PUCL Bulletin, April 2001
Why India
Should Oppose the Right to Self-determination
By Balraj Puri
India was among those countries that had insisted on adding recognition of right
of all people to self-determination to the International Bill of Human Rights
which the United nations adopted in 1976 to give a legal form to the rights
set forth in the Universal Declaration of Human Rights proclaimed by the General
Assembly in 1948. By virtue of this right people "freely determine their
political status and pursue their economic, social and cultural development."
As long as this principle was applied to the liberation struggle of the colonies,
there was not much controversy. For colonial rule had lost its moral and political
legitimacy in the post war period.
Thereafter, gradually colonial powers conceded independence to the colonies
either voluntarily or after violent or non-violent struggles of the people of
the colonies; in pursuit of their right of self-determination. Till then the
right was synonymous with independence. But ethnic consciousness, inequitable
growth, concentration of political power and other real or perceived grievances,
have encouraged some communities in many nations to seek a distinct and separate
identity; which in some cases assert their right of self-determination. The
phenomenon is particularly pronounced in case of geographically and emotionally
peripheral communities away from the centre of power. But after decolonisation,
their pursuit of the right, through constitutional or non-constitutional means,
with or without support of a foreign power, became a source of controversy.
Today India is among those countries where official position -- as also its
dominant non-official opinion - is no longer committed to the right of determination
of peoples within the country. Its emphasis has shifted to the sovereignty and
territorial integrity of the nations. The shift is most pronounced in case of
application of the right of self-determination to Kashmir. Or is it because
of movement for self-determination in Kashmir? Leaders of Indian nationalist
movement, particularly the Marxists, had championed this right of its people
before independence. It was one of the main reasons which attracted them towards
India in 1947 as Pakistan had refused to recognise it. Their later alienation
from India tempted Pakistan to become its champion. It can be argued that if
India had consistently respected the spirit of the right, the alienation may
not have taken place. It could not resolve the dilemma of choosing between national
integrity and right of self-determination of a part of the nation. In this context
it may be pertinent to quote Hurst Hannum who maintains that neither sovereignty
nor self-determination is an absolute right. For "sovereignty is limited
not only by the right of other states and the innumerable political and economic
ties that bind them but also by a legitimate international interest in human
rights, the environment, and other issues formerly considered the sole jurisdiction
of the state." (Autonomy, Sovereignty and self-determination). International
community refuses to accept right of a sovereign state to, for instance, ethnic
cleansing. If nation states voluntarily share a part of their sovereignty in
a larger supra national identity, sub-national identities may be better satisfied.
Globalisation and localisation reinforce each other. European Union has facilitated
the process of regional autonomies in countries like UK, Spain, Italy and France.
Likewise, SAARC may be at least a partial answer to assertion of transnational
and ethnic identities within India, Pakistan, Sri Lanka, Bangladesh, Bhutan
and Nepal.
That sovereignty and territorial integrity are not absolute and permanent rights
was amply demonstrated by the disintegration of the Soviet Union, Yugoslavia,
Czechoslovakia, Ethiopia and emergence of Bangla Desh after split of Pakistan.
But elsewhere right of self-determination has not worked. It, too, is not absolute,
not only from the point of view of practical possibility but also on moral and
political grounds. In no case it is synonymous with independence. For attainment
of this right, which the Covenant on Civil and Political Rights, quoted above
defines, "to freely determine their political status and pursue their economic,
social and cultural development," freedom is more important than independence.
There are many independent countries, where people are not free to pursue their
economic, social and cultural development. Mere change of political status may
not ensure their freedom for these pursuits. Would there still be urge for self-determination
if people in such countries are able to get freedom? Particularly if the self-determination
movement does not believe in values of freedom and, as it happened in some cases,
become intolerant, fascist and terrorist in character. In such cases democracy
and federalism can satisfy the urge of self-determination better than secession
or independence. It was through democracy and federalism that Tamil nationalism,
which was more fierce and which had sought secessionist outlet earlier than
Kashmir nationalism, got reconciled with Indian nationalism. Above all, it was
failure of Indian democracy and federalism in Kashmir.
Ethnic identities are not only ascriptive but also evolved and constructed.
Some dialects, in the process of growth, acquire status of languages. For geographical,
cultural and other reasons, some regions acquire self-consciousness. Over time,
such emerging identities may seek self-determination and separate identity within
every nation. As no identity can be perfectly homogeneous and contains potential
new identities, shouldn't the process of separateness of ethnic identities be
endless?
Meanwhile should not right of the dominant ethnic identity be limited to the
extent it respects the rights of sub-identities and freedom of individuals within
it? When the question of Quebec secession became a real possibility, Mathew
Coon-Come asserted the right of the natives and indigenous peoples. He argues,
their rights are as compelling and justifiable as those of Quebec. According
to him the internal right of self-determination of the natives "basically
provides for a people to be able to have a full voice within the legal system
of overall nation state, control over natural resources, the appropriate ways
of preserving and protecting their culture and way of life and to be able to
be a visible partner or participant with strong powers within the overall national
polity". If this concept is not accepted, Coon-Come asserts, right to full
sovereignty comes into play. In other worlds if Quebec does not concede adequate
autonomy to the area of indigenous people, they would secede from Quebec. Thus
there are layers of right of self-determination, which can be exercised within
or outside the larger polity.
The Quebec case also reminds that the Apex Court of Canada conceded its right
of self-determination in the form of secession only if a substantial majority
supports it. Though the court did not specify the concept of substantial majority,
it is obvious that a bare majority at a particular moment is not entitled to
take the vital decision about all the future generations. For at another moment,
under the influence of some other event, the popular mood may be different.
The popular mood in Kashmir is known to have varied widely between pro-India
and anti-India. Is there any sanctity for a particular moment, the popular mood
of which should be made binding forever? Should in such cases the right of self-determination
in the sense of secession be reversible? Can a people exercise this right repeatedly?
Again stated and articulated demands of a people need not reflect their real
urges. The crudest method of understanding the urges of the people is through
posing the option in yes and no form which polarizes and provokes public opinion
into extremes but which through patient dialogue may be found to be compatible
and reconcilable and closer to their real urges.
Another difficulty of conceding right of self-determination in the sense of
independence is in the case of identities, which have no territorial base. The
demand for Pakistan, as a right of self-determination for the Muslim "nation"
of whole India could not meet its logical end. For it culminated into a separate
state of North-West provinces of the united India only and did not provide for
homeland for the Muslims who were left in the rest of India. However, it is
not a decisive argument against right of self-determination for the non-territorial
identities. But it is certainly a decisive argument against equating right of
self-determination with independence or secession for such identities. Adequate
constitutional and institutional arrangements within a larger framework may
in many cases safeguard the rights of territorial as well as non-territorial
identities better than can be done through secession. Such cases include communities
whose independence may not be viable from defence or economic point of view.
They may need a broader federal polity to protect their identity and interest
against outside threats. But the federal polity must ensure their legitimate
claims of autonomy.
This brings us to the concepts of internal and external right of self-determination.
While right of self-determination has been universally accepted, the same cannot
be said about secessionist movements in non-colonial states. Even in extreme
cases of proven popular backing, the claims for independence by, say, Taiwan,
Tibet, Chechens, Kurds, and Sri Lankan Tamils lack any international support,
notwithstanding lip sympathy for their urges. Dissolution of east European countries
was voluntary while in Bangladesh, under exceptional circumstances, local upsurge,
with the support of Indian army, brought about its secession from Pakistan.
While secession is an exception, claims of national sovereignty no longer prevents
international support and even intervention for protecting internal right of
self-determination; which includes right of ethnical groups, minorities, dissent,
fundamental rights, empowerment of the people through federalism and non-centralisation,
gender justice, egalitarian economy and cultural autonomy. Some of the secessionist
movements, which deny these rights, lack moral legitimacy to that extent. However,
while legitimacy for external right of self-determination in the sense of secession
and independence may not be ruled out in extreme cases, it may not be considered
desirable and necessary if internal rights are implemented in letter and spirit.
Kashmir issue was internationalised not on the basis of right of self-determination
as such but on account of the allegation of human rights violations i.e. non-implementation
of internal right of self-determination. Similarly the secessionist movement
lost much of international sympathy when it was taken over by terrorist outfits
which committed excesses on innocent civilians.
In short the principle of right of self-determination need not be inconsistent
with the enlightened national interest of India. It can draw comfort from the
latest thinking on the subject in the corridors of the only super power in the
world. Speaking on behalf of "the power most often expected to step in
when, in far corners of the world, forces yearning for self-determination clash
with those defending sovereignty," US Deputy Secretary of State, Strobe
Talbot had said: "we are trying to define and apply the concept of self-determination
in a way that is conducive of integration and not disintegration; in a way that
will lead to lasting peace than recurrent war." (Ibid) Indian democracy
and federalism have become mature enough to lay firmer basis of national unity
-- emotional, political and cultural -- through acceptance of right of self-determination
of people and thus recover its moral elan internationally also.