The news about the efforts by the peoples of Catalonia (Spain) and Kurdistan (Iraq) have reignited the debate on the importance of the right to self-determination in international law. Understanding the right to self-determination is particularly of interest for the foreign policy makers and students of international relations in Pakistan as the country’s very claim on Kashmir (India-held), legally speaking, is carved in and around this fundamental right. The origin, the legal basis of the right to self-determination and its application to Kashmir (India-held) in contradistinction to Catalonia (Spain) and Kurdistan (Iraq) will be discussed in this part of International and Constitutional Legal Debates.
I. The Origin
One of the most comprehensive studies on the origins of the right to self-determination, in English language, is found in the report of the roundtable conference organized by the United States Institute of Peace (USIP), an institution established in 1995 by the US Congress for the study of peaceful resolution of conflicts. The report entitled ‘Self-Determination: Sovereignty, Territorial Integrity, and the Right to Secession’ has been authored by Patricia Carley. She delineated many aspects of the right to self-determination and its relevance to the US foreign policy making. Tracing the origins of the right to self-determination, she quoted Professor Hurst Hannum of the Fletcher School of Law and Diplomacy, who divided its origin into three eras, which may be summarised as:
1. Early nineteenth century to 1945
The period was characterised by three features:
First, the concept of self-determination was purely political by then and was not recognized as a ‘right’. The origin of the concept was in the philosophical approach of John Stuart Mill who connected the language, ethnicity and culture with statehood for the first time. Later, in the early twentieth century, US President Woodrow Wilson in his famous Fourteen Points mentioned it (without naming) in Point Five as:
“A free, open-minded, and absolutely impartial adjustment of all colonial claims, based upon a strict observance of the principle that in determining all such questions of sovereignty the interests of the populations concerned must have equal weight with the equitable claims of the government whose title is to be determined.”
Secondly, it only meant autonomy, not independent statehood, which was a separate concept of secession.
Thirdly, it was, initially, a unifying principle for unification of nations such as Germany and Italy. Later, after the disintegration of the Ottoman and Austro-Hungarian empires, it turned into a dividing rather than a unifying principle.
2. 1945 to late 1970s
This period witnessed formalization of the principle of self-determination into a right, in legal sense. The UN Charter mentioned it twice in Articles 1(2) and 55; Article 1 of the International Covenant on Civil and Political Rights, 1966, and Article 1 of the International Covenant on Economic, Social and Cultural Rights, 1966, recognized it as a right; and the 1960 UN Declaration on the Granting of Independence to Colonial Peoples also specifically noted it. The salience of this period in which treaty law developed on the right to self-determination is that it confined the exercise of the right to decolonization process.
3. The present era
The present era, which tried to fuse the political first era with the legalistic second era, is continuing. The aforementioned report was written first in 1996, therefore, the present era may not be very elaborate; nonetheless, it is indicative of a new thought process that was emerging after the Cold War.
II. Legal basis
The evolution of the right to self-determination, as discussed above, clearly demonstrates that its legal source is treaty law and soft international law. The applicable legal framework, therefore, is punctuated by treaty provisions that confine the right to colonization. A judicial development further expanded the legal scope of the applicability of the right to peoples under suppression. The International Court of Justice (ICJ), in its Advisory Opinion, in 2010, found that the unilateral declaration of independence by Kosovo that was under suppression for long that got recorded in the UN Security Council Resolution 1244 (2009) was not inconsistent with international law; hence, the subsidiary source of judicial decisions as mentioned in Article 38 (1) of the Statute of the ICJ also provides some legal basis for the right to self-determination.
III. Application to Kashmir, Catalonia and Kurdistan
Having examined the origins, evolution and legal basis of the right to self-determination, it may be now useful to distinguish between Kashmir (India-held) and Catalonia (Spain) and Kurdistan (Iraq) (jointly termed as Separatists Case). The following distinctions emerge:
a. In the first place, Kashmir Case obviously relates to decolonization era and is very well documented about its relationship with the independence of the Subcontinent from Britain. On the other hand, the Separatists Case has nothing to do with decolonization. The difference underlines the fact that this right relates to decolonization and cannot be utilized by separatist or nationalist groups in random manner. A necessary corollary of the difference is that Kashmir Case qualifies for the right to secession, which is a consequential right that emanates out of the right to self-determination in the context of decolonization and is further buttressed by the maxim nemo dat quod non habet (no one gives what he doesn’t have). According to Professor Ian Brownlie, the maxim has been taken from English Law and now ‘it is undoubtedly part of international law’; the secession is, thus, justified on the ground that the colonising states did not have lawful right over their colonies. On the contrary, the Separatists Case is precluded for qualifying for the right to secession by pressing into practice the axiom of international law uti possidetis (as you possess); it may be noted that the principle of uti possidetis provided for preservation of international boundaries in post-colonial world save the cases where owing to decolonization international disputes like Kashmir were outstanding.
b. The literature on the subject categorically states that the right to self-determination needs to be examined in conjunction with the concept of sovereignty of a state; the implication of juxtaposing the right to self-determination with sovereignty of a state is that some authors tend to discuss the right to self-determination in terms of its internal and external manifestations. The external manifestation links self-determination to decolonization whereas the internal manifestation provides the basis for constitutional autonomy and anything but secession of a state. The balance between the right to self-determination and between keeping the territorial integrity of states intact is a delicate one, and in Kashmir Case the external self-determination is backed by treaty law enacted with the UN Charter’s Article 1(2). Contrarily, the internal self-determination aspects of Separatist Case are well documented as Catalan and Kurdistan claims rest on constitutional framework and not on the international law framework.
c. The role of the UNO (and its organs based on the UN Charter and principles of international law) in Kashmir Case is another point of distinction. The Separatists remained part of Spain and Iraq and their claims have no such basis.
d. Quintessentially, the external manifestation of the right to self-determination in the context of decolonization is a question of law qua the territorial sovereignty, whereas the internal manifestation of the right to self-determination in post-colonial era falls in the realm of the transfer of territorial sovereignty; in the case of former, statehood is the new legal fact whereas in the case of latter, autonomy is the new legal fact. Applying the abstraction to Kashmir Case will clearly vest Kashmiri peoples with the external right to self-determination, which is not to be found in the Separatists Case. As a legal consequence, the question of recognition will emerge when Kashmir Case is allowed fruition; the question of recognition, on the other hand, will not be raised at all in the Separatists Case.
Against the general perception about the relevance of the right to self-determination, it is included as an active item on the agenda of the Third Committee of the UN that deals with Social, Humanitarian and Cultural Issues. On its part, Pakistan needs to internationalize Kashmir as an international dispute not only to help Kashmiri peoples to get their rights, but also to highlight the state-sponsored terrorism of India in Kashmir.