In the course of drafting a new constitution in our country, public discourses and intellectual debates about the concept of the constitutional contents seem to be have been very superficial and ill-informed and even lack intellectual integrity. The ideas of experts that have appeared in the media are also unprofessional and misleading and even seem to be manipulative in maintaining the status quo, anti-transformation and change resistant. The so-called “know-all” people have been repeatedly supplying wrong info; and as the result, the concept of constitutional matters have become ambivalent, megalomaniac, ambiguous and problematic. Similarly, ridiculous utterances by little-read and poorly informed “political entrepreneurs” have been incalculably responsible for contributing to the mounting ambiguity of the issues. Our “political entrepreneurs” pretend that they know all about the constitutional issues and they don't need any consultation, however, they know nothing about the constitutional matters in reality. In a similar fashion, the juvenile Nepali media is contributing to accelerating the momentum of the surge in misleading issues to boost the problem. In this context, the debate on the right to self-determination has been one of the most misleading besides being sheer anti-change or a solely misconstrued concept.

The right to self-determination is one of the most pondered and arguably controversial notions in international legal bindings, its national legislative domestication and national policy making. It has several dimensions, connotations, forms and manifestations. However, in Nepal, the right to self-determination is merely understood as “right to secession” or “no country can ever afford to apply such rights” in reality. The right to self-determination is a real right of the people and it is more than a right to secession. The locale of the right to self-determination is provided by the International Bill of Human Rights (IBHR) which consists of the Universal Declaration of Human Rights, the International Covenant on Civil and Political Rights (ICCPR) and the International Covenant on Economic, Social and Cultural Rights (ICESCR). Beside these, the right to self-determination is provided by other declarations, resolutions and conventions of the United Nations General Assembly.

The first and foremost right to self-determination provided by the IBHR is the UN General Assembly Resolution 2200A (XXI)  of Dec. 16, 1966 which is generally known as the ICCPR. Article 1.1 of the ICCPR ensures that all peoples have the right to self-determination which clearly enlightens “by virtue of that right they freely determine their political status and freely pursue their economic, social and cultural development”.  Similarly, Article 1.2 of the covenant ensures that “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 cooperation, based upon the principle of mutual benefit and international law. In no case may a people be deprived of its own means of subsistence”.

The structure, form and nature of the political system that people aspire to develop in their country are fundamental to the right to self-determination. The democratic upsurge of April 2006 is an atypical example of the exercise of right to self-determination. Similarly, holding the Constituent Assembly election and declaration of a republic are examples of the practice of the right to self-determination by the sovereign people. 

The second right to self-determination envisioned by the IBHR is the UN General Assembly Resolution 2200A (XXI) of Dec. 16, 1966 which is also known as the ICESCR. Article 1.1 of the ICESCR ensures the right to self-determination exactly like the ICCPR does in its Article 1.1. The covenant ensures the right to self-determination of socio-economic development and cultural identity that the people desire to develop. 

Nepal is a state party to these two covenants and has promised to ensure the rights according to the IBHR to its citizens. The right to self-determination is the state's international legal obligation, and in the course of drafting the constitution, it must be domesticated in the new constitution. The new constitution must domesticate the IBHR as an affirmative action and premium rights for certain sections of society for their socio-economic and cultural development. However, the politicians and so-called experts are denying them such rights by simply saying that no country can ever afford to apply such rights.

Besides the assurance of the right to self-determination by the IBHR, other UN General Assembly resolutions also ensure the right to self-determination. UN General Assembly Resolution 1803 (XVII) on the “Permanent sovereignty over natural resources” of Dec. 14, 1962 is one of the fundamental components of the right to self-determination. The preamble of the resolution pronounces, “Bearing in mind its Resolution 1314 (XIII) of Dec. 12, 1958, by which it established the Commission on Permanent Sovereignty over Natural Resources and instructed it to conduct a full survey of the status of permanent sovereignty over natural wealth and resources as a basic constituent of the right to self-determination…” The resolution ensures the first right of the local people over the natural resource. Constitutional and legal assurances of premium rights over the natural resource and wealth must be vested in the local people.

Another right to self-determination is ensured by UN General Assembly Resolution 44/34 of Dec. 4, 1989 which is known as the “International Convention against the Recruitment, Use, Financing and Training of Mercenaries”. Article 5.1 of the convention insists that “states parties shall not recruit, use, finance or train mercenaries and shall prohibit such activities in accordance with the provisions of the present Convention”. Article 5.2 further stipulates,  “States parties shall not recruit, use, finance or train mercenaries for the purpose of opposing the legitimate exercise of the inalienable right of peoples to self-determination, as recognized by international law, and shall take, in conformity with international law, the appropriate measures to prevent the recruitment, use, financing or training of mercenaries for that purpose.”

The convention is equally applicable in the Nepali context. Many Nepalis are serving as mercenaries in the British Gurkha regiments, the Indian Army, Singapore Police and the security service of the royal family of Brunei. However, the tripartite treaty of Nov. 9, 1947 signed between Nepal, India and the U.K. delineates that Gurkha soldiers wouldn't be treated as mercenaries. Whatever be the case, the Nepali people have the sole right to self-determination to decide about foreign military and security services.

The right to self-determination for decolonization is ensured by UN General Assembly Resolution 1514 (XV) of Dec. 14, 1960 which is known as the “Declaration on the Granting of Independence to Colonial Countries and People”.  The declaration is not applicable in the Nepali context because Nepal has never been a colony. The entire territory of Nepal is an integral and sovereign part of the geographical integrity and sovereignty of Nepal. Some little-read and manipulative politicians have been arguing that some part of Nepal is its internal colony. Even international laws and declarations do not say anything about the right to self-determination of internal colonies. Again, Article 6 of the deceleration says, “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 United Nations.” In conclusion, the right to self-determination never implies the right to secession.

At least in the intellectual landscape, I must say that no empire or nation-state is enduring and lasts forever. The empire of Alexander, the Roman Empire and even the British Empire could not continue in history. The verity is whether the process of secession is democratic or not. If the people of any geographical area of any country want independence, and they have the adequate political, economic, military and strategic strength to exercise the sovereignty of an independent state, and they want secession democratically, then their rights must be ensured.

bhurtel_bp@hotmail.com

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