The United Nations General Assembly (UNGA) has unanimously adopted a Pakistan-sponsored resolution, titled “Universal Realisation of the Right of the Peoples to Self-Determination”. It unequivocally supports the right to self-determination for all peoples under subjugation, alien domination and foreign occupation”. With close to nine lack troops, police constabulary and security sleuths deployed, the Indian-held Kashmir is practically an Indian colony.
Even Mehbooba Mufti, a former BJP ally, was compelled to say, ‘Kashmiris feel that they are literally imprisoned in a cage from which almost all exit routes are barred save one, to India, which is also not without peril.” A.G. Noorani, in a similar vein, said, `Kashmiris are distrusted and treated poorly in many parts of India, whether as students or as traders’ (Kashmir, a prison, Dawn January 12, 2019).
While lauding the UNGA resolution, Pakistan’s foreign minister drew attention to the extra-judicial killings, arbitrary arrests, including that of human rights activist Khurram Parvez, and illegal detentions in the Indian-held Kashmir (‘Hope for Kashmiris’: UNGA adopts Pakistan-sponsored resolution on right to self-determination , December 17, 2021).
A similar Pakistan-sponsored resolution was adopted last year with little tangible follow-up (UNGA adopts Pakistan-sponsored resolution on self-determination, Dawn December 18, 2020). The resolution affirmed the right to self-determination for peoples subjected to colonial, foreign and alien occupation. The resolution called on “those States responsible to cease immediately their military intervention in and occupation of foreign countries and territories” (UNGA adopts Pakistan’s resolution on self-determination, Dawn November 22, 2016).
(Kashmir & self-determination October 28, 2019)
Self determination in the UN conventions and ICJ judgments
Wolfgang Danspeckgruber (editor), The Self-Determination of Peoples: Community, Nation, and State in an Interdependent World deals with the subject from all angles. He covers issues of sovereignty and self-determination in contemporary world affairs. The book covers the conceptual, political, legal, cultural, economic, and strategic aspects of self-determination. Danspeckgruber says: “No other concept is as powerful, visceral, emotional, unruly, and steep in creating aspirations and hopes as self-determination”.
Self determination is recognised as a right in several international law instruments. These include the International Covenant on Civil and Political Rights, the International Covenant on Economic, Social and Cultural Rights, the Declaration of Principles of International Law Concerning Friendly Relations and Cooperation among States, the Helsinki Final Act, and the Vienna Declaration and Programme of Action. The International Court of Justice (ICJ) affirmed the right in several cases including the Namibia, Israeli wall, and Chagos Archipelago advisory opinions. In the East Timor case the court confirmed its universal jus cogens and erga omnes character.
India claims that it has not colonised the disputed Kashmir state. It argues that the IHK’s constituent assembly had voted for accession of disputed Kashmir to India. The “accession” 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 affirmative Resolution No 122 of March 24, 1957 outlaws accession or any other action to change status of the Jammu and Kashmir state.
The 1951 elections were a farce. They were rigged as is obvious from the fact that Sheikh Abdullah’s National Conference won all 75 seats, 73 without contest. Josef Korbel, chairman for the UN Commission on India and Pakistan, remarked: “No dictator could do better.” The UNSC itself also noted in its Resolution 122 of Jan 24, 1957, that such sham Indian electoral exercises cannot amount to a substitute for impartial plebiscite envisioned by its resolutions.
Sumantra Bose argues, `The Security Council’s resolutions _ notably those of March 1951 and January 1957_ is unequivocal that such participation and representation could not be regarded as a substitute for an internationally supervised plebiscite (Sumantra Bose, the Challenge in Kashmir: Democracy, Self-Determination and Just Peace, p.166). Bose had referred to the UN Security Council’s two resolutions that rejected so-called accession by the constituent assembly. These resolutions, No 91(1951), Document No, S/2017, Rev.1, Dt 30 March 1951 and Resolution No. 122 (1957), duly rejected the ratification of the accession by the constituent assembly in Srinagar. Resolution No. 122 (1957) was adopted by UN Security Council at its 765th meeting on 24 January 1957.
Kashmir is an Occupied Territory
In international law, a territory is considered “occupied” when it is actually placed under the authority of the hostile army. The definition of occupation and the obligations of the occupying power were initially codified at the end of the nineteenth century. The definition still in force and commonly used nowadays is the one contained in the Regulations Concerning the Laws and Customs of War on Land annexed to the Fourth Hague Convention of 18 August 1907 (H.IV). Section III of the regulations details the rights and obligations of the military authority over enemy territory (Arts. 42–56).
The ICJ regards these regulations equivalent to international customary law (infra Jurisprudence). This definition takes into account the effective control of the territory by a hostile authority and seeks to regulate the responsibility of such an authority (H.IV Art. 42).
Contemporary international humanitarian law has clarified and added to the rights and duties of occupying forces, the rights of the populations of occupied territory, and the rules for administering such territory (GIV Arts. 47–78; API Arts. 63, 69, 72–79)
According to humanitarian law, occupation falls in the definition of international armed conflict and is regulated as such by the four Geneva Conventions and Additional Protocol I. The occupying power faces specific obligations where it has an effective control over the territories occupied. These include obligations related to respect human rights, law, and order, in addition to respect for relevant provisions of humanitarian law related to occupation. The basic obligations of the occupying power under humanitarian law are to maintain law and order and public life in the occupied territory (H.IV Art. 43).
India is bound to let Kashmiris exercise self-determination right. If India disobeys UN resolutions it is a rogue state, pacta sunt servanda, treaties are binding on the parties.
Self-determination is a legal right of people whether the decolonization process is perfect or imperfect, as in case of occupied Kashmir, in which the UN became involved.
Karen Parker points out, `The disposition of [illegally occupied] Kashmir has not been legally decided. It is not part of any country and yet we have the failure today of the realization of the expression of the self-determination of the Kashmir people (Karen Parker, Understanding Self-Determination, the Basics, Collected papers and proceedings of the First International Conference on the Right to Self-Determination).
Malcolm N. Shaw says, `Self-determination became the legal principle that fuelled the decolonization process, both obliging the colonial powers to grant independence (or another acceptable political status) and endowing their territory in question with a special status and thus, international legitimation (Shaw, Peoples, Territorialism and Boundaries, European Journal of International Law 8, no, 3, pp 478-507).
India’s view of usurped Kashmir is untenable. The UN should declare it a rogue state, and impose sanctions on it.