 |
| Reads 'Right?' (Picture by Andrea De Santis) |
The world is facing an upsurge in separatist movements, with more than 25 active separatist groups mainly focused in the northern and northeastern regions of the nation. The most prominent one being the Khalistan movement which gained traction in the 1970s, and demands a separate Sikh nation (which they call ‘Khalistan’) out of the state of Punjab and other Punjabi-speaking areas of northern India. It later emerged as an armed rebellion which ultimately led to the killing of the cult leader, Jarnail Singh Bhindranwale and the assassination of former PM Indira Gandhi. Recently, we saw an uprising during the Farmer’s protest and after. This makes us all question: can Khalistan be a reality like Pakistan? Can there be separate Naga land or Kashmir or south India? Whether separatist movements can claim secession as a right? Where does international law draw a line between separatism and secessionism?
The UN General Assembly, in 1966, adopted the International Covenant on Civil and Political Rights (ICCPR), garnering ratification from 172 state parties. It is one of the most pivotal pieces of literature in international human rights law. Among its various other fundamental tenets, the very first article of the convention gives every individual the Right to Self-Determination, that is, to freely determine their political status and freely pursue their economic, social, and cultural development. However, when it pertains to the right to secession stemming from this principle, it emerges as the most debated topic of international law. This right further gives birth to the right to remedial secession, one of the most controversial principles. But what is the difference between the two ideologies as one operates as jus cogens in international law and the other, often leading to acts of terrorism. This blog also talks about the practicality of this right in the global context.
Secession vs Separatism
In common parlance, secession and separation are used interchangeably. J. R. Wood defines secession as a political program based on the demand for a formal withdrawal of a bounded territory from an internationally recognized state with the aim of creating a new state on that territory, which is expected to gain formal recognition by other states (and the UN). He differentiates secession from separatism as the latter aims only at a reduction of the central authority’s control over the targeted territory and its population. However, this does not hold true in the present context.
For instance, the Khalistan separatist movement demands a separate nation for the Sikh community and not just reduced governmental control. Similarly, the Nationalist Socialist Council of Nagaland and Jammu and Kashmir’s People Conference demand a separate Naga State and Kashmir respectively.
Hence, it would not be appropriate to distinguish between the two on this basis. The most significant distinction between the two, according to the author, is the object behind the movement. The main intent behind incorporating the right of self-determination in the International Bill of Human Rights was to provide a meaningful vehicle for decolonisation. Using this right, 55 states gained independence between 1945 and 1970. The Namibia case vividly illustrated the intended application of the right to self-determination. The ICJ ruled that this right extended to non-self-governing territories, rendering South Africa's presence in Namibia in violation of international legal norms.
Therefore, the foremost objective behind advocating the right to self-determination, which included the possibility of secession, was decolonization. In today’s post-colonial era, there has been growing apprehension in the international community about the potential consequences of self-determination being interpreted as a right to secede in a post-colonial era.
Self-determination began to be referred to once more not as a right but simply as a principle, implying its limited applicability outside of colonial situations. Furthermore, the right of remedial secession was also extended to situations where there are extreme denials of internal self-determination. This view is also forwarded by other international legislations such as the Helsinki Final Act, which states, ‘all people always have the right, in full freedom, when and as they wish, to determine their internal and external political status’, but that this should be exercised with regard to the territorial integrity of states. It is therefore argued that where a state fails to provide, a ‘government representing the whole people belonging to a territory without distinction as to race, creed or colour’, as required under international law, it cannot invoke the principle of territorial integrity to limit peoples’ right to self-determination. Therefore to summarize it, the right to secession is, more or less, available in cases of grave human rights violation with a community in their home country. The court also held the same view in the Quebec case, the Court held that ‘when a people is blocked from the meaningful exercise of its right to self-determination internally, it is entitled, as a last resort, to exercise it by secession’. Similarly, in the case of Loizidou v Turkey, it was held that the right to self-determination through secession would be available where ‘human rights are consistently and flagrantly violated or if they are without representation at all or are massively under representative in an undemocratic and discriminatory way’.
The practicality of the right of secession is unknown because of the lack of cases. International courts do not hold a binding power to enforce secession. The identity and recognition of a seceding state depend upon the will of other nation-states to recognize it or not. That can be seen in the case of Kosovo.
Remedial secession in practice
The practical instances of implementing remedial secession are scant and often lack uniformity, adding to the ambiguity surrounding the recognition of this right. It seems that there is a hesitancy to actively put this principle into practice, primarily due to the uncertainty about how it may affect the fundamental principle of territorial integrity. The opinion on this topic varies to a large extent. Even in the Kosovo case, 14 states asserted that a right to remedial secession exists, 14 denied and 25 were neutral on the matter. The ICJ did not pass any comment on the legality of the right but rather urged that the focus should be on the current independence declaration only.
In the Israel-Palestine conflict, where the right to self-determination of Palestinian people was in question, ICJ stated, “As regards to the principle of the right of peoples to self-determination, the Court observes that the existence of a ‘Palestinian People’ is no longer an issue…[the rights of the Palestinian People] include the right to self-determination.” However, the Court refrained from specifying the exact parameters of this right or the extent to which the Palestinian people can exercise it. Despite enduring human rights violations for an extended period, Palestine has not been granted the right to remedial secession, leaving its legal status in a state of considerable uncertainty.
Secession- a right for separatist movements?
‘If every ethnic, religious or linguistic group claimed statehood, there would be no limit to fragmentation, and peace, security and well-being for all would become even more difficult to achieve’.
Separatist groups demand disintegration from their home country because of ideological conflicts, social conflicts or because of the motivation of a romantic idea of a nation just for that community. It is common for separatist movements to face numerous hurdles in mobilizing the support of people in the targeted territory and to gain the support they require among other states. In many situations, the majority of the national group, which the separatists are attempting to mobilise, prefers staying in the current state to seceding; as a result, the separatists may not succeed in obtaining majority support for separation.
An important distinction between the separatist demands from secessionists’, in the Indian context, lies in the fact that the colonial government was an extortionist government, with very little or no regard for the rights or welfare of the people. In contrast, in today's scenario, every individual holds the fundamental right to vote and select their own representatives, with a three-tier government structure in place to safeguard their interests and rights. Therefore, the internationally recognized grounds for exercising the right of secession—namely, decolonization and lack of government representation— can’t be exercised by separatist groups as there is no substantiated evidence of either of these conditions.
Furthermore, it is important to acknowledge that many of the groups advocating for separation from India are primarily driven by their distinct political motives, often rooted in religious or caste-based factors. For instance, the demand for Khalistan, which seeks a separate Sikh nation, and the Naga separatist movement, which aims for autonomous territory for the Naga community, are instances where such motivations come into play. Notably, these movements have not explicitly raised allegations pertaining to human rights abuses or a lack of political representation.
Conclusion
The discussion of the right to secede and how it might be used in modern international law is a complicated and multidimensional topic. Although the International Covenant on Civil and Political Rights upholds the right to self-determination as a cornerstone of human rights law, its applicability to restorative secession is still hotly debated.
It is important to separate separatist movements from secessionist movements in the context of Indian politics. Internationally recognised reasons for secession are difficult to apply when there is democratic representation and no colonial rule. Furthermore, rather than being motivated by violations of human rights or a lack of political representation, the reasons behind many separatist movements are frequently political, religious, or caste-based. If these movements were given such a right, it may cause the world to fall apart as different groups would try to create their own states, which might lead to general anarchy. It runs counter to the fundamental ideas of human unity coexistence, and acceptance of one another.
Thus, even while the right to self-determination is still fundamental to human rights, its extension to remedial secession necessitates thoughtful deliberation and a balanced implementation in order to preserve the values of territorial integrity, stability, and the welfare of all people.
0 comments:
Post a Comment