Is There a Right to Self-Determination Outside of the Context of Decolonisation - Essay Example

? Is there a right to self-determination outside of the context of decolonisation?- An Analysis Introduction Throughout the world history, there has been frequent invasion and subjugation of people and at the same time, there have upheaval and revolt by people opposing state annexation and expansion. These revolts and upheavals are popularly known as self-determination nowadays 1. As per UN General Assembly Resolution 15412 , the following three are the genuine methods of decolonisation which is coherent with the cannons of self-determination namely integration, independence and free association with an existing state and some recent illustrations of self-determination outside the context of decolonisation are Yugoslavia and USSR, which indicate people’s choice for independence3. The United Nations has created the rights of self-determination as a privilege of peoples under alien and colonial dominations. The right of self-determination is not available to peoples who live in an organised form of a State, which is neither under the control of alien or colonial influence as the UN resolution 1514(XV)4 bar any initiative intended to disrupt either partially or totally the national unity or territorial integrity of a nation. Thus, self-determination means that states and their subjects have the privilege to liberate themselves from foreign domination. If any state is under foreign domination or controlled by foreign powers can exercise the right to self-determination and thus, they have the right to oust the invaders and reinstate independence. However, self-determination may occur outside of the context of decolonisation in situations like human rights violation, oppression of minority and indigenous people’s rights5. This research essay will analyse in detail the circumstances in which determination may occur outside of the context of decolonisation in detail. Is there a right to self-determination outside of the context of decolonisation?- An Analysis The concept of self-determination consists of five ingredients .Firstly, the privileges of peoples of a state to decide freely about their political right and their social, economic, cultural rights without inference from any external forces. Secondly, the privileges of people under alien rule to liberate themselves. Thirdly, the privilege of people to secede. Fourthly, to decide their constitution, this includes their autonomous status. Finally, the privilege to persue democracy. The first three categories mentioned above will fall under external feature of self-determination whereas the last two are known as the internal aspect of self-determination6. The two Covenants to the Self-determination (International Covenant on Civil and Political Rights (ICCPR) and International Covenant on Economic, Social and Cultural Rights (ICESC) 7, and the UN General Assembly Resolutions 1514 and 26258 , acknowledged the right of all peoples to self-determination, which is restricted to colonial scenarios or only to colonial people. However, there are situations where self-determination has been acknowledged as applicable outside the background of decolonisation9. Despite the fact that UN General Assembly lacks the authority to enact any laws , legal experts accept that its resolutions can become customary international law.It is to be noted that Article 73 (Declaration Regarding Non-Self-Governing States) of the UN Charter is regarded as ascertaining self-determination as a principle of international law. Thus, by virtue of Article 73, UN resolutions 1514 and 2625 attain Customary International Law status10. The right of self-determination should be acknowledged outside the colonial background also. Self-determination as a basic right is to be applicable to all people and should not be restricted to those people with the historical background. It would be irrational to grant the rights of self-determination to some groups and to refute it to others. Thus, to acknowledge the privilege of secession for group of people with the colonisation background and to refute this privilege to people suppressed in a diverse historical background will be contradictory as people might have subjugated equally as much, but only in a diverse background11. Other than the above, ethnic religious and linguistic minorities and indigenous peoples now-a-days are trying to seek autonomy, which falls outside the context of decolonisation. The international community does not possess adequate authority for extending the privilege of self-determinations to all peoples, especially to ethnic, religious and linguistic or indigenous groups outside the decolonisation framework. The concept of self-determination seems to be deeply embedded as a subject of state sovereignty, which spins around an artificial link between states, nations and territorial reliability. Since the frontiers of community and identity are fluid and frequently changing, this territorial concept of sovereignty often precipitates instead of conciliates claims to self-determination. Hence, there is a necessity to deterritorialise self-determination, which would offer higher significance on democratic involvement and human rights. Thus, it would also open up more avenues to deal with self-determination claims in the background of substitute arrangements like federalism, overlapping sovereignties, autonomy and multiculturalism12. The Article 1 of the International Covenant on Civil and Political Rights and ICESCR (International Covenant on Economic, Social and Cultural Rights) 13 emphasise that the right of all peoples to self-determination. Article 1(1) of ICCPR and Article 1(1) of ICESCR recognises the right of people to self-determination14. Under the above articles, governments undertake to encourage the right to self-determination and to honour such right. The West Pakistan and East Pakistan have different ethnological and geographical provinces and likewise, Turkish Cypriot differed from Greek Cypriots. In both the above mentioned cases, freedom from oppression and achievement of freedom were happened by the intervention of military of its neighbours like India and Turkey. Thus, both ICCPR and ICESCR acknowledge the self-determination by the people collectively even with the military intervention by a neighbouring nation15. In Aaland Islands case,16 court gave importance to the right of self-determination of ethnic people by preserving their ethnic, social, religious characteristics of Aaland Islanders from the Finnish people. When Aaland Islanders demanded separation from Finland, their claim was referred to UN League Council, and it viewed that the Islanders had no privilege to separate from Finland as the Islanders just represented less than ten percent of the Swedish population of Finland and hence , could not make a claim for self-determination which is applicable to a nation’s total population as a whole. It also observed that if such request were to be entertained by international law , it would end in complete mayhem17. UN Resolution 262518, requires that there should be no encouragement of any action that would weaken or dismember the territorial integrity of an independent state. However, this will be applicable as long as such respective government honour the fundamental rights and political freedom of its citizens without any discrimination. Thus, methodical discrimination against ethnic minorities may result in right of the injured group to secede. One another prospect of achieving self-determination outside the context of decolonisation is through the unification with another state where the assent all stakeholders are given as in the case of reunification of West Germany in 1989 with then GDR19.The East German decision to integrate with the West Germany can be seen as above all the expression of a wish for liberty and particularly, the will of the Germans’, their anguish for self-determination. Thus, self-determination for unification of Germany by Germans amounts to fundamental right, which must be acknowledged by all. The significance lies in the fact that self-determination by Germans was accomplished through a democratic and serene style20. Likewise , there will be less issues when the people of two sovereign states decided to merge together as a result of self-determination and however , when there are some issues when the same right is to be exercised by an ethnic minority to integrate with the another state which will always necessitate an antecedent secession. For example, ethnic minority groups whose members live across borders but not having a kin-state like Kurdish people living in Iraq, Syria, Turkey and Iran. Hence, if Kurdish people want to employ their self-determination right, only a remedial right to secede could be possible. The predicament of the Kurds is demonstrating the breakdown of possible international law to extend even limited safeguard which might be extended under the rubrics of self-determination. The impotence of present international laws to support the desires of the Kurdish self-determination has pushed various Kurdish minority populations to life of oppression. The right of self-determination under international law cannot be made applicable to the Kurdish people as they neither the colonized people nor they are under the control of alien occupation or living under a racist regime. Thus, the impotence of international law to accommodate the desires of Kurdish for self-determination shows that there exist lacunae in international law to achieve self-determination outside the context of decolonisation21. The privilege of people to self-determination comprises in legal parlance the right of the people to form either jointly or alone with other peoples, to form a sovereign nation. The formation of Bangladesh or separation of East Pakistan from West Pakistan with the help of India can also be referred as self-determination outside of the context of decolonisation22. The reason why liberation of Bangladesh from West Pakistan can be regarded as self-determination which falls outside the context of decolonisation as Bangladesh people suffered ill-treatment and oppression from West Pakistan government and there was mutiny and freedom struggle by the Bangladesh people as a whole to liberate them with the help of military intervention from India. Corroboration is available for the safeguard of interest of minority people in international law through the extension of the cannon of self-determination, which includes a privilege of secession where minority population has a definite territorial base23. The recognisation of Croatia, Slovenia, Macedonia and Bosnia –Herzegovina by the International community was seen as the right of peoples to self-determination outside the context of decolonisation. In these cases, recognisation was granted on the basis of the will of the people which is the indicator of their self-determination24. It is to be noted that privilege of self-determination is an inalienable privilege of people and hence, self-determination has a continuing and international character, and hence it cannot be restricted only to colonial scenarios25 . Lithuanian legislature, which is known as Supreme Council, on 11 March 1990 ,courageously declared independence from USSR by introducing a new constitution and approved political resolutions and legal acts corroborating the re-establishment of pre-1940 independent Lithuanian State26. In Lithuanian case, the whole people collectively acted together to get them liberated from erstwhile USSR and this demonstrates that self-determination falls outside the context of decolonisation also. Indigenous people are using the concept of self-determination, mainly to safeguard and preserve their identities, languages, traditions, cultures, and to gain greater control over their affairs. It is really sad to note that there does not exist any agreed definitions in international laws for alien, colonial, colonialism, racist, subjugation, foreign domination thereby classifying of the rule to which indigenous or ethnic minorities are subjugated as racially oriented colonial rule. The UN General Assembly has thus extended the ambit of the right of self-determination outside the customary background of decolonisation by expressly acknowledging the right of self-determination of the people of South Africa and Palestinians. For instance, the UN passed a resolution 21 December 2012 thereby backing Palestinian self determination27. Thus, now indigenous, minorities, ethnic people who are oppressed or discriminated or subjugated can appeal to the norms of the U.N law of decolonisation in support for their demand for self-determination28. In the recent self-determination practice outside the colonial context also give much favour to the referendum as a way of determining the autonomy of the people. For instance, the Badtnter Arbitration committee declined Bosnia-Hercegovina’s request for recognition as a state. It asked the applicants to go for a referendum of the residents of Bosnia-Hercegovina without any difference, to be carried out under the supervision of international community. Likewise, in 1991, the caretaker government of Eritrea decided to award a declaration of statehood and asked the aspirants to conduct a nationwide referendum on independence29. Negative Role of Self-Determination outside the Context of Decolonisation There are certain occasions where self-serving extremists with ulterior political goals through ethnic violence succeeded in accomplishing self-determination thereby ending in complete ethnic-cleansing. The best illustration is disintegration of Yugoslavia where self-serving extremists played a major role in ethnic cleansing where millions of minority civilians were massacred. The International Court of Justice found that the proclamation of autonomy by Kosovo which was declared on 17 February 2008 did not infringe any international law30. Do such acts fit in the definition of self-determination, and the answer is certainly not? If every linguistic, indigenous, religious and ethnic group is allowed to attain self-determination without reasonable causes, there would be no boundary to fragmentation in the name of self-determination. In such scenarios, security, peace and economic advancement would become very hard to accomplish. The solution to the issue rests with the dedication to human rights. No doubt, self-determination can be avoided if human right is honoured with peaceful co-existence and respect for others. One another way to avoid self-determination is through the democratic governance, an administration that ensures and safeguards indigenous, ethnic, minority peoples’ rights and economic status. Resorting to democracy from dictatorship is the possible solution against self-determination outside the context decolonisation. Self-determination can be avoided if we eliminate all forms of racist or foreign domination, exploitation or subjugation, which is banned in the international law. In the present context, right to self-determination can be possible for achieving economic advancement, and to exploit a nation’s natural resources. The right to self-determination can be regarded as a fundamental right and is now acts as a mighty legal and political tool that can be twisted into any shape. Now, Kurdish brotherhood joining hand with other ethnic groups is being employed to spread violence all through Syria with a sole aim of overthrowing and destabilising the Syrian autocratic government headed by Assad in the name of attaining democracy. In Iran also, ethnic groups like Baluch, Kurds, and Arabs are joining hands to overthrow the present Iran government in the name of self-determination. As said already, only solution to Syrian and Iran’s self-determination claim rests with espousal of democracy from the so-called dictatorship rule31. Conclusion Though the era of decolonisation might have legally come to an end, still many ethnic, indigenous, minority people witness oppression under neo-colonial era also. Unless, there is no support from international communities to various movements for self-determination, there cannot be any assurance on the safeguarding the interests and privileges of indigenous, minority and ethnic people throughout the globe32. Now, in the decolonisation era, the right of self-determination is widely employed as what was enjoyed as a right to independence of colonised people then. Thus, the applicability of self-determination outside the context of decolonisation is unquestionable. According to Simpson (1996:255), unexpected changes to the international system require that an understanding of self-determination can be employed beyond the context of decolonisation33. It appears crucial that the customary principle of self-determination , chiefly responsible in the transformation of erstwhile colonies into democratic nations , be extended to the right of territorial secession or liberation of any people “ exploited ,subjugated and dominated who due to their ethnicity ,minority or linguistic identification is denied the chance to engage in the value processes of a body politic, and the international community has the moral obligation to frame proper procedures ,institutions and initiatives to introduce this right34. The major powerful nations vehemently supported the East Timor people to realise their self-determination rights and East Timorese got independence in 200235. Thus, Bangladesh, Lithuania, unification of Germany, Turkish Cypriot, Kosovo cases strongly indicate that self-determination can occur outside the context of decolonisation and whenever minority , indigenous , ethnic people suffer subjucation , humiliation , they can collectively can have the right to form their own state thereby freeing themselves against the government which is trying to exploit their rights. Bibliography Books Allain J, International Law in the Middle East (Ashgate Publishing Ltd 2004) 5 Cassese A, Self-Determination of Peoples: A Legal Reappraisal (Cambridge University Press 1998) 260 Castellino J, International Law and Self-Determination (Nijhoff 2000) 19 Chadwick E, Self-Determination, Terrorism and International Humanitarian Law of Armed Co. (Nijhoff 1996) 61 Chapman A R. & Russell S, Core Obligations: Building a Framework for Economic, Social and. 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