DEFINITION OF SELF-DETERMINATION
The right to self-determination, a fundamental
principle of human rights law,(1) is an individual and
collective right to "freely determine . . . political
status and [to] freely pursue . . . economic, social
and cultural development." (2) The principle of
self-determination is generally linked to the
de-colonization process that took place after the
promulgation of the United Nations Charter of 1945. (3)
Of course, the obligation to respect the principle of
self-determination is a prominent feature of the
Charter, appearing, inter alia, in both Preamble to the
Charter and in Article 1.
The International Court of Justice refers to the
right to self-determination as a right held by people
rather than a right held by governments alone. (4) The
two important United Nations studies on the right to
self-determination set out factors of a people that
give rise to possession of right to self-determination:
a history of independence or self-rule in an
identifiable territory, a distinct culture, and a will
and capability to regain self-governance.(5)
The right to self-determination is indisputably a
norm of jus cogens. (6) Jus cogens norms are the
highest rules of international law and they must be
strictly obeyed at all times. Both the International
Court of Justice and the Inter-American Commission on
Human Rights of the Organization of American States
have ruled on cases in a way that supports the view
that the principle of self-determination also has the
legal status of erga omnes.(7) The term "erga omnes"
means "flowing to all." Accordingly, ergas omnes
obligations of a State are owed to the international
community as a whole: when a principle achieves the
status of erga omnes the rest of the international
community is under a mandatory duty to respect it in
all circumstances in their relations with each
other.
Unfortunately, when we review situations invoking
the principle of self-determination, we encounter what
we must call the politics of avoidance: the principle
of self-determination has been reduced to a weapon of
political rhetoric. The international community,
therefore, has abandoned people who have the claim to
the principle of self-determination. We must insist
that the international community address those
situations invoking the right to self-determination in
the proper, legal way.
THE DE-COLONIZATION MANDATE
As a result of the de-colonization mandate, two
types of situations emerged: situations I call "perfect
de-colonization" and those that I call "imperfect
de-colonization". The principle of self-determination
arises in the de-colonization process because in a
colonial regime the people of the area are not control
of their own governance. In these situations there is
another sovereign, and illegitimate one, exercising
control. De-colonization, then, is a remedy to address
the legal need to remove that illegitimate power. (P)
A. Perfect de-colonization.
In a perfect de-colonization process the colonial
power leaves and restores full sovereignty to the
people in the territory. In these situations, the
people have their own State and have full control of
their contemporary affairs, with a seat in the United
Nations and all other attributes of a State in
international law. There are either no component parts
of the State that would have the right to
self-determination in its own right or if there are
such component parts, the State has voluntarily become
a working multi-group State. Some de-colonization that
took place after the UN Charter can be viewed as
"perfect." This is not to declare that all States that
were former colonial States have a "perfect" current
government or that a particular government in any of
these States fully respects human rights. However, the
issue of self-determination no longer arises in these
countries.
B. Imperfect colonization.
Imperfect de-colonization occurs when there is an
absence of restoration of full governance to a people
having the right to self-determination. There are
several types of imperfect de-colonization. In one
scenario, separate States conquered by a colonial power
were amalgamated into what the colonial powers
frequently referred to as a "unitary" state -- a kind
of forced marriage between the two or more formerly
separate States. The people of these States usually
have different languages, ethnicities, religions or
cultures. At the termination of the colonial regime,
the colonial power may simple turn over power to one of
the groups and leave the other group or groups
essentially entrapped into the new de-colonized State.
The entrapped group may resist this, and may seek to
restore its pre-colonial sovereignty.
In another scenario, these different groups may
decide to continue as a unitary State, but with an
agreement (usually through the de-colonization
instrument or national constitution) that if it does
not work out, then the component parts would go back to
their pre-colonial status of independent units. This is
what I call a "we'll give it a try" abrogation of full
independence by usually the smaller group or groups
with clear op-out rights (a fall-back position) if the
"unitary" system set up by colonial power fails to
afford them full rights. However, when a component part
seeks to opt-out, the dominant power refuses.
In yet another scenario, one State may forcibly
annex a former colonial people, but either the effected
peoples, the international community or both do not
recognize this as a legal annexation. The international
community may have even mandated certain procedures, as
yet unrealized, by which the effected people are to
indicate their choice regarding self-termination
rights.
In a fourth scenario, there may be a situation where
a small component part of a colonially-created
"unitary" state agreed to continue the unitary State
but with no particular "op-out" agreements signed.
Rather, there were either verbal or negotiated, written
agreements about how the rights of the smaller (or in
some situations weaker) group would be protected in the
combined State. However, the smaller or weaker group
then experiences severe curtailments of their rights
over a long period of time by the dominant group and
may lose the ability to protect its rights by peaceful
means.
CASE STUDIES
Burma. (8)
I will begin with the de-colonization process in
British Burma. The 1947 Constitution of Burma, which
was to be the constitution following the
de-colonization process, had "opt-out" clauses
regarding the many different people of the territory
occupied by Great Britain. In other words, the groups
that were put under "unitary" rule by the British would
have the right to say they do not want to continue
being united to the other groups in post-colonial
Burma. This is the classic "we will give it try"
scenario, with the protection of legal instruments to
enforce the "opt out" rights.
The 1947 Constitution in Burma had a ten-year trial
period, so theoretically a group couldn't have opted
out until 1957. However, in the intervening years
between 1947 and 1957, the Burmese, the majority in
that area, seized power and the other ethnic
nationalities that were part of the union of Burma
began to suffer. Even worse, the Burmese government
unilaterally extinguished the opt-out rights under the
1947 Constitution. Many people think the situation of
human rights in Burma, under serious review by the
United Nations Commission on Human Rights for many
years, relates to the Burman (9) military regime
against Daw Aung Sang Suu Kyi's ethnically Burman party
and her supporters.
Unfortunately, the situation is far more complex
than that -- the majority of the more serious human
rights violations have occurred in the context of
conflicts between the Burman army against the military
forces of the other ethnic nationalities that were
given the right to cede in the 1947 Constitution: the
Karen, the Karenni, the Mon, the Shan and others. In
fact some of those groups cast a leery eye at any
Burman political party: they say that even if Daw Aung
San Sui Kyi's party takes over, the relationship
between that essentially Burman party and the other
ethnic nationalities is not certain. In particular,
some groups are unsure as to whether they will then be
able to exercise their op-out rights conferred under
the 1947 Constitution. The Moluccas. (10)
A second situation is that of the Moluccas. This
situation arose in the area of the Netherlands East
Indies. I use that term rather than Indonesia because
the term Indonesia is term invented at the time of the
de-colonization process - there was not a State called
Indonesia prior to 1949. Whereas the British were
mainly behind the scenes during the 1947 constitutional
process in Burma,, the Netherlands authorities had
their hands in very heavily throughout the
de-colonization process of the Netherlands East
Indies.
The Netherlands, as had Great Britain, amalgamated
many unrelated nations and placed them under the
colonially-imposed "unitary" state system --under one
rule.
At the time of de-colonization there was great
difficulty in reaching an agreement as to what should
happen to all of those formerly independent island
nations. The strongest and most populous group was the
Javanese, centered in Jakarta although also located
elsewhere in the islands. The Javanese became the
bargaining power. So through the Netherlands and the
Javanese and with the cooperation of the United Nations
at that time, Indonesia was to come into being. The
de-colonization instrument, called the Round Table
Conference Agreements of 1949, was between the
Netherlands, the Javanese - Indonesian leadership and
the United Nations. (11) The new State to be formed
from the Netherlands East Indies was to be called the
United States of Indonesia and was to be made up of the
Javanese islands to be grouped as "the Republic of
Indonesia" and other co-equal "republics." The Moluccas
was to be part of the Republic of East Indonesia.
The Round Table Conference Agreement had several
"opt-out" provisions offering provisions for both
internal and external choices. For example, the
populations of territories were to be given a
plebiscite to determine "whether they shall form a
separate component state."(12) The second "opt-out"
provision allowed states that did not ratify the
constitution to negotiate with either the United States
of Indonesia or the Netherlands for a "special
relationship." (13) Thus, the de-colonization
instrument itself for the Netherlands East Indies gives
the Moluccas the legal right to secede.
Immediately following the turning over of power, the
Javanese began to forcibly incorporate the component
parts into the Republic of Indonesia (the Javanese
stronghold) rather then implement any plebiscites.
Additionally, the Javanese made clear they would not
allow component parts to "opt-out" entirely. With
increasing Javanese pressure on the Moluccas, the
Moluccas responded by invoking Article 2.
2: on April 25, 1950 the Moluccan leadership
declared the independent state of the Republic of South
Moluccas. However, the Javanese strongly opposed this,
and itself invaded the Moluccas. Sadly, at that same
time, the Moluccan forces were seriously depleted
because the Netherlands had transported 4,000 Moluccan
troops and their families to the Netherlands. The
Moluccan forces had been part of the Netherlands forces
in the East Indies (the KNIL) and transported them to
the Netherlands. The Moluccan people were left without
defenders against the Javanese army.
At the time, the United Nations Commission for
Indonesia took up the Moluccan case. But even so, it
became apparent that the politics of the United Nations
seemed to change. It is difficult to assess what
occurred, in part because, as I discovered in
researching the Security Council and United Nations
Commission for Indonesia of that era, most of the
documents are still embargoed. Researchers cannot even
look at them. What is obvious is that a deal was made
probably behind the scenes, because in the end, the
United Nations did not insist on the removal of the
Javanese from the Moluccas and the Commission for
Indonesia quietly ceased to exist in about 1955.
As you know, many other component parts of the
former Netherlands East Indies share with the Moluccas
a continuing (and indeed worsening) period with rampant
and violent attacks by the Indonesian Army and
government-supported paramilitary groups as well as
continuing violations of human rights. This is truly a
crisis of self-determination, effecting especially the
Moluccas, Acheh, and West Papua.
Kashmir. (14)
The next situation I want to present is Kashmir - an
" imperfect" de-colonization process in which the
United Nations also got involved. The United Nations
interest in the situation of Kashmir began in 1947-1948
during the de-colonization process of the British
Empire in south Asia. The leaders of what became
Pakistan and India reached an agreement with the
British that the people of Kashmir would decide their
own disposition. Prime Minister Nehru (India) had gone
on record publicly saying that the disposition of the
Kashmir people will be up to them. (15) Due to a great
deal of turmoil in the area, including a full-fledged
revolt in Kashmir against the British-imposed
maharajah, the United Nations began formally to address
Kashmir in 1948. That year, the Security Council
established the United Nations Commission on India and
Pakistan, which, in addition to the Security Council
itself, adopted resolutions mandating that the final
disposition of Kashmir was to be via a plebiscite
carried out under the auspices of the United Nations.
(16)
The Indian government backed up its earlier promises
that the Kashmiri people would decide the future of
Kashmir when it supported the plebiscite under the
auspices of the United Nations. The Security Council
resolutions cited above indicating United Nations
action to settle the Kashmir question were all
supported by India as were resolutions of the United
Nations Commission for India and Pakistan. For example,
on January 5, 1949, India agreed to a Commission
resolution stating:
The question of the accession of the State of Jammu
and Kashmir to India or Pakistan will be decided
through the democratic method of a free and impartial
plebiscite. (17)
However, before such a plebiscite could take place,
the armed forces of India seized much of Kashmir under
the pretext of coming to aid the British-maharajah who
was attempting to quell the Kashmiri's revolt against
him. The maharajah obtained India's military help in
exchange for an Instrument of Accession giving Kashmir
to India. (18) Since that time, India has maintained
control of what must be called Indian-occupied Kashmir,
and continually refers to Kashmir as an integral part
of India. India supports this view in part because of
Indian-managed elections taking place in Kashmir.
However, the United Nations Security Council has
repeatedly rejected this argument, by stating that such
unilateral acts do not constitute the free exercise of
the will of the Kashmiri people: only a plebiscite
carried out by the United Nations would be valid.
(19)
Unfortunately, the plebiscite has still not
occurred. By the mid-1950s, the Cold War deepened and
the alliances in the region fell under different
spheres of influence in that Cold War. The United
Nations Security Council and the Commission had
established a plebiscite administration under the
authority of the president of the Security Council, and
both directly with the President of the Security
Council and the Commission on India and Pakistan, a
series of plebiscite administrators were unable to
secure a situation on the ground so that a plebiscite
could take place. The last plebiscite administrator
finished his term somewhere between 1955-1956.
Today we find that the disposition of Kashmir has
not been legally decided. It is not an integral part of
any country and yet we have the failure today of the
realization of the expression of self-determination of
the Kashmir people. The Kashmiri people are involved in
a brutal war in Jammu and Kashmir - what I call the
Kashmiri War - in which 5-700,000 Indian troops are
present in the area carrying out military actions
against civilians and Kashmiri military forces alike.
In the course of that armed conflict, the Indian forces
have engaged in grave breaches of the Geneva
Conventions and the general laws and customs of war.
Rapes, disappearances, summary execution, torture and
disappearances related to the conflict are nearly
every-day events in Indian - occupied Kashmir.
Even without the United Nations recognition of the
Kashmiri's right to self-determination, the Kashmir
claim is exceptionally strong and so makes a good case
study from this perspective. The area had a long
history of self-governance pre-dating the colonial
period. (20) The territory of Kashmir has been clearly
defined for centuries. (21) Kashmiri people speak
Kashmiri, which, while enjoying Sanskrit as a root
language as do all Indo-European languages, is clearly
a separate language from either Hindi or Urdu. (22) The
Kashmiri culture is similarly distinct from other
cultures in the area in all respects -- folklore,
dress, traditions, and cuisine. Even every day
artifacts such as cooking pots, jewelry have the unique
Kashmiri style. (23)
Most important to a claim to self-determination, the
Kashmiri people have a current strong common aspiration
for re-establishment of self rule. The Kashmiri people
resisted the British, and maintained a degree of
autonomy throughout British rule. In 1931 a major
uprising of Kashmiris against the British and the
British-imposed maharajah was brutally put down. But
the "Quit Kashmir" campaign against the maharajah
continued into 1946, when the Azad Kashmir movement
gained momentum. During the breakup of British India,
the Azad military forces began armed attacks against
the forces of the maharajah -- prompting the accession
to India in exchange for Indian military protection.
(24) Resistance to India has continued unabated
throughout Indian occupation, with major uprisings in
1953, 1964 and continuing essentially unabated since
1988.
While resistance to India has played a major role in
Kashmiri events, there is also forward-looking
political leadership with a clear will and capability
to carry on the governance of an independent Kashmir.
There are a number of political parties in Kashmir that
have been active for some time, even though at great
risk. Many of the leaders of these parties have spent
time in Indian jails, some for many years, merely
because of their political views on Kashmir. In 1993
most of the Kashmiri political parties joined together
to form the All- Parties Hurriyet Conference
(APHC).
Since it formation, the APHC has sent leaders around
Kashmir and around the world to forward dialogue,
peaceful resolution of the Kashmiri war, and
realization of the United Nations resolutions for a
plebiscite of the Kashmiri people. Leaders and
representatives of the APHC have regularly attended
United Nations human rights sessions, special
conferences and the General Assembly.
I also encourage people to investigate the situation
in the Punjab in India as well. I am less an expert on
the situation there. However, as part of the
de-colonization processes, there have been a number of
agreements, well before the British left, between the
Punjabi leadership, the British and others with
promises and agreements which have not been met, that
are a factor in the disturbances and the question in
the Punjab. Although it is different from the Kashmir
question with the distinct Security Council resolution
and obligation of the International community to carry
out a plebiscite in Kashmir, it may be that final
resolution to the difficulties in the Punjab will have
to incorporate some form of self-determination in that
region.
Tibet. (25)
I want to very briefly discuss Tibet. The Tibet
situation represents a post-Charter annexation because
China seized independent Tibet in1949 -1950. Rather
than a de-colonization the international community was
faced with a new colonization. For Tibet, of course,
now the issue is de-colonization. The early documents
of the United Nations on that question indicate the
right to self-determination of the Tibetan people:
quite obviously the international community had to
recognize China's the post-Charter military seizure as
illegal. (26) The situation in Tibet is still not
resolved and the Tibetan people still have the right to
self-determination, and have the right to their
governance and culture.
Unfortunately, China is sending large numbers of
non-Tibetan people into Tibet. Rather than ethnic
cleansing, China is engaging in ethnic dilution. This
is a violation of Article 49 of the Fourth Geneva
Convention. This is where the government of China does
the most damage to Tibetans and their culture, because
in many parts of Tibet, Tibetans are now in the
minority. This becomes a very serious situation in the
realization of self determination. If you think for a
moment at what Madame Daes said in her paper about a
middle ground self-determination, where there is some
agreement that the indigenous peoples' question should
not be handled in terms of absolute sovereignty, China
seeks to dilute Tibetans with others, so that if forced
into any de-colonization process the Tibetan question
might be viewed as an indigenous question rather than
one involving full restoration of sovereignty. This
"trick" is used elsewhere by other governments and has
been especially rampant in the Moluccas where the
Indonesian authorities have for may years sent Javanese
"settlers" into Moluccan territory.
Sri Lanka. (27)
The situation in Sri Lanka, for many years now
engulfed by armed conflict between the
Sinhala-controlled government and the Tamil people,
must be understood in terms of an "imperfect"
de-colonization process by the British. Once again, two
distinct countries - in this case the Tamil nation and
the Sinhala nation -- were amalgamated under "unitary"
rule by the colonizers.
The Sinhala and the Tamil people in the island of
Ceylon are as distinct as say the Finns and Italians.
The colonizers understood this clearly. The first
colonial power on the island, Portugal, was only able
to conquer the Tamil country more than 100 years after
it conquered the Sinhalese one. In 1621 the Portuguese
captured the Tamil king Sankili and killed him. The
Dutch took over the island from the Portuguese, and
apparently were able to exercise some loose governance
over the Tamil areas but mostly ruled from the
Sinhalese lands. When the British came, they were able
to establish a unitary rule. This was not without
protest from Britain's own early administrators, as the
first of them said, and I paraphrase here, "I do not
know how we are going to do this -- these people are
really different", recognizing that in this case, the
forced marriage of unitary rule would never work. (28)
And in fact during the British administration, the two
peoples were probably less amalgamated together than in
other areas where the British created "unitary" states:
there was clearly a governance recognizing the very
different natures of these people.
In the de-colonization process in Sri-Lanka, there
was an attempt between the Tamil and Sinhala leadership
to try out a post-colonial unitary state despite the
historic situation of the two countries. In the first
two constitutions, there was an agreement between the
majority Sinhalese people and the numerically fewer
Tamil people for a government structure that would
guarantee that the Tamil people would not become
fatally submerged under the Sinhala. So there was an
attempt to avoid submersion in the language of the
Constitution of 1947. Before the ink was dry, the
Sinhala leadership began to violate the terms. There
were a number of subsequent agreements between the
Tamil and Sinhala leadership to re-negotiate on various
occasions, beginning even as early as 1950 and 1951.
However major pacts between Tamil leadership and
Sinhalese leadership that allowed the rights of the
Tamil people and the rights of the Sinhalese people to
be dually respected in a jointly run island also
failed. (29) In evaluating this situation then, in
light the right of self-determination, we can see that
this was an "imperfect" de-colonization process. The
attempts to negotiate and re-negotiate to try to keep
open ways to guarantee rights for the Tamil people
failed for nearly 30 years, at which point the combined
Tamil leadership said that "unitary" rule was no longer
an option.30 Since 1982, a war has ensued defending
that right of the Tamil people to
self-determination.
Western Sahara.
One last situation I want to bring up, that of
Western Sahara, brings up an extremely important point
that I will not be able fully to elaborate here, but
that nonetheless helps us in some comparisons between
"peoples" - people with a legal right to full
sovereignty -- and "indigenous peoples" - people with a
right to internal self-termination and local rule but
not full sovereignty. The International Court of
Justice, in its decision on the Western Sahara in 1975,
ruled that if there is land that in fact no one has
ever claimed, it is opened for grabs. Such land is
called "terra nullius" - empty land. But if any land
has had a population on it, that land belonged to that
population and is not open for grabs. This question
arose in the de-colonization process of Western Sahara
because Morocco attempted to claim that prior to
becoming a colony of Spain, Western Sahara has been
"empty" except for a few nomadic Moroccans. The Court,
however, found the Saharans to be a distinct people who
historically populated that land.
When we realize that the international community,
however, did not require that the colonizers of the
lands of the American and Oceanic peoples to return
those lands with full sovereignty, there appears to be
a clear violation of the principle enunciated by the
Court in the Western Sahara case. The sad fact is, that
due to a legal principle usually referred to as
"impossibility" - the European people were not obliged
to cede land and power back to the American Indian and
Oceanic peoples. Impossibility is those situations was
in part related to the sheer numbers of colonizers,
(31)
in part to the scale of "colonial" enterprises, and
in part to the perceived idea that the Indigenous
Peoples were not capable of taking over governance of
the countries in their current state. Yet the numbers
factor was a direct result of massive killing of the
original people by the colonizers and their armies. So,
in fact, the international community rewarded genocide
by letting the colonizers and heirs to colonizers
remain in full control. One wonders if the current
schemes of both ethnic cleansing and ethnic dilution
rampant today results from some perceived expectation
by the perpetrators that the doctrine of
"impossibility" may be applied to them and they will
become the sole sovereign.
FINAL REMARKS
Most of you are aware of the facts set out in the
above-outlines situations where people have the right
to self-determination but have not yet realized it. In
these countries there are conflicts -- I do not just
mean verbal ones but armed ones. Unfortunately, many of
the states involved in attempting to militarily
obliterate the peoples with valid self-determination
claims try to reduce these conflicts to "terrorism". So
depending on which side of the fence you are on, group
A is either a terrorist or a freedom fighter. Some of
these regimes' friends either acquiesce or actively
support this erroneous assertion.
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 at the extremely serious expense of not only
human rights but rights under the Geneva Conventions,
other treaties and customary laws of armed
conflict.
NOTES
1The Universal Declaration of Human Rights provides
that "the will of the people shall be the basis of the
authority of government." Universal Declaration of
Human Rights, G.A. Res. 217A (III)(1948), Art. 21; The
International Covenant of Civil and Political Rights
(ICCPR), in force Mar. 23. 1976, 999 U.N.T.S. 171, Art.
1; The International Covenant on Economic, Social and
Cultural Rights (ICESCR), in force Jan. 3, 1976, 999
U.N.T.S. 3, Art. 1.
2. ICCPR, Art.1; ICESCR, Art. 1; see also Karen
Parker & Lyn Neylon, Jus Cogens: Compelling the Law
of Human Rights, 12 Hastings Int. & Comp. L. Rev.
411, 440 (1989), drawing on discussion of the right to
self-determination in A. Critescu, The Right to
Self-determination, U.N. Doc. E/CN.4/Sub.2/404/Rev. 1,
U.N. Sales No. E.80.XIV.3 (1980) and H. Gros Espiell,
The Right to Self-Determination, U.N. Doc.
E/CN.4/Sub.2/405/Rev.1, U.N. Sales No. E.79.XIV.5
(1980).
3. This paper does not address the issue of the
right to self-determination of Indigenous Peoples and
is not meant to deny application of self-determination
rights to Indigenous Peoples. Please refer to the paper
of Mme Erica-Irene Daes in this document for discussion
of Indigenous Peoples and self-determination.
4. Western Sahara Case, 1975 International Court of
Justice 12, 31.
5. Gros Espiell, op.cit. and Critescu, op. cit..
Critescu defines "people" as denoting a "social entity
possessing a clear identity and its own
characteristics" (op. cit. at p. 41) and implying a
"relationship to territory" (id.).
6. H. Gros Espiell, op. cit. at p. 12:"[N]o one can
challenge the fact that, in light of contemporary
international realities, the principle of
self-determination necessarily possesses the character
of jus cogens." Gros Espiell cites numerous references
in United Nations documents referring to the right to
self-determination as jus cogens. Id., at pp. 11-13.
See also Legal Consequences for States of the Continued
Presence of South Africa in Namibia (S.W.Africa) 1971
International Court of Justice 16, 89-90 (Ammoun, J.,
separate opinion)(recognizes jus cogens nature of
self-determination); I. Brownlie, Principles of Public
International Law 83, (3d ed. 1979)(argues that
combatants fighting for realization of
self-determination should be granted a higher status
under armed conflict law due to application of jus
cogens to the principle of self-determination); See
also Karen Parker & Lyn Neylon, op. cit. at 440-41
(discusses, with many references, self-determination as
jus cogens right).
7. While not using the precise term as it did in an
earlier case (Barcelona Traction, Light and Power Co.
(Belg. v. Spain) 1970 International Court of Justice 3,
32), many consider the language of the Nicaragua Case
reflective of both a jus cogens and erga omnes duty to
respect the principle of self-determination. See The
Nicaragua Case (Nicar. v. United States) 1986
International Court of Justice 14. The Inter-American
Commission was explicit regarding the erga omnes duties
of all states to guarantee civil and political rights.
Inter-American Commission on Human Rights, Organization
of American States, Press Communique no. 13/93 (May25,
1993).
8. Please also see Human Rights in Burma, Hearings
on Burma before the Subcomm. On For. Ops. Of the Senate
Appropriations Comm., 104 Cong., 1st Session
(1995)(Statement of Karen Parker); Human Rights in
Burma, Hearing on Burma before the Subcomm. On Asian
and Pacific Affairs of the House Comm. on For. Affairs,
103rd Cong. 1st Session (1993)(Statement of Karen
Parker).
9. I use the term "Burman" to refer to people who
are ethnically Burman rather that the term "Burmese" -
which refers to people who reside in Burma who may be
either Burman or one of the other ethnic
nationalities.
10. Please also see Karen Parker, Republik Maluku:
The Case for Self-Determination, (IED/HLP 1996).
11. The United Nations involvement began with the
establishment of Committee of Good Offices on the
Indonesian Question of the Security Council in 1947. In
1949 this Committee ceased when the Security Council
established the United Nations Commission for
Indonesia. These bodies were constant participators in
the de-colonization process.
12. Round Table Conference Agreement, Article 2.1 of
the Third Agreement (Transitional Measure).
13. Idem, Article 2.2. The two "opt-out" measures
were incorporated under pressure from the authorities
of the Netherlands.
14. Please see Karen Parker, The Kashmiri War: Human
Rights and Humanitarian Law, (IED/HLP 1996).
15. For example, in a 3 November 1947 radio
broadcast, Mr. Nehru stated: "We have declared that the
fate of Kashmir is ultimately to be decided by its
people. That pledge we give not only to the people of
Kashmir but to the world. We will not and cannot back
out of it."
16. See, especially Security Council resolutions 39
(1948), 47 (1948), 80 (1950), 91 (1951) and 96
(1951).
17. Resolution of the United Nations Commission for
India and Pakistan, adopted on 5 January 1949,
reprinted in UN Doc. S/1196 of 10 January 1949.
18. An interesting side note to this involves this
Instrument of Accession, supposedly signed by the
Maharajah Hari Singh and Lord Mountbatten, and rumoured
to be missing from the Indian state archives. News
reports indicate that the United States, other western
and some Arab states wished to view the text because of
serious questions of its validity. See,for example,
"Instrument of Accession to India missing from state
archives", PTI News (New Delhi), 1 September 1995.
19. See, for example, Security Council resolution
122 of 24 January 1957. India had claimed that the
Kashmiri people accepted secession to India because a
Kashmiri Constituent Assembly approved it in 1956.
However, that assembly was chosen by India and does not
meet requirements of a plebiscite as expressed in
Security Council resolution 122. As states Rapporteur
Gros Espiell: "A people under colonial and alien
domination is unable to express its will freely in a
consultation, plebiscite or referendum organized
exclusively by the colonial and alien power." H. Gros
Espiell, op cit. at p. 11.
20. Kashmir successfully regained independence when
overrun by Alexander's Empire in the 3rd century B.C.
and the Moghul Empire of the 16th and 17th
centuries.
21. Historic Kashmir comprises about 84,000 square
miles, making it somewhat larger that the United
Kingdom. Its current population is about 12
million.
22. Spoken Kashmiri also draws on the Persian and
Arabic languages. Written Kashmiri uses a variation of
Urdu script.
23. Even fabrics, embroidery and carpets have
uniquely Kashmiri designs. My organization's delegates
to the area report that recognition of the distinct
culture of Kashmir is unanimous in India.
Unfortunately, this recognition is in the negative in
that every-day Indians show great prejudice against
anything Kashmiri. Our delegates confirm the Indian
mind-set that Kashmiri people, their culture, cuisine,
indeed everything about Kashmiris is inferior. But in
these displays, they clearly indicate that Kashmiri is
not Indian.
24. Kashmiri self-determination is also defended by
the principle that the determination of the political
future of a colonized people made either by the
colonial power itself or a "ruler" established by the
colonial power is repugnant to the process of
de-colonization and the principle of
self-determination. I would challenge the legitimacy of
an instrument of accession of Kashmir to India if in
fact one were to be found. This rejection of
"determination by colonial power" seems to be the
guiding principle of the Security Council in its
dealing with Kashmir. It is also clearly behind the
fact that the government of Spain sought advice from
the International Court of Justice on the question of
to whom should Spain hand over power when they left the
Spanish Sahara. See The Western Sahara Case, 1975 Int'l
Court of Justice 12.
25. Please see Report [on Tibet] of the
Secretary-General, U.N. Doc. E/CN.4/Sub.2/37, which
includes my submission regarding self-determination and
Tibet.
26. See especially General Assembly resolutions 1353
(1959); 1514 (1960) and 1723 (1961).
27. Please see the following written statements
submitted to the United Nations by International
Educational Development/Humanitarian Law Project:
Self-Determination, E/CN.4/1998/89; The Situation in
Sri Lanka, E/CN.4/Sub.2/1995/17; E/CN.4/1994/37.
28. In 1799 Sir Hugh Cleghorn, the first Colonial
Secretary, wrote what has become known as the "Cleghorn
Minute": "Two different nations, from very ancient
period, have divided between them the possession of the
island. . . These two nations differ entirely in their
religions, language and manners."
29. The major pacts were the
Bandaranaike-Chelvanayagam Pact of 1957 and the
Senanayake-Chelvanayagam Pact of 1965.
30. The Vaddukkoddai Declaration of 1976 marks a
clean rupture from any further attempts by the Tamil
leadership to negotiate a dual state. The Declaration
calls upon all Tamils to work for the sovereignty of
Tamil Eelam.
31. Note that some of the colonizers were actually
"break-away" colonizers - people who had rejected their
original sovereign in favor of self-rule in the
"former" colony.
