The Kashmir Issue Under International Law

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The UN has recently passed a resolution reporting the situation in Kashmir from June 2016 to April 2018, and General Human Rights Concerns in Azad Jammu and Kashmir and Gilgit-Baltistan. This report has revealed multiple cases of abuse of the fundamental human rights of the people of Kashmir such as extrajudicial killings, torture, rape, use of pellet guns on unarmed civilians, enforced disappearances and violations of the rights of freedom of expression, speech, and religion. This report not only puts the two countries in violation of multiple substantive clauses of numerous multilateral treaties of the UN but also puts them in transgression of several preemptory norms of International law. Such transgressions have repeatedly been reported by the UN ever since the inception of the Kashmir issue. However, the international community has failed to settle the dispute between the two countries. India and Pakistan decided to resolve the Kashmir issue through bilateral talks after the Shimla Agreement in 1972 but even that has failed in ensuring that the Kashmiris are provided with their fundamental rights. This raises the question that is there anything that can be done under International law to force the two countries to resolve the dispute.

India and Pakistan are signatories to multiple multilateral treaties under the UN which legally refrain them from conducting human rights violations under International law. The International Covenant on Civil and Political Rights(ICCPR) is one such legal document which was ratified by India in 2010 and Pakistan in 1979. Under the Article 4 of the ICCPR states that under times of emergency the state may derogate from its obligations under the ICCPR, but even in these instances of emergency it cannot derogate from the substantive clauses of the ICCPR which are article 6, 7,8 (Paragraph 1 and 2), 11, 15, 16 and 18. These articles constitute a critical objective of the treaty which is why their abrogation is considered a breach of the primary purpose for which the treaty was ratified and hence allows the UN to remove the country which has breached that clause from the treaty. The article 6 of the ICCPR pertains to the right to life of a person and states that no person shall be deprived of the right to life under any circumstance. The recent report published by the UN clearly puts India in violation of this article. Moreover, it also put India in violation of multiple articles of the United Nations Charter of Fundamental Human Rights such as article 3, 18 and 19. The UN can malign the Indian government for these abuses under international law by passing resolutions condemning the acts of human rights violation in Kashmir as it has historically done to raise awareness on this issue. This can lead to increased diplomatic pressure and even economic sanctions being imposed from different countries on India. Increased diplomatic pressure and economic sanctions can force a country to stop the abuses of human rights taking place within its territory. For instance, South Africa was forced to stop its policy of racial discrimination against its black community after severe international pressure and economic sanctions from the world. Similarly, the international community can force India and Pakistan to resolve the Kashmir conflict through dialogue. However, the immense economic power possessed by both the countries, their strong relations with two of the global superpowers and their nuclear capabilities prevent the international community from taking an active stance against them. The UN can never send its troops to Kashmir without getting approval from the five permanent members and at least one of the members always ends up using its veto power to block any UN Security Council resolution on Kashmir. It is said that India is in violation of the peremptory norms of International law as it has created a security state in Kashmir where the fundamental rights of the Kashmiris are not protected and the Responsibility to Protect Principle (R2P Principle) should be invoked in the instance of Kashmir as it has become a major humanitarian crisis. However, members of the UN have contended that even though there have been major fundamental human rights violations in Kashmir, they do not amount to genocide and massive war crimes which are mandatory to invoke the R2P Principle. Furthermore, even if the UN Security Council was to invoke this principle it would require the approval of the five permanent members of the Security Council one of whom always ends up blocking any such act from the UN Security Council.  This means that the UN can only pass resolutions on the Kashmir issue encouraging the two countries to resort to dialogue but is otherwise powerless to resolve the dispute.

The Shimla Agreement between India and Pakistan in 1972 stipulated bilateral talks as the primary means of conflict resolution between the two countries. However, the two countries cannot be subject to any form of sanction if they fail to conform to the articles of the Shimla agreement. Because of this, the two countries can get away with violations of the Shimla Agreement multiple times. Recently, after the election of the Bharatiya Janata Party(BJP), India has resorted to violence in the Line of Control(LoC) of Kashmir and has refused to have any form of dialogue with Pakistan over the Kashmir issue. This means that bilateral talks between the two counties have reached a deadlock in the last few years. Despite the Shimla Agreement, Pakistan can still raise the Kashmir issue under UN and try and defame the Indian government as it is violating the peremptory norms of International law in Kashmir. Pakistan can lobby in the International community as India has done in the Past to gain international support on the issue and put considerable pressure on India to make it come to the dialogue table. However, the economic power of India and its strong trading relations with other countries means that it is highly unlikely that any country will take the risk of jeopardizing its relations with India in any way.  This leaves us with no choice but to contemplate whether there is a possibility to resolve the Kashmir issue at all. One possible way through which India can be forced to resort to dialogues with Pakistan is if the economic potential of the country is greatly enhanced. Recently, Pakistan’s increasing trade relations with China and the economic potential that this partnership has shown entails that there is a potential for huge economic growth of Pakistan. The joint ventures of China and Pakistan such as the China Pakistan Economic Corridor(CPEC) and the One Belt One Road Initiative(OBEC) have strengthened the relations between the two countries. The increasing cooperation between these two countries and the prospective growth of the Pakistani economy because of this cooperation has the potential to enhance Pakistan’s diplomatic strength in the future. Pakistan’s economic growth and increased diplomatic strength is the only way India can be forced to resort to dialogues with Pakistan for the Kashmir issue as it is fragile at present and cannot compete with the diplomatic and economic strength of India.

    In summation, it can be said that international laws cannot force India and Pakistan to resort to dialogues and deliberations to solve the Kashmir issue. The only way the dispute can be resolved is if the two countries start bilateral talks on this issue and India can only be incentivized to such bilateral talks if Pakistan’s economic potential and diplomatic strength are enhanced.

Sher Afghan

Sher Afghan

An experienced legal professional (LLB, BCom & LLM) with a reputation for integrity, innovative thinking and a proven understanding of the law and legal system in New South Wales and Lahore. Aside from a lawyer, I am a Confident communicator and writer who is able to liaise directly with statutory agencies and non-statutory agencies, Research Societies, Educational institutions and other legal and non-legal parties.