Oped»
All right!
KATHMANDU, FEB 06 -
Notwithstanding a series of debates, the right to self-determination thus far has been floating in the grey area of international law. The right to self-determination is embodied in Article 1 (2) of the UN Charter and in the very first article of the twin covenants of the International Bill of Human Rights. But there is no unanimous definition of self-determination. This right has often been mystified in the arena of international law and also in the political sphere of Nepal. No doubt Nepal, one of parties to the Charter and both the covenants, is committed to enforcing the provision therein in good faith.
Two important resolutions were adopted in 1960 by the UN General Assembly, i.e., Resolution 1514 (XV) and Resolution 1541 (XV). Subsequently, the 1970 Declarations on Friendly Relations was adopted to supplement the UN in the area of decolonisation with special regard to colonial peoples. Clearly stated, it can be summarised as an external right to self-determination resulting in independence, integration with a neighbouring state, free association with an independent state or any other political status freely decided upon by the colonised people.
Today, the right to self-determination does not mean independence or secession. Its only focus is on the internal dimension. Internal self-determination is relatively a new concept referring to “people’s pursuit of political, economic, social and cultural development within the framework of an existing state”.
The International Court of Justice in the case of Western Sahara has defined the principle of internal self-determination “as the need to pay regard to the freely expressed will of peoples”. So it is no more a principle of exclusion (secession), rather it is the principle of inclusion: the right to participate in the affairs and mechanism of the state. The right now allows peoples in all states to open participation in the democratic process of governance freely chosen by the concerned state.
Nepal has neither been a colony of any empire nor a part of any country. Rather, it has had an independent existence in all senses for the last 3,000 years. Therefore, external dimensions of the right to self-determination have no relevance whatsoever in the context of Nepal and the esteemed constitution making process to be incorporated in it. Neither does this right allow any proposed province to secede unilaterally from Nepal in the days to come.
In this connection, let’s take the Quebec reference made by the Supreme Court of Canada. The National Assembly, legislature and the government of Quebec, one of the most prosperous provinces in Canada, held a referendum whether to secede from Canada unilaterally. Meanwhile, the Canadian Supreme Court pointed out that international law “does not specifically grant component parts of sovereign states the legal right to secede unilaterally from their ‘parent’ state”. The court further held that the various international documents that support the existence of a people’s right to self-determination also contain parallel statements supportive of the conclusion that the exercise of such a right must be sufficiently limited to prevent threats to an existing state’s territorial integrity or the stability of relations between sovereign states.
During the Maoist insurgency and People’s Movement II followed by the Movement of the Indigenous Communities and the Madhesi Movement, issues related to the right to self-determination were coloured politically. Very dramatic slogans of secession were also raised. In particular, extremists in the Tarai belt and the eastern region of Nepal advocated independence for the state on some ethnic bases in the name of the right to self-determination. Thus, it is clear that the right to self-determination as raised by the extremists, some political elites and disgruntled groups has proven to be nothing but a purely partisan political tool.
In fact, the question of the right to self-determination regarding the indigenous peoples and minorities of Nepal is very pertinent. The very right to self-determination has been envisaged as the right to autonomy and self-governance in Articles 138, 139 and 140 of the Interim Constitution 2007 and the road map towards the realisation of the right to self-determination. Similarly it is reflected in Article 4 of the UN Declaration on the Rights of Indigenous Peoples.
Autonomy and self-governance may be the principal means through which the right to self-determination may be exercised by indigenous peoples. However, this should not be interpreted as the only way by which indigenous peoples may exercise their right to self-determination. And there is no international consensus on this matter. Hence, what international law is clear about is that the right to self-determination is nothing more than the means of enjoyment of all the democratic rights. It is not the right of an individual but the right of the collectivities known as “all peoples” envisaged as a fundamental condition for the humans to enjoy.
Prof. Hurst Hunnum has suggested two essential tenets which would be crucial for guaranteeing the right in the upcoming constitution, i.e., the protection of the cultural, religious, linguistic and ethnic identity of individuals and groups, and the right of individuals and groups to participate effectively in the economic and political life of the country. Therefore, in this era of democracy, in the midst of an effective end to decolonisation in the rest of the world and on the threshold of inclusion of all the marginalised, indigenous and downtrodden peoples, the right to self-determination should be safeguarded as the zenith of all political rights and the means of ensuring all other rights.
(The author is an LLB student at the Kathmandu School of Law)
Headlines
Advertisements
