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An international and comparative perspective

Address by Yash Ghai, Professor of Public Law, University of Hong Kong, at the BMICH, Colombo, March 11, 2003, organised by the International Centre for Ethnic Studies, Colombo.

Internal self-determination has become the framework for resolving ethnic disputes in recent years. It is the framework on which the Government of Sri Lanka and the LTTE have agreed upon to resolve their disputes.

Before discussing internal-self determination at length I would like to speak on external self-determination or generally on the concept of self-determination.

My understanding of self-determination is that it is a difficult concept. Sometimes it is a help and at other times it is a handicap. The ambiguities in it and the range of understanding that pass under that provide flexibility on resolving a dispute. The range of flexibility is such that in the end both parties can claim what they set out to do. Self-determination became a legal concept only in the 1960s. In 1966 the UN adopted the two covenants on human rights. One on civil and political rights and the other on socio-economic and cultural rights. Both these instruments proclaimed the right of self-determination in articles 1.

The term self-determination has been used between the First and Second World Wars. During this period a number of states emerged. The collapse of the Ottoman and the Hapsburg Empires led to the emergence of these states. So the political notion of self-determination, as meaning a nation's right to its own state, is older than the two covenants.

The United Nations Charter itself uses the term self-determination as one of the principles that determine relations between states. This was also applied to the gradual progression of trust territories and other territories under foreign rule, towards full independence, where the people concerned approved it.

In 1966 it became a right and an entitlement. Since then we have grappled with the question of what precisely this right means and when it is available and to whom it is available. At the time that the two covenants were adopted there already signalled different understanding of what self-determination meant.

The Western nations accepted the right to self-determination on the understanding that it related to the way in which a state organised its political institutions. Basically, it meant that the state must be organised on the democratic principles, particularly the principle of representation.

Others understood this to mean that countries still under colonial rule were entitled to independence or some other political status which they approved of - some kind of association or merger - provided that the people in the colony were consulted and they approved that option.

This was highlighted when India signed the covenants, but entered a clause stating that India's understanding of this article was that it did not apply to countries which were independent but only to colonies or territories under unlawful occupation or which were ruled under racist regimes like that of South Africa. This interpretation was contested by a number of Western states which argued that the right belonged to all the peoples in all the states and not only to colonies or unlawfully occupied territories. India did not accept this view and a number of other countries, which recently emerged from colonialism, took up positions more or less similar to that of India on the issue.

At the very beginning there was a difference between many of the countries, (which came to be called the Third World with their colonial experience) and the Western states on what self-determination really meant.

For the most part the United Nations in practice restricted the term to colonies. The General Assembly adopted two resolutions on this in 1960. One proclaimed the right to independence or self-determination of colonies, trust territories and unlawfully occupied territories.

The second resolution passed about the same time identified three situations where the concept of self-determination would be applied. They were (1) a colony in the traditional sense (2) unlawfully occupied territories and (3) racist regimes - with a reference to South Africa. Only in those contexts did people have a right to self-determination and not outside them.

What has happened in recent years is that there has been a reformulation of the concept of self-determination increasingly in the original sense as was propounded by Western states without denying that self-determination can mean independence. Now the arugment for the most part is that self-determination, when it is applied to all the people in all the states, refers to the internal organisation of the state.

Many disputes have been transformed from a concern or claim to separate statehood into a discussion and eventually an agreement on the restructuring of the state often under the influence of the UN, the NATO, the European Union or the Council of Europe.

So we have at the moment a certain amount of ambiguity about this term. The difficulty I guess about self-determination as statehood outside the normal context of colonialism has been the great opposition to that understanding by most states particularly by the Third World.

So while theoretically one can say that people have a right to self-determination in terms of their own state, there has been much academic and perhaps not very fruitful debate on what is meant by people and the resistance on the part of the international community to acknowledge the right of a group even if it comes under the definition of people. So what is important about self-determination now are issues which concern the internal organisation of the state.

There is of course a connection between the internal and external definitions of self-determination because increasingly even those who believe that people have a right to form their own state, say that the right only accrues if that community or people concerned have been oppressed in the state with which they have hitherto associated. So they added that the condition of oppression had to be of such a serious nature that the particular community would not exercise self-determination within the original state.

There has been much discussion in recent times on what kind of violations - what kind of oppression - would entitle a group to a separate statehood. Those who argue for a wider interpretation have said that there is such a thing as internal colonialism, which was partly the argument of the East Pakistanis when they made their claim for secession of what is now Bangladesh.

There are however some people who say that even if there is some degree of oppression there is no automatic right to self-determination. This is said less by lawyers than by political scientists and moral philosophers who say that inevitably secession involves great disruption in the lives of people and is often accompanied by extreme violence; therefore, one has to put in the equation whether on moral grounds self-determination as secession is justified.

It was the argument that was used to resist the secession by Katanga, (a province of Congo) because it was argued most of the minerals were in Katanga and secession by Katanga was seen as an act of selfishness - they did not want to share their wealth with other Congolese.

And similarly in Biafra in Nigeria where oil was discovered, the resistance to secession was based on the point that Biafra considered itself a nation not when the British went there 100 years previously but only when oil was discovered in the province. So people say that this kind of secession should be resisted if it looks like that the group seeking secession will be worse off in some ways.

Moving to internal self-determination as a framework for settling disputes it becomes much less critical to worry about whether the group claiming self-determination is a nation or not. But if it is a matter of the internal organisation of the state, it becomes like an exercise in constitution making. Then all communities should determine the political system under which they want to live.

So the precise distinction between a nation, a people and a minority becomes less important but not irrelevant. In the Canadian debate for example it is generally acknowledged that the Francophonic community is a nation, and therefore, within the broad federal system the French Canadians are somewhat entitled to a higher autonomy than those in other provinces.

Unlike external self-determination, which means secession and going of separate ways, internal self-determination is a continuing state of affairs periodically revisited. When East Timor's future was being discussed, the idea of autonomy was pushed. It was proposed that the East Timorese would have the right to secession in 10 years time if they were not happy with autonomy. When the mater was put to a referendum the autonomy idea was rejected which meant a vote for secession.

However, in the case of countries like French Polynesia which had begun rather belatedly in the 1970s and 80s to ask for independence from France, the approach was different. France persuaded the Polynesian people, the Tahitians and others to accept wide-ranging autonomy. If they were not satisfied with it in 10 years time they would have the right to vote for total independence.

It was also decided to give Bougainville, following its dispute with Papua New Guinea, a high degree of autonomy much more than other provinces. The autonomy given to some territories is much wider than in any federal system. there is a kind of dialectic between internal and external self-determination. My own understanding or interpretation of internal self-determination in multi ethnic plural societies is the way in which communities settle their ethnic claims. It is not just a matter of giving more representation to minorities who have been hitherto marginalised in society.

There can be mechanism for power sharing through forms other than federations. It can happen in coalition governments which are mandated by the Constitution and which don't arise in the ordinary way of politics. Fiji has such a constitution, which has become troublesome. Bosnia has a system like that. There are one or two other countries like that. The principle of self-determination arose as a principle to fend off external intervention. Nevertheless, foreign powers play a very critical role in the process.

Internal self-government is not entirely a matter of a negotiating process. There is the notion that calls for the inclusion of core rights, core institutions and principles in the political system before one can say that there is internal self-determination. European states have developed a number of norms to determine whether or not a state has satisfied the internal tasks.

The European Union - on the basis of certain principles that the EU has developed - recognized for instance the states, which emerged out of former Yugoslavia. There are a number of documents, which spell out what is self-determination. They emphasize the rights of minorities, democracy and confidentiality. So it is not entirely a matter of what the negotiating parties have decided.

The second element of this is about who has the right to self-determination. It is not just a group that calls itself a nation. I noticed that Muslims in Sri Lanka have recently called themselves a nation because they want to sit at the table.

Internal self-determination is secured through a process which has to be inclusive in order to satisfy the task of self-determination, and if you exclude a particular community from the negotiating process and excluded its ultimate approval and ratification of the resulting document, then you have failed to complete the task of self-determination. This does not however mean that all parties should debate issues all at once, but the final result must reflect the broad consensus and approval of all communities.

Let me draw your attention to a form of self-government adopted in Oslo as framework for detailed negotiations. This is the question of federation.

I first want a make distinction between the concept of federation and the concept of autonomy. Sometimes the term autonomy is used in relation to federation as well because after all federation is about autonomy for particular territorial units - self-government in relation to particular subjects which have been devolved or given to the territorial units.

(To be continued)

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