Right to Self-Determination: The Choice Is with People

★ Contents

Background
Introduction
Right to Self-Determination
Minority Report
Battlefield
The Ending
Notes
Further Reading

What is the meaning of the right to self-determination? What is its relevance? How does a State achieve the right to self-determination?

AN EXTRACT FROM A SERIES ON CONFLICT COMMUNICATION IN MANIPUR

The politics of nation-state is too prosaic and uninspiring but still is a well from which certain groups of people in India draw the water of their existence.

Background

Then it’s August 1947. India was imagining everything fresh it could be as a newly independent nation. A refreshing air was long overdue as the colonial Britain was leaving the South Asian subcontinent after two centuries of exploitation and long unbearable summers. However, it is anybody’s guess that India would have never imagined that it would one day become a similar colonial power, which lords over or appropriate other sovereign yet smaller territories as well as power. Two years thence, Manipur became a part of the union of India through a contentious agreement. Then there was no imagination but, for the lack of another expression, just street politics.

Now it’s June 2018. The politics of nation-state is too prosaic and uninspiring but still is a well from which certain groups of people in India draw the water of their existence. Nation-states had undergone two revolutionary ages, first during the Westphalian era in the mid 17th century and second, in the post-World War II period. These periods had also sown the seeds of realisation and political emancipation for people, mostly who were formerly oppressed and marginalized. They are claiming their dues in the form of political independence, sovereignty and the right to self-determination albeit not in this order.

Introduction

Sovereignty is the definitive concept of power and authority. This essay looks into the question of sovereignty and the right of people to self-determination from the perspective of a minority group. Minorities will be used synonymously with indigenous people here. This essay will also discuss the expressions of sovereignty and right to self-determination from a theoretical background to demonstrate the complexity and conceptualisation while emphasizing on the issues and challenges in the post-colonial age.

Ironically, India wants the world to believe that there are internal or domestic issues of a sovereign power while witnessing itself some of the longest guerilla conflicts in the world. The fact that it is not the Maoist problem or Kashmir crisis might have helped them save their faces. Sometimes these are dismissed as the doings of disgruntled youth, who out of unemployment or a sense of alienation, had taken up arms. However, it has been more than five to six decades in some regions as in the West Southeast Asian corner of the so-called sub-continent, and even older in others, and unemployment or alienation seems to be too petty a reason for such unceasing struggles. There are similar phenomena across the globe and the issues correspond to those of sovereignty and right to self-determination.

There are claims of sovereignty and homelands from within and without the law. A probe into the concepts while contextualizing them will shed some light on these issues considering the legality, or illegality for that matter, of claiming the right to self-determination. It will also illustrate that the abstract ideas howsoever those are essential for laying a framework of understanding will merely complicate the issue for little use. This stems from one reason that the focus has been on ‘resolution’ rather than ‘formulation’.

Right to Self-Determination

Now as much as sovereignty is supreme, the right to self-determination is even more significant for it is the perceived lack of the former that certain interest groups are fighting for the latter. The International Covenant of Civil and Political Rights (ICCPR)* states in the first three Articles of Part I (of VI) that:

1. All peoples have the right of self-determination. By virtue of that right, they freely determine their political status and freely pursue their economic, social and cultural development.
2. All peoples may, for their own ends, freely dispose of their natural wealth and resources without prejudice to any obligations arising out of international economic co-operation, based upon the principle of mutual benefit, and international law. In no case may a people be deprived of its own means of subsistence.
3. The States Parties to the present Covenant, including those having responsibility for the administration of Non-Self-Governing and Trust Territories, shall promote the realisation of the right of self-determination, and shall respect that right, in conformity with the provisions of the Charter of the United Nations.

It becomes even more interesting as a State can gain sovereignty only after realising its right to self-determination. For such important concepts as those of sovereignty and the right to self-determination, it becomes imperative to look into two matters: first, how sovereignty and the right of self-determination have become the spotlight into this whole show of nation-states and international relations; and second, how the people of ‘lesser gods’ are fighting to get what is rightfully theirs.

Let’s begin with some basic definitions of self-determination.

Essentially, the right to self-determination is the right of a people to determine its own destiny. In particular, the principle allows a people to choose its own political status and to determine its own form of economic, cultural and social development. Exercise of this right can result in a variety of different outcomes ranging from political independence through to full integration within a state. The importance lies in the right of choice, so that the outcome of a people’s choice should not affect the existence of the right to make a choice.
— Unrepresented Nations and People Organization (UNPO)

Self-determination is the process by which a group of people—usually possessing a certain degree of national consciousness—forms their own state and chooses their own government. As a political principle, the idea of self-determination evolved at first as a by-product of the doctrine of nationalism, to which early expression was given by the French and American revolutions.
— Encyclopædia Britannica

One of the scholars who worked extensively on this issue was Marrti Koskenniemi, a Finnish legal scholar who wrote National Self-determination Today: Problems of Legal Theory and Practice**, in which he classified the classical and the secessionist models of self-determination.

Classical model
•    Based on the theories of Thomas Hobbes, wherein it is stated that ‘the authentic expression of human nature in primitive communities is essentially negative’
•    the formation of States is vital (else ‘whatever natural bonds exist will not prevent a bellum omnium†’)
•    Nations are artificial communities of individuals who are linked together by the decision-making procedures of the State

† bellum omnium contra omnes: a Latin phrase meaning ‘the war of all against all’

Secessionist model

•    It follows the ideology of Jean Jacques Rousseau
•    Nationhood is more basic, more fundamental than more decision-making processes
•    It is less how popular will is exercised and more to what end it is exercised; or in other words the expression of popular will sees each State as an authentic community

According to Koskenniemi, in the classical model, ‘primitive is good, something that was tragically lost in the political struggles organised themselves into the States…’ and it is through procedures established by the institutions of government that we can see the expression of self-determination; else self-determination is nothing more than ‘destructive, irrational passion’. On the other hand, the secessionist model—as Statehood represents communal identification and collective good—is based on the Grotian principle of jus resistendi ac secessionis or the right to secede as a form of resistance to oppression.

Despite the possibilities for the rise of smaller states in contemporary global politics, the problem of self-determination remains on two levels. One of them is the reluctance of naysayers who observe self-determination is too much of a political principle to consider from the legal point of view. The other is simple: secession is relatively a new phenomenon for many people to grasp it with the advent of guerilla warfare, armed conflicts, Geneva Conventions and precedence of human rights principles.

On the other hand, the possibilities arise from the fact that these ‘smaller’ states have the right to secede and that it needs no constitutional sanction or whatsoever, as simple as that; and it is only about determining international laws that should be taken into account of such secession. From an economic point of view, we also have the issues of falling trade barriers that make it even more suitable. Most of the existing problems are mostly domestic in nature, for instance, the ethnic hostilities that can be seen in region like the Northeast India though outsiders still express the problem also exists in the incompatibility of the classical and secessionist model of self-determination. Nonetheless, a majority of the armed groups are allegedly standing for an armed movement than resorting to the rules of law while citing the dubious nature of the decision-making procedures of the State.

If there is no need for a constitutional sanction, then the only weapon of choice is force. The United Nations is the perfect example to prove that people have the platform to voice their right to self-determination but the ground reality is quite a different playing field. For one man, it is a duty to send in paramilitary forces to safeguard the security yet it is subjugation and a matter for fight-for-honour-and-dignity for another.

Although there are differences of opinion on what constitutes subjugation, it is clear—despite the lack of legitimacy—certain groups are using the right to self-determination as a path to decolonisation. In this context we can refer to the Declaration on the Granting of Independence to Colonial Countries and Peoples, which is also known as the United Nations General Assembly Resolution 1514***. On 14 December 1960, amongst other things, the General Assembly stated that it is:

…mindful of the determination proclaimed by the peoples of the world in the Charter of the United Nations to reaffirm faith in fundamental human rights, in the dignity and worth of the human person, in the equal rights of men and women and of nations large and small and to promote social progress and better standards of life in larger freedom

and significantly, declares that:

The subjection of peoples to alien subjugation, domination and exploitation constitutes a denial of fundamental human rights, is contrary to the Charter of the United Nations and is an impediment to the promotion of world peace and co-operation.

Formally, the question as to who are entitled to the right to self-determination could be cumbersome. It is complicated as the effort to define ‘subjugation’ or ‘dependent people’, even if in broader terms, it can be as simple as identifying a conflict zone.

To take another example from elsewhere, in September 2017, the Kurds decided by a majority to form Kurdistan out of Iraq and in October of the same year, the Catalans voted in favour for independence from Spain and forming Catalonia. Now, the Kurds and the Catalans have no time to celebrate the overwhelming victories in their respective claims for independence. Now they face a multitude of rhetorical questions such as those relating to the implications of self-determination vis-à-vis decolonisation, the recognition of the right to secession in international laws and the efficacy of domestic laws to resolve political crises and so on. Above all, the States—while enjoying the monopoly over power and the right to use force—always have a tendency to keep up with the existing condition or resorting to ‘the ability of changing a system from within’ as they always preach about.

Back again, the Resolution 1514 of the UN General Assembly also adopted the Declaration on Principles of International Law concerning Friendly Relations and Co-operation among States or the UN General Assembly Resolution 2625**** on 24 October 1970—to formulate the principle on self-determination. In its own words, the UN ‘continue(s) to reaffirm the right of self-determination of all peoples, taking into account the particular situation of peoples under colonial or other forms of alien domination or foreign occupation’, yet the issue remains.

If we take the example of Manipur, the grey areas are in the definitions of colonisation and occupation. Moreover, its people participate in the government-forming processes and have their rights guaranteed in the Constitution of India albeit it is another matter as to how much they have the privileges or access to these rights. This also brings into questions the principles of internal and external self-determination and the complexities of turning the ‘principle’ of self-determination into a ‘right’ of self-determination. However as we will see below, it is not this lack of definition that hinders the indigenous groups from claiming their right to self-determination.

During the colonial eras, the powers that be were responsible for making cartographical errors that they had made purposefully for the sake of administrative convenience. Some of the most severe backlashes of these map-making blunder made by European is seen today in the conflicts across several countries in Africa. They planted the seeds of discontent leaving behind the minorities trapped in a legal and political web. In response, several minority groups have the privilege to refer to international boundaries created by colonial power and cite it in their case against external oppression.

Minority Report

A minority is a group numerically inferior to the rest of the population of a State, in a non-dominant position, whose members—being nationals of the State—possess ethnic, religious or linguistic characteristics differing from those of the rest of the population and show, if only implicitly, a sense of solidarity, directed towards preserving their culture, traditions, religion or language.
— Francesco Capotorti, Special Rapporteur of the United Nations Sub-Commission on Prevention of Discrimination and Protection of Minorities (Courtesy: Office of the United Nations High Commissioner for Human Rights, OHCHR www.ohchr.org)

A step back into history shows the resurgence of democratic ideologies was at its height in the Fifties and Sixties. This meant the world witnessed a simultaneous focus on the ideas of plebiscite and referendum as well as the principles of Wilsonianism with respect to the self-determination of peoples and advocacy of the United Nations plus its several declarations and covenants as mentioned above.

Now the emphasis is on the minority or the indigenous people who are at risk on different levels:

1.    loss of their ‘national’ identity when they are grouped with dominant cultures to form new nations
2.    technicalities with questions ranging from whether they legitimately comprise ‘peoplehood’ to have the resources for meeting the formal needs of agreements
3.    conflicts arising out of unmet demands or unresolved negotiations
4.    economic underdevelopment

With the dearth of bargaining power, they not only remain losing but also moving backwards—which can spell doom for them in this ever-changing world of technology and competition. The fact that a group has been rightfully categorized as a minority does not solve the problem. This is a similar case to those arising from the lack of definition. Fortunately, there are associations like the Hague-based Unrepresented Nations and People Organisation (UNPO) comprising ‘indigenous peoples, minorities, unrecognised States and occupied territories’ with a goal to ‘defend their political, social and cultural rights, to preserve their environments and to promote their right to self-determination’.

One of the major arguments put forward by the UNPO, of which NSCN-IM is a member, is that the right to self-determination is enshrined in various international agreements and considered an important norm while outlining the basis of its implementation and rejecting the charge of secessionism.

Meanwhile, a minority group has been officially recognised as such and does not follow a trajectory that the group will be steered towards its issues of the right to self-determination or regaining its sovereignty despite the presence of political and historical records as in the case of Manipur. These multi-level crises further worsen the problem to say the least as even the quest for recognition can be wrongly interpreted as that of a secessionist.

Across the globe, the trend is the dominant power playing the role of a big brother who stands for integration and internal security and all not without reason. Even international agreements leave little scope for a minority to claim its right. According to the London-based Minority Rights Group International^, several international instruments protect the right to self-determination, some of which include:

•    General Comment No. 12 on self-determination, Human Rights Committee;
•    International Convention on the Elimination of All Forms of Racial Discrimination;
•    General Recommendation No. 21 on Right to Self-determination, Committee on the Elimination of Racial Discrimination;
•    Declaration on Principles of International Law concerning Friendly Relations and Cooperation among States;
•    Declaration on the Rights of Persons Belonging to National or Ethnic, Religious and Linguistic Minorities;
•    The Helsinki Final Act, Declaration on Principles Guiding Relations between Participating States, Article VIII;
•    UN General Assembly resolution 1803 (XVII) of 14 December 1962, “Permanent sovereignty over natural resources”

However, none of these offers the solution for self-determination for a minority group though it is explicitly stated in all of them that ‘all peoples have the right to self-determination’. In fact, the incongruity is even more obvious in the Declaration on the Rights of Persons Belonging to National or Ethnic, Religious and Linguistic Minorities, which categorically desist from the issue of self-determination while stating:

Nothing in the present Declaration may be construed as permitting any activity contrary to the purposes and principles of the United Nations, including sovereign equality, territorial integrity and political independence of States (Article 8.4)

It is often argued that international laws are solely designed to bring a minority to the mainstream rather than empower them with separatist ideals. Now the lack of definition or recognition does not hamper a minority from claiming its right to self-determination. Yet, exceptions prove the rule.

One of the exceptions is the Vienna Declaration and Programme of Action^^ that was adopted in 1993. The VDPA emphasizes equally on various issues of human rights and minorities, considering even the denial of the right of self-determination as a violation of human rights. As noted earlier, there are also the General Assembly Resolutions 1514 and 2625 from way back in 1960 and 1970 respectively. Briefly, international instruments do not deny the minorities the right to self-determination, which is based on the principles of security and against oppression with help of puppets or without.

The declarations and covenants mention clearly that States should respect equal rights and the principle of self-determination of peoples while creating a line that connects equality and self-determination as well as the majority and the minority. The problem exists only in the inability of a minority to call itself or be defined as a ‘people’ but this is merely a formality, or in most cases, a paperwork that can be altered for the best. A minority has every right to rise against oppression and injustice in the form of claiming its right to self-determination—and has every right to resort to Grotian principle of jus resistendi ac secessionis.

In the case of indigenous people, it is even more clearly stated that:

Indigenous peoples have the right to self-determination. By virtue of that right, they freely determine their political status and freely pursue their economic, social and cultural development. (Article 3, United Nations Declaration on the Rights of Indigenous Peoples^^^)

It can be noted that this particular article was a major impediment during the adoption of the draft resolution created in 1994 albeit it was finally and reasonably approved in 2007. The General Assembly also mentioned that ‘nothing in this Declaration may be used to deny any peoples their right to self-determination, exercised in conformity with international law’. Further, in one of the resolutions adopted in December 2017, the Assembly adopted the resolution on ‘Universal Realisation of the Right of Peoples to Self-determination’.

Battlefield

We have seen how the declarations and covenants, particularly those adopted by the United Nations, are important yet the formalities have only prolonged the debate for every matter related to the topic but the resolution of a conflict while revealing their sheer incompetency. The significance cannot be underestimated for these will also have bearing on a minority group provided they are granted the right. Still, as embraced in the Russian revolution, the ideologies of self-determination were a means, serving the cause of class conflict and social justice. The end is multifaceted and dependent on the aspirations of a group—and for their means, we are dealing with the quasi-means and emphasis on them will push the ends further away.

However, not everything is clear-cut as evident from the case like that of Manipur.

In one of the presentations to First International Conference on the Right to Self-Determination^^^^ of August 2000, American Attorney Karen Parker differentiated the two types of situations arising out of the ‘decolonisation mandate’. These are the perfect de-colonisation and the imperfect de-colonisation: ‘In a perfect de-colonisation process the colonial power leaves and restores full sovereignty to the people in the territory…and imperfect de-colonisation occurs when there is an absence of restoration of full governance to a people having the right to self-determination’.

We are concerned with the imperfect type of which Attorney Parker cited the cases of the Kashmiris and the Tamils. Manipur also falls in this category so is its neighbour Nagaland. Parker further mentioned that:

Apart from the mud-slinging, the tragedy is that states are in open violation of their jus cogens and erga omnes obligations to defend the principle of self-determination. And also, very sadly, not enough people know sufficiently both the law of self-determination and the law of armed conflict to properly redirect the dialogue. The defenders of self-determination are in a very vulnerable position, charged with terrorism. The supporters of the groups fighting for the realization of national liberation may also be labeled or unduly burdened by laws against terrorism…

To aggravate the issue, there is also the rise of ethno-nationalism in the context of Manipur and according to Daniel Thürer and Thomas Burri†, ethno-nationalistic vision is ‘incompatible with the spirit of self-determination, which proclaims political freedom of and democratic decision-making by the people on the basis of free deliberation, political consciousness, and political will’.

With the concept per se, nevertheless, the right to self-determination is accessible to those who need it. There are obstacles, no doubt, but the ball is in the court of the masses in the sense that the demand and the subsequent steps to realise it lies with those who need it ultimately. Insomuch as international documents have no legal implications, the demand for the right to self-determination has little significance for a third party or an established agreement, domestic or global, as long as the two parties have an agreement

It is claimed that the United Nations is a mere puppet in the hands of Western capitalists but it did a commendable job in formulating the various laws and regulations. Ultimately, it lies with the people to have access to the right and make the most out of it. And the question arises as to how the concept of minority can be considered as making up peoplehood when they do not have the power in the first place. And playing the card of a victim would not help either.

The Ending

So the solution is either you snatch the power and appropriate it or live in the pathetic status quo. This is the choice. People who fight for the right to self-determination always prefer the former. At the end of the day, no matter how abstract the idea of a State is, in modern political institutions, one of the major components is people as we can see from the democratic idea of We The People.

- Concluded

Notes

* International Covenant on Civil and Political Rights: Adopted and opened for signature, ratification and accession by General Assembly resolution 2200A (XXI) of 16 December 1966, entry into force 23 March 1976, in accordance with Article 49
Office of the United Nations High Commissioner for Human Rights, accessed 29 March 2018

** National Self-Determination Today: Problems of Legal Theory and Practice
Marrti Koskenniemi, International and Comparative Law Quarterly, Volume 43, Issue 2 April 1994 ,
JSTOR]

*** Declaration on the Granting of Independence to Colonial Countries and Peoples, adopted by General Assembly Resolution 1514 (XV) of 14 December 1960
The United Nations and Decolonisation

**** Declaration on Principles of International Law concerning Friendly Relations and Co-operation among States or the UN General Assembly Resolution 2625 on 24 October 1970
UN Documents

^ See the list of international instruments protecting the right to self-determination in detail,
Minority Rights Group International

^^ Vienna Declaration and Programme of Action, adopted by the World Conference on Human Rights in Vienna on 25 June 1993
Office of the United Nations High Commissioner for Human Rights OHCHR

^^^ United Nations Declaration on the Rights of Indigenous Peoples, adopted by the General Assembly on Thursday, 13 September 2007
United Nations

^^^^ Presentation to First International Conference on the Right to Self-Determination
Human Rights, Globalization and Disaster Relief, Understand self-determination: The basics

† Self-Determination by Daniel Thürer and Thomas Burri
Oxford Public International Law (OPIL)