Kashmir is a legal contest between Pakistan and India. The revocation of Article 370 and 35-A of the Indian Constitution by the BJP government on 5th August 2019 to bifurcate and absorb the disputed territory into the Indian dominion has legal consequences. This unilateral action of the Indian government is contravention to international law, bilateral treaties and the UNSC resolutions that bar the parties from bringing about any material change in the situation.
India, by far, attempts to portray the Kashmir issue as an internal affair; however, the UNSC resolutions on the disputed territory, India’s pledges during conditional accession of Jammu and Kashmir and bilateral treaties between India and Pakistan clearly provide legal evidences that the state of Jammu & Kashmir is an international issue which is disputed between the two countries.
A unilateral action by either India or Pakistan will amount to be the violation of the fundamental principles of international law. The UNSC resolution 47, which was adopted on 21 April 1948, urges Pakistan and India to prepare grounds for plebiscite. It states that the question of accession of Jammu and Kashmir should be decided “through the democratic method of a free and impartial plebiscite.” It also endorses Kashmiris’ legitimate right to self-determination. Unfortunately, they have been denied self-determination, and Kashmir has remained a victim of geopolitics.
In addition to this, India’s first Prime Minister Jawaharlal Nehru stated in a telegram, which was sent to Pakistan’s first Prime Minister Liaqat Ali Khan, on 30 October 1947, that “[o]ur assurance that we shall… leave the decision of the state to the people of the state is not merely a pledge to your government but also to the people of Kashmir and to the world.” Similarly, in Simla Agreement on 2 July, 1972, India and Pakistan mutually agreed that “[n]either side shall seek to alter it [The Line of Control] unilaterally, irrespective of mutual differences and legal interpretation.” In this way, these are some sufficient legal instruments which negate India’s position altogether that the Indian Illegally Occupied Jammu and Kashmir (IIOJ&K) is its internal affair.
Self-determination is an inalienable right of Kashmiris.
After the rescindment of the autonomous status of Kashmir, the Indian government has deployed almost one million troops in the valley, thereby making it one of the most militarized zones in the world. Indian troops continue to commit “naked aggression” in the valley, and fundamental rights of Kashmiris have been grossly abused. Arbitrary detention of the youth; blackout of media; restriction on rights to freedom of opinion and expression, liberty and security, mobility, and privacy; access to justice; and alleged sexual assault are some incontrovertible evidences of systematic violation of fundamental norms of international law.
Victoria Schofield’s poignant observation in the book “Kashmir in Conflict” aptly captures the paradoxical essence of the Kashmir valley. She writes that “the beauty and tranquility of the valley was almost tangible but it hides an inner pain.” This dichotomy between the valley’s breathtaking beauty and the underlying anguish of its people has been a recurring theme in the region’s turbulent history. The Indian aggression in the valley has transformed this inner pain into a palpable reality, leaving an indelible mark on the lives of Kashmiris.
Moreover, Anurudha Bhasin’s book “A Dismantled State: The Untold Story of Kashmir After Article 370” provides a vivid testimony to the brutal mechanisms of control employed by the Indian state. It states that the “apparatus of terror and control – operated in the form of night raids, arbitrary arrests, detentions, torture and alleged sexual assault – continued for days. ” Consequently, it is perpetuating a culture of fear and impunity. These egregious human rights abuses have continued unabated, leaving Kashmiris to suffer in silence. Bhasin’s book serves as a powerful indictment of the Indian government’s actions, highlighting the imperative need for accountability and justice in the region.
The International Covenant on Civil and Political Rights (ICCPR), which was adopted in 1966, is an international human rights treaty. India is signatory to the ICCPR, which enables people to enjoy a wide range of human rights such as “freedom from torture and other cruel, inhuman or degrading treatment or punishment; fair trial rights; freedom of thought, religion and expression; privacy, home and family life; and equality and non-discrimination.”
Lamentably, the Modi government’s actions in the valley have been the violation of all these fundamental rights. India’s attempt to bring about demographic change in Kashmir and assault on Kashmir identity are in contravention to international law, the UN Charter, the UNSC resolutions to hold impartial plebiscite in the valley, the International Covenant on Economic, Social and Cultural Rights and the Fourth Geneva Convention, which is a customary international law, that bars parties from depriving people of their fundamental rights, especially in conflict zones. The ongoing situation in IIOJ&K is a stark example of the blatant disregard for International Humanitarian Law, where the people are subjected to systematic oppression, deprivation of life and liberty, and blatant human rights abuses.
By attempting to portray the Kashmir issue as an internal matter, India is infringing upon the fundamental right of the Kashmiri people to self-determination, a principle enshrined in the UN Charter and various international human rights instruments. Public outrage underscores the growing collective consciousness among Kashmiris for both internal and external self-determination from India, highlighting the need for a peaceful and lasting resolution to this longstanding dispute.
There are multiple international law instruments, both binding and non-binding in nature, clearly put India under an obligation to allow people of Kashmir to exercise their fundamental right of self-determination. It has been recognized as a right in UN Charter, the UNSC resolutions on Kashmir, the Declaration of Principles of International Law Concerning Friendly Relations and Cooperation Among States, Helsinki Final Act, and Vienna Declaration and Programme of Action. Similarly, the International Court of Justice (ICJ) has also pronounced through advisory opinions in cases, like Namibia, Israel Wall, Chagos Archipelago and East Timor, which provide legal sanctity that right to self-determination is universal jus cogens and ergaomnes obligations.
Therefore, Pakistan must propagate the Kashmir cause on the basis of international law. Global human rights organizations should be apprised of India’s inhumane treatment of people in Kashmir. Self-determination is an inalienable right of Kashmiris and it becomes the responsibility of world community and international organizations, which promise to uphold the norms of international law, must help Kashmiris in realizing their right to self-determination by pressurizing India to reverse its unilateral action of abrogating the autonomous status of Kashmir and to cease its blatant human rights violation in the valley. In fact, the role of great powers occupies a key position in resolving the Kashmir issue.
The writer is a strategic affairs and foreign policy analyst, based in Islamabad