The Intractable Kashmir Conflict:  International Law Perspective

The Kashmir dispute has remained one of the main agendas of the UN Security Council. The abrogation of articles 370 and 35A of the Indian constitution by the Modi government has intensified tensions in the disputed region that have severe repercussions for global peace and security. At a time when the rules-based international system is under threat from populist regimes and non-state actors, the need to endorse basic principles of international law becomes imperative. The above action by India in IIIOJK is incompatible with international law, bilateral treaties, and even its domestic law. Therefore, Kashmir is a test case for the efficacy of the international rules-based order, requiring all states to uphold the sanctity of international law as a legal and moral obligation.

India is a signatory to the International Covenant on Civil and Political Rights (ICCPR). Article 6 of the ICCPR expressly prohibits derogation from the right to life. Thus, even during the time of emergency, “no one shall be arbitrarily deprived of his life.” Articles 4 and 7 of the ICCPR explicitly ban torture, even in times of national emergency or when the security of the state is threatened. The Indian army, Special Task Force, Border Security Force, and state-sponsored paramilitary groups and village defense committees-the principal government forces operating in Jammu and Kashmir have systematically violated these fundamental norms of international human rights law. Under international law, India’s state-sponsored militias are state agents and therefore must abide by international human rights and humanitarian law. The government of India is ultimately responsible for its actions in IIOJK.

It is sad to say that the even UN could not protect the basic human rights of oppressed Kashmiris, hold India accountable, and deliver the promise of a plebiscite to the Kashmiri people.  Although, Indian Prime Minister Jawaharlal Nehru approached the UN Security Council (UNSC) in December 1947, to seek its help to settle the Kashmir dispute. India portrayed the matter as a territorial issue, Pakistan stressed that it was rather about the right to self-determination of the people of Kashmir. Pakistan’s viewpoint was later endorsed in the UN’s resolution that declared Kashmir as a disputed territory whose future should be decided through a free and fair plebiscite.

Therefore, the UNSC passed resolutions in 1948/49, which asked for the cease-fire and holding a plebiscite under its supervision, to enable the people of Jammu and Kashmir to decide through their vote whether they wanted the state to join Pakistan or India. Soon after the resolution, the conditions for holding a plebiscite were also laid. However, the implementation of the resolution has been lingering ever since as India has consistently found ways for its delay. In the 1950s, the Indian government renounced plebiscite calling the UN resolution non-binding as it was made under Section 6; and started calling Kashmir it’s an integral part.

The resolutions passed on Kashmir from 1947 to 1957 cannot be termed as recommendatory only. What we need to be clear about is that, in its initial years, the practice of the UNSC was not to mention the title of the chapter under which it was passing the resolution.  During this time, it was the content and the substance of the resolution that would determine the nature of implementation. If one looks at the UNSC’s practice in its first decade of existence, only a handful of resolutions mention the title of the chapter, whereas the majority of resolutions that were acted upon by the member states did not mention any reference to a chapter of the UN Charter.

Interestingly, when the Indian tactic did not bore fruit, India tried to bypass the UN resolution by calling the dispute a bilateral issue and not an international one. Kashmir is an unresolved issue and the existence of UN observers at the Line of Control (LOC) verifies this claim. Therefore, India ought to accept this reality instead of trying to make it look ambiguous by raising petty issues. While India calls it a territorial issue, to Pakistan it’s a humanitarian issue where the population of 1.3 million is being denied the right to self-determination.

Currently, India maintains almost 1 million troops in Kashmir, making it the most militarized zone in the world, which has been involved in crimes against humanity. The entire freedom struggle in Indian-occupied Kashmir is fundamentally indigenous with their 5th generation now fighting the war.  The US and its allies have failed to press India to resolve the Kashmir dispute at the UN forum because of the strategic convergence of Indo-US interests. The US deems India as a crucial player in its China-containment strategy. Hence, India acts with impunity in IIOJ&K and the region.

The UN must not become a tool in the hands of great powers; instead, it must go back to its primary responsibility as mentioned in the UN charter.  After the passing of the Kashmir resolution, the UN now is also a party to the issue; and even without the resolution, it is the UN’s primary job to resolve such disputes, and the continued human rights violations in Indian-held Kashmir must be addressed as a matter of priority. The UN cannot keep itself aloof from human rights violations in Kashmir. The UN has failed to resolve the Kashmir dispute; therefore, its credibility as a viable international institution has become dubious.

In short, India’s gross violations of human rights in Kashmir have internationalized the Kashmir issue. It is the UNSC’s ‘obligation’ to ‘enforce’ its resolutions regarding the plebiscite in Occupied Kashmir. Priya Pillai, an international lawyer also stresses that Pakistan to approach the ICJ via the route of a treaty violation.