INDIA'S NON-COMPLIANCE UN HUMAN RIGHTS MECHANISMS

INTRODUCTION

India, the world’s largest democracy, is a diverse and populous country with a population of 1.35 billion. It follows a democratic parliamentary system, embraces multiple religions and ethnicities, and is the birthplace of major religions like Hinduism, Buddhism, Jainism, and Sikhism. India is a secular state without an official state religion. However, international observations highlight disparities between constitutional ideals and reality in the country. The United Nations’ Universal Periodic Review (UPR) highlighted concerns about human rights violations against religious minorities and ethnic groups, particularly due to the dominant Hindu population.

The Indian government has enacted laws under the guise of social security and counterterrorism, which some argue unfairly target specific populations or regions, including the disputed territory of Jammu and Kashmir. Restrictions on freedom of expression, arrests of journalists, and reports of human rights abuses have further raised international concerns. Despite communications from the Office of the High Commissioner for Human Rights (OHCHR), India’s response to recommendations has been limited, hindering the implementation of crucial measures for minority rights, non-discrimination, and gender equality. This research examines India’s international responsibilities, particularly its non-compliance with the UN Human Rights system. It emphasizes the crucial need to adhere to UN Security Council resolutions as a means to address the longstanding Kashmir issue, underscoring the imperative of their implementation.

BACKGROUND

In 1947, Jammu & Kashmir had to choose between joining India or Pakistan. Despite the Kashmiri Muslims’ preference for Pakistan, India forced the non-Muslim ruler to accede to India. This led to a rebellion by the Kashmiri Muslims and the establishment of the Azad Government of Jammu & Kashmir. The United Nations intervened, supporting the Kashmiris’ right to self-determination and rejecting India’s claim on the state. The resolution of January 5, 1949, passed by the UN, states that the accession of the State of Jammu & Kashmir to India or Pakistan will be decided through a democratic method of a free and impartial plebiscite. The Kashmir conflict has been marked by a significant delay in the implementation of UN resolutions, undermining the right to self-determination for the people of Indian Occupied Kashmir (IOK).

Despite the international community’s calls for action, the resolutions remain unimplemented, leading to frustration and disillusionment among the Kashmiri people. The repeated farcical and sham elections in the region have failed to provide a genuine avenue for self-determination, further exacerbating tensions. Indian leaders have frequently employed misleading statements to deceive the international community. The Indian leaders unjustly brand the freedom struggle of Kashmiris as terrorism. However, it is essential to acknowledge that the UN Charter, the Universal Declaration of Human Rights 1948, and other UN declarations uphold the right of individuals to engage in the fight for self-determination.

INDIA’S NON-COMPLIANCE WITH INTERNATIONAL CONVENTIONS

India, despite being a member of the Human Rights Council, has not yet ratified crucial international conventions such as the Convention on the Status of Stateless Persons, the Convention on Reduction of Statelessness, and the Convention on the Status of Refugees. India’s reluctance to join these conventions calls into question its commitment to upholding human rights obligations and addressing the pressing issues faced by stateless individuals and refugees. India made repeated commitments, over forty times, to hold a plebiscite in Jammu & Kashmir. However, these promises were insincere and used as delaying tactics. Talks on Kashmir were initiated by India under pressure, but with no genuine intent. The Kashmir issue holds a prominent position on the UN agenda, further underscored by the presence of the UN Military Observers Group in India and Pakistan. The concerning escalation of human rights abuses by Indian occupation forces in Indian Occupied Kashmir (IOK), coupled with the expanding military power of India, has rendered the Indian Sub-Continent one of the most precarious regions globally, as acknowledged by notable world leaders, including former US President Bill Clinton.

As India actively seeks a permanent seat on the UN Security Council, it is incumbent upon them to reflect upon the UN Security Council resolutions pertaining to Kashmir, which have been consistently disregarded with impunity. 4 It is also important to note that India has international responsibilities to protect the right to nationality and ensure the rights of stateless individuals, as stipulated by various ratified treaties. These include the International Covenant on Civil and Political Rights (ICCPR) (Article 24.3), the International Covenant on Economic, Social and Cultural Rights (ICESCR) (Articles 2.2 and 3), the Convention on the Rights of the Child (CRC) (Articles 2, 3, 7, and 8), the Convention on the Elimination of All Forms of Discrimination against Women (CEDAW) (Article 9), the Convention on the Elimination of All Forms of Racial Discrimination (CERD) (Article 5(d)(iii)), and the Convention on the Rights of Persons with Disabilities (CRPD) (Article 18). These treaties outline the obligations and commitments that India has undertaken to protect and promote the rights of individuals, including those who are stateless.

UNITED NATIONS HUMAN RIGHTS COUNCIL

The United Nations Human Rights Council (HRC) is a UN body consisting of 47-member states tasked with promoting and protecting human rights worldwide. It convenes regularly at the UN office in Geneva. The Office of the High Commissioner for Human Rights (OHCHR) is a UN department responsible for upholding human rights as defined in international law and the Universal Declaration of Human Rights. The High Commissioner for Human Rights leads the OHCHR and coordinates human rights activities within the UN system. Recent reports from various UN representatives have shed light on the human rights situation in India.

UN RESOLUTIONS ON KASHMIR

Since 1948, the United Nations Security Council has continuously addressed the Jammu and Kashmir dispute under the agenda item “India-Pakistan Question.” Throughout this period, the Security Council has adopted numerous resolutions regarding this matter. Here is a brief description of some important resolutions related to the Jammu and Kashmir dispute:

OHCHR REPORTS ON IOK

In 2018 and 2019, the UN High Commissioner for Human Rights released two comprehensive reports that extensively documented India’s systematic, systemic, and blatant human rights abuses in occupied Jammu & Kashmir. These reports explicitly condemned India for various violations, including the excessive use of force such as pellet gunshots, extrajudicial killings disguised as “cordon and search” operations, arbitrary arrests and detentions, and torture inflicted upon Kashmiri civilians, journalists, political activists, and human rights defenders. The reports also highlighted the prevalent culture of impunity enjoyed by Indian forces under the draconian laws of the Armed Forces Special Powers Act (AFSPA) and Public Safety Act (PSA).

Pakistan welcomed these two UN reports on Kashmir, fully endorsing their significant recommendations. These recommendations emphasize the utmost importance of respecting the right to self-determination for the people of Jammu & Kashmir and the establishment of a Commission of Inquiry (COI) to investigate the gross and systematic human rights violations occurring in Indian Occupied Jammu & Kashmir (IoJK). Pakistan strongly echoes these recommendations, advocating for justice and accountability regarding the human rights situation in the region

RECOMMENDATIONS BY OHCHR REPORTS

HIS EXCELLENCY ANTÓNIO GUTERRES UNSG STATEMENTS ON THE SITUATION IN IOK

His Excellency António Guterres UN Secretary-General through press statements, reports, and visits, has consistently emphasized the relevance of international principles, expressed concerns about human rights violations, and offered mediation to resolve the dispute. The Secretary-General’s reports have highlighted issues such as the detention and mistreatment of Kashmiri children, reprisals against human rights defenders, and the need for preventive measures to protect the rights and well-being of the people in the region. This proactive engagement underscores the UN’s commitment to promoting peace, respecting human rights, and finding a just resolution to the ongoing conflict in IoK.

UN HIGH COMMISSIONER FOR HUMAN RIGHTS ON THE SITUATION IN IOK

The UN High Commissioners through oral reports and the comprehensive UN Kashmir Reports of 2018 and 2019, have diligently highlighted India’s long-standing pattern of grave and systematic violations against the basic rights and freedoms of the Kashmiri people. Their efforts have been instrumental in drawing attention to the urgent need for action to address these violations. In particular, following India’s unilateral actions on August 5th, 2019, the High Commissioners’ oral reports have underscored specific instances of human rights abuses and their profound impact on the affected individuals. By combining their oral briefings with in-depth reports, the High Commissioners have played a vital role in raising awareness and advocating for measures to address the critical human rights situation in IIOJ&K.

UN OFFICIAL COMMUNICATIONS TO INDIA

UN JOINT COMMUNICATION

PRESS RELEASES

UN UNIVERSAL PERIODIC REVIEW (UPR)

The UN Universal Periodic Review (UPR) process was established in 2006 (Resolution 60/251) with the aim of evaluating the progress made by nations in fulfilling their legal obligations under international law. Conducted in cycles, the ongoing fourth cycle, which will continue until 2027, focuses on assessing the performance of UN member states. India has undergone four review sessions during the Universal Periodic Review (UPR): · 8th session in 2008 (First Cycle), · 21st session in 2012 (Second Cycle), · 36th session in 2017 (Third Cycle), and · 41st session in 2022 (Fourth Cycle) These review sessions and the recommendations received highlight India’s engagement in the UPR process and its interactions with various countries regarding statelessness, refugee conventions, birth registration, and children’s rights to nationality.

SECOND CYCLE In the Second Cycle, India received recommendations from Ghana to ratify the UN statelessness and refugee conventions, from the Holy See to ensure universal birth registration, particularly for marginalized groups, and from Mexico to extend birth registration to those living in extreme poverty or remote areas. India took note of these recommendations. THIRD CYCLE During the Third Cycle, Kenya and Slovakia recommended that India accede to and implement the Statelessness and 1951 Refugee Conventions, while Kenya specifically recommended the implementation of Article 7 of the Convention on the Rights of the Child (CRC) to address statelessness and ensure nationality for affected children. India noted these recommendations. Mexico reiterated its previous recommendation on birth registration, which India accepted. Slovakia recommended ensuring children’s rights to nationality regardless of their parents’ legal status or ethnicity, and Bahrain recommended removing barriers that prevent castes and tribes from registering their children’s births. India took note of these recommendations as well.

FOURTH CYCLE During the Fourth Cycle, various delegations actively raised and emphasized several human rights concerns. a) Ratification of Outstanding Human Rights Treaties: · India yet to ratify the Convention Against Torture (CAT-OP) and the 2nd Optional Protocol of the International Covenant on Civil and Political Rights. · Recommendations for India to declare a moratorium on executions and ratify the International Convention on Protection of All Persons from Enforced Disappearances and the 1954 and 61 Conventions on Statelessness. b) Freedom of Religion, Belief, & Minority Rights: · Increased cases of communal violence and religious discrimination in India. · Concerns raised about the discriminatory nature of the Citizenship Amendment Act 2019. · Recommendations to strengthen the implementation of laws protecting religious minorities, prosecute that committing violence, and repeal anti-conversion law.

c) The Situation of Civil Society Organizations and Human Rights Defenders in India: · Concerns about the application of the Foreign Contribution Regulation Act 2010 and the revocation of operating licenses for NGOs. · Calls for transparency in license adjudications and easier pathways for NGOs to appeal adverse government decisions. · Demands for the release of human rights defenders in detention and the revision of the Unlawful Activities Prevention Amendment Act. d) Women’s and Child Rights: ·

Recognition of India’s initiatives to strengthen the safety and rights of children and women. · Noted pending ratification of the Optional Protocol in the Elimination of All forms of Discrimination Against Women and the Convention of Discrimination Against Domestic Violence. · Recommendations to improve enforcement mechanisms, prohibit discriminatory practices, allocate resources for girls’ education and women’s labor market participation, and address violence against women and children.

CONCLUSION

India’s reckless approach to implementing human rights standards is deeply disappointing. Despite numerous communications from mandate holders, member states, international human rights organizations, and local NGOs, India consistently disregards recommendations from the United Nations complaint procedures, and other international organizations regarding human rights violations in IoK. This behavior poses a threat to regional peace, especially considering the region’s status as a nuclear flashpoint.

The responsibility of these aforementioned institutions extends beyond merely highlighting India’s violations; they also have a crucial role in ensuring that India takes the necessary steps to implement the recommended measures. The collective failure of the UN, international community, civil society organizations, and the media to hold India accountable and oversee the implementation of these recommendations exacerbates the ongoing human rights crisis in IoK. The sustained pressure, dialogue, and monitoring mechanisms are crucial for holding India accountable for its actions and ensuring the implementation of human rights recommendations.