Daily Times

The Universal Declaration of Human Rights expresses in clear terms that “Whereas it is essential if a man is not to be compelled to have recourse, as a last resort, to rebellion against tyranny and oppression, that human rights should be protected by the rule of law.”

In other words, international law as the guarantor of peace, human rights and democracy warrants that all people have the right to self-determination and their human rights should be protected in their recourse to such self-determination. The right to self-determination encapsulates the basic rights of the various peoples of the world to decide on their future. This right to self-determination is one of the most entrenched rights under international law and finds its place in the United Nations Charter and the International Covenant on Civil and Political Rights.

A practical expression of the right to self-determination can be gauged from the case of East Timor, which gained independence in 2002. East Timor was a province of Indonesia that got independence through a popular vote of its people. The allegations against Indonesia were that East Timor was politically, socially and culturally repressed; the same allegations that the people of Kashmir make against India. Much more recently, Kosovo gained independence after its parliament declared independence from Serbia. The International Court of Justice has also upheld the declaration by Kosovo as being lawful under international law, most specifically the United Nations Charter. Once again, the political, social, economic and cultural repression of the people of Kosovo can be compared to that of the people of Kashmir under international law.

Kashmir has all the elements of a nation-state under the norms of international law. It has a territory larger than many other independent countries; a population of 13 million people; a history of independent self-governance and its own distinct culture and language. The United Nations has tried addressing the issue and passed numerous resolutions. Unfortunately, these resolutions are not binding since they were passed under Chapter VI of the United Nations Charter and not Chapter VII. This is where the international legal regime about the human rights of the Kashmiri people has failed. It is unfortunate that with all these international law guarantees and resolutions, the human rights of the people of Kashmir are being violated through constant discrimination, torture and genocide.

India has blatantly violated its obligations under the law, especially through the adoption of regressive laws

Despite outlawing torture under any circumstances in the international legal regime, torture has been widespread and rampant ever since the 1990s in Indian occupied Kashmir and has intensified since the decision of New Delhi to remove the special autonomous status of Kashmir from its constitution on August 5, 2019. Even though international law outlaws genocide under any circumstances, the International Covenant on Civil and Political Rights prohibits genocide and torture, even in times of national emergency. Nevertheless, the people of Kashmir have been forced into a curfew, torture and death in the case of a breach by India.

Despite being a signatory to the International Covenant on Civil and Political Rights, India is in dire violation of international law. Regrettably, international law cannot be imposed by the use of force or through sanctions on India, which ultimately raises serious questions about the credibility of international law.

International humanitarian law found in Article 3 and common to all four Geneva Conventions provides the standards governing the conduct of parties in an internal armed conflict. It lays down the standard that persons taking no active part in hostilities, including members of armed forces who have laid down their arms and those placed hors de combat by sickness, wounds, detention, or any other cause, shall in all circumstances be treated humanely, without any adverse distinction founded on race, color, religion or faith, sex, birth or wealth, or any other similar criteria. India, however, has blatantly violated its obligations under the law, especially through the adoption of regressive laws, which include the “Armed Forces Special Power Act (AFSPA), ” under which the Indian security forces have the authority to shoot at the sight and arrest people without a warrant.

Such blatant violations of international law have disappointed those who believe in the universal supremacy of human rights. The people of Kashmir should look towards international law and institutions for help. Yet, they have been left dispirited. Admittedly, we do not live in a perfect world, but the minimal protections offered by international law, including the provisions in favour of self-determination and against torture and homicide, need to be enforced. This is a test case for the efficacy of international law, especially since Kashmir is the oldest unresolved issue on the agenda of the Security Council.

International powers and institutions need to reassess the role that international humanitarian law and international human rights law has to play in the aggravating Kashmir issue. At the minimal, the human rights of the people of Kashmir have to be protected. Otherwise, it would be a scathing indictment of international law.

The writer is a barrister, who has an interest in Pakistani current affairs, economy, constitutional developments, foreign policy and international law