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Decriminalize Victims, please

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[yt_dropcap type=”square” font=”” size=”14″ color=”#000″ background=”#fff” ] T [/yt_dropcap]he 1951 Convention Relating to the Status of Refugees is a key document that defines the term ‘refugee’, outlines rights for refugees, and keeps States accountable for their actions. Important requirements to become a refugee include: facing a well-rounded fear of persecution, seeking asylum or refugee status in the first possible venue, and receiving a fair hearing from a person who is legally qualified (Lect, Nov.8).

States have to uphold the non-refoulement principle-the practice of not forcing refugees to return to a country where they face serious persecution (UNHCR, 2010). The 1951 Convention and the 1967 Protocol Relating to the Status of Refugees form the legal framework. Although the legal framework provides a consistent set of requirements in determining who is a refugee and holds states liable for protecting the rights of refugees, violations occur.

How effective is the legal framework (and its enforcement) for refugees in protecting their human rights? It seems that the enforcement turns increasingly ineffective and inappropriate in safeguarding refugees’ rights. Let’s examine it on a comparative example of countries such as Australia, Turkey, the Czech Republic, and China (to name but few) that repeatedly fail to uphold the principle of non-refoulement, commit human rights abuses, and find ways to refuse accepting refugees.

Down-under or upside-down

Despite being a signatory to the 1951 Convention, Australia defies the non-refoulement principle, which violates refugee law. For instance, the boat Tampa rescued Afghanistan asylum-seekers who were on board a sinking Indonesian fishing boat (Lect, Nov.8). Although the closest port of rescue was on Christmas Island in Australia, the Australian government refused to allow Tampa to land any of the asylum seekers (McKay, Thomas, Kneebone, 2011). Australian Prime Minister John Howard was determined to limit the uncontrollable number of illegal arrivals and unauthorized asylum seekers in the country (UN: Australia, 2001). Over half of Australia’s population viewed asylum seekers as a deviant social group coming for a better life rather than helpless people fleeing persecution. This is because refugees are seen as exploiters of Australia’s welfare system (McKay et.al., 2011). In the end, the passengers were taken to camps in Naura while others were sent back to Afghanistan, disregarding the risk of persecution if they are sent back (UNHCR, 2006). By initially refusing to accept refugees and sending them back to Afghanistan, Australia fails to uphold the non-refoulement principle. Non-refoulement states that no contracting state shall expel or return a refugee to a territory where his life is threatened (Note, 1977). Even though Australia has legal obligations under the UN Refugee Convention, the Tampa Affair demonstrates the weakness of the legal framework in failing to effectively enforce refugee law and punish countries when they commit violations.

In addition to violating the core principle of non-refoulement, Australian detention centers do not comply with human rights protection such as the right to access medical care and freedom from degrading treatment. Detention camps for refugees have horrible conditions that negatively impact mental and emotional health. At the Naura camp, more than 30 children report sexual assault, and 1200 refugees suffer severe abuse and inhumane treatment (Australia, 2016). They experience indoor temperatures over 113 degrees Fahrenheit, use filthy toilets, and are hampered by severe resource constraints (Holzer, 2012). Thus, the legal framework is functionally inefficient because it fails to guarantee basic human rights that refugees should have. The violations against both non-refoulement and human rights undermine the stronghold of the legal framework and its protections, which further impact the attitudes of other countries.

Near (the) East – Nearer the Trouble

Similar to Australia’s case, Turkey faces international criticism because several Syrian refugees have been forcibly deported back to Syria by Turkish authorities in violation of the non-refoulement principle, putting them at risk of human rights abuses. About 80 Syrian refugees held at a detention center in the Turkish city of Erzurum were expelled (Letsch, 2015). In addition, they were tortured, beaten, locked in rooms, and forced to sign documents that state they were leaving Turkey out of their own free will (Ibid). These actions go against Article 1 of the Convention Against Torture, which states that any act by which severe pain is intentionally inflicted on a person for purposes such as intimidating or coercing something from a third person, is illegal (Grans, 2015). Refugees do not have access to interpreters who can translate the Turkish language on the document, and police officers forcibly use refugees’ fingerprints as signatures without permission. However, refugees cannot challenge their detention or deportation because they have no legal representation, and Turkey does not grant refugees a fair hearing. By forcibly deporting refugees, Turkey violates the provision that repatriation must be voluntary (Lect, Nov.8). Thus, the legal framework is unsuccessful in even giving refugees an opportunity to seek long-term, legitimate refugee status under fair means.

Polish the Czech or C(z)heck the Polish ?

In addition to Turkey, refugees flee the Syrian civil war to the EU, and of course within, to the Czech Republic, Poland and other Visegrád countries. However, the Czech Republic for instance intentionally violates human rights to deter them from coming in the first place. The refugees prefer Germany, but they are in no freedom to seek refugee status at a place they desire (Ibid). They must seek it at the first possible venue, forcing them to enter the Czech Republic (Lect, Nov.8). Refugees experience strip-searching and their money is confiscated to pay for their detention; additionally, the Czech Republic holds refugees in detention from 40 to 90 days in degrading conditions (Calamur, 2015). The Czech Justice Minister also describes the Bìlá-Jezovqá detention center as worse than a prison (Ibid). This example demonstrates the use of systematic mistreatment towards refugees- to the extent of abusing their human rights but not to the point of death-to discourage them from trying to seek refugee status. The Czech strategy in intentionally failing to protect human rights causes the deterrence of refugees. In this case, the legal framework plays a role in granting refugees a chance to seek refugee status, but is still weak in protecting refugees’ freedom from degrading treatment once in the country.

In general, when refugees are placed in refugee or detention camps, they lack freedom of movement and do not have economic rights. Refugees are forced to stay in the camps because they have nowhere else to go, which restricts their freedom to move. A majority of the refugees cannot make future plans because they are not given a timeline of how long they need to remain at the camp (Training, 2001). This uncertainty restricts their ability to make economic progress, find a way to make a living, or find a permanent job. In fact, the protection of human rights for refugees is drastically inferior to that of trafficking. A Special Rapporteur on Trafficking in Person (SRTIP) is appointed to focus on the human rights aspect of the victims of trafficking (Gallagher & Ezeilo, 2015). The SRTIP has the authority to monitor, advise, and publicly report on a human rights situation in a specific country. However, there is no appointed person to report human rights abuses for refugees. Although the legal framework allows refugees to seek haven in another country to avoid persecution, they are still subject to human rights abuses, just not to the extent of death. The legal framework, including the 1951 Convention and 1967 Protocol, is inherently ineffective because it does not have monitoring bodies to reinforce the protection of refugees’ human rights and hold states accountable for violations.

Un/silky-smooth road

Although Syrian refugees going to the Czech Republic are at least given the opportunity to seek refugee status, the status of North Korean refugees crossing into China is highly debated, which affects their treatment and the benefits they are entitled to. The Chinese government insists that North Korean refugees are economic migrants seeking economic opportunity (Lect, Nov.8). The famine in North Korea causes too many North Koreans to cross over to China, which poses an economic strain on undeveloped border regions and disrupts China’s demography (Cohen, 2007). The legal framework holds very little power in compelling China to prioritize accepting refugees over protecting their economy. China is able to find a loophole in the legal framework by stating that famine does not necessarily equal persecution; therefore, China is justified in not accepting people simply trying to take economic advantage. The legal framework fails to clearly delineate the forms of persecution, allowing China to label North Korea refugees as economic migrants and not accept them.

However, North Koreans leave their country at risk of arrest and death if they are forced to turn back, which should not be an issue in the first place since repatriation should be voluntary under the Convention and Protocol. When they are turned back, they are tortured and persecuted because defection is a crime of treachery against North Korea (Robertson, 2012). This goes against the 1951 Refugee Convention that states that no state shall expel a person to another state where there are substantial grounds that the person will face torture (UNHCR, 1977). Forcibly repatriating the North Koreans is the same as subjecting them to death. Along with the threat of death, North Koreans have no determination process to which China is legally liable for. In this sense, China fails to uphold its responsibility as a receiving country that gives refugees a fair hearing, proving the inadequacy of the legal framework to manage the country’s adherence to the 1951 Convention and 1967 Protocol.

Furthermore, the politics of North Koreans’ refugee status overshadows the importance of abiding by the legal framework. The Chinese are motivated to avoid displeasing North Korea. China holds extreme power because it is the only country that has ties with North Korea and can address international concerns such as North Korea’s possession over nuclear weapons (Lect, Nov.8). Therefore, China has a strong motive to maintain its connection with North Korea. Thus, although China is a signatory to the United Nations Convention on Refugees and has the obligation to not forcibly repatriate refugees, China cooperates with North Korea to find defectors. China justifies turning in defectors by claiming that defectors are not legally considered refugees (Lee, 2016). Chinese citizens are even paid for turning defectors in (Ibid). Overall, defectors lack access to schooling, health care, and citizenship. Women defectors are also vulnerable to abuse and sex trafficking. They are often forced into marriages and sold to Chinese men (Yun, 2016). These human rights abuses demonstrate the ineffectiveness of the legal framework in functioning to hold states accountable for protecting refugees’ rights. In China’s case, the lack of clarity for “persecution” allows China to justify this mistreatment because defectors are not refugees, and China has no legal obligation to protect defectors’ rights. Thus, the legal framework is inadequate in its specificity.

Criminalize indifference and enforce acceptance

“Faced with aging domestic populations and following the logics of corporate expansion, the Western markets need migrants, but the ordinary citizenry does not want them. What changed in the meantime is the societal capacity to absorb those immigrants – and closely related to that – the psychological state of domestic populations. Therefore, many European political parties extended their agendas with more restrictive immigration policies.” – noted professor Anis H. Bajrektarevic in his inspiring work ‘JHA Diplomacy’ nearly ten years ago. “Shortsighted and opportunistic as it might be – it ignores the golden rule of migration: Once you cut off legal means, would-be immigrants just turn to smugglers.” – professor explained the phenomenon and predicted our currents nearly ten years ago.

In conclusion, the 1951 Convention and the 1967 Protocol Relating to the Status of Refugees, both of which form the legal framework for refugees, are ineffective in enforcing the acceptance of refugees with the option of voluntary repatriation and protecting their rights. Although Australia is generally accepting of refugees, the extreme influx of authorized asylum seekers has overwhelmed the country, causing Australians to view them as exploiters of Australia’s welfare system. Australia has violated the non-refoulement principle and subjected refugees to terrible conditions, which are violations of the legal framework. The bigger implication is that disobedience has a cascading effect – Turkey, the Czech Republic and Poland, and China have also violated the non-refoulement principle and committed human rights abuses. While all three countries subject refugees to degrading treatment, Turkey forcibly deports refugees, the Czech Republic deliberately mistreats refugees to deter them from coming, and China outright rejects North Koreans as refugees. These examples indicate the weakness of the legal framework in granting refugee status in the long-term and protecting their rights. When looking at the bigger picture, installing monitoring bodies and regulatory agencies to supervise the adherence to the legal framework for refugees can strengthen the effectiveness of the legal framework.

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International Law

A leader of the third world has to lead a movement for reformation of the International law

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It is by no means a hyper reality that China has accelerated its geo political influence around the world this year despite the criticism of the West on China’s negligence in concealing the COVID 19 at outset. China being one of the permanent members of security council has widely contributed to the UN system. In this single modern global market, the People’s Republic of China has arguably become the manufacturing hub of the world in producing a large number of goods than any other western country, besides that it has also become the world’s second largest importer of goods.  Today the realm of bargaining power in the positivistic international law is completely based in the idea of power politics and the US stands as its cradle beyond a doubt. I would mention America as leader of the first world and China as leader of the third world. As the leader of the western world, the United States relentlessly works for its political, economic and legal dominance, which it has been enjoyed for plenty of years. The third world, which is considered to be the group of states known for its extreme poverty, civil wars, unrest and unemployment, has realized that poverty would become an inevitable obstacle in the process of its development. Mohammed Bedjaoui , who had served as a judge on the International Court of Justice, clearly claimed in his great astonishing work “ Towards a New International Economic Order” that “ It is western exploitation that leads to the poverty of the third world. “The third world pays for the rest and leisure of the inhabitants of the developed world,” and that “Europe created, and the United States has appreciably aggravated, most of the problems which face the third world”.

International law governing the rights and duties of states is perpetually and predominantly being dominated by the first world and its embodiment that is the United States. In this research article, I am going to discuss two essential things which are: what China has to do to reform the west constructed International law and as well as why China should lead a movement of the third world for its reformation?

For knowing these queries, we have to note the origins of International law down and how it works in today’s world?

If we have a look at the brief history of International law, International law has its roots in diverse European civilizations. To say in simple terms, International law is Eurocentric. Natural law which is also considered as a part of International law was developed by ancient Christian thinkers whose ideas were rooted in the Greco Roman ideas on rights and justice, in the due course of time those ideas were imbued with the Catholic theological virtues. However, it was such a sense of sheer irony that ideas such as natural law venerated by the Catholic thinkers were later used to legitimize the colonial expansion in the 16th century. For instance Francesco Vittoria who has been regarded as one of pioneers of modern international law used the very concept of natural law as Spanish justification of its rights over Indian territories in America. Let us turn towards modern International law. Modern International law primarily developed based on two concepts that are the concept of State practice and International treaties.

On the one hand, most of the global scholars perceive the United Nations charter as a founding International treaty of International law that contains rights and duties of states. On the other hand, the third world scholars perceive the United Nations as a founding organization of colonial imperialistic powers. There is a general perception among third world International law scholars that the Security Council of the United Nations is completely dominated and run by the colonial turned imperial powers. Four members out of the five in the Security Council were purely colonial countries who had ruled and economically exploited the world for centuries. The Security Council has also arguably been Eurocentric which is consisted of more western states embodying their own interests. Security Council is the principal organ of the United Nations, which mostly enjoys veto power. Permanent members may use the veto to defend their national interests. Over the years, in history of the Security Council, the United States has used the veto power more than other permanent member for defending west interests including Israeli interests. Most importantly, the third world has no effective role to play and to defend its interests in this globalised world. The colonial super powers met in San Francisco, to establish a predecessor to the League of Nations, have not granted independence to a number of African and Asian countries. Most of the third world countries became independent after establishing the United Nations.

Finally, we reached to the end. I would conclude this article by answering questions that I have put above. The structure of the United Nations is based on the charter of the United Nations, which is considered as a founding document of modern International law.  In this way, the United Nations charter grants more absolute powers to the Security Council where third world countries do not have participation. The leader of the third world China must wage a movement for developing countries to reform the Security Council. China has to collaborate with a group of developing countries for removing global financial power that lies with the Bretton Woods Institutions. Obviously, most of the power lies with the Bretton Woods Institutions, where western nations exercise the power on the rest of the world. So far, third world was exploited. So, the rest of the world outside the west has to demand for new international economic order, which would work for developing states.

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International Law

UN at 75: The Necessity of Having a Stronger & More Effective United Nations

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October 24, 2020, marks the 75th anniversary of the United Nations. In this context, this article investigates the necessity of having a stronger UN for the benefits of the world’s people. In fact, if one looks at the past, the UN came up in 1945 in response to the Second World War for a more stable, secured, and peaceful world. And the UN has been successful to a larger extent to that goals and objectives, many argue. Kofi Annan, the former UN Secretary-General for instance, wrote that ‘The United Nations, with their rules and institutions, are at the heart of the international system. They encourage States to prevent or settle disputes peacefully. The United Nations speaks for the voiceless, feeds the hungry, protects the displaced, combats organized crime and terrorism, and fights disease across the globe’ (Annan 2015).

If one looks at the history, after the Second World War, there are not so many wars on a large scale or conflicts except some bilateral Wars like Vietnam War or Iraq invasion in Kuwait or US invasion in Afghanistan or Iraq or Syrian crisis or Rohingya crisis. One can claim that the present world is more stable and peaceful than the world before the Second World War. Against this backdrop, Ramesh Thakur rightly observes, ‘On balance, the world has been a better and safer place with the UN than would have been the case without it (Thakur 2009:2). And it will not be wrong to claim that the United Nations Security Council (UNSC) is playing a crucial role in this regard, focusing both on ‘hard’ and ‘soft’ security issues. Hard security issues ranges from nuclear threat to international terrorism and soft security issues include human security issues to human rights to international criminal justice and international sanctions (For details see, Thakur, 2009).

The UN is not only concerned about international peace and security but also concerned about economic and social issues. There are several UN organizations e.g. United Nations Development Programme (UNDP), World Food Programme (WFP) or the United Nations High Commission for Refugees (UNHCR) which is involved in socio-economic issues that impact millions of people globally.

First, one can look at the role of the UN General Assembly to understand the necessity of having a more robust UN. It is the core organ of the UN. It is the only organ in which all the member countries are represented all of the time. The role of the UN includes to pass resolutions and to create subsidiary agencies to deal with particular issues (Barkin 2006: 58). UN General Assembly works as a forum where the world’s states meet and discuss the pressing global problems. In this context, Eleanor Albert, Leo Schwartz, and Alexandra Abell write that ‘Since its inception seventy-one years ago, the United Nations General Assembly has been a forum for lofty declarations, sometimes audacious rhetoric, and rigorous debate over the world’s most vexing issues, from poverty and development to peace and security’ (Albert et al. 2016). However, in September 2015, the Assembly agreed on a set of 17 Sustainable Development Goals, contained in the outcome document of the United Nations summit for the adoption of the post-2015 development agenda (resolution 70/1). Notably, the implementation of SDG goals will have broader implications for the world’s people.

In addition, the Assembly may also take action in cases of a threat to the peace, breach of peace or act of aggression, when the Security Council has failed to act owing to the negative vote of a permanent member. In such instances, according to its “Uniting for Peace” resolution of 3 November 1950, the Assembly may consider the matter immediately and recommend to its Members collective measures to maintain or restore international peace and security.

Second, one should also look at the role of the Security Council to make the case of having a stronger United Nations. The UN Security Council is the most powerful security-related organization in contemporary world politics. As the Charter of the United Nations says: ‘the Security Council has primary responsibility for the maintenance of international peace and security (Article 24). The Security Council takes the lead in determining the existence of a threat to the peace or act of aggression. It calls upon the parties to a dispute to settle it by peaceful means and recommends methods of adjustment or terms of the settlement. In some cases, the Security Council can resort to imposing sanctions or even authorize the use of force to maintain or restore international peace and security’

In contemporary world politics, the UN Security Council is the most potent security-related organization because it is the only recognized and legitimate international organ which deals with international peace and security. In this regard, Justin Morris and Nicholas J. Wheeler claim that ‘The United Nations Security Council is at the heart of the world’s collective security system’ (Morris and Wheeler 2007: 214). The UNSC play role by passing Resolutions regarding maintaining international peace and security, determining threats to peace and security and finally undertaking peacekeeping operations.

Decisions made by the Security Council are known as the Security Council resolutions. Examples of Security Council resolutions include Resolution 794 (1992), which authorized military intervention in Somalia on humanitarian ground, or the resolution 1325 (2000), which called on states to recognize the role of women in peace, and security and post-conflict situations. In the UN Security Council Working method Handbook, it is noted that the UNSC has adopted over 2,000 resolutions relating to conflict and post-conflict situations around the globe. Another report, titled Repertoire of the Practice of the Security Council noted that between 2008 and 2009, the Security Council adopted  35 out of 65 resolutions in 2008 (53.8 %), and 22 out of 47 resolutions in 2009 under Chapter VII (46. 8 %) concerning threats to the peace, breaches of the peace or acts of aggression. The report also notes about several UN resolutions authorizing United Nations peacekeeping missions. In connection with the mission deployed in the Central African Republic and Chad, the Council approved the deployment of a United Nations military component for the first time in 2009 to follow up operations by the European Union in Chad and Central African Republic (EUFORChad/CAR). The Council continued to authorize enforcement action for United Nations peacekeeping missions in Côte d’Ivoire (UNOCI), Darfur/Sudan (UNAMID), the Democratic Republic of the Congo (MONUC), Lebanon (UNIFIL) and Sudan (UNMIS). This increased number of UNSC Resolutions dealing with international peace and security reinforces its legitimacy and power as a security organization.

The critical question that comes into the forefront is how much UNSC can implement its mandates neutrally or independently in terms of maintaining world peace and security. The critiques bring the example of Iraq war (2003) where UNSC ‘faces a crisis of legitimacy because of its inability to constrain the unilaterally inclined hegemonic United States.’ (Morris and Wheeler 2007:214). Another critical question is the role of UNSC in resolving the long-standing Syrian crisis or the Rohingya refugee crisis.

It is undeniable the fact that UNSC cannot function with its full potentialities due to the challenges and limitations it faces because ‘in their pursuit of raisons d’état, states use whatever institutions are available to serve their interests’ (Weiss 2003: 151). And here comes the politics in the Security Council which is highly manifested in the past. Against this backdrop, Weiss correctly observes, ‘the politics of the UN system- not only the principal organs of UN like Security Council or General Assembly is highly politicized but even ‘technical’ organizations, for instance, World Health Organization or the Universal Postal Union continue to reflect the global division between the so-called wealthy, industrialized North and the less advantaged, developing South’ (Weiss 2009: 271).

It is, therefore, states and particularly the P5 want to use the Security Council as a means to uphold its interest. Gareth Evans rightly points out ‘for most of its history the Security Council has been a prisoner of great power manoeuvring…’ (Evans 2009:Xi).  Hence, using veto by the P5 remains a significant challenge for the UNSC to work in its fullest potentials. In the recent case of the Rohingya refugee crisis, the UNSC is unable to take adequate measures due to veto power used by China and Russia. However, the UNSC is responsible for maintaining world peace and security.

The bottomline is that there is no alternative to having a stronger and more effective UN because it is the only hope for millions of people around the world. The UN is an inevitable international organization in this turbulent world despite its criticism or limitations.Thus, it becomes essential for the P5 nations to think about the broader benefits of the world’s people instead of their narrowly defined interest in the case of using veto power. And the world also needs to acknowledge that the UN reform has been a reality to ensure the neutrality and objectivity of the United Nations for a more peaceful, stable, secured world.

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International Law

The United Nations and the Neglected Conflict of Kashmir

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The principle of ‘right of self-determination’ and its applicability to the 72-year-old Kashmir conflict needs to be considered during the 75th session of the Fourth Committee of the United Nations General Assembly that is taking place between October 8 to November 10, 2020 at its headquarters in New York. The Committee will discuss and deliberate the issues related to international conflicts and decolonization. What I do hope to offer is an unstarry-eyed view of the fate of self-determination in Kashmir; and, the indispensability of convincing the United Nations that international peace and security would be strengthened, not weakened, by resolving the Kashmir conflict to the satisfaction of all parties concerned..

The self-determination of peoples is a 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 disputes.

The concept seems to be as old as Government itself and was the basis of French and American revolutions. In 1916, President Wilson stated that self-determination is not a mere phrase. He said that it is an imperative principle of action and included it in the famous 14-point charter. This gave a prominence to the principle. Self-determination as conceived by Wilson was an imprecise amalgamation of several strands of thought, some long associated in his mind with the notion of “self-determination,” others hatched as a result or wartime developments, but all imbued with a general spirit of democracy.

Self- determination is a principle that has been developed in philosophic thought and practice for the last several hundred years. It is an idea that has caused people throughout the world to rise up and shed the chains of oppressive governments at great risk.

Finally, in 1945 the establishment of the UN gave a new dimension to the principle of self-determination.  It was made one of the objectives, which the UN would seek to achieve, along with equal rights of all nations. Article 1.2 of the Charter of the Untied Nations reads: “To develop friendly relations among nations based on respect for the principle of equal rights and self-determination of peoples.”

From 1952 onwards, the General Assembly of the UN adopted a series of resolutions proclaiming the right to self-determination. The two most important of these are resolution 1514 (XV) of 14 December 1960 and resolution 2625 (XXV) of 24 October 1970. Resolution 1514 was seen almost exclusively as part of process of decolonization. 1514 is entitled: Declaration on the Granting of Independence to Colonial Countries and Peoples.”

International Court of Justice considered the several resolutions on decolonization process and noted:  “The subsequent development of International Law in regard to non-self governing territories as enshrined in the Charter of the UN made the principle of self-determination applicable to all of them.”  This opinion establishes the self-determination as the basic principle for the process of de-colonization.

The principle of self-determination in modern times can be defined as the right of peoples to determine their own political status and pursue their own economic, social and cultural policies.  Self-determination in its literal meaning or at a terminological level also implies the right [of a people] to express itself to organize in whatever way it wants. A people must be free to express their will without interference or threat of interference from a controlling authority. This includes alien domination, foreign occupation and colonial rule.

Although, the applicability of the principle of the self-determination to the specific case of Jammu and Kashmir has been explicitly recognized by the United Nations. It was upheld equally by India and Pakistan when the Kashmir dispute was brought before the Security Council. Since, on the establishment of India and Pakistan as sovereign states, Jammu and Kashmir was not part of the territory of either, the two countries entered into an agreement to allow its people to exercise their right of self-determination under impartial auspices and in conditions free from coercion from either side. The agreement is embodied in the resolutions of the United Nations Security Council, explicitly accepted by both Governments. It is binding on both Governments and no allegation of non-performance of any of its provisions by either side can render it inoperative.

It is apparent from the record of the Security Council that India articulated the principle, accepted the practical shape the Security Council gave to it and freely participated in negotiations regarding the modalities involved. However, when developments inside Jammu & Kashmir made her doubt her chances of winning the plebiscite, she changed her stand and pleaded that she was no longer bound by the agreement. Of course, she deployed ample arguments to justify the somersault. But even though the arguments were of a legal or quasi-legal nature, she rejected a reference to the World Court to pronounce on their merits. This is how the dispute became frozen with calamitous consequences for Kashmir most of all, with heavy cost for Pakistan and with none too happy results for India itself.

By all customary moral and legal yardsticks, 23 million Kashmiris from both sides of the Ceasefire Line (CFL) enjoy a right to self-determination. Kashmir’s legal history entitles it to self-determination from Indian domination every bit as much as Eritrea’s historical independence entitled it to self-determination from Ethiopian domination.

India’s gruesome human rights violations in Kashmir also militate in favor of self-determination every bit as much as Yugoslavia’s human rights violations and ethnic cleansing created a right to self-determination in Bosnia and Kosovo. Kashmir’s history of social and religious tranquility further bolsters its claim to self-determination every bit as much as East Timor’s history of domestic peace before Indonesia’s annexation in 1975 entitled it to self-determination in 1999.                                   

If law and morality are overwhelmingly on the side of Kashmiri self-determination, then why has that quest been thwarted for 72 years? The answer is self-evident: the military might of India. India is too militarily powerful, including a nuclear arsenal, and too economically mesmerizing to expect the United States, the United Nations, NATO, or the European Union to intervene. The United States is reluctant to exert moral suasion or pressure to prod India because it covets more India’s alluring economic markets and collaboration in fighting global terrorism.  Further, the size and wealth of the Indian lobby in the United States dwarfs the corresponding lobbies supporting Kashmir.  

The world powers need to understand that there is no way the dispute can be settled once and for all except in harmony with the people’s will, and there is no way the people’s will can be ascertained except through an impartial vote. Secondly, there are no insuperable obstacles to the setting up of a plebiscite administration in Kashmir under the aegis of the United Nations. The world organization has proved its ability, even in the most forbidding circumstances, to institute an electoral process under its supervision and control and with the help of a neutral peace‑keeping force. The striking example of this is Namibia, which was peacefully brought to independence after seven decades of occupation and control by South Africa; East Timor and Southern Sudan, which got independence only through the intervention of the United Nations. Thirdly, as Sir Owen Dixon, the United Nations Representative, envisaged seven decades ago, the plebiscite can be so regionalized that none of the different zones of the state will be forced to accept an outcome contrary to its wishes.

In conclusion, a sincere and serious effort towards a just settlement of the Kashmir dispute must squarely deal with the realities of the situation and fully respond to the people’s rights involved in it. Indeed, any process that ignores the wishes of the people of Kashmir and is designed to sidetrack the United Nations will not only prove to be an exercise in futility but can also cause incalculable human and political damage.

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