Breaking the silence

Rebel fighter, Burhan Wani, was killed by Indian security forces in Indian-Occupied Kashmir (IOK). The extrajudicial killing was followed by a massive funeral for Wani, attended by thousands of mourners.

Indian security forces subsequently opened fire on thousands of protesters, resulting in the deaths of 19 civilians and injuries suffered by scores of others. Unrest in IOK persists as innocent civilians are engaged in clashes with troops. What is rather odd, however, is the international and national media’s silence on the situation in IOK. Even more alarming still is the silence of the UN.

One of the world’s largest ‘democracies’ arguably remains a brutal oppressor in territory it claims as its own. While the atrocities committed by India in IOK remain largely unreported or underreported by the international media, one thing is clear in the aftermath of these ruthless attacks on protestsrs: India’s conduct is at odds with the Charter of the UN. Consequently, the UN must break its silence.

Article 1(2) of the UN Charter stipulates, as one of the purposes of the UN, that member states are to “develop friendly relations among nations based on respect for the principle of equal rights and self-determination of peoples, and to take other appropriate measures to strengthen universal peace”. Further, the UN Security Council, in Resolution 47 (1948), expresses, in clear terms, that “the early restoration of peace and order in Jammu and Kashmir is essential”.

In fact, UNSC Resolution 47 also states that “both India and Pakistan desire that the question of the accession of Jammu and Kashmir to India and Pakistan should be decided through the democratic method of a free and impartial plebiscite”. Why this plebiscite has still not been held is not a mystery but a clear affirmation on India’s part to disrespect the UN Charter and UNSC resolutions on Kashmir to continue violating the right to self-determination of the Kashmiris.

What is surprising, however, is the fact that the state of Pakistan has turned a blind eye to the current situation in IOK. As with the majority of references made to the Kashmir dispute, in the past and otherwise, by Pakistani leaders and policy-makers, the focus is on emotional and irrational rhetoric rather than the more positive option available to us, i.e. devising a legal strategy on Kashmir within the confines of international law and taking up the issue at the multilateral forum of the UN.

India and Pakistan are both parties to the International Covenant on Civil and Political Rights (ICCPR) and the International Covenant on Economic, Social and Cultural Rights (ICESCR). Common Article 1 of the aforementioned conventions stipulates: “All peoples have the right of self-determination. By virtue of that right they freely determine their political status and freely pursue their economic, social and cultural development”.

India formulated a declaration to Common Article 1, which states: “With reference to article 1… the Government of the Republic of India declares that the words ‘the right of self-determination’ appearing in [this article] apply only to the peoples under foreign domination and that these words do not apply to sovereign independent states or to a section of a people or a nation – which is the essence of national integrity”.

Pakistan’s objection to the Indian declaration is pertinent: “The Government of Islamic Republic of Pakistan objects to the declaration made by the Republic of India in respect of article 1… the right of self-determination as enshrined in the Charter of the United Nations and as embodied in the covenants applies to all peoples under foreign occupation and alien domination.

“The Government of the Islamic Republic of Pakistan cannot consider as valid any interpretation of the right of self-determination which is contrary to the clear language of the provisions in question. Moreover, the said reservation is incompatible with the object and purpose of the covenants. This objection shall not preclude the entry into force of the covenant between the Islamic Republic of Pakistan and India without India benefitting”.

Taking into account the fact that Pakistan has registered its objection to India’s stance on self-determination, it is strange that we have not persistently raised the issue before the UNSC or at meetings of the UN Human Rights Council. In fact, the current unrest in IOK provides greater evidence of the need for a plebiscite to be held immediately within the territory, thereby lending further support to Pakistan’s stance on Kashmir.

International law on self-determination and human rights, UNSC resolutions on Kashmir, multilateral treaty obligations and the UN Charter strengthen Pakistan’s position on Kashmir by concretising its legal basis. It is this stance that should serve as the way forward, guiding Pakistan’s actions at the UN level in resolving the Kashmir dispute and, after years of tension and bloodshed, allowing the Kashmiris to exercise the right of self-determination. The UNSC resolutions on Kashmir must be adhered to. That can only occur when Pakistan persistently takes up the issue before the UN.

The writers are research fellows at the Research Society of International Law.

Email: saadrehman@rsilpak.org

Email: imaanmazari@rsilpak.org