Indian paramilitary soldiers stand guard during curfew in Srinagar, Indian controlled Kashmir, Friday, July 15, 2016. Curfew imposed in the disputed Himalayan region continued for the seventh straight day to check anti-India violence following the recent killing of Burhan Wani, chief of operations of Hizbul Mujahideen, Kashmir's largest rebel group. (AP Photo/Dar Yasin)

Indian paramilitary soldiers stand guard during curfew in Srinagar, Indian controlled Kashmir, Friday, July 15, 2016. Curfew imposed in the disputed Himalayan region continued for the seventh straight day to check anti-India violence following the recent killing of Burhan Wani, chief of operations of Hizbul Mujahideen, Kashmir's largest rebel group. (AP Photo/Dar Yasin)

Applying the Concept of Sovereignty in Indian Occupied Kashmir

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Being political in nature, the concept of sovereignty under jurisprudence means the authority and full power to govern without any interference or opposition. An important ingredient of sovereignty according to majority of the jurists is that it must be accepted with one voice, without any external or internal obstructions. This concept has been disputed between dependent and independent states according to their situations. Focusing on the Kashmir issue, we need to see how much validity India’s claim to prosecute sovereignty in Kashmir holds, knowing that the people of Kashmir have been from the last 60 years opposing and fighting against Indian military forces which have been densely deployed to torture them. The legal grounds of claiming sovereignty in Kashmir have never been strong or even weak enough to accept the presence of India in Kashmir as a sovereign power although from a democratic point of view and in the name of independence, it is a part of Pakistan.

To determine the status of India’s forceful existence in Kashmir, it’s important to know what entitles a sovereign to sovereignty. According to jurisprudence for exercising sovereignty over an area which is not independent, the vested powers will rest with the majority of the united group of that land. In case of Kashmir, the Muslims being in majority, along with having the fundamental right of freedom and the jus cogen of self-determination mentioned in the United Nations charter, have absolute right to choose and accept their sovereign instead of having to bear tyranny of a self-imposed power. Having the right of self-determination under international law, Kashmir is struggling to attain the status it is entitled according to the main ideology of division of the subcontinent and to become part of Pakistan as per the ideological reason of independence and their free will to join Pakistan. Kashmir never accepted India as its sovereign and its opposition to the forced occupation is blatantly visible in international reports of human rights and the tribunals made to determine the killings in Kashmir. India’s tyranny is causing continued torture to Kashmiris, physically and mentally, by keeping surveillance and forcing military occupation from last 60 years.

Having the right of self-determination under international law, Kashmir is struggling to attain the status it is entitled according to the main ideology of division of the subcontinent and to become part of Pakistan as per the ideological reason of independence and their free will to join Pakistan.

The era of enlightenment and development of international law restricted the absoluteness of sovereignty which used to be exercised in the medieval era and in the colonial times. The development of human rights after the 18th century endorsed the concept of social agreement which helps us understand that the main ingredient of sovereignty which is “acceptance” has been missing from the very first day of the Indian occupation. Considering all the modern theories of sovereignty, I have analysed that the exercising of self-proclaimed sovereignty by India in Kashmir is illegal. Indian occupation could only be justified back in the era of monarchs and feudalism when human rights were suffering from moral decline. Hence, Kashmiris are living in the decomposed society of the 16th century when humans and their choices were least considered and unlimited powers rested with rulers.

Following the decolonization of India, the accession of Kashmir never followed the legal procedure of contract completion; neither has the accession operated according to the terms of that contract so far. Even if we assume it to be valid (which it’s not), the fundamental rights of the people have not been considered.  As indicated by the core idea of division of princely states, the future sovereign of the people should have been decided according to their consent and will and the Raja or owner of the area couldn’t hand over the ownership of people along with the state.  It was clear that being a Muslim majority area, Kashmir should be part of Pakistan but moulding the conflicted contract of Hari Singh, India denied this and is up till now forcefully claiming its authority over Kashmir. Forceful reign over a piece of land with people struggling for their right of self-determination can never be labelled as exertion of sovereignty. The only ground upon which India could call its tyranny sovereignty is the controversial agreement keeping aside the real situation which shows everyday people losing life, dignity and assets, suffering by the hands of large Indian military forces forcefully deployed. To acquire the legal status of having sovereignty, UN reports and other international tribunals (example: International People’s Tribunal on Human Rights and Justice in Indian-Administrated Kashmir – IPTK) suggested to conduct plebiscites which was also the only valid provision in agreement of Raja Hari Singh but fair plebiscites were never conducted in Kashmir because for India, losing Kashmir as a result of plebiscites is definite.

Following the decolonization of India, the accession of Kashmir never followed the legal procedure of contract completion; neither has the accession operated according to the terms of that contract so far.

Kashmiris continue strikes against the Indian occupation and their opposition has made it clear several times that India does not hold any right to enforce power on Kashmir in the name of exercising sovereignty. In order to give a legal impression to its tyranny and ruthless torture, India names it “sovereignty execution”. The simple question of fulfilment of plebiscites clause could never be answered. The UN reports which gave an overview of torture and figures of extreme torture killings of Kashmiris by Indian Army were not taken in consideration. India has yet to find and disclose the law which allows them to buy and sell the liberty, honour, and respect of humans and keeps Kashmiris exempted from being treated as dignified individuals with the rights guaranteed by the Universal Declaration of Human Rights and customary international law.

 

Talbiha Munir
She is a graduate in LLB Hons Shariah & Law from International Islamic University and pursuing her LLM in International Law from the same university. Munir is a Pictet Fellow of Edition 2016 and has recently granted with a prestigious fully funded postgraduate Scholarship from International Committee of the Red Cross.

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