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International Law

Privacy i(n)t context

Jasna Čošabić, PhD

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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.

International Law

How To Get Away With Murder

Ankit Malhotra

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 The Enrica Lexie Case involved two Italian marines namely, Salvatore Girone and Massimiliano Latorre, who were accused of shooting two Indian fishermen, Jalastine and Ajeesh Binki, off India’s southeastern Kerala coast on February 15, 2012. “We have not heard a word from the PM or the Government of India on the matter. It sends a dismaying signal that Indian lives don’t matter to the Indian Prime Minister and that justice can be sacrificed at the altar of diplomatic expediency,” said Shashi Tharoor, Congress Member of Parliament from Thiruvananthapuram. On the contrary, India had detained the marines on board of the Italian tanker, Enrica Lexie for killing the fishermen on an Indian vessel, St Antony. The arrest and subsequent exercise of jurisdiction by Indian authorities had plagued relations with Italy for years.

Italy had alleged that India had violated United Nations Convention on the Law of the Sea (UNCLOS) provisions by ordering the detention of the Italian tanker, but this was rejected unanimously by the International Tribunal for the Law of the Sea (ITLOS). During the legal proceedings, the foremost legal issue that was raised was on the question of Indian jurisdiction to conduct criminal trials. India argued that it had jurisdiction over the case since the deceased fishermen were Indian, therefore, the case must be tried as per Indian laws. On the other hand, the Italians argued that shooting took place beyond Indian territorial waters, marines on-board were Italian and flying under an Italian flag. Thus, Italy had jurisdiction. Furthermore, the Italians argued, the marines acted to protect an Italian oil tanker as part of an anti-piracy mission.

ITLOS, a Tribunal created as per the provisions of the UNCLOS, is aimed by the desire to settle, in a spirit of mutual understanding and cooperation, all issues relating to the law of the sea. Italy approached ITLOS and based on its request, ITLOS referred the Case to the Permanent Court of Arbitration (PCA), which was constituted under Annex VII of the UNCLOS on June 26, 2015.

ITLOS upheld the actions of the Italian marines, but in contrast, held that Italy was in breach of India’s Freedom of Navigation as per Articles 87(1)(a) and 90 of UNCLOS. On the question of jurisdiction, ITLOS observed that India and Italy had “concurrent jurisdiction” over the incident and a valid legal basis to institute criminal proceedings against the marines. ITLOS rejected Italy’s claim to compensation for the detention of the marines. Conversely, the Tribunal ruled that the accused enjoy diplomatic immunity that is granted to foreign State officials, which will act as an “exception to the jurisdiction of the Indian courts”. As a consequence, Indian courts cannot judge the case owing to diplomatic cover.

Furthermore, the PCA enabled India to seek compensation and asked India and Italy to consult on the amount of compensation due. In a close 3:2 vote, ITLOS President Jin-Hyun Paik and former President Vladimir Golitsyn and Professor Francesco Francioni voted in favour of Italy,  whereas Judge Patrick Robinson and Judge Pemmaraju Sreenivasa Rao voted in favour of India on the note of “commitment expressed by Italy” to resume a criminal investigation into the incident in Italy. ITLOS held India must cease to exercise its jurisdiction on the Italian marines.

Disclosing the details of the verdict, Indian Ministry of External Affairs spokesperson Anurag Srivastava stated, that the court upheld the conduct of the Indian law enforcement authorities, declared that Italy had breached Freedom of Navigation and concluded that ITLOS rejected Italy’s claim for compensation for the detention of the marines. “However, it found that the immunities enjoyed by the Marines as State officials operate as an exception to the jurisdiction of the Indian Courts and, hence, preclude them to judge the Marines.” In a statement on Thursday, the Italian Foreign Ministry said, “Italian Marines Massimiliano Latorre and Salvatore Girone, are entitled to immunity from the jurisdiction of Indian courts concerning the acts which occurred during the incident of 15 February 2012. India is therefore precluded from exercising its jurisdiction over the Marines. The Arbitral Tribunal has therefore agreed on the Italian position that the Marines, being members of the Italian armed forces in the official exercise of their duties, cannot be tried by Indian courts.” Acknowledging the breach of freedom of navigation, it said, “As a result of the breach, India is entitled to payment of compensation in connection with loss of life, physical harm, material damage to property and moral harm suffered by the captain and other crew members of the Indian fishing boat St. Anthony.” “Italy stands ready to fulfil the decision taken by the Arbitral Tribunal, in a spirit of cooperation,” the Italian Foreign Ministry said.

In reaction to the verdict, Senior Advocate K.N Balagopal mourned with distaste and said; “What happened was a cold-blooded murder”. Balagopal represented the State in the case before the Supreme Court in the matter. “Compensation is anyway granted in such cases; the marines should have stood trial in our courts for the crime committed”, he added. He called the verdict less than a victory “though there is some vindication to an extent”.

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International Law

Reassessing Sustainable Governance Models for the Post-COVID 19 World Order

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Authors: Manini Syali and Aaditya Vikram Sharma*

The Coronavirus pandemic is not the first occasion when human civilizations are witnessing the outbreak of a deadly disease. This becomes even more crucial in the present day era, dominated by technological and scientific advancement, when cures for a number of life threatening ailments have successfully been discovered. Yet, a virus, because of its highly contagious nature has brought human life to a complete halt and even specialised international organisations like the World Health Organisation, devoted towards the sole objective of maintaining health care standards worldwide, more or less appear to be helpless in containing it. The pandemic can be called a watershed moment, after recovering from which, the way human beings have been living in industrialist societies will change drastically. Signs of this change can be felt in the form of increased awareness towards environmental issues, which in spite of having been a subject matter of policy consideration for more than fifty years now, largely remained being seen as ancillary in front of ‘crucial issues’ like peace, security, poverty etc., which demand swifter actions. The need of the hour, therefore, is to broaden the horizons of ecological analyses, as it is being done traditionally, and to realise that pathogens need to be made an integral part of eco-system management.

Further, it is a well-known fact that the consequences of environmental degradation have always been seen in anticipatory terms, reducing the gravity of the situation further. Moreover, the environmental doctrines like ‘sustainable development’, themselves are worded in such a manner that they portray sufferings of the generations yet to come instead of being seen as a present day problem. It will also not be wrong to say that there exists a resemblance between environmental principles like the polluter pays principle, precautionary principle, transboundary environmental pollution etc. and the classic common law doctrines having their basis in the tort of negligence. This has further strengthened the perception that non-abidance with the said doctrines will merely give rise to claims of compensation which can be easily settled in monetary terms. Alternative jurisprudential theories like green-criminology, which advocate criminal remedies in case of environmental destruction, or imbibing sustainability in all kinds of regulatory frameworks, therefore, majorly remain limited to academic discussions.

An attempt will, therefore, be made in the present article to trace the evolution of the already existing models of environmental governance and give a critique, highlighting their non-applicability in the post-Corona world order, which would demand alternative models of sustainability and would not only help in containing the spread of similar diseases in the future but will also supplement effective implementation of the already existing environmental law instruments. 

Technocratic Progress and Altered Human Conditions

In the 18th century, the human kind encountered a life changing turn of events in the form of Industrial Revolution. The repercussions of the revolution were such that it did not remain limited to the economic front and left its impact on the social and cultural life of individuals as well. Moreover, the changes which the society underwent as a result of the revolution were rather quick and demanded implementation of regulatory frameworks, covering different aspect of human life. A few examples of the same are family laws for regulating altered family ties, alien to the pre-industrial society, establishment of a legal regime for intellectual property rights, banking and commercial laws for facilitating the contemporary financial activities etc. The way nation states interacted with each other also witnessed drastic changes due to increased dependence on technology.

The gravity of the situation, however, was only realised in the year 1962, in the aftermaths of the Cuban missile crises, when around two dozen experts met in Santa Barbara, California during a Conference to discuss the impacts of technology on human affairs. The conference ended on an optimistic note, but also received a highly sceptical submission from the side of French sociologist Jacques Ellul, who argued that human life had become dangerously dependent on Technology and no aspect of it had the capacity to escape ‘the technique’.

Early Years of Environmental Governance

The criticisms against the technocratic notions of ‘progress’, however, remained limited to sociological fronts for a long time despite emergence of early signs of Climate Change in the late 1950s itself.The United Nations (UN)-centric international legal regime also remained silent on these issues till the advent of the UN Conference on Human Environment (Stockholm Conference),held in the year 1972. The Conference was the first occasion when global environmental issues were discussed as a matter of concern at the global level. Before this also environmental treaties existed, but they largely remained limited to localised issues like wildlife preservation, migratory birds, conservation of wetlands etc. Multiple factors like extinction of the Blue Whale due to indiscriminate hunting, rampant nuclear bomb testings in the 1960s and use of chemical warfare during the Vietnam War which adversely impacted environment as well as human health, finally resulted in a proposal from the side of the Swedish government to organise the Conference.

It will not be wrong to state that the Stockholm Declaration, the legal instrument produced as a result of the Stockholm Conference appears more to be a Human Rights instrument rather than an environmentally oriented regulatory framework. Moreover, the anthropocentric nature of the declaration, which otherwise is popularly known as Magna Carta of environmental law, gets reflected in its preamble itself.

Evolution of Sustainable Governance Models

This spirit of the declaration, was further carried forward in the Brundtland Commission report, published in the year 1987, which gave the concept of ‘sustainable development’ a concrete shape. Through this concept it was realised that developmental activities cannot be given up in absolute terms and the need of the hour, therefore, was to adopt environmentally sustainable activities to create a balance. The next milestone in environmental regulation, achieved by the World Community, was the UN Conference on Environment and Development. The conference gave birth to three important environmental law instruments namely, the Rio Declaration, the Convention on Biological Diversity (CBD) and the United Nations Framework Convention on Climate Change (UNFCCC). Further, all three of the above mentioned instruments had ‘sustainability’ as their theme. 

Despite receiving a good response from nation states in the form of substantial number of ratifications, the objectives of the above mentioned international instruments has remained a distant dream and the natural environment continues to witness deterioration, so much so, that it is about to reach the stage of irreversibility. Further, rampant developmental activities, which are being carried out at a global scale have also totally disregarded the principles of ‘conservation’ and ‘sustainable use’, as enshrined in the preamble of CBD. The UNFCCC mandate of ‘stabilization of greenhouse gases’ has also not received a collective effort from the side of the World Community.

Sustainability in the Times of Coronavirus Pandemic

The significance of these issues increases multifold in the contemporary times when the World is witnessing a humanitarian crises in the form of the COVID19 pandemic. Establishing a connection between ‘development’, ‘environmental degradation’ and the Corona Virus pandemic is  important because in the roots of this virus spread lies the illegal wildlife trade in which China has remained engaged for decades. In the past also the scientific community has attributed origination of several contagious diseases to Chinese wet markets where exotic and vulnerable species are sold at commercial levels. This deadly disease outbreak is, thus, being seen as an eye opening moment, having the capacity to halt wildlife trade as well as habitat destruction. 

The other linking point between the Coronavirus pandemic and sustainability is the issue of sanitation and hygiene.  Insanitary conditions can be called both a cause and an effect of the pandemic. The connection between unhygienic practices and disease outbreak does not require much explanation, however, the bio-medical waste management and related issues have emerged as a major regulatory hassle in the present day crisis, which are demanding a detailed policy framework for proper management. This also gets reflected in the ‘Goal 6’ of the Sustainable Development Goals (SDGs), established in the year 2015 by the United Nations General Assembly, which talks about ‘Ensuring availability and sustainable management of water and sanitation for all.’

It has further been reported that due to the lockdowns imposed in several nation states, economic and industrial activities came to a complete standstill, which resulted in drastic reduction in greenhouse emissions worldwide. Certain reports were also rejoicing by citing positive signs being shown by ozone layer recovery and giving the Corona pandemic a credit for the same. In those moments of temporary happiness, the years which national jurisdictions spent in implementing the Montreal Protocol on Ozone Depletion were discredited.  Moreover, if latest reports are to be believed catastrophic rise in greenhouse gases has further worsened the condition of ozone levels in the environment. This raises a very pertinent question with respect to how the mankind plans to deal with climate change, because of the simple reason that such arguments are simply based on devaluing persistent application of sustainable governance models, which will not merely improve the degraded environmental conditions but will also result in improvement of living condition of millions of individuals living under perilous circumstances.

*Aaditya Vikram Sharma, Assistant professor, Vivekananda Institute of Professional Studies.

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International Law

Kashmir conundrum and the international law

Abdul Rasool Syed

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The scrapping of article 370 and subsequent annexation and illegal occupation of the state of Jammu and Kashmir by India has once again, brought the seven-decades-old Kashmir issue, a prime cause of friction between two nuclear states India and Pakistan into international limelight. Before this constitutional catastrophe, the state had special status, separate laws, constitution, and flag. This special status has been revoked in utter contravention of UNSC resolutions and international law.

This mala fide move by Modi government is indubitably aimed at eclipsing the importance of the issue of Kashmir by localizing it and thereby   putting it on backburner.  However, the irrefutable fact is that the Kashmir is a disputed territory between India and Pakistan, and recognized as such, without any reservation, by international community.

Amid Indo-Pak partition, Under Article 2 (4) of the independence act of India, the princely states were given choice to join “either of the new Dominions”. While it was an easy decision for some princely states due to their geographical proximity, territorial contiguity or political and religious affiliation of the rulers and subjects, the accession of the State of Jammu and Kashmir emerged as a chronic conundrum and a nuclear flash point between two nuclear countries India and Pakistan.

 To add, in the beginning, the ruler of the state, Maharaja Hari Singh, toyed with the idea of remaining independent. However, Indian machinations spearheaded by Congress leaders including Nehru and Patel created such circumstances for maharaja that left him with no option but to capitulate to their demand of  “ Accession of state of Jammu and Kashmir  to India”.  Hence, Hari Singh, due to unwarranted conditions, forged by the Indian Machiavellian masterminds, had to agree to sign the instrument of accession with India.  Thus, On October 27, 1947, the governor general of India approved the accession with the condition that “as soon as law and order were restored in Kashmir…the question of [the] state’s accession should be settled by a reference to the people [of Jammu and Kashmir].”

The purported Instrument of Accession (which India has failed to produce) denies the authority of any unilateral action by India. The terms of this Instrument would not be varied by any amendment of the Indian Independence Act, 1947 without acceptance of the ruler of the state (clause 5). Further, nothing in the Instrument could have been deemed to be a commitment as to acceptance of any future constitution of India and nothing could affect the sovereignty of the Maharaja over the state (clause 7 and 8).

 So far as the internationalization of the issue of Kashmir is concerned, it is India that took the issue to international forum by knocking at the door of UN security council back in January 1, 1948, resultantly the Council, via UNSCR 38, called upon the contending governments to refrain from aggravating the circumstances and report any material changes on the ground. Thereafter, the Security Council over a number of years issued a total of 17 resolutions on the disputes status of Kashmir. UNSCR 47 of 1948, the most important of roughly all resolutions on kashmir, calls for the resolution of the dispute of Kashmir’s accession to either India or Pakistan through effecting the democratic means of a free and impartial plebiscite.

Simla agreement is another worth quoting document ,deemed as  the premier bilateral accord between the warring nations, it holds that “principles and purposes of the Charter of the United Nations shall govern the relations between the countries”, hence shining light on the validity of the UNSC resolutions on Kashmir. The disputed nature of the issue is further reiterated as, “In Jammu and Kashmir, the Line of Control resulting from the cease-fire of December 17, 1971 shall be respected by both sides without prejudice to the recognized position of either side.

Moreover, the same Simla Agreement also forbids unilateral action to change the status of the state. Clause 1(ii) of the agreement specifically states that neither side shall unilaterally alter the situation. Clause 6 further emphasizes that both the countries should discuss modalities for a final settlement of the state through diplomatic means. Thus, India’s claim that the revocation of Occupied Kashmir’s ‘special status’ is its internal issue negates its commitment under the agreement.

 Additionally, the right of self-determination is the basic principle of the united Nation charter which has been reaffirmed in the universal declaration of human rights, and applied countless times to the settlement of international issues. The concept played significant role in post-world war I settlement, leading for example to plebiscite in a number of disputed areas.

However, in 1945 the establishment of UN gave a new dimension to the principal of self-determination. It was made one of the objectives which the UN would seek to achieve, along with equal rights of all nations.

The principle of self-determination and the maintenance of international peace and security are inseparable. For example, the denial of this right to self-determination to the people of Kashmir has brought the two neighboring countries in South Asia — India and Pakistan to the brink of nuclear catastrophe.

Apart from the specific UN resolutions which guarantee Kashmiris’ the right to self-determination, the UN Charter in Article 1(2) declared one of its purposes as, “To develop friendly relations among nations based on respect for the principle of equal rights and self-determination of peoples”. This serves as the biggest impetus to the said right under international law.

In 1952, the General Assembly further expounded this principle and stated in Resolution 637A(VII), that ‘the right of peoples and nations to self-determination is a prerequisite to the full enjoyment of all fundamental human rights’ and recommended that UN members ‘shall uphold the principle of self-determination of all peoples and nations’. The Declaration on the Granting of Independence to Colonial Countries and Peoples enshrined in GA resolution 1514 of 1960 upheld the right to self-determination. The resolution explicitly says, “All peoples have the right to self-determination; by virtue of that right they freely determine their political status and freely pursue their economic, social and cultural development”.

What’s more to say is that the principle of self-determination was given overwhelming protection in Article 1 of both International Covenant on Civil and Political Rights (ICCPR) and International Covenant on Economic, Social and Cultural Rights (ICESCR). In 1966, these two covenants enshrined the self-determination principle verbatim as was laid in GA resolution 1514. The Declaration of Principles of International Law Concerning Friendly Relations (GA Resolution 2625 of 1970) went further in recognizing that peoples resisting forcible suppression of their claim to self-determination are entitled to seek and receive support in accordance with the purposes and principles of the Charter. Since the adoption of the Declaration in 1970, the ICJ has, on a number of occasions, confirmed that the principle of self-determination constitutes a binding norm of customary international law and even a rule of jus cogens- peremptory rule of international law. Thus, international law and the specific UNSC resolutions on Kashmir uphold and provide the Kashmiris with the overriding principle of right to self-determination.

Inter alia, by the revoking the state’s ‘special status’, the situation has now become an ‘occupation’ with an ‘unlawful annexation’. India is an Occupying Power and it has unlawfully annexed the state. From international legal opinion on the issue of self-determination, as developed in the aftermath of the Second World War and the process of decolonization, the fate of millions of people cannot be left to the whims of India. Given the UN General Assembly’s resolution of 1960 concerning Declaration on the Granting of Independence to Colonial Countries and Peoples, the people of Jammu and Kashmir have every right to self-determination.

India has no title on the state under international law. India’s illegal occupation since 1947; denial of the right to self-determination of the people; application of India’s constitution by removing the state’s special status, makes India an Occupying Power and its army a hostile force. The BJP’s recent attempt to include the territory of the state within the Union’s territory of India is an act of ‘occupation’ and ‘illegal annexation.

 While commenting on Article 47 of the Geneva Convention IV, jurist Jean S Pictet explains that the Occupying Power is the administrator of the territory and is under various positive obligations towards the Occupied Population (ie the Occupying Power cannot annex the Occupied Territory or change its political status). Jean elaborates that the Occupying Power must respect and maintain the political and other institutions of the Occupied Territory. Therefore, India being an Occupying Power cannot annex the state’s territory and is bound to keep the state’s institutions and territorial boundaries intact till the conduct of plebiscite under the UNSC resolution 1948.

The International Commission of Jurists has categorically stated that “the Indian government’s revocation of the autonomy and special status of Jammu and Kashmir violates the rights of representation and participation guaranteed to the people [of Jammu and Kashmir] under… international law”.

To cap it all, the world powers should take a leaf from the statement made on June 15, 1962 by American representative to the UN, Adlai Stevenson” the best approach is to take for a point of departure the area of common ground which exists between the parties. I refer of course to the resolutions which were accepted by both parties and which in essence provide for demilitarization of the territory and a plebiscite whereby the population may freely decide the future status of Jammu and Kashmir.”

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