Annex A
SELF-DETERMINATION AS A HUMAN RIGHT AND ITS
APPLICABILITY TO THE SIKHS
IMPORTANCE OF
SELF-DETERMINATION;
ITS INTER-RELATIONSHIP
WITH "INDIVIDUAL"
HUMAN RIGHTS
1. This paper identifies that self-determination
claims are not just founded in international law but that self-determination
is in fact a basic human right on which other human rights depend
and whose implementation is a duty of the international community.
2. Despite becoming a cornerstone of international
law, some commentators contend that self determination claims
are something purely within the realms of politics. In addition,
there is the vilification of proponents of self-determination,
often perpetrated by states like India, which results in self-determination
activists being labelled extremists or even terrorists.
3. Furthermore, this paper aims to provide
the reasoned basis for the international community recognising
and defending the application of self-determination to the Sikhs.
By doing that the international community is not committing itself
to any particular outcome—that is something for the Sikhs
and the process of international law to determine—but it
will take a principled stand based on the rule of law and that,
in itself, will be a substantial contribution to resolving the
Punjab conflict in a peaceful, just and lawful manner.
SELF-DETERMINATION
IS KEY
TO WORLD
PEACE
4. The global reality of our times is that
most of the armed conflicts at the moment are between groups in
a state or between a group and the state—not between states
themselves. Most of these conflicts involve both a "collective"
struggle for freedom/liberation/ autonomy but also systematic
violations of "individual" human rights such as genocide
and other crimes against humanity, such as extra-judicial killings,
disappearances, torture, rape and illegal detention.
5. Thus resolutions of these armed conflicts—and
of those which are not yet armed conflicts—will depend on
decisions concerning the right of self-determination; the nexus
between the exercise of self-determination and respect for individual
human rights should therefore be apparent to all (In India alone
there are such conflicts in Kashmir, Panjab, Nagaland, Manipur,
Assam and other regions).
6. The importance of self-determination
in the geo-political global landscape is especially crucial in
South Asia which hosts the greatest concentration of self-determination
based claims and the greatest risk of the use of weapons of mass
destruction amid a nuclear weapons race in the region. The possibility
of a humanitarian catastrophe has been widely recognised.
7. In March 2000 US President Bill Clinton
referred to this region as "the most dangerous place in the
world". There followed a year long "eyeball to eyeball"
military standoff on the Indo-Pak border in 2002-03 and despite
recent attempts at normalisation, the risk of a disastrous conflict
is still unacceptably high.
8. In September 2003, while addressing the
UN General Assembly, Pakistan's President, General Pervez Musharraf,
referred to the dispute over Kashmir, a dispute which the UN has
recognised as essentially a matter of self determination when
it called for a plebiscite back in 1948. The President called
it the "world's most dangerous dispute"—a reference
to the nuclear weapons both countries possess.
9. The future of world peace will depend
on a proper treatment of these claims for collective rights. This
paper will, inter alia, show how the international law of self-determination
provides the essential key to peaceful conflict resolution. A
UNESCO sponsored conference of legal experts held in Barcelona
in 1998 concluded that self-determination, as a right that is
exercised by democratic means would be a major contribution to
the prevention and resolution of conflicts. It made clear that
link with individual human rights and called upon the international
community to act: "Peace cannot exist in states that lack
legitimacy or whose governments threaten the lives or well being
of a section of the population. The international community, its
members and institutions have an obligation to act where international
law, including human rights and especially the right to self-determination
is violated".
LEGAL OBLIGATIONS
10. It is important to recognise that self-determination
is now an established legal right and that all states are obliged
to respect that right. Art.(3) of both the International Covenant
on Civil and Political Rights 1966 (ICCPR) and the International
Covenant on Economic, Social and Cultural Rights 1966 (ICESCR)
provides that every State has
— the obligation to "promote the
realization of the right of self-determination" and
— "the duty to respect this right
in accordance with the provisions of the [United Nations] Charter"
11. This paper will describe how self-determination
has, especially since the establishment of the UN, been central
to the development of international law.
What are Human Rights?
12. This paper will demonstrate how self-determination
has become recognised as the basis for all other human rights.
Before dealing with specific human rights we need to consider
the nature and origin of the concept of human rights generally
as this informs us about the broader purpose of humanitarian law.
Historical events which helped frame the current thinking on human
rights include the American Revolution and the French Revolution
in the 18th century, both of which show that the essence of particular
rights is the underpinning foundation of freedom and government
by the consent of the governed. In these two Declarations human
rights are deemed universal rights shared by the whole of mankind.
Sovereignty resides in the people, not in artificial constructs.
13. The American Declaration of Independence
of 1776 states:
"We hold these truths to be self-evident,
that all men are created equal, that they are endowed by their
Creator with certain unalienable rights, that among these are
life, liberty, and the pursuit of happiness. That to secure these
rights, governments are instituted among men, deriving their just
powers from the consent of the governed."
14. In the midst of the French Revolution,
the French constitutional convention adopted in 1789 the "Declaration
of Human and Citizens' Rights," which states:
"Men are born and exist free and with equal
rights. The purpose of all political unions is to preserve men's
inalienable natural rights. These rights are freedom, ownership,
security and opposition to repression. All principles of sovereignty
reside in the citizens. Liberty means the ability essentially
to take any actions without hurting others".
15. Despite the ideals espoused in these
two declarations, human rights continued of course to be mercilessly
violated in various regions of the world due to oppressive regimes,
the evil of colonialism and wars (including the two World Wars).
It was only after World War II that the notion of "universal
human rights" became widespread. The Universal Declaration
of Human Rights was adopted by the UN General Assembly in 1948. The
preamble of this Declaration states:
". . . recognition of the inherent dignity
and of the equal and inalienable rights of all members of the
human family is the foundation of freedom, justice and peace in
the world . . . ."
16. It was declared that the affirmation
of human rights as universal rights common to all mankind, regardless
of any differences in race, national origin, religion and class,
is the foundation of freedom, justice and peace in the world.
17. The International Covenant on Civil
and Political Rights adopted by the UN General Assembly in 1966
achieved three important outcomes in the development of human
rights. It:
— defined in detail the substance of
human rights;
— laid down obligations on each signatory
state to promote the observance of human rights; and
— placed the right of self-determination
at the start of the document—in Article 1—giving it
PRIMACY amongst human rights.
What is Self-Determination and how is it a "human
right"?
18. The legal basis, substance and application
of self-determination will be analysed in this section. In order
to consider the right of self-determination and its application
in more detail, this paper will illustrate matters by considering
the case of the Sikhs in what is today Indian controlled East
Punjab.
19. For the Sikhs, it is crucial that the
issue of self-determination is now properly considered in relation
to their situation for, whilst it is obvious to any serious observer
that it is linked inextricably with the gross violations of (individual)
Sikh human rights by the Indian state, they are disturbed by what
has been a worrying tendency amongst the outside world to avoid
the underlying causes of the conflict. It is no coincidence for
them that no resolution to the conflict has emerged.
Self-Determination as a concept
20. The concept of self-determination is
conveyed by the following words of a judge of the International
Court of Justice which he used in a leading case involving self
determination:
"It is for the people to determine the destiny
of the territory and not the territory the destiny of the people."
Judge Dillard, International Court of Justice
Western Sahara case I.C.J. Rep. 1975,12,121
21. Furthermore, self-determination is a
process, not an outcome. The international community's application
of self-determination to the Sikhs does not require an endorsement
of any particular outcome—it is the process itself that
will produce an outcome.
22. Sikh scripture: Within Sikh scriptures
self-determination is an inherent article of the Sikh faith, enshrined
in the instruction:
Now, the Merciful Lord has issued His Command.
Let no one chase after and attack anyone else.
Self-Determination as a Human Right in International
Humanitarian Law
23. The UN Charter. The UN Charter was signed
on 26 June 1945 and put the self-determination of peoples at the
heart of its purposes.
— Article 1—UN Charter—The
Purposes of the United Nations are: "To develop friendly
relations among nations based on respect for the principle of
equal rights and self-determination of peoples, and to take other
appropriate measures to strengthen universal peace".
"With a view to the creation
of conditions of stability and well-being which are necessary
for peaceful and friendly relations among nations based on respect
for the principle of equal rights and self-determination of peoples,
the United Nations shall promote:
— higher standards of living, full
employment, and conditions of economic and social progress and
development;
— solutions of international economic,
social, health, and related problems; and international cultural
and educational co-operation; and
— universal respect for, and observance
of, human rights and fundamental freedoms for all without distinction
as to race, sex, language, or religion."
"All Members pledge themselves
to take joint and separate action in cooperation with the Organization
for the achievement of the purposes set forth in Article 55".
24. The International Covenant on Civil
and Political Rights 1966.
This was adopted and opened for signature, ratification
and accession by UN General Assembly resolution 2200A (XXI) of
16 December 1966. The Covenant entered in to force on 23 March
1976.
25. It provides that the States Parties
to the Covenant,
— Considering, in accordance with the
principles proclaimed in the Charter of the United Nations,
— Considering the obligation of States
under the Charter of the United Nations to promote universal respect
for, and observance of, human rights and freedoms,
— Agree upon the following articles:
1. 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. All peoples may, for their own ends, freely
dispose of their natural wealth and resources without prejudice
to any obligations arising out of international economic co-operation,
based upon the principle of mutual benefit, and international
law. In no case may a people be deprived of its own means of subsistence.
3. The States Parties to the present Covenant,
including those having responsibility for the administration of
Non-Self-Governing and Trust Territories, shall promote the realization
of the right of self-determination, and shall respect that right,
in conformity with the provisions of the Charter of the United
Nations.
26. The right has been declared in other
international treaties and instruments and has now for a long
time been generally accepted as a norm of current international
law. The 1970 Declaration on Principles of International Law (adopted
by the UN General Assembly), which stated the internationally
agreed basic principles of international law, clarified the contents
of this right when it stated:
"that subjection of people to alien subjugation,
domination and exploitation constitutes a violation of the principles
[of equal rights and self-determination of peoples], as well as
a denial of fundamental human rights, and is contrary to the Charter
of the United Nations."
27. The UN Human Rights Committee (the UN
body established to monitor the implementation of the 1966 International
Covenants) has stressed that the right of self-determination is
absolutely fundamental to the protection of individual rights
because:
"the right of self-determination is of particular
importance because its realization is an essential condition for
the effective guarantee and observance of individual human rights
for the promotion and strengthening of those rights. It is for
that reason that States set forth the right of self-determination
in a provision of positive law in both Covenants [the ICCPR and
the ICESCR] and placed this provision as article 1 apart from
and before all of the other rights in the two Covenants."
28. The right of self-determination is therefore
considered, at the very highest levels of international law and
affairs, as an essential condition in the protection of individual
rights. The rationale for this is clear; if peoples (as a collective)
are being subjected to oppression they are not in a position to
have any of their individual rights protected.
Who has the right of Self-Determination?
29. Who are the "peoples" to whom
the right applies? Experts in international law have generally
agreed (in 1989 UNESCO developed a definition specifically for
the purpose of identifying the holders of the right to self-determination)
that the following factors apply in defining a "people"
or a "nation":
— common historical tradition;
— racial or ethnic identity;
— religious or ideological affinity;
— territorial connection;
— self-identification: the element
of self-identification by a group as a "people" (a subjective
process) was recognised as a "fundamental criterion"
of the definition of "peoples" in the ILO Convention
concerning Indigenous and Tribal People in Independent Countries
1989 and is the main reason that no permanent and universal objective
definition of "peoples" can be discerned. Indeed, the
drafters of Article 1 of the two International Human Rights Covenants
substituted "peoples" (a plural word) for "nations"
because "peoples" was considered to be the more comprehensive
term: the word "peoples" was understood to mean peoples
in all countries and territories, whether independent, trust or
non-self-governing. It was thought that the term "peoples"
should be understood in its most general sense and that no definition
was necessary.
30. Sikhism, the youngest and fifth largest
of the major world faiths was born in Punjab in 1469. The
Sikhs, with a unique spiritual and temporal philosophy (the miri
piri principle), together with a distinct linguistic and cultural
tradition, developed in to an indigenous, freedom loving sovereign
nation that first secured political power in the form of an independent
state in 1710, after suffering centuries of foreign invasions
and alien domination. The larger sovereign Sikh state established
in 1799 was recognised by all the world powers as a subject of
international law and was party to several Treaties with the British.
That the Sikhs satisfy the definition of a people or a nation
is beyond doubt and no sensible commentator has ever attempted
to suggest otherwise. As well as being recognised as a people
or a nation by others the Sikhs, crucially in the context of the
criterion of self identification, see themselves as such. This
self-identification as a nation is fundamental to the current
analysis.
31. A powerful expression of this self-identification
is also apparent from the preamble of the historic "Anandpur
Sahib Resolution" of 1973 which became the basis of Sikh
demands for autonomy in India until the escalation of Sikh demands
following India's military assault on the Golden Temple in Amritsar
in June 1984. The Resolution was passed on 17 October 1973
by the Working Committee of the Shiromani Akali Dal (which was
then recognized as the political voice of the Sikhs).
32. Anandpur Sahib Resolution "Whereas
the Sikhs of India are a historically recognised political nation
ever since the inauguration of the Order of the Khalsa in the
concluding year of the 17th century, and Whereas, this status
of the Sikh nation has been internationally recognised and accepted
by major powers of Europe and Asia, France, to wit, England, Italy,
Russia, China, Tibet, Persia, Afghanistan, Nepal and the Company
Bahadur, Fort William, Calcutta, till the middle of the 19th century,
and again by the outgoing British and the Hindu Congress and the
Muslim League of India in the middle of the 20th century".
33. It is useful to note the following in
the context of how Sikhs not only see themselves as a nation but
how they are also seen as such by independent observers:
— The British House of Lords in 1983
(Mandla v Dowell Lee) recognised, in the context of establishing
whether the Sikhs were an ethnic group for the purposes of the
UK Race Relations Act, that the Sikhs as separate ethnic group,
religion and a Nation after making an assessment of their history,
language, culture and sense of nationhood.
— The Jathedar of the Akal Takht (Joginder
Singh Vedanti), in a conference held at the British House of Commons
in November 2002, gave an unequivocal affirmation of Sikh nationhood.
The Jathedar of the Akal Takht has a significant role in Sikhism
and his role is to protect the sovereignty of the Akal Takht (the
home of temporal authority in Sikhism). The Sikh Times—November
2002 reported the statement as follows:
"AKAL TAKHT JATHEDAR IN UK PARLIAMENT:
REAFFIRMS SIKH NATIONHOOD"
Historic Declaration made at Westminster
Conference.
"In a pivotal moment for the treatment of
Sikhs in international affairs Singh Sahib Joginder Singh Vedanti,
Jathedar Sri Akal Takht Sahib, told a packed Conference hosted
by MPs of the UK parliament that Sikhs are a distinct Nation.
He went on to state that it is time the world recognised this
and accorded the Sikhs their rightful status and full national
rights. According to the Jathedar, this was the only way that
the Sikh Nation could take up its rightful place in the community
of nations."
34. Whilst the Sikhs are clear about their
nationhood, they find that it is denied by the Indian State and
the Indian political class which are not prepared to allow the
Sikhs anything akin to national rights.
35. The Indian constitution even denies
Sikhism separate recognition as a religion for legal purposes—an
affront that is widely seen as a deliberate act of suppression
of the Sikhs. Article 25 Indian Constitution reads as follows:
"Article 25 Freedom of conscience and free
profession, practice and propagation of religion
1. Subject to public order, morality and health
and to the other provisions of this Part, all persons are equally
entitled to freedom of conscience and the right freely to profess,
practice and propagate religion.
2. Nothing in this article shall affect the operation
of any existing law or prevent the State from making any law—
(a) regulating or restricting
any economic, financial, political or other secular activity which
may be associated with religious practice;
(b) providing for social
welfare and reform or the throwing open of Hindu religious institutions
of a public character to all classes and sections of Hindus.
Explanation I: The wearing and carrying of kirpans
shall be deemed to be included in the profession of the Sikh religion.
Explanation II: In sub-Clause (b) of clause (2),
the reference to Hindus shall be construed as including a reference
to persons professing the Sikh, Jaina or Buddhist religion, and
the reference to Hindu religious institutions shall be construed
accordingly"
36. There is also a refusal to recognize
Sikh nationhood in the Indian media. It is enlightening to see
how the Akal Takht Jathedar's comments in the UK House of Commons
(see above) were reported in the Tribune—the report refers
to "identity" and makes no mention of "nationhood":
VEDANTI: SIKHS HAVE SEPARATE IDENTITY
Amritsar, December 7. Addressing the House
of Commons in England, Giani Joginder Singh Vedanti, Jathedar
Akal Takht declared that Sikhs had distinct, separate identity.
Talking to the Press, at his official residence here today, Jathedar
Vedanti said that this statement was made by him in reply to the
question whether Sikhs were part of Hinduism or enjoyed separate
identity."
To what situations does Self-Determination apply?
COLONIAL SITUATIONS
The right of self-determination applies to all
peoples in colonial situations. This position was upheld by the
International Court of Justice in the Namibia case and there is
nearly uniform State practice consistent with its application
to colonial territory.
NON-COLONIAL
SITUATIONS
There have been transparently expedient efforts
on the part of those who fear self-determination (unitary states
made up of reluctant peoples who never consented to their current
political status) as to whether self-determination can be applied
to non-colonial situations. Certainly the focus of the right in
the Declaration on Granting of Independence to Colonial Countries
and Peoples 1960 was on "the necessity of bringing to a speedy
and unconditional end colonialism in all its forms and manifestations".
This restrictive interpretation has however become rightly discredited
both by subsequent international law and by state practice.
INTERNATIONAL LAW
37. Since 1960 not one of the major international
instruments which have dealt with the right of self-determination
has limited the application of the right to the colonial situations.
For example,
— as we have already, seen common Article
1 of the two International Human Rights Covenants of 1966 applies
the right to "all peoples" without any restriction as
to their status and the obligation is on all States, "including
those having responsibility for the administration of [colonial]
Territories".
— Article 20(2) of the African Charter
refers to both "colonised or oppressed people" as having
the right.
— In its General Comment on Article
1 of the International Covenant on Civil and Political Rights
the Human Rights Committee also makes evident that:
"the obligations [under Article
1] exist irrespective of whether a people entitled to self-determination
depends on a State party to the Covenant [ie are in colonial territories].
It follows that all States parties to the Covenant should take
positive action to facilitate realization of and respect for the
right of peoples to self determination."
38. State practice. This also supports a
broader application of the right of self-determination beyond
strictly colonial confines.
— There has been widespread acceptance
that the right applies to the Palestinians, to the blacks in South
Africa, to the blacks in former Southern Rhodesia; and to other
territories such as Tibet.
— In the Treaty on the Final Settlement
With Respect to Germany 1990, which was signed by four of the
five Permanent Members of the Security Council, it was expressly
mentioned that the "German people, freely exercising their
right of self-determination, have expressed their will to bring
about the unity of Germany as a State", despite the fact
that neither East nor West Germany was a colony.
— It has also been applied by States
in the context of the break-up of the former Soviet Union and
the former Yugoslavia, with the European Community's Declaration
on the Guidelines on the Recognition of New States in Eastern
Europe and in the Soviet Union of 16 December 1991 referring expressly
to self-determination.
— East Timor seceded from Indonesia
in a UN led exercise in self determination.
39. In fact, the substantial increase in
membership of the United Nations in the 1991-92 period is a reflection
of this broader application of the right of self-determination
to non-colonial situations.
INDIA'S
POSITION ON
THE SCOPE
OF SELF-DETERMINATION
40. On ratifying the 1966 Covenants India
made a Reservation [UN Doc. ST/HR/5, 1987,9.] to the effect that
the right of self determination pertains only to "peoples
under foreign domination"; it is not relevant with regard
to "sovereign independent States or to a section of a people
or nation—which is the essence of national integrity".
41. India only made that Reservation on
the basis that it was acknowledging that its position was at variance
with the generally accepted view that self-determination in fact
applies to ALL peoples. France, Germany and the Netherlands objected
to the Reservation on the ground that self determination applies
to ALL peoples but India insisted on making that Reservation.
42. Subsequently, the Human Rights Committee
(the UN monitoring body in respect of the 1966 Covenants) stated
in its 1997 review of India's compliance [CCPR/C/79/ Add.81. 04/08/97]
with Article 1 which deals with self-determination that it "invites
the State party [India] to review these reservations and declarations
with a view to withdrawing them, so as to ensure progress in the
implementation of the rights . . ." India has not made any
such withdrawal.
43. As can be seen from the forgoing analysis,
India's position is contrary to the law of self determination.
Whilst India may have an expedient interpretation of the law to
suit its own needs, it is nevertheless bound by international
law and the international community must insist that the law is
upheld.
Territorial Integrity—A bar on Self-Determination?
44. A part of the general limitation on
the right of self-determination is the specific limitation of
territorial integrity. The 1970 Declaration of Principles of International
Law provides that the right of self-determination shall not "be
construed as authorising or encouraging any action which would
dismember or impair, totally or in part, the territorial integrity
or political unity of sovereign and independent States".
This limitation is an extension of the desire in most societies
to create a social and legal system which is relatively stable.
In the international community, dominated at it is by States,
the stability desired primarily concerns territorial boundaries.
45. However, the territorial integrity limitation
cannot be asserted in all situations:
— The Declaration of Principles of
International Law provides that only "States conducting themselves
in compliance with the principle of equal rights and self-determination
of peoples . . . and this possessed of a government representing
the whole people belonging to the territory without distinction
as to race, creed or colour" can rely on this limitation.
— After the recognition by the international
community of the disintegration as unitary States of the Soviet
Union and Yugoslavia, it is now the case that any government which
is oppressive to peoples within its territory may no longer be
able to rely on the ground of "territorial integrity"
as a limitation on the right of self-determination. So for example
India in relation to Punjab, Kashmir, Nagaland etc—cannot
succeed in limiting the right of self- determination on the basis
that it would infringe that State's territorial integrity as it
has, in relation to those situations, clearly oppressed the subject
peoples.
46. The level of oppression of the Sikhs
in Punjab and elsewhere in India (especially during the period
1984 to 1995) has been severe and has left Sikhs in India and
the Diaspora Sikhs traumatised. A detailed analysis of the abuses
does not fall within the scope of this paper but the fact that
state policy led to the following atrocities and the fact that
no one is being held accountable for them is key to the question
of "oppression" for the purposes of this point:
— The Indian army's full scale assault
on the Golden Temple complex (including the destruction of the
Akal Takht—the centre of Sikh sovereignty) and the killing
of thousands of devotees in a notorious act of genocide and desecration
which extended to 38 other major Sikh shrines in June 1984 (the
media were banned from Punjab which was sealed off during the
operation). The Sikh Reference Library housing irreplaceable items
from Sikh heritage was deliberately torched by the army.
— The butchering of over 20,000 Sikhs
across India in November 1984 in pogroms activated after the assasination
of Indira Gandhi.
— The "dirty war" waged by
security forces in Punjab since 1984 which has seen leaders of
the Sikh freedom movement, their supporters and families killed
off (or "disappeared") in the tens of thousands, with
their bodies being secretly cremated in order to hide evidence.
The central government set up a massive fund to enable "rewards"
to be given to those who, by whatever means, eliminated the widespread
use of torture and rape to terrorise Sikhs in to political submission.
— The enactment of "black laws"
ostensibly to deal with a terrorist threat but which were used
to give the security forces complete impunity for their abuses—at
one stage these measures included the suspension of the right
to life.
— The elimination of many human rights
protectors, including lawyers, who dared to speak out against
the atrocities.
47. Respected international human rights
organisations such as Amnesty International and Human Rights Watch,
as well as the UN Special Rapporteur on Torture, have been banned
from Punjab (and still are). Nevertheless witness testimony has
allowed these groups to document the atrocities; even to this
day their calls for appropriate legal action to be taken against
the perpetrators of the atrocities are ignored by the Indian state
and, as a result, the terror is maintained.
48. The "territorial integrity"
objection to groups seeking to exercise self-determination by
means of secession is only arguable if a State has not oppressed
the peoples living within it and where those peoples have had
their political and human rights respected in the constitutional
set-up in that State. Observers of the recent history of the Sikhs
will be aware that the "territorial integrity" objection
cannot be afforded to India and that must be a factor in any process
of applying the process of self-determination to the Punjab conflict.
Internal and External Self-Determination
49. The right of self-determination is often
divided into two aspects: "external" and "internal"
self-determination. In a world order based on state entities,
the international community has naturally preferred self-determination
to be, where possible, exercised within existing states (internal
selfdetermination) but it has recognised that, where there is
a deliberate denial of such arrangements to claimants, there must
be scope to exercise the right by other means (external self-determination).
50. External self-determination concerns
directly the territory of a State—its division, enlargement
or change—and the State's consequent international ("external")
relations with other States. The application of external self-determination
is seen in the three main methods for exercising the right of
self-determination mentioned in General Assembly Resolution 1541(XV):
— emergence as a sovereign independent
State;
— free association with an independent
State; or
— integration with an independent State.
51. Importantly, it can be seen in this
Resolution that the right of self-determination does not imply
that independence, or secession from an independent State, is
the only, or even the necessary and appropriate, means of exercising
the right. There may be other structures or arrangements that
satisfy the demands of those who exercise the right of self-determination.
52. Internal self-determination. The "internal"
aspect of the right concerns the right of peoples within a state
to choose their political status, the extent of their political
participation and the form of their government, ie a state's "internal"
relations are affected. The potential for the wide application
of internal self-determination was stated in the 1970 Declaration
on Principles of International Law, as it is provided that only
"a government representing the whole people belonging to
the territory without distinction as to race, creed or colour"
can be considered to be complying with the right of self-determination.
The exercise of this right can take a variety of forms, from autonomy
over most policies and laws in a region or part of a state (such
as the canton system in Switzerland); to a people having exclusive
control over only certain aspects of policy; such as education,
social and/or cultural matters. The type of arrangements applicable
to any given situation will usually depend on the constitutional
order of the state concerned and may challenge the present centralised
structure of most states.
53. The Sikhs have, since 1947, made substantial
efforts aimed at securing "internal self determination"
within India. That is a matter which has been recorded in a great
deal of literature about the Punjab problem. Although it is beyond
the scope of this paper to analyse those efforts in detail, some
of the most well known circumstances of those efforts are:
— 1947 and India's broken promises
to the Sikhs. India's founding fathers had given numerous
solemn promises that their freedom and dignity would be safeguarded.
Jawahar Lal Nehru had said that "the brave Sikhs of Punjab
are entitled to special consideration. I see nothing wrong in
an area set up in the north of India wherein the Sikhs can also
experience the glow of freedom" (Lahore Bulletin,
9 January 1930). These promises were conveniently forgotten after
the British left and the Sikhs were dismissively told by the same
Nehru that the "circumstances had now changed".
— Rejection of India's centralised
Constitution by the Sikhs. S. Kapur Singh MP speaking in the
Indian Parliament on 6 September 1966 described how the Sikhs
had never accepted in the Indian Constitution. He told of how
Mahatma Gandhi and Pandit Jawaharlal Nehru gave the Sikhs a solemn
assurance that after India achieves political freedom no Constitution
shall be framed by the majority community unless it is freely
acceptable to the Sikhs. This promise was then reduced into a
formal Policy Resolution of the All India Congress Committee.
Afterwards, this Policy Resolution was repeatedly reiterated,
officially and semiofficially, throughout the period up to August
1947. When in 1950, the Constitution Act of India was enacted
and the Constitution failed to deliver any safeguards or political
rights for the Sikhs as a people or nation, the accredited representatives
of the Sikhs the Shiromani Akali Dal declared vehemently and unambiguously
in the Constituent Assembly that: "The Sikhs do not accept
this Constitution: the Sikhs reject this Constitution Act".
The spokesmen declined to append their signatures to the Constitution
Act as a token of this clear and irrevocable rejection. The Sikhs
as a people have never accepted that constitution.
— The Anandpur Sahib Resolution.
Passed by the Working Committee of the Shiromani Akali Dal,
Ludhiana, Punjab, 17 October 1973 set out the basis on which the
Sikhs were prepared to accept a political union within India,
as a federal state:
"The Central Government should
confine its authority only to defense, foreign affairs, general
communications and currency and rest of the subjects should be
handed over to the States and in this case particularly to Punjab".
This demand for internal self-determination
was pursued through decades of peaceful protest and attempts at
negotiation with the central government. The demands were never
seriously considered and appear now, given the recent history
of the conflict between the Sikhs and India, to be too little
too late in any event.
— Natural resources. Over 70% of Punjab's
precious water resources are being appropriated by other states
within India, without any payment or other consideration. As an
overwhelmingly agrarian state which is suffering from acute water
shortages (experts predict Punjab will become a desert within
20 years if current utilisation continues), the region and its
people are being denied their own crucial natural resources. The
appropriation is contrary not only to established riparian laws
(the recipient states are non-riparian) but also a violation of
the law of self-determination which provides that no people should
be denied there natural resources. Recently, the Punjab state
government passed the Punjab Termination of Agreements Bill 2004
in an unprecedented move to cancel all water "sharing"
arrangements imposed by the central government. It is likely that
the Indian Supreme court will set aside that move at the behest
of the central government. The economic future of the Sikh homeland
is being destroyed but their protests have not been heeded.
— Declaration of Khalistan issued from
the Akal Takht Sahib on 29 April 1986. The Sarbat Khalsa (national
gathering of the Sikh nation) held at the Akal Takht Sahib in
Amritsar on 26 January 1986 freely resolved that the establishment
of an independent sovereign Sikh state was the only means of protecting
Sikh national rights. This was the basis on which the leaders
of the Sikh freedom movement declared independence by way of the
Declaration of Khalistan issued from the Akal Takht Sahib on 29
April 1986. The Sikh leadership involved in making of the Declaration
have been killed in fake encounters and the freedom movement has
been suppressed by the use of force in a blatantly illegal manner.
Senior Indian security officials openly defend that approach on
the basis that the "niceties" of international legal
norms will not be allowed to get in the way of an overwhelming
political imperative of crushing the separatists and their sympathisers.
54. The scale of the state terror in Panjab
has left a traumatised population and a political void where not
only is there no settlement of the conflict but no official recognition
of it. The absence of largescale political activism today is not
a sign of normality—it is a circumstance that a leading
human rights defender in Panjab has described as the "peace
of the graveyard" (Ret'd Justice Ajit Singh Bains, Chair
of the Punjab Human Rights Organisation, addressing British MPs
in the House of Commons on 5 November 2003).
55. The Sikh demands for autonomy or internal
self-determination were not only rejected by the Indian State;
Indian politicians responded by criminalising Sikh aspirations
and trying to neutralise them by the use of force (state terrorism),
eventually on a massive scale. Estimates as to the number of Sikhs
killed since 1984 range from between 150,000 to 200,000.
56. Experts on self-determination aver,
unsurprisingly, that when INTERNAL self-determination is violently
rejected and crushed with state terror, the oppressed peoples
or nations have little option but to seek remedy via EXTERNAL
self-determination. As we have seen, the international law formulation
on self-determination underpins that view. That is the basis on
which the Sikhs themselves have raised the demand for an independent
state.
How is the right to Self-Determination exercised?
57. Given that the right of a "people"
or "nation" is based on their "freely determined"
wishes, it is no surprise that the classic mechanism for implementing
that right is the use of a plebiscite. This was seen in the original
UN resolutions on Kashmir in 1948 and the more recent UN led independence
process for East Timor. The Sikhs have not of course been offered
the opportunity but it is interesting to note that the former
UK Indian High Commissioner, Kuldeep Nayar has admitted that if,
after the horrors of 1984, the Sikhs were given a plebiscite they
would have gone for Khalistan.
58. The question moves to how such a plebiscite
may be brought about in Panjab and it is here that the international
legal system is flawed as there is not available to claimants
of collective human rights a forum to bring their claim for adjudication.
The Human Rights Committee has been limited in its ability to
consider claims brought by peoples alleging violations of their
right of self-determination because the Optional Protocol to the
ICCPR allows only "individuals" to bring claims. In
fact, none of the major international human rights tribunals has
had to consider directly a claim alleging the abuse of the right
of self-determination.
59. In the absence of an effective standing
tribunal to adjudicate these claims it falls on the political
will of the international community to deal with claims in the
UN and this is where claimants must focus their energies. The
subjugation of a universal human right, enshrined in international
law, to a political process as imperfect as the UN is a tragedy
which explains why many self determination claimants have sadly
felt it necessary to resort to other means to pursue their goals.
It cannot be right that such a flawed system be allowed to remain
and international lawyers are exploring the establishment of a
permanent tribunal that would adjudicate claims. Until that happens
it will probably be a political process that will lead to any
successful pursuit of the legal right of self-determination and
it is therefore crucial for the international community to assess
claims in a principled and neutral manner.
CONCLUSIONS
60. Self-determination is now recognised
as the bedrock of all human rights in international law; without
self-determination all individual human rights can be breached
with impunity. Furthermore, self-determination is a key to the
resolution (and prevention) of scores of violent conflicts which
invariably have a massive cost in terms of human life and development.
The purposes of the UN (maintenance of international peace and
security) will be served directly if the law of self-determination
is universally implemented and South Asia is a region that seems
particularly in need of conflict resolution by that means.
61. Notwithstanding the (deeply unimpressive)
arguments of India that self-determination cannot apply to peoples
in independent States, the international community must move beyond
passive acceptance of the use of force to crush lawful claims
to exercise the right of self-determination. The Sikhs today look
to international intervention to secure their lawful rights. In
words of Marino Busdachin, General Secretary of the Unrepresented
Nations and Peoples Organisation, in a speech to MPs and Sikh
representatives in the British Parliament in May 2004: "The
international community, its members and institutions have an
obligation to act where international law, including human rights
and the right to self-determination is violated as seems to be
the case in relation to the Sikhs in their homeland. The time
to act is now."
62. This paper has demonstrated how the
Sikhs, as a nation, have a lawful right to self-determination.
It will simply not do for those who claim to operate within international
law to deny this. It is hoped that the international community
will recognise this in order to take forward the cause of peace
and justice and the rule of law in South Asia.
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