PUCL Bulletin, April 2001
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.
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