The right to privacy, or the right to respect for private life, as the European Convention on Human Rights guarantees it, has been affected by the IT growth era. Privacy has long been protected, but will face a new dimension of protection for the generations to come. The right to respect for private life is not an absolute one, and may have a different feature in different context.
By Niemitz v. Germany judgment (1992) the European Court on Human Rights (‘the ECtHR’) included the right to connect with other individuals into the notion of private life, saying that it would be too restrictive to limit the notion of an ‘inner circle’ to personal life and exclude there from entirely the outside world not encompassed within that circle. The right to communicate was thus inserted into the privacy context.
But the extent of communication and technologies which enable it significantly changed since.
Few decades ago, it mainly consisted of personal communication, communication by conventional letters and phone communication. At the time the Convention was adopted in the mid last century, there was no internet, not even mobile/cell phones, nor personal computers. The feature of privacy protection was much more simple then today.
Now, when we approach the rule of IoT (internet of things) communication, not only do people communicate, but ‘things’ as well. The subject of that ‘non-human’ communication may also be private data of individuals. At the same time, the individual, human communication became more simple, available at any time, and versatile by its means.
New society digital evolution becomes a special challenge when speaking of the protection of privacy. Availability of every person not only in physical life but in cyber life as well, upgrades the privacy to a new sphere. If we do ourselves chose to use social networking, Skype, Instagram, Twitter, Yahoo Messenger, Linkedin, Facebook, the later being ‘the most powerful database of persons ever on internet’ as rightfully noted by prof. Bajrektarević, in his book ‘Is there life after Facebook?’ as well as other internet features, we must be aware that our privacy may come into the open. If we add to that e-context a physical surrounding of a working place, under certain conditions, the feature of privacy changes, i.e. it becomes less protected then in the context of an earthbound private circle, the surrounding which was in mind of lawmakers when adopting for instance the European Convention on Human Rights in 1950.
Recently, at the table of the ECtHR was the case of Barbulescu v. Romania (judgment enacted in January 2016), where the question arose of whether an employer is entitled to look into his employer’s private messages at Yahoo Messenger. The messages were written by the employee during the working time, at the computer owned by the employer. The employer monitored and made transcript of messages made at the Yahoo Messenger account that was created at the employer’s request for the purposes of contacts with clients, but the transcript also contained five short messages that Mr. Barbulescu exchanged with his fiancee using a personal Yahoo Messenger account.
The ECtHR found no violation of the right to respect the private life by such actions of the employer.
The ECtHR noted that the employer did not warn the employee of the possibility of checks of the Yahoo Messenger. However, the company where Mr. Barbulescu worked did adopt internal rules according to which it was strictly forbidden to use computers, photocopiers, telephones, telex and fax machines for personal purposes. Can that be seen as a warning? Does it give an employer a right to monitor personal messages of an employee?
We may wonder if the ECtHR gave the advantage to a market economy and profit growth, versus privacy? Did it give to employer the right to control the employee even if that would mean invading his privacy? This, under certain conditions, like internal policy rules or warning, gives the employers the right to rule the employees space, of course, during work hours, and their right to monitor the job done by his employees may be stronger then their right to privacy.
However one should be careful in concluding that all employers may now freely snoop into their employees’ e-mails, tweets, messages etc.
The ECtHR took into consideration the ‘expectation of privacy’, which Mr. Barbulescu, the employee, had regarding his communications. The internal rules of the employer which strictly prohibited the use of computers for private purposes, made the decisive shift towards ruling in favor of non violation. He probably should not have expected to have his privacy respected in such circumstances. But in the absence of such rules and in the absence of warning, any such intruding into employees’ private communication would rise an issue of privacy protection.
With the fast development of society and technology, the privacy is much more vulnerable, and it apparently affects its legal protection.
Almost two decades ago in the case of Halford v. UK the same ECtHR decided that tapping of Ms. Halford’s phone at the office did constitute a violation of her right to respect of her private life. Without being warned that one’s calls would be liable to monitoring the person would have reasonable expectation that his privacy is protected (Halford v. UK 1997). In Amann v. Switzerland ECtHR judgment (2000) telephone calls from business premises pursue to be clearly covered by ‘private life’ notion.
The ECtHR further spread the privacy protection to e-mails sent from work in the Copland v. United Kingdom judgment (2007). In this case it also decided that monitoring of telephone usage in the way of analysis of business telephone bills, telephone numbers called, the dates and times of the calls, duration and cost, constituted “integral element of the communications made by telephone”, and made an interference into the privacy. Moreover, the ECtHR was of the view that the storing of personal data relating to the private life of an individual also fell under the protection of the Article 8, being irrelevant whether it was or was not disclosed or used against the person. It further held that that ‘e-mails sent from work should be similarly protected under Article 8, as should information derived from the monitoring of personal Internet usage’ like analysing the websites visited.
In Halford and Copland case the personal use of an office telephone or e-mail or was either expressly or tacitly allowed by the employer. Accordingly the ECtHR found a violation of privacy when the employer intruded therein. In Barbulescu, on the other hand, due to the internal regulations that forbid the private use of computers, the ECtHR did not consider a monitoring by employer to be a violation of his privacy, although the intrudment happened in the form of making the transcript of employee’s messages and keeping that transcript. The ECtHR considered that ‘broad reading of Article 8 does not mean, however, that it protects every activity a person might seek to engage in with other human beings in order to establish and develop such relationships’ (Barbulescu para 35)
We can see that the position of employer towards allowing or non allowing phone, e-mail, or internet usage, made a diference as to the employee’s expectation of privacy. But can we add to that the more open communication, as a reason of lowering the level of the ‘expectation of privacy’?
It still remains up to the individual how he/she shall expose his/her privacy. The means of multiple communication, are now in everyone’s pocket, and a person does not have to use a land phone line, in order to call home. By simple touching the screen he/she may communicate, share, like, tweet, comment. If it is done during working hours, it gives, under certain conditions, a possibility to employers to look into that ‘share’, ‘like’, ‘tweet’, ‘comment’ and still not to invade anyone’s privacy.
The more open the conversation is, its protection gets more demanding and complicated. So the protection of privacy remains a big test for the future.
The European Commission has launched an EU Data Protection Reform in 2012, in order to ‘make the Europe fit for the digital age.’ Strengthening citizens’ fundamental rights, Digital Single Market, are the areas that need special attention. Currently in force Directive 95/46/EC of the European Parliament and of the Council of the EU of 1995, provides that personal data is ‘any information relating to an identified or identifiable natural person’.
Article 29 Data Protection Working Party (‘DPWP’), in 2002 adopted a Working Document on the Surveillance and the Monitoring of Electronic Communications in the workplace. According to that Document the mere fact that monitoring serves an employer’s interest could not justify an intrusion into workers’ privacy. Monitoring, according to the DPWP, must pass four tests: transparency, necessity, fairness and proportionality.
‘Workers do not abandon their right to privacy and data protection every morning at the doors of the workplace’ provides the Document, however, ‘this right must be balanced with other legitimate rights and interests of the employer, in particular the employer’s right to run his business efficiently to a certain extent’.
Under Directive 2002/58/EC concerning the processing of personal data and the protection of privacy in the electronic communications sector (Directive on Privacy and Electronic Communications) of 2002 ‘Member States shall ensure the confidentiality of communications and the related traffic data by means of a public communications network and publicly available electronic communications services, through national legislation.’ It provides for the prohibition of ‘listening, tapping, storage or other kinds of interception or surveillance of communications and the related traffic data by persons other then users without the consent of the users concerned’. Exceptions may be made, inter alia, for the interests of national security, prevention of criminal offences or of unauthorised use of the electronic communication system etc.
Data protection of citizens will be a big challenge in future. The judge Pinto de Albuquerque in his partly dissenting opinion in Barbulescu case has criticized the ECtHR’s majority in missing the chance to develop its case-law in the field of protection of privacy with regard to Internet communications and for overlooking, inter alia, some important features like sensitivity of the employee’s communication and non-existence of Internet surveillance policy duly followed by the employer (apart from the above mentioned internal regulations forbidding the use of computers).
On one hand there is a request for privacy protection, while on the other hand, there is a request from the market economy/employers that the job be done. The interests of the two must always be fairly balanced, but with the speedy development of technology and the internet interaction, the danger of exposing private data rises. That is why the legal creators have a big responsibility to act ahead of time, which, in the IT context, is running at the light speed.
Why legal principles on war and environment matter
Oh, the army tried some fancy stuff to bring them to their knees.
Like Agent Orange defoliants, to kill the brush and trees.
We’d hike all day on jungle trails through clouds of poison spray.
And they never told me then, that it would hurt my health today.
(Agent Orange Song—Country Joe McDonald)
Many of us remember shocking images of environmental destruction from conflicts across the globe; from the spraying of the poisonous chemical Agent Orange over the forests in Viet Nam in the 1970s, to the burning oil wells in Kuwait in the 1990s.
Sadly, Viet Nam and Kuwait were not isolated cases. Armed conflicts around the world, and their aftermath, continue to impact the health and well-being of people and the environment through pollution, infrastructure damage and the collapse of governance. The use of chemical weapons in the Syrian conflict as well as the burning of oil fields by the Dae’sh terrorist group are poignant recent examples.
Since 1999, the United Nations Environment Programme has conducted over twenty post-conflict assessments, using state-of-the-art science to determine the environmental impacts of war. From Afghanistan to Kosovo to the Gaza Strip and Sudan—armed conflict causes significant harm to the environment and the communities that depend on natural resources.
In 2009, UN Environment and the Environmental Law Institute co-authored a seminal report, Protecting the Environment During Armed Conflict : An Inventory and Analysis of International Law, which identified gaps and weaknesses in international laws that protect the environment during war and armed conflict.
Among the report’s recommendations was for the United Nations International Law Commission to “examine the existing international law for protecting the environment during armed conflict and recommend how it can be clarified, codified and expanded”.
Partly as a result of UN Environment’s request to address the topic, the Commission decided to include the protection of the environment in relation to armed conflicts in its programme of work and appointed Marie G. Jacobsson as its Special Rapporteur in 2013. In 2017, following three reports by Jacobsson on the protection of the environment before, during and after armed conflicts, Marja Lehto was appointed as Special Rapporteur for environmental protection.
“One of the defining features of the International Law Commission’s work on protection of the environment in relation to armed conflicts is that the topic is not limited to situations of armed conflict but covers the whole conflict cycle, clarifying the international law applicable to the protection of the environment before, during and after armed conflicts. This broad frame has allowed the Commission to take a fresh look at the different environmental concerns and challenges that arise in relation to armed conflicts addressing, for instance, sharing and granting access to environmental information and environmental effects of human displacement. The Commission’s work has greatly benefitted from the increased understanding of the environmental impact of armed conflicts, based, inter alia, on the post-conflict environmental assessments conducted since the 1990s by the UN Environment Programme, the World Bank and others,” says Special Rapporteur Marja Lehto.
UN Environment, the Environmental Law Institute and others have supported the Commission throughout its work, and particularly the Special Rapporteurs, by providing publications, legal analyses, and case studies. They also organized a series of workshops and reached out to colleagues in governments, academia, civil society, and other international organizations to expand the information and analysis available to the Special Rapporteur.
A resolution on the protection of the environment in areas affected by armed conflicts agreed by consensus by all Member States at the United Nations Environment Assembly (UNEA-2) in May 2016 encouraged UN Environment to continue supporting the work of the International Law Commission on the protection of the environment in relation to armed conflicts, and was an important signal of the commitment of Member States to tackle the issue.
Then Special Rapporteur Marie Jacobsson noted that this resolution was not only “a positive signal in itself, but it will also establish synergies for the future between the ongoing work of UN Environment, the International Law Commission, as well as the important work undertaken by the International Committee of the Red Cross on this topic”.
On 8 July 2019 the International Law Commission adopted 28 draft legal principles on first reading to enhance protection of the environment before, during and after armed conflicts.
“The draft principles are the biggest step forward in legal protection for the environment in conflicts since the 1970s and are long overdue. But they will only be effective in reducing harm to people and ecosystems if they are properly implemented. Governments, international organizations, experts and civil society will all have a role to play in making that happen,” says Doug Weir, Director at the Conflict and Environment Observatory.
The principles touch on various aspect of the conflict lifecycle and, among other things, address the designation of significant environmental and cultural areas as protected zones, the protection of the environment of indigenous people and prevention and mitigation of environmental degradation in areas where persons displaced by armed conflict are located.
“The principles cover both damage to the environment and natural resources. This is important, as initial discussions and framing focused largely on environmental damage and did not adequately address natural resources misuse, including the use of conflict resources to finance armed conflict, which tends to be more widespread. Another important aspect of the principles is that they address both international and non-international conflicts,” says Carl Bruch, Director, International Programs, Environmental Law Institute.
While the principles provide a critical overarching framework and represent a major milestone in ensuring environmental protection in relation to armed conflicts, they constitute the first step. There is still work to be done, for example to address the targeting of water infrastructure such as waterpipes and hydroelectric dams or to integrate environmental considerations in military manuals—a critical means for states to operationalize their obligations. The International Committee of the Red Cross and Red Crescent guidelines for military manuals and instructions on the protection of the environment in times of armed conflict, which are currently being revised, offer an important complementary vehicle in the process to support military manuals.
“Protecting the environment before, during and after armed conflict must rise to the same level of political importance as protecting human rights. A healthy environment is the foundation upon which peace and many human rights are realized,” says David Jensen, UN Environment’s Head of Environmental Cooperation for Peacebuilding.
The challenge ahead is ensuring that the principles are implemented and operationalized. This will require substantial work and partnerships among all stakeholders, including through incorporating the draft principles into military training manuals and supporting outreach to international and domestic courts to support enforcement efforts.
Geneva Conventions mark 70 years of ‘limiting brutality’ during war
In commemorating the 70th anniversary of the landmark Geneva Conventions, the president of the United Nations Security Council hailed the “significant body of law”, describing it as playing “a vital role in limiting brutality of armed conflicts”.
In the aftermath of the Second World War, the treaty, comprised of four Conventions and three Additional Protocols, established the modern, international legal standards for humanitarian treatment during times of war. They were agreed on 12 August 1949, and with some exceptions, ratified by 196 countries around the world.
“As they are ratified and acceded by almost every State of the world, the principles and legal norms enshrined in these Conventions are also recognized as customary international humanitarian law [IHL] and are universally applicable”, said Poland’s Foreign Minister Jacek Czaputowicz, speaking for his nation which holds the Presidency of the Council for August. “This is a rare quality for any multilateral treaty”.
Among other things, the Conventions established protections for vulnerable groups in armed conflict, namely the wounded and sick; prisoners of war; and civilians, including civilians living under occupation.
Because Poland has been “painfully affected by consequences of other States’ failures to comply with international agreements” and in conjunction with its “sense of responsibility” to maintain international peace and security, Mr. Czaputowicz said that strengthening international law has always been important to his country.
“The greatest challenge to protecting human life in modem conflict is observance of and respect for the existing rules by the armed forces and non-State armed groups”, he asserted. “If existing rules were followed, much of the human suffering in contemporary armed conflicts would not occur”.
Poland’s top diplomat also pointed to new threats that demand practices and policy consistent with international humanitarian law.
“Artificial intelligence and autonomous weapon systems, such as military robots and cyber-weapons, reduce the role and control of human factors during wartime”, he continued. Moreover, the general rules of IHL prohibiting indiscriminate and inhumane weapons, “are being violated”.
Two IHL principles under the Geneva Conventions that deserve particular attention, according to Mr. Czaputowicz, are “the obligation to protect civilians, prisoners of war, the wounded and shipwrecked” as well as “limitations to the rights of parties to an armed conflict on how they conduct operations and on their choice of weapons”.
The increasing role of non-State actors and IHL legal loopholes are “the new reality of modem conflict”, he spelled out, bemoaning that they hinder international humanitarian law “in many ways”.
“International humanitarian principles are under pressure” and “the complexity of new challenges impedes the process of classification of conflict situations and makes it difficult to determine the exact rules that may be applied”, he elaborated.
‘Historic moment for humanity’
According to UN Legal Counsel Miguel de Serpa Soares, the four Conventions are “at the core” of IHL.
Noting that the first three conventions “were by no means completely novel at the time”, he singled out the Fourth Convention as being “the first treaty that was specifically dedicated to the protection of civilian persons in time of war”.
Mr. Soares also drew attention to Article 3, the provision on basic rules governing the humane treatment of people not involved in hostilities, including soldiers who have laid down their arms, those wounded or in detention, as well as civilians.
Calling the inclusion of Article 3 “a historic moment for humanity”, he said it was the first instance in which non-international armed conflicts were regulated by a multilateral treaty. The significance is augmented by the fact that the Geneva Conventions are now universally adhered to.
Conventions show ‘what is possible’
For his part, Peter Maurer, President of the International Committee of the Red Cross (ICRC), maintained that the Geneva Conventions represent “one of the greatest achievements of inter-State cooperation” and “symbolize our enduring and common humanity”.
“The Conventions show us what is possible when States take collective and individual action to uphold the law and humanitarian principles”, he said.
Noting that “every single day” international humanitarian law is at work saving lives and protecting women, men and children in conflicts, he highlighted that while “we rightly hear about the violations because the consequences are tragic and visible”, we must also “recognize the protective power and positive impacts when IHL is respected”.
The ICRC chief painted a picture of IHL in action, when the wounded and sick are evacuated to safety; the detained are treated with dignity; the fate of missing people is clarified; and humanitarian assistance is delivered across lines.
“The impacts of IHL are also shown through acts of restraint, when horrors are not inflicted – civilian areas are spared from direct shelling, medical workers are able to freely operate without threat or targeting”, he added.
Continued violations do not mean the law is inadequate, but rather that efforts to ensure respect are inadequate, he flagged, urging “we can – and must – do more”.
The world must not forget that “the Geneva Conventions represent a line of our common humanity, and they shield us from our own barbarity”, underscored Mr. Maurer.
Kerfuffle about Kashmir’s `special status’
It is eerie that Pakistan’s foreign office, media and politicians have shallow understanding of the Kashmir dispute. Let us not forget dimensions to the Kashmir dispute. Pakistan is committed to United Resolutions. These resolutions do not recognise `accession’ of disputed Kashmir under a resolution of the puppet Constituent Kashmir assembly or under Maharajah’s `instrument of accession’.
India never presented the accession `resolution’ or the `maharajah’s instrument’ before the UN. Yet, it claimed that the occupied Kashmir’s constituent assembly had voted for accession to India. As such, it is no longer necessary for her to let the promised plebiscite be held in Kashmir. Now, it has abrogated `special status’, hitherto quid pro quo. Has disputed Kashmir reverted to 1947 status in India’s own parlance?
In parliament, Amit Shah banked on the `instrument’ which is void. The Independence Act required intention of accession to be absolute and crystal-clear. But, a stray glance at the ‘Instrument’ would make it clear that it is equivocal. The ‘Instrument’ expresses ‘intention to set up an interim government and to ask Sheikh Abdullah to carry the responsibilities’ with maharajah’s prime minister. The last sentence in the ‘Instrument’ is ‘In haste and with kind regards’. Handwritten corrections on the text of the ‘Instrument’ speak volubly about the wavering state of the maharajah’s mind. Any `instrument’, extracted under coercion and duress, is invalid under law.
Subsequent accession resolution, passed by the occupied Kashmir’s ‘constituent assembly’, also, is void. This resolution violates the Security Council’s resolutions forbidding India from going ahead with the accession farce. Aware of India’s intention to get the ‘Instrument of Accession’ rubber-stamped by the puppet assembly, the Security Council passed two resolutions to forestall the `foreseeable accession’ by the puppet assembly. Security Council’s Resolution No 9 of March 30, 1951 and confirmatory Resolution No 122 of March 24, 1957 outlaws accession or any other action to change status of the Jammu and Kashmir state.
`Accession instrument’ is a myth, unregistered with the UN. Alastair Lamb, in his book Incomplete Partition (Chapter VI: The accession Crisis, pp.149-151) points out that Mountbatten wanted India not to intervene militarily without first getting `instrument of accession’ from maharajah Hari Singh. Not doing so would amount to `intervening in the internal affairs of what was to all intents and purposes an independent State in the throes of civil conflict’. But, India did not heed his advice. It marched its troops into Kashmir without maharajah’s permission _ an act of aggression. Lamb says `timing of the alleged Instrument of Accession undoubtedly affected its legitimacy'(p.172, ibid). He adds `If in fact took place after the Indian intervention, then it could well be argued that it was either done under Indian duress or to regularise an Indian fait accompli’.
Lamb concludes (p. 191, ibid):`According to Wolpert, V. P. Menon returned to Delhi from Srinagar on the morning of 26 October with no signed Instrument of Accession. Only after the Indian troops had started landing at Srinagar airfield on the morning of 27 October did V. P. Menon and M. C. Mahajan set out from Delhi from Jammu. The Instrument of Accession, according to Wolpert, was only signed by Maharajah Sir Hari Singh after Indian troops had assumed control of the Jammu and Kashmir State’s summer capital, Srinagar.
Lamb also regards the Instrument of Accession, ‘signed’ by the maharajah of Kashmir on October 26, 1947, as fraudulent (Kashmir – A disputed legacy 1846-1990). He argues that the maharajah was travelling by road to Jammu (a distance of over 350 km). How could he sign the instrument while being on the run for safety of his life? There is no evidence of any contact between him and the Indian emissaries on October 26, 1947.
It is eerie to note that India has never shown the original Instrument’ in any international forum. India took the Kashmir issue to the UN in 1948 under article 35 of Chapter VI which outlines the means for a peaceful settlement of disputes.
Pakistan’s foreign office faux pas
Pakistan should not accept `special status’ as a fait accompli. Instead, it should focus on human-rights violations, and right of self-determination under UN conventions. While agitating these issues, Pakistan should avoid the legal wizard, a self-styled `international-law expert’, founder of a research society of international law, who selected Reqo Diq-fiasco incompetent legal team.
In his weekly press briefing, Pakistan foreign-office director general (South Asia and SAARC) Dr. Mohammad Faisal said (April 6, 2019), “Pakistan will never accept the repeal of Article 370 of the Indian Constitution… Besides violating the rights of Kashmiris, it will also contravene relevant UNSC (UN Security Council) Resolutions”. He added that Article 370 was incorporated in India’s Constitution in October 1949. And, it exempts Jammu and Kashmir from the country’s Constitution while allowing the state to draft its own [constitution]. Not so. Article 370 violates UN resolutions. Article 370 is rooted in accession-to-India resolution of so-called `constituent assembly’ of the disputed Kashmir. The `assembly’ itself banks on Maharajah Hari Singh’s mythical `Instrument of Accession’, not registered with the UNO. By accepting Article 370 and occupied Kashmir’s constitution, Pakistan binds itself to accepting Azad Kashmir as part of India. The IHK’s constitution provides seats for Azad Kashmir. Will Pakistan hold elections in Azad Kashmir under Indian or IHK’s constitution?
If our foreign office revisits Kashmir-case files, it will come to know that: (a) India never registered Instrument of Accession with the United Nations. In the summer of 1995, the Indian authorities reported the original document as lost or stolen? (b) Aware of India’s intention to get the ‘Instrument of Accession’ rubber-stamped by the puppet assembly, the Security Council passed two resolutions _ Security Council’s Resolution No 9 of March 30, 1951 and confirmatory Resolution No 122 of March 24, 1957 _ to forestall the `foreseeable accession’ by the puppet assembly.. These resolutions outlaw accession or any other action to change status of the disputed state. (c) Pakistan stresses international-law jus cogen `pacta sunt servanda’ treaties are to be abided by, being binding on signatories. Non-compliance reduces a state to status of a rogue state. (d) India through a series of steps whittled down Kashmir’s special status under Article 370 and 35-A of India’s Constitution. Governor replaced sadr-e-riast who could conveniently dismiss wazir-e-riast (now chief minister). (e) Kashmiri leaders are begging for `election’ which is ultra vires of UN resolutions. Kashmiris’ fate of total integration hangs in hands of petition pending with India’s Supreme Court.
Pakistan’s information minister’s statement
In a prelude to Foreign Office spokesman’s statement (April 6, 2019), Pakistan’s information minister had dared India hold elections in Indian-held Kashmir (March 11, 2019). Taking the two statements juxtaposed, the inference is that Pakistan implicitly admits that: (a) Jammu and Kashmir is not a disputed territory. It is an `integral part of India’. IHK had acceded to India as per the maharajah’s Instrument of Accession not registered with UNO or invoked on UN forums. (b) `Pakistan administered Kashmir’ (Azad Kashmir) is under illegal occupation by Pakistan. Heretofore I quote from IHK’s `Constitution’.
`Preamble to the Constitution of Jammu and Kashmir
“WE, THE PEOPLE OF THE STATE OF JAMMU AND KASHMIR,having solemnly resolved, in pursuance of the accession of this State to India which took place on the twenty sixth day of October, 1947, to further define the existing relationship of the State with the Union of India as a part thereof…’.
`Relations with Government of India
Article 3 in part 2 of the Jammu and Kashmir constitution reads as,
“Relationship of the State with the Union of India:-The State of Jammu and Kashmir is and shall be an integral part of the Union of India.
Relations with Pakistan administered Kashmir
Article 48 of Part VI of Jammu and Kashmir constitution defines Pakistan administered Kashmir as “Pakistan Occupied Territory”.
There are currently 87 seats in Jammu and Kashmir State assembly, but article 48 of Jammu and Kashmir constitution also recognizes 24 seats from Pakistan administered Kashmir and mentions that these 24 seats will remain vacant till Pakistan ceases the “occupation” of Kashmir and the said area shall be excluded in delimiting the territorial constituencies till that time.
To India’s pleasure, Pakistan’s chagrin
What information minister or foreign-office said should please India? For, India says clasula rebus sic stantibus, a fundamental change of circumstances (literally `things as they stand’), making plebiscite demand an anachronism.
Look at Janus-faced Pundit Jawaharlal Kaul/Nehru. Nehru had earlier declared in a radio broadcast (Nov 2, 1947) that the government of India was “prepared, when peace and order have been established in Kashmir, to have a referendum held under international auspices like the United Nations.” I am quoting from Chaudhri Mohammad Ali’s The Emergence of Pakistan.
Nehru be-fooled Sheikh Abdullah to stab Pakistan in the back. Barkha Dutt recalls (This Unquiet Land, p. 154) `In a 1948 speech to the United Nations, Sheikh Abdullah … made a blistering defence of the accession to India. Sher-e-Kashmir (Lion of Kashmir) roared, :I had thought all along that the world had got rid of Hitlers…but what is happening in my poor country I am convinced that they have transmigrated their souls into Pakistan…I refuse to accept Pakistan as a party in the affairs of Jammu and Kashmir’
Dutt says, “Sheikh Abdullah [later] began to talk about possibility of independent Kashmir…Soon after he changed his stance he was jailed and dismissed from office and was not able to lead the state for another twenty years’. Stanley Wolpert and Alastair Lamb (Kashmir – A disputed legacy 1846-1990, Birth of a Tragedy) also doubt existence of Instrument of Accession (October 26, 1947).
Pakistan’s foreign office has yet to produce a luminary of the caliber of Indian foreign secretaries Shiv Shankar Menon, Krishnan Srinivasan, JN Dixit and Jagat S. Mehta. These gentlemen knew that Kashmir was not an atoot ang (unbreakable part), but a disputed state. India and Parvez Musharraf partly implemented Mehta’s proposals. His proposals are contained in his article “Resolving Kashmir in the International Context of the 1990s” Some points of his quasi-solution are: (a) Pacification of the valley until a political solution is reached. (b) Conversion of the LoC into “a soft border permitting free movement and facilitating free exchanges…” (c) Immediate demilitarization of the LoC to a depth of five to ten miles with agreed methods of verifying compliance. (d) Final settlement of the dispute between India and Pakistan can be suspended (kept in a “cold freeze”) for an agreed period. Voracious readers may refer for detail to Robert G Wirsing, India, Pakistan and the Kashmir Dispute (1994, St Martin’s Press, New York pp. 225-228). Mehta’s thinking is in line with JN Dixit’s. Dixit says ‘it is no use splitting legal hair. “Everybody who has a sense of history knows that legality only has relevance up to the threshold of transcending political realities. And especially in inter-state relations… so to quibble about points of law and hope that by proving a legal point you can reverse the process of history is living in a somewhat contrived utopia. It won’t work.”(Victoria Schofield’s book Kashmir in the Crossfire).
Does Pakistan’s Foreign Office abide by IHK and India’s constitutions? When shall Pakistan cease its `occupation of Azad Kashmir’ to hold elections on 24 seats reserved for Pakistan-administered Kashmir’? Certainly, the afore-quoted statements do not reflect Pakistan’s position on Kashmir dispute, based on UN resolutions. India has no mandate to change the status of the disputed state through sham elections, or sham `special status’. It is time Pakistan gagged its loose-cannon information minister, unbridled foreign-office, or politicians. It’s time for Pakistan about militarisation of Kashmir, human right violations and need for self-determination, recognised under UN conventions and resolutions.
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