Curbs on Communications in Kashmir not Consistent with International Law: UN Special Rapporteur

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David Kaye, Special Rapporteur on the promotion and protection of the right to freedom of opinion and expression.

EXCLUSIVE INTERVIEW

Zafar Aafaq | Caravan Daily

The current communication blackout and lockdown in Kashmir entered the fourth week. There is a restriction on communication and public movement. On August 22, United Nations urged India to end the blackout. In a statement issued by UN’s Human Right’s body, experts termed the blackout a form of collective punishment of the people of Jammu and Kashmir.  

David Kaye is one of the four experts quoted in the statement. In an exclusive interview with Caravan Daily, he discussed with Zafar Aafaq the current Kashmir situation, India’s obligations, legality of the communication shutdown, rights of journalists, among other things.  

Kaye is UN Special Rapporteur on promotion and protection of the right to freedom of opinion and expression since August 2014. Excerpts from the interview:

What is your assessment of the situation in Kashmir vis-à-vis right to freedom of communication of the people

David Kaye: Right at the moment, it seems that not much has changed over the last few weeks. In short, and you would know better since you’re closer to the situation, it seems to me that the government has restricted the ability of individuals in Kashmir to communicate with one another and to communicate with the outside world, if not undermined practically entirely, in really significant ways as India has obligations to respect everyone’s right to freedom of expression and freedom of opinion. I’m concerned that these kinds of steps run counter to those commitments.

In an interview to the Guardian, you have termed the current communication blackout in Kashmir as “draconian”. Would you elaborate on what did you mean when you said so?

DK: Over the last several years, we’ve seen governments increasingly use the tools of telecommunications, to strike out against public protest and dissent and so on and so forth. Usually, when this has happened governments have shut down the internet for example. They would tell a telecommunications company ‘we want you to shut down the internet’, or ‘we want you to limit or shut down mobile communications’.

The communication blackout and the clampdown in Jammu and Kashmir entered the fourth week. — Photo by Mohammad Abu Bakar

Typically that happens only with respect to one media. I saw what was happening in Kashmir as draconian because it wasn’t merely the Internet being shutdown. It was landlines and it was television too… It was a measure to shut down all kinds of communications and that seemed certainly unprecedented for democratic societies to see such an attack on communications.

So, how much legal are these shutdowns in view of the international Human Rights law?

DK: Human Rights law is having two parts when it comes to free expression. One part is that human rights law protects and guarantees everyone’s right to seek, receive and impart information and ideas of all kinds, regardless of factors and through any media. So that’s the right that everyone, you and I, enjoy.

The second part of the Human Rights law says states may restrict freedom of expression so long as they meet three conditions. And those conditions are that the restriction must be provided by a bond. We typically interpret that as pretty existing law, and the law shouldn’t be so vague that we don’t know legal and illegal or give the government vast discretion to impose restrictions.

It also has to be necessary and proportionate in order to protect a legitimate objective. So, the legitimate objective might be maintaining public order here or national security. But in order to restrict and meet that particular goal, the government has to demonstrate that it’s necessary to do so. And that is proportionate and in the context of Kashmir it appears that vast numbers of people are being restricted in a way that suggests a disproportionate restriction.

At the moment it certainly appears that it is inconsistent with Human Rights Law.

So, when Indian government imposed the current internet shutdown, they cited public order as a reason to do so. But many experts argue that it’s meant to prevent people from expressing their opposition to the decision of the government. What would you say about that?

DK: Well, I don’t know.  I communicated with the (Indian) government and had a press release on this, and sought an explanation from the government that clearly indicates why it is proportionate to do this, and what was the motivation behind it? I understand that in the past the government has said, ‘We’re going to, for example, restrict internet access as a measure of protecting public order.’ But they haven’t really made any argument for why it’s necessary and proportionate to shut down the entire communication system and thereby harming significant numbers of people and their communications. For any particular interest, I have not seen that and I can’t really comment on their motivations.

The Government also argues that internet shutdown is about controlling the flow of rumours and fake news. But journalists and many experts contend that rumours have a better chance to flourish in absence of sources to verify the credibility of the information. Who would you agree with here?

DK: Those you say that shutting down the internet, shutting down communications has a negative impact on the dissemination of disinformation. In other words, when you shut down the Internet, and you make it harder for journalists and others to do their job, or even for regular people to communicate with one another, you make it easier for rumours and disinformation to spread.

Journalists in Kashmir have been complaining that they are unable to work freely for quite some time, even before the current crisis. What have you done or are going to do to ensure that they are allowed to work freely in a free and fair manner?

DK: It’s important to emphasise here that I don’t have any powers to force any government to do anything in particular. You know I’m a legal specialist and I’m a Human Rights monitor for the UN. Whenever we see, as we see here, restrictions on journalists and restrictions on regular people’s communications, we indicate our concern to the government and, where it’s necessary to, raise it in the public.

And I think internationally, right now governments understand that what India is doing is significant interference with freedom of expression. But it’s up to the political bodies of the UN and it’s up to other states to make clear their displeasure with this and to take action in light of this but it’s not something I can do on my own.

The UN has issued a statement on the current communication blackout in Kashmir, still, the blackout continues unabated. So, is that, I mean, the statement, enough? And what are the options available with the UN to make India comply with the law?

DK: The way the international system is structured, it’s not like a country can force another country to do anything. As human rights monitors for the Human Rights Council we have basically indicated, and in public, both to India and to other states, that the situations like these, their action is really inconsistent with human rights norms. It’s up to India to modify its behaviour and to open up communications in Kashmir. But it’s also important for other countries to show their concern to India. And of course, you know if this becomes an issue of international peace and security then the UN Security Council would be following very closely.

So that raises an important question on the power and significance of the United Nations and experts like you that you are not in a position to make the states comply with the human rights laws and norms?

DK: It’s obvious that this is how the system is organised. We, as human rights monitors for the UN, can identify what we see as problematic and inconsistent with human rights law.

The UN Human Rights Council can also make statements and adopt resolutions. The council and the General Assembly have adopted resolutions in condemning Internet shutdowns. And I think it’s important for them, for their next step to say not only do we condemn the Internet shutdown in general, but we condemn it in this particular case and dealing with Kashmir. I’m not a lawyer for any particular party here. So, I can only say that it’s in my own capacity that we do issue public statements and raise our concerns. The political bodies of the UN will also highlight their own concerns.

Do you have any plans about pushing for any resolution on internet shutdowns with regard to Kashmir?

DK: Honestly, that’s not my role but I would certainly encourage other states and Human Rights Council and the General Assembly to make clear that the standards for freedom of expression apply to India, just as they apply to other others. But it’s not really within my authority to draft or propose resolutions. But that would be something we would very much welcome.

You have made a request to the Government of India for an invitation to visit India, have they responded to the request?

DK: No, I have not received a formal response in which the government has either invited me or declined to invite me.

India has been frequently imposing Internet shutdowns in Kashmir. Do you think the world bodies have failed people of Kashmir as the denial of their rights continues?

DK: I don’t know if international bodies have failed people of Kashmir but I think it is the responsibility of the international community to speak up when it sees significant interferences with fundamental human rights. And it’s disappointing not to see the UN, and the political bodies, make clear their position and particularly in a situation like this.

Many complained that Twitter was sending them notices with regard to tweets concerning Kashmir. In December 2018, you wrote to Twitter asking them to explain why it was complying with the Indian government in removing Kashmir related content?

DK: I have not received a response from Twitter. And I’m concerned because on the one hand, we don’t know Twitter is removing accounts or taking action against accounts because those accounts have violated Twitter rules which I think is more likely. They’ve been taking action against these accounts at the request of India and we don’t have any information as to what India has based its demands on and what Twitter said in response to these demands. So, I’m really concerned that in this one area of access to information when we’re talking about social media, that the companies like Twitter and Facebook, responding to India’s demands, but they’re not making clear either to the public or to the individual users the basis of their action.

How much concerned are you about the future of Right to Freedom of expression across the globe?

DK: I’m very much concerned. We’ve seen over the last several years, particularly over the last two or three years, increasing restrictions on media freedom. We have seen attacks on journalists, both physical and digital. We’ve seen all sorts of new legislation that seems to be designed to give governments more power to restrict expression, rather than protecting human rights, to access information. So, I’m very concerned.

In Kashmir, this kind of approach to freedom of expression and to opinion generates alienation and unhappiness. It makes it harder for people on both sides or beyond to have conversations about what makes sense for the future of the territory. It’s deeply problematic and deprives people of the ability to make sense of the situation in Kashmir. It’s at odds with democratic principles.

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