened. India has placed more than 0.9 million troops in IHK with a ratio of 1:8 (1 personnel over 8 people) that are carrying out deliberate atrocities over the public and thus are violating norms of IHRL and IHL, being a subscriber to both laws. Without the reinforcement of laws, the world would be like a jungle where the principle of ‘Might is Right’ prevails. It is thus quite necessary to look Kashmir issue under the tight scrutiny of international law.
In IOK, Indian forces are blatantly violating the norms of International Humanitarian Law, and rapes, hostages and innocent killings have reached to historically an unprecedented level.
These unsanctioned actions of India are unambiguously violating the standards and norms elaborated under IHL. Besides IHL and IHRL provisions regarding the right to self-determination, there are two more International Declarations that sanction the Kashmiris an inherent right to self-determination. International Covenant on Civil and Political Rights and International Covenant on Political and Economic Rights under their Common Article 1 mention that, “All people have the rights of self-determination, by virtue of that right they freely determine their political states and freely determine their economic, social and cultural development”.
In sum, it is high time that the world community must take steps necessary to resolve the Kashmir dispute, and the only viable solution in hands is by extending them their right to self-determination by organizing an impartial plebiscite under the supervision of the United Nations.