INTRODUCTION
Self-determination has been a highly contested issue in international law. However, the right was never identified as a black-letter pronouncement of law. The right to self-determination has nowhere been expressly defined in Indian jurisprudence. Neither the Constitution nor any other statute provides for it. Over the years, it has transformed from a ‘mere political assertion’ to an essential principle of action, acquiring international legality and resurfacing long-standing issues on the enjoyment of human rights.[1] As per Article 1 of the U.N. Charter, which embodies itself in the ICCPR and ICESER, the rosy liberal definition asserts that: “All peoples have the right of self-determination. By virtue of that right, they freely determine their political status and freely pursue their economic, social and cultural development.”[2][3]
How this right must be realized poses a serious dilemma in modern day international relations. Its jus cogens status generating erga omnes rights enforces an obligation on all states to ensure that the right is realized, effectively. There must be no deviation from the right. The lacuna between the desire to protect state sovereignty and the right of all peoples to choose their political will, widens, as we move from the West to the East. In the west where individualistic cultures predominate, every person contributing to the working of the society focuses on themselves and acts in an independent and self-reliant manner. As we move towards a ‘collectivistic’ culture, like the one prevalent in India, the needs of the group (as a whole) are emphasized and catered to. These cultural differences instigate a knee-jerk reaction of dividing self-determination into two broad classes: one where every person is free to self-determine and the other, where the right acts merely as a cloak, attempting to hide the persisting political and social predispositions inside a country.
The author seeks to analyze how, in the current political and legal terrain, a right that was supposed to elevate the political, economic, and social destinies of all peoples can be realized when interpreted considering a market-based economy. Bearing in mind the market forces of supply-demand and the inflation arising thereof, are individuals really ‘free’ to determine their social and economic development, or is the right subject to the whims and fancies of a few States’ leaders?
THE INDIAN POSITION (IN RE: THE KASHMIR CONFLICT)
India’s position with respect to the right is authoritative and problematic. The “world’s largest democracy” maintains that only colonial or foreign-dominated states can claim this right (UNGA 1966) and refuses to extend it to postcolonial matters. However, the character of the right is such that it was initially incorporated to safeguard the public from economic, political, and social subjugation. Nations like France and Netherlands differ considerably in construing the contents, as well as the applicability of the right. They argue for de-limiting the scope of the right to self-determination.
Historically, the right to self-determination, as many other international obligations, was a legally claimable right against the backdrop of political, economic, and social subjugation in the context of archaic colonialism. The underlying objective behind the implementation of the right was political and economic freedom from external forces. But what happens when leaders of a nation blatantly violate basic principles of natural justice, to further political agendas and personal predispositions? When the State violates the fundamental rights of its citizens so grievously that the situation mirrors classic colonialism, it infringes upon the democratic right of self-determination too. The apex court in Berubari Union[4] held that “As ceding a part of the territory is outside the constitutional framework, it is not prohibited to demand the exercise of this sovereign right by the Indian state by a group of people under the right to self-determination.” While not being mentioned explicitly, the extensive application of this right is legally claimable.
Let us take the example of Kashmiris demanding the right to self-determination for decades after partition. Despite three Indo-Pak wars,[5] multiple UN Security Council Resolutions,[6] and a bilateral agreement between India and Pakistan,[7] an amicable resolution of the conflict remains obscure and far-fetched. Earlier in the year, actions were taken by the Bhartiya Janta Party-led government essentially violated this right. A complete internet and communication shutdown was imposed, many journalists were arrested (infringing the right to freedom of press and information), and widespread checkpoints and barricades were foisted on the Kashmiri population.[8] Prior to this, the abrogation of Articles 370 and 35-A that granted Kashmir an autonomous status resulted in a backlash amongst the larger public. Further, to silence the voices of innocent Kashmiris and deny them the right to self-determination, the government has passed scathing, authoritative legislations like the Terrorist and Disruptive Activities (Prevention) Act and the Armed Forces (Special Powers) Act, 1958. These two pieces of legislation validate and legalize extrajudicial killings of innocent civilians to ‘maintain public order. The combined effect of these actions may have grave implications for the Kashmiri claims of self-determination and independence. It is abundantly clear that external diplomatic intervention is now necessary. However, any act or omission must be delicately balanced between human rights considerations and south-Asian politics.
CONCLUSION
States are continually violating their jus cogens obligations and transgressing their powers to impede the growth of private self-determination. Thus, scholars, academicians, and legislators must be concerned with the on-ground realities while formulating a new-age definition of self-determination, rather than abstract ideas of freedom and harmony. Lastly, varied factors such as economic mobility, social mobility, globalization, and the ever-expanding industrial and technological landscape, all evidence the fact that ‘self-determination’ cannot be an absolute concept in modern times. It needs to be redefined and painstakingly articulated to incorporate a delicate balance between sovereignty, international peace, free will, and human rights.
Author’s Name: Rishubh Agarwal (OP Jindal Global University, Sonipat)
[1] Jhanavi M, ‘Self-Determination in The Indian Constitution: An Undeveloped Right’ (Ex Gratia Law Journal) <https://exgratialawjournal.com/blawg/constitutional-law/self-determination-in-the-indian-constitution-an-undeveloped-right-by-jhanavi-m/>.
[2] UN General Assembly, ‘International Covenant on Civil and Political Rights’ (1996) 999 United Nations Treaty Series <https://www.refworld.org/docid/3ae6b3aa0.html>; UN General Assembly, ‘International Covenant on Economic, Social and Cultural Rights’ (1966) 993 United Nations Treaty Series <https://www.refworld.org/docid/3ae6b36c0.html>.
[4] In Re (1960): The Berubari Union and Exchange of Enclaves v Reference AIR 1960 SC 845
[5] See ‘A Brief History off The Kashmir Conflict’ (The Telegraph) <https://www.telegraph.co.uk/news/1399992/A-brief-history-of-the-Kashmir-conflict.html>.
[6] See Brian Richard Farrell, ‘The Security Council and Kashmir’ (2013) 22 Transnational Law & Contemporary Problems 343, 343
[7] ‘Simla Agreement on Bilateral Relations’ (1972) 858 United Nations Treaty Series 71
[8] Ahmed Farooq, ‘Kashmir Dispute Redux: What of The Right of Self-Determination? — Fordham International Law Journal’ (Fordham International Law Journal) <https://www.fordhamilj.org/iljonline/2019/9/10/kashmir-dispute-redux-what-of-the-right-of-self-determination/#fn7>.
