WASIQ ABASS DAR
RULE OF LAW:
The preamble of the UNDHR (1948) states that,
“It is essential, if man is not to be compelled to have recourse as a last resort, to rebellion against tyranny and oppression, that human rights should be protected by the rule of law”.
The Rule of Law, in its most basic form, is the principle that no one is above the law. The rule follows logically from the idea that truth, and therefore law, is based upon fundamental principles which can be discovered, but which cannot be created through an act of will. The most important application of the rule of law is the principle that governmental authority is legitimately exercised only in accordance with written, publicly disclosed laws adopted and enforced in accordance with established procedural steps that are referred to as due process. The principle is intended to be a safeguard against arbitrary governance, whether by a totalitarian leader or by mob rule. Thus, the rule of law is hostile both to dictatorship and to anarchy.1
A core definition of the rule of law as it has evolved over the time appears to have three elements:
a) Power of state may not be exercised arbitrarily, i.e. there should be a government of laws.
b) Laws must apply to sovereign and instruments of state, i.e. there should be supremacy of laws.
c) Rule of law must apply to all persons equally, offering equal protection without prejudicial discrimination, i.e. there should be equality before laws.
INTERNATIONAL RULE OF LAW:
For the United Nations, the rule of law refers to,
“a principle of governance in which all persons, institutions and entities, public and private, including the State itself, are accountable to laws that are publicly promulgated, equally enforced and independently adjudicated, and which are consistent with international human rights norms and standards. It requires, as well, measures to ensure adherence to the principles of supremacy of law, equality before the law, accountability to the law, fairness in the application of the law, separation of powers, participation in decision-making, legal certainty, avoidance of arbitrariness and procedural and legal transparency”.2
International rule of law may be understood as the application of rule of law principles between States and other subjects of International law. At times the term is used as if synonymous with “law” or legality; on other occasions it appears to import broader notions of justice. Global rule of law might also denote the emergence of a normative regime that touches individual directly without formal mediation through existing national institutions. In the international arena, it is through the treaties and international organisations that the rule of law has been promoted for all the functional reasons.3
However, there have been dissenting opinions as well, according to which there is presently no such thing as the international rule of law, or at least that international law has yet to achieve a certain normative or institutional threshold to justify use of the term.
Though the rule of law has been promoted strongly through international forums, it has been less clear what relevance it has to the conduct of international affairs itself. This is in part because, as we have seen, the historic challenge for the rule of law has been its relationship to the sovereign. Recognising the rule of law as a political ideal at the international level, rather than asserting it as a normative reality, sufficiently locates the conduct of most international affairs in the political rather than the strictly legal sphere. One may frame an opinion that as of now, in order to achieve human rights, development, and peace, the international rule of law presently offers a means rather than an end.4
Right to Self-Determination as a Rule of Law:
The dictionary meanings of the term Self-Determination are:
1. Determination of one’s own fate or course of action without compulsion; free will.
2. Freedom of the people of a given area to determine their own political status; independence.
Even though the right of self-determination has only vague and imprecise meaning and content, it has been invoked by numerous groups as a vehicle to achieve various ends, the majority of which relate to freedom. Alternatively, these groups may achieve greater freedom by pressing for democracy. The relationship between self-determination and democracy has always been a complex one. In the Wilsonian formulation, self-determination includes an internal aspect of democracy, because as self-rule, self-determination implies meaningful participation in the process of government.5
The political origins of the modern concept of right to self-determination can be traced back to the Declaration of Independence of the United States of America (4 JULY 1776), which proclaimed that governments derived ‘their just powers from the consent of the governed’, and whenever any form of government becomes destructive of these ends, it is the right of people to alter or abolish it.
The principle of self-determination was further shaped by the leaders of the French revolution, whose doctrine of popular sovereignty required renunciation of all wars of conquest and contemplated annexation of territory to France only after ‘plebiscite’.
Most theorists assert that self-determination was not considered a legal right until after the Second World War. This view emanated in part from the International Committee of Jurists’ study established in 1920, which examined the question of whether the people of the Aaland islands, had a right to conduct a plebiscite on the issue of the territory’s potential separation from Finland and amalgamation with Sweden. The Committee’s view was that although self-determination was important in modern political thought, it was not incorporated into the Covenant of the League of Nations, and, therefore, was not a part of the positive rule of the Law of Nations.6
Under Article 22 of the Covenant of the League of Nations, a system was devised as a compromise solution between the ideal of self-determination and the interests of the administrative powers. However, self-determination as a general principal did not form a part of the Covenant of the League of Nations – thus remaining a political rather than a legal concept.
Here it becomes significant to mention that it was in the ‘Atlantic Charter’ of 1941, that we could see some seeds being sowed with regards to the evolution of self-determination as a legal concept. In this Charter the then President of USA, Roosevelt, and PM Churchill of U.K. declared that they desired to see
“no territorial changes that do not accord with freely expressed wishes of the people’s concerned”.
Ultimately the provisions of the Atlantic Charter had a considerable influence on the work of the San Francisco conference of 1945 where the concept of self-determination took shape and was incorporated into the United Nations Charter, which stressed on “the respect for the principle of equal rights and self-determination of people” as one of its paramount purposes.
The Declaration on the Granting of Independence to colonial countries and peoples (1960) categorically stated that “all people have right to self-determination”. It further stressed that,
“immediate steps should be taken to transfer without any reservation all powers to the peoples in the trust and non-self governing territories or all other territories which had not yet attained independence in accordance with their freely expressed will and desire”.
And this was followed up by the International Covenant on Economic, Social and Cultural Rights (1966), and International Covenant on Civil and Political Rights (1966), where the concept of Self-Determination as a whole was given the characteristic of a ‘Fundamental Human Right’.
Perhaps the more important normative expression of the notion of self-determination at the UN came in 1970, with the elaboration of the Principles of International Law Concerning Friendly Relations and Co-operation among States in Accordance with the Charter of the UN. Principle 5 of the Friendly Relations Declaration states that
“all people have a right to freely determine, without external interference, their political status and pursue their economic, social, and cultural development”
and every state is duty bound to respect this right in accordance with the provisions of the “Charter”. It also added that
“the establishment of a sovereign and independent state, the free association or integration with an independent state, or the emergence into any other political status freely determined by a people constitute modes of implementing the right of self-determination”.
Practice since 1945 within the UN, both generally as regards the elucidation and standing of the principles and more particularly as regards its perceived application in specific instances, can be seen as having ultimately established the legal standing of the right in international law. UN charter is a multilateral treaty which can be interpreted by subsequent practice, while the range of state and organisation practice within the UN system can lead to the formation of customary law. The amount of material dealing with self-determination in UN testifies the importance and standing of the concept.7
Apart from this, there are also certain vital judicial pronouncements which emphasise upon the significance of the right to self-determination and its standing in the international rule of law. ICJ emphasised in the East Timor case (1995), that the right of peoples to self-determination was one of the essential principles of International Law.8
The issue of self-determination was also discussed upon in the Supreme Court of Canada in Re Secession of Quebec in 1998. One of the questions asked was whether there existed in International Law a Right to Self-Determination which would give Quebec the right to unilaterally secede. Court declared that the principle of Self-Determination “has acquired a status beyond convention and is considered as a General Principle of International Law”.9
RIGHT TO SELF-DETERMINATION: A MYTH:
“Sometimes the right of self-determination is used with respect to and forms part of consent theories. Sometimes it is used with and forms part of revolutionary theories. And at still other times it is used with and forms part of democratic theories. Each of these variants is part of the myth, and all together formed the myth-system of which it belongs”.10
Since the end of the Cold War, more and more groups of people have demanded the right to “self-determination”, meaning they have demanded their own nation-state or some degree of autonomy within another nation state. The demands may be political — groups may want sovereignty or a greater political “voice” in the governmental structure. The responses to these demands have been quite varied, ranging from complete denial (through ignoring the demands, or repressing them) to trying to accommodate them to lesser or greater degrees. At present, a tension exists between the right of self-determination and the principle of territorial integrity of the sovereign state. Self-determination in international law takes two primary forms. One part is the developing human rights law, which is predicated on the notion of giving individuals more control of their lives. The other part, which is more contentious, involves groups that make claims to establish independent sovereign states. This conflicts with the long-standing understanding that international borders are inviolable.
Although, post second world-war the world has witnessed many successful attempts of attaining right to self-determination, but then the fact that there are still scores of ongoing armed self-determination conflicts, raises a broader question with regards to the acceptability of right to self-determination as an international rule of law by the international community. Our experience makes us to believe that the international community by and large has been dubious in its approach when it comes to right to self-determination. Nations as well as the international organisations have always shown double standards, and have changed their stands on this issue as per their convenience, paying no heed to the “international rule of law”. Hence, drawing a picture that self-determination as a positive entitlement has been applied to only classical colonial entities and closely analogous cases.
As soon as a colony gained independence, it started defending its own territorial integrity with utmost vigour. There is no secession from secession. And when armed self-determination conflicts break out outside the colonial context, a legal inequality with significant practical consequences emerges. Colonial self-determination movements are entitled to establish national liberation movements, and the international system is twisted in their favour, to help them overcome the last vestiges of colonialism. But when other rebel movements, hiding in mountains or jungles of the world, also lay similar claims to the label of ‘national liberation’, in their case, the self-determination privilege does not apply. Instead, the international system is structured in such a way as to help the central state ensure their defeat. However committed and genuine their cause, they are classified as secessionist rebels and, potentially ‘terrorists’.11
One such classic case to corroborate the above stated arguments, showing the failure on part of the international community to get right to self-determination implemented as an international rule of law, is that of the six decades old and still ongoing demand of people of “KASHMIR” to exercise their right of self-determination.
THE KASHMIR CASE STUDY:
Kashmir bitterly exemplifies the limitations of the United Nations in the international conflict resolution. It is also one such case which clearly shows that how the binding international rule of law is being disrespected by India and Pakistan, and how the genuine demand for the right to self-determination of Kashmiris’ has brought six decades of terror and devastation in the region.
Without going into the history of the Kashmir issue and strictly sticking to the legal aspects involved, it can be unambiguously argued that the population of the former Princely state of Jammu and Kashmir is entitled to freely determine its political status. And its right to self-determination mainly results from India’s and Pakistan’s acceptance of the United Nation’s Commission for India and Pakistan (UNCIP) resolutions of 21 April and 13 August 1948 and explicit confirmation of this right by the representatives of both countries.12
The said UNCIP resolutions in very clear terms envisaged a ceasefire controlled by UN observers as a first step. The ceasefire to be followed by a truce agreement aimed at the demilitarization of Kashmir. Afterwards, the governments in consultation with UNCIP were to determine fair and equitable conditions for a plebiscite on the future of the State. Apart from these, numerous other resolutions have been passed by the United Nations Security Council, reiterating that people of Kashmir have a legal right of self-determination and steps should be taken in this regard. But neither the governments of India and Pakistan nor the International community has ever bothered to take any effective measures to respect and honour these UNSC resolutions or for that matter the international rule of law in the shape of right to self-determination. Hence, clearly showing to the world that international rule of law is far from reality (at least in some of the cases), and can be twisted in any form and at any time by the international community as per its convenience.
In cases like Kashmir, where people are subjected to discrimination and are denied the right to express their right to self-determination on the ground of superiority of sovereignty, the continued denial of the existence of the right itself may give rise to the armed conflicts paving the way for unilateral secessions as an expression of that right. It must be appreciated that self-determination is merely an attempt to diminish the territorial scope of one state’s authority and replace it by the authority of another state. Self-determination does not challenge the dominant conception of nature of sovereignty; it merely seeks to replicate sovereignty without questioning it.13 However, the ground reality remains that ‘state sovereignty’ coupled with territorial integrity continues to exist as the biggest impediment as far as the development and extension of the right to self-determination is concerned. This desire to sanctify and perpetuate a few artificial lines drawn on a map of the world by a succession of politicians, diplomats, explorers and even adventurers, often without reference to the people living on the land, appears to be misconceived in the context of the international human rights regime which exists today.14
The very concept of self-determination has for long been a subject of considerable debate and criticism. Many international lawyers have widely argued that Self-determination is an imprecise and ambiguous concept. The message we get from historical examples seems to be, that achieving self-determination through peaceful means may be acceptable, but disrupting territorial integrity is not. At the same time, when self-determination has been achieved militarily, the international community has generally been reluctant to reverse the gain. The claim is also made that too much focus on self-determination can be dangerous. Despite these problems, however, it is clear that claims to the right of “self-determination” are not abating, and the international community needs to develop better ways of addressing these demands that avoid destructive conflict and violence, and ensure justice as envisaged under the “international rule of law”.15
WASIQ ABASS DAR is studying LL.M at South Asian University, New Delhi, India.
N.B: Write up has already been submitted as Term Paper.
- Lexis Nexis: Definition of “Rule of Law”.
- Report of the Secretary-General on the Rule of Law and Transitional Justice in Conflict and Post-Conflict Societies (S/2004/616).
- Simon Chesterman: An International Rule of Law?
- Simon Chesterman: The Max Plank Encyclopaedia of Public International Law (Vol. III) – ‘Rule of Law’.
- Hua Fan: The Missing Link between Self-Determination and Democracy: The case of East Timor.
- J.Oloka-Onyango: Heretical Reflections on the Right to Self-Determination: Prospects and Problems for a Democratic Global Future in the New Millennium.
- Malcolm M. Shaw: International Law (Sixth Edition).
- East Timor Case: Portugal vs. Australia (1995), decided by the ICJ.
- Quebec case: Reference Re. Secession of Quebec (1998), decided by the Supreme Court of Canada.
- Richard DeGeorge: The Myth of the Right of Collective Self-Determination.
- Max Weller: Settling Self-Determination Conflicts: Recent Developments.
- Tilmann J Roder: The Max Plank Encyclopaedia of Public International Law (Vol. VI) – ‘Kashmir’.
- Allen Buchanan: Federalism, Secession and the Morality of Inclusion.
- Nihal Jayawickrama: The Right to Self-Determination – A time for Reinvention and Renewal.
- Eric Brahm: Self-Determination Procedures.