Sunday, August 19, 2007


Introductory Note:

Self-determination is a politico-legal concept, which advocates the idea that a homogeneous people has the “right” to determine its own destiny as a distinct sovereign nation or the right to maintain its own national traditions within a larger political entity. Yet, ever since the establishment of China in 1523 BC as the first recorded nation in history, the meaning of the basic concept has been highly controversial. Its validity as an absolute and legitimate right to be exercised in the political process within and among nations has been frequently challenged.

Since the establishment of the UN, the principle of self-determination has been espoused with greater vigour. In the past 50 years, the political map of the world has been re-drawn and numerous sovereignty changes were witnessed: dependent areas that have received their independence; dependent areas that have received their independence; dependent areas that have been incorporated into independent entities; territorial transfers from one country to another; creation of new or changed political entities as a result of dissolution of sovereign governments. These changes, some of which have been radical and implemented by force have given impetus to terrorism, guerrilla warfare, insurgency and international conflicts.

Critics of this concept state that it is first and foremost a political weapon, inequitable in its application and unreasonable in its result. Confusion over the nature of the process, and misapplication of its meaning, have distorted self-determination in practice and weakened its potential resolutory role. The concept contributed to promoting conflicts rather than solving them.

Self-determination is often considered to be the right of a people to shape their own political, economic and cultural destinies.

According to Woodrow Wilson, self-determination is not a mere phrase. It is an imperative principle of action, which statesmen will henceforth ignore at their own peril.

This area is one of great controversy and must be related to the alleged right of peoples fighting for self-determination to seek support from outside states.

As regards the forceful suppression of a people fighting for self-determination, one must not forget the sharp distinction between the legal right of self-determination and the political concept, which is very much wider and vastly more destabilising. States being creators of International Law, it is unlikely that they will agree to a law that allows for a break-up of established states by allowing distinct groups within them to achieve self-determination without using force to suppress them. If such were the case then the Spanish security forces would be illegally using force against the Basque Separatists and the Nigerian government would have been violating Article 2(4) by putting down the rebellion in Biafra in 1967. These are just 2 examples in the vast catalogue of ethnic groups who have sought or are seeking independence from established states. To imbue such a people with a legal right would be tantamount to encouraging civil wars rather reminiscent of the Hobbesian state of nature. Similarly there is little state practice to suggest that the right of self-determination extends to the majority within an already established state.

Origin – The origin of the principle of the phrase self-determination can be traced back to the American Declaration of Independence (1776) and the French Revolution (1789), which signalled the end of the notion that the people as subjects of a monarch were objects to be transferred, alienated, ceded or protected in accordance with the interests of the monarch. The core of the principle lies in the American and French insistence that the government be responsible to the people.

In France, self-determination was propounded as a criterion concerning the transfer of territory. Though proclaimed in 1790, it was incorporated in Article 2 of Title XIII of the Draft Constitution presented by Condorcet to the National Convention on 15th February 1793. Though the French proclaimed a lofty principle, they misapplied it in actual practice. More specifically they used this principle to justify annexation of lands of other sovereigns. As long as the results of a plebiscite held were in France’s favour, annexation was legal.

The contradictory nature of self-determination:

Internally self-determination could be used and has been used as a vehicle for enfranchisement, forever expanding circles of citizens against all manner of ancien regimes. On this score the ‘self’ of the nation has shifted: it is no longer embodied in a Monarch ruling over a state but in the citizens of the state. Self-determination is thus the reflection in international law of a movement that began with the French and American Revolutions and reached its climax in 20th century notions of universal suffrage.

Externally, self-determination has been no less of a challenge to established authority – that of the small circle of ‘civilised nations’ which constituted the international legal order. Self-determination was the vehicle through which the international ancien regime could be challenged by the admittance of new members. One of the major developments of the 20th century international law has been the expansion of the family of nations to include, sometimes after bloody conflict, states of the so-called Third World – a development in which the notion of self-determination was at the conceptual centre.

The notion of self-determination must be viewed in the light of the change in the composition of the world community that has occurred since 1945, with the vast increase in the number of states resulting from decolonisation. It was natural that this new majority would wish to see all colonies become independent, a desire that quickly became embodied in the principle that colonial peoples had the right of self-determination.

Generally the term self-determination is associated with independence and it is assumed that the UN Charter provides for self-determination, when in fact, it does not. The Charter contains very few references to self-determination. The first reference is in Article 1(2), which provides that one of the purposes of the UN is ‘to develop friendly relations among nations based on respect for the principle of equal rights and self-determination of peoples’. The second reference is in Article 55 - to promote higher standards of living, solutions to health and cultural problems, and universal respect for human rights in order to create conditions necessary for peaceful and friendly relations among nations ‘based on equal rights and self-determination’.
In recent times, existing states, in Eastern Europe under Communist rule broke up. The component units of the Soviet Union and Yugoslavia claimed independence as separate states.

Who exactly is entitled to the right of self-determination? The question can be answered only after understanding the relationship between self-determination and national unity. The evolving norms on self-determination contained—undeniably and consistently---an anxious refrain whereby self-determination is to be harnessed to, and not the enemy of, territorial integrity. Both GAR 1514 (XV) on the Granting of Independence to Colonial Peoples and GAR 2625 (XXV), the Declaration of Principles on Friendly Relations which place emphasise on self-determination caution against the violation of territorial integrity. Resolution 1514 provides that any attempt aimed at the partial or total disruption of the national unity and the territorial integrity of a country is incompatible with the purposes and principles of the Charter of the UN. Resolution 2625 provides: ‘Nothing in the foregoing paragraphs shall be construed as authorising or encouraging any action which would dismember or impair, totally or in part, the territorial integrity or political unity of sovereign or independent states….’
The Canadian Supreme Court in the Reference Re Secession of Quebec case declared that international law expects that the right to self determination will be exercised by peoples within the framework of existing sovereign states and consistently with the maintenance of territorial integrity of those states and that the right to unilateral secession arises only in the most extreme of cases and even then under carefully defined circumstances. The only arguable exception to this rule that the right to external self determination applies only to colonial situations might be where the group in question is subject to ‘extreme and unremitting persecution’ coupled with the ‘lack of any reasonable prospect for reasonable challenge’ but even this is controversial not least in view of definitional difficulties.

Kashmiris’ right to self-determination:

In March 1995, a Geneva-based international human rights organisation, the International Commission of Jurists had stated that the right to self determination acquired by the people of Jammu & Kashmir at the time of partition of India had neither been exercised nor abandoned and therefore was capable of being exercised. The views of the Commission was reported by Mr Subhash Kirpekar in the Times of India (Mumbai Edition) dated March 4, 1995.

Following are excerpts of the report and the views of the members of the ICJ mission which was published by the above-mentioned daily.

The report said, “The state of J & K comprises a number of different units which should be allowed to exercise the right of self-determination separately. Full or limited independence for Kashmir is a possible option.” The members of the ICJ mission concluded that because of the extent of support for independence within Kashmir, a single plebiscite of the whole state offering a choice between accession to India or to Pakistan would be disastrous. The state contained a number of different units which should be allowed to exercise the right to self-determination separately, if possible, by a referendum approving a previously negotiated solution.

Sir William Goodhart, QC (UK) who headed the mission, while replying to questions posed, stated that the governments of India, Pakistan and the Kashmiri community should negotiate a solution, which should then be put up for approval to the peoples of the state through a referendum. When asked specifically as to who represented the Kashmiri community, Sir William replied that they were an extremely divided lot and had a capacity for dividing into very small units.

Reacting to the Indian government’s criticism of bias Sir William claimed that the report was equally critical of India, Pakistan and the militants, and maintained that if the people of Kashmir had a right of self-determination, “it follows that the insurgency is legitimate. It does not however follow that Pakistan had a right to provide support to militants, as such action would be in breach of the provisions of the Simla agreement.”

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