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International Law

Right to self determination – A holistic view

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No other concept is as powerful, visceral, emotional, unruly, and as steep in creating aspirations and hopes as self-determination.”-Wolfgang Danspeckgruber

Principle at its outset

[yt_dropcap type=”square” font=”” size=”14″ color=”#000″ background=”#fff” ] P [/yt_dropcap]ublic International Law, which governs the relation inter-alia between two or more states, expressly provides for right to self-determination. The principle is of jus cogens nature, which means that a norm or a principle attaining a status of customary international law against which no derogation is allowed, whatsoever.

The states therefore are under strict obligation to follow this principle. The principle trace its history to the Atlantic Charter, signed on 14 August 1941, by Franklin D. Roosevelt, President of the United States of America, and Winston Churchill, Prime Minister of the United Kingdom, who pledged The Eight Principal points of the Charter, which latter evolved into United Nations Charter, 1945 (Article 1 specifically). The principle, notably, also find its mention in “CASE CONCERNING EAST TIMOR (PORTUGAL v. AUSTRALIA)” before International Court of Justice (hereinafter ICJ), Declaration of Principles of International Law Concerning Friendly Relations and Co-operation Among States adopted by the UN General Assembly in 1970, Helsinki Final Act adopted by the Conference on Security and Co- operation in Europe in 1975, International Covenant on Civil and Political Rights and International Covenant on Economic, Social and Cultural Rights, etc.

In common parlance, right to self-determination means a right to choose the political status and pursue its own economic, social, and cultural development, by a population, which belongs to a certain territory, from subjection of alien subjugation, dominion and exploitation, including formation of their own independent state. The right essentially wants to end, as well as, counter the issues of colonial domination, racial or ethnic discrimination, military occupation, etc., due to which a group suffer systematic and gross violations of human rights that make their participation in that state impossible, which were very much prevalent till latter half of 20th century. The principle has two aspects, which are namely internal (right of people to govern themselves without interference of foreign power) and external (right of peoples to determine their own political status and to be free of alien domination). As a result, there could be number of outcomes like independence, merging with some other countries, or remaining within the political domain of same country. However, it should not be confused and correlated with right to secession, as right of secession is not govern under the realm of international law except in context of decolonization and situations of military occupation.

Having this background, I want to move the focus of this article to some important correlation and issues concerning this principle. Article in its essence, deals with an important question that ‘whether this principle need to evolve more, in terms of its specificity’, by detailing out various contours of right to self- determination.

Deconstructing syntax of correlation

Right to self-determination has a critical relation with various other factors, which need to be looked upon, in order to highlight the need for its development.

Relation with territorial sovereignty

General Assembly in its resolution 1514 (XV) of 14 December 1960, titled “Declaration on the Granting of Independence to Colonial Countries and Peoples” states in one of its provision that ‘Any attempt aimed at the partial or total disruption of the national unity and the territorial integrity of a country is incompatible with the purposes and principles of the Charter of the United Nations.’ Member states have also been wary about this principle due to its sensibility regarding their territorial integrity; hence this principle has been incorporated in aforementioned declaration. Therefore, bringing a perilous relation amongst each other. As mentioned by Castellino “……but in a debate between territorial sovereignty and right to self-determination, one has to admit the norm of territorial integrity once again prevailed to the gains of peoples due to the envisaged realization of self- determination” (para-phase).

Relation with terrorism

Terrorism has been a global menace which is affecting the world at large. International Convention for the Suppression of the Financing of Terrorism, 1999 defines terrorism as “Any act intended to cause death or serious bodily injury to a civilian, or any other person not taking an active part in the hostilities in a situation of armed conflict, when the purpose of such act, by its nature or context is to intimidate a population or to compel a government or an international organization to do or abstain from doing any act”. This act is proscribed under various regimes, such as United Nations Security Council Resolution 1373, UK Terrorism Act 2000, US Patriot Act, European Union Common Position on Terrorism, etc. The struggle for independence through self-determination, may often lead to armed conflict. These armed conflicts may turn out to be an act of terrorism, where innocent’s life is put at stake, so as to overawe the government or authority to take such steps, as would lead to self-determination. Therefore, the relation is quite critical, in a sense that, a struggle for self-determination must not lead to perpetrating a bigger crime, which is condemned worldwide. It may vitiate the genuineness of the concerns of a group, which calls for the application of this principle.

Relation with occupation

Article 42 of the Hague Regulations, 1907 states that a “territory is considered occupied when it is actually placed under the authority of the hostile army. The occupation extends only to the territory where such authority has been established and can be exercised.” The legality of any particular occupation is regulated by the UN Charter, 1945 and the law known as jus ad bellum. Once a situation exists which factually amounts to an occupation the law of occupation applies – whether or not the occupation is considered lawful. Such authority can govern those territory but without changing the existing order. The occupant powers are never considered as legitimate government, as they overthrow elected regime and in this context the right to self-determination becomes crucial for the native to decide their future. Therefore as far as relation is concern, both run opposite to each other, as this right offers autonomy to the native while military occupation demeans this opportunity.

Relation with Security Council

Security Council constituted under the aegis of United Nations Charter, 1945 is one of a principle organ which has a duty to oversee and monitor international peace and security. It is in this regard Security Council is considered to be a watchdog, for ensuring that any sort of armed conflicts be eliminated. But as mentioned above, in many instances the situation runs contrary to this expectation, which necessarily involves acts of armed conflicts, i.e. either in form of terrorism or military occupation, for the demand of an application of this right. Therefore, the relation between the principle and this organ is of vital nature, because Security Council ought to ensure that the right be exercised systematically and violation of peace and security, in the form of human rights violation or by challenging territorial sovereignty, is eliminated to greater extent.

Various concerns relating to this principle

Notwithstanding that the principle has been incorporated under various charters or convention, as non-derogable norm, it still lacks the definitiveness. These issues put concerns over practical application of this principle in real time problems.

It has been, on number of occasions, alleged that the alien authority changes the structure of inhabitants in an occupied region, by implantation of non-indigenous settler in that land. This erodes the earlier structure which existed before imposition of foreign rule, in that land. Same preposition was argued by Tibetan Centre for Human Rights and Democracy which is based in northern India and was established in 1996, in Asian Civil Society Forum, 2002. The contention is ‘that right to self-determination as a principle does not foresee this problem and as a result it is not incorporated in any charter or convention, which deals with this principle.’ The other example is “Falkland Island’, wherein right to self-determination was exercised and more than 90% people voted for British regime but it was argued by Argentina that locals who voted were from Britain itself and since they don’t constitute aboriginal or inhabitant population of this island, it doesn’t leads to proper implementation of this principle.

Next in the line is an issue concerning determination of subjugation of alien authority or domination and exploitation, which constitute as cause of exercising this principle. The first aspect to it is that ‘how can we determine the subjugation of alien force’. The matter is contentious because no authority, howsoever whimsical, would consent to the fact that it is alien force. They will argue to an extent to prove, that their control have historical significance. These situations are not properly addressed by this principle, as it fails to draw a line between legitimate and illegitimate authority. ‘Kashmir Dispute’ between India and Pakistan, is relevant to be stated in this regard because both exert their influence on this piece of land, by stating that other is an alien authority. This fuels the situation between these nations rather than solving it. The second aspect is ‘who will decide this very question’. Well ICJ (as decided in number of cases) could decide upon it, but jurisdiction of same is subject to the consent of member-states. Therefore creating a vacuum, as to how to deal with these questions.

Last but not the least, if authorities so concern agree to conduct application of this principle, through an election, ‘how will it be ensured that they are conduct in free and fair manner’. It is necessary in that case to mention that just arguing application of this principle would not suffice the dire need for fair election, which has a possibility of any sort of manipulation. It would rather lead to abuse of authority if same is not conducted in free and fair manner. ‘Scotland Independence Referendum’ is one of such example, wherein free and fair elections were held to ensure that whether the people of Scotland wants to be an independent country or remain as part of United Kingdom, in 2014.

These issues raise an important question that whether this principle requires more width, so as to answer those jurisprudential questions relating to its effectiveness in larger sense of this debate.

Conclusion: an inference

One can infer that, despite the principle had attained status of customary international law and more specifically status of jus cogens, does not justify the fact that it doesn’t need to evolve anymore as a principle. Issues concerning displacement of original population, question of historical aspect related to control of an authority, and application of this principle in fair and unbiased manner still haunts the jurist of international law, working in this field. These issues have further implications like human rights violation, grave breaches under International humanitarian law, demilitarization of such areas, etc. which cannot be addressed without answering the above-mentioned concerns.

It could also be inferred that, relation of this principle with various facets of public international law also brings our focus on changing dynamics. The colonization has been outdated as a cause and these days’ military occupation, ethnic discrimination, etc. have taken its toll. But the authenticity of these demands suffers a big blow when correlation is brought with terrorism and territorial integrity. Therefore, it is in these contexts a strong watchdog is required to monitor its implementation and administration, for which the role of Security Council is enhanced and galvanized. But there are other narratives also like human rights, humanitarian aspects (war crime or grave breaches), development issues, etc. which too require a special focus from world community, as well as, respective specialized agency, in context of such territories.

Hence, the principle of right to self-determination does need to evolve further, so that it can cope up with modern-days challenge, as well as, practical realities, as reflected in correlation and issues concerning this principle.

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International Law

Time for a Consolidated Russian-Chinese Approach to Modernize and Reform UN

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When it comes to reforms of the United Nations, it is indispensable for China and Russia, as long-time UN champions and supporters, to take the lead in promoting bottom-up approach to UN reforms. Moscow and Beijing have already accumulated a lot of experience in working together in drafting UN Security Council (UNSC) resolutions, in setting agendas for UN General Assemblies and in interacting with various groups of UN member states.

When some talk about how to make the UN more efficient and more relevant in global politics, they usually focus on reforming the UNSC. There is no shortage of ideas and even detailed plans of how to expand the composition of UNSC and how to modify the veto power rules within the body.

It is hard to argue against the need to introduce changes to the UNSC’s current mode of operations. And, the Council demonstrates difficulties to jointly approach some of the most devastating and dangerous conflicts faced by the world—be it in Africa, in the Middle East, in South Asia, in Latin American and in Europe and elsewhere.

However, the current international environment does not appear conducive to launching any far-reaching UNSC reforms today or tomorrow. An enlargement of UNSC would make the difficult task of reaching consensus in the United Nations Conference Building in New York City even more challenging; new permanent members would come with their own agendas, priorities and—alas!—with their prejudices and biases. The idea of a veto power abolition would undoubtedly meet fierce resistance from the P5 permanent group members.

Does this mean that one should put all the plans to enhance the United Nations on the back-burner? Not at all.

Contemplating an enhanced UN, one has to keep in mind that the United Nations is much bigger than its Security Council, all the importance of UNSC notwithstanding. Under the contemporary unfavorable circumstances, a bottom-up approach to the UN reforms might turn out to be more practical and more productive than a top-down approach. The United Nations is a graphic illustration of how the 20th century modernist institutional culture confronts the 21st century post-modernist international realities. The needed adjustment is huge, even without touching the Security Council for the time being.

There is an urgent need to provide for more targeted coordination among numerous UN agencies, in particular—to overcome the existing gap between the UN security agenda and its development agenda.

There is a clear necessity to produce a new set of KPIs for the vast UN bureaucracy, which is quite often too much focused on formal report writing. One should think about how the United Nations could make more use of the global civil society and independent expert knowledge. The United Nations should modernize and upgrade its peace-keeping capacity in view of the changing nature of modern conflicts and to move from mostly reactive to proactive approaches to conflicts. UN has to address in a more energetic and systematic ways pending problems of red-tape, bureaucratic duplication, excessive administrative costs and so on.

Some of these and many other institutional challenges confronting the UN have been articulated many times by critics of the organization. Sometimes, the latter used this criticism to cast doubts in the relevance of the United Nations in the 21st century.

The time has come to take a consolidated Russian-Chinese approach to modernizing the UN institutional culture and performance. It goes without saying that this work should not look as an exclusive undertaking of the two permanent members of UNSC, but should rather include as many other member states as possible.

Once this process is launched and gains momentum, it will be much easier to address more divisive issues—reforming the Secretariat, empowering the General Assembly and addressing the most difficult and controversial matter of the UN Security Council composition and the rights of its permanent members. By the time we get to this point, the accumulated track record of working together on less controversial matters should make it possible to find an appropriate arrangement for the Security Council as well.

From our partner RIAC

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International Law

Support the UN’s leadership position and multilateralism

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Despite its inability to fully satisfy people’s expectations on some issues, the United Nations and its agencies, as well as other multilateral organizations, have made significant efforts to promote peace and development across the globe during the past 70 years. However, the UN is confronted with enormous problems in a fast-changing globe and a complicated international environment.

First, some countries have attempted to undermine the basic norms governing international relations by forming cliques, practicing pseudo-multilateralism, provoking ideological confrontation, and attempting to suppress other countries through sanctions, all while ignoring the UN Charter’s purposes and principles.

They have used a double standard at UN meetings and debates in order to impose their own values and rules on other countries while claiming that they are universal values and rules. They have frequently sought the moral high ground and lectured, criticized, or attacked other countries, as well as openly interfering in their internal affairs. They regard the United Nations as a private club that exists to serve their national interests, and they utilize it when it suits them and ignore it when it does not. These heinous crimes have severely harmed UN member states’ mutual trust and collaboration, as well as the global body’s power and ability to control the globe.

Second, the COVID-19 pandemic continues to represent a major threat to people’s lives, health, and economic activity worldwide. More than 240 million individuals have been infected and 4.89 million people have died as a result of the new coronavirus.

COVAX was created by the World Health Organization, a specialized UN agency, to ensure equitable distribution of COVID-19 vaccines around the world. However, the global “vaccination gap” remains large, vaccine distribution is inequitable, and vaccine shortages in many developing and least-developed countries remain unaddressed. In addition, the virus’s constant evolution has posed significant obstacles for governments’ preventive and control efforts. Sadly, some governments have attempted to delegate their obligations to others, jeopardizing the global fight against the epidemic.

Third, the epidemic has wreaked havoc on the global economy, particularly in underdeveloped countries, resulting in increased unemployment, lower earnings, and poverty. Furthermore, the pandemic’s effects, as well as human factors, have rendered global industrial and supply systems vulnerable and unstable.

Part countries have created large amounts of currency notes in attempt to address their economic challenges, hence passing some of their economic issues to other countries. Some nations have urgently sought to divorce their scientific and technology sectors from those of other countries, obstructing global science and technology progress. As a result, many nations may be unable to reach the goals set forth in the United Nations’ 2030 Agenda for Sustainable Development, which is aimed at solving development issues.

Fourth, as a result of climate change, extreme weather events have grown more common and devastating. Extreme weather events may become more common and cause greater damage if global temperatures continue to rise as a result of increased greenhouse gas emissions. And if countries do not cut their use of fossil fuels quickly enough to keep global warming below 1.5 or 2 degrees Celsius, the world may suffer catastrophic repercussions.

Finally, the UN’s role has diminished as a result of the aforementioned issues, as well as overstaffing, low efficiency, sluggish action, and poor execution. Humankind is confronted with a plethora of new difficulties in today’s fast-changing world, and it is becoming increasingly difficult for the UN to adapt and/or handle these issues.

It’s no wonder, therefore, that UN Secretary-General Antonio Guterres stated during the UN General Assembly’s 76th Session that mankind will be in grave danger if “effective multilateralism” is not practiced, and that the world needs a “UN 2.0” to recreate the ideals on which it was built. In order to face these difficulties, the international community must sustain a UN-centered world order based on international law and norms that regulate international relations.

All countries should respect and treat one another as equals, and those states who prioritize their own interests over global ones and impose penalties on other countries should be opposed. In addition, the international community should work together to minimize inter-country disputes, ensuring that all nations select the political system and development path that best suits their national circumstances, and appreciate diversity.

Moreover, all UN member states should uphold their commitments under the UN Charter and assist the UN in its efforts to solve emerging global concerns. For the interest of all member states, the UN should increase its capacity building, deepen reform, enhance efficiency, and protect justice.

In order to prevent the pandemic, the international community must take steps to reduce the danger of cross-border infections and guarantee that vaccinations are distributed fairly across the world so that developing and least-developed countries can vaccinate their people.

Furthermore, all countries should refrain from using economic and financial policies and tools to benefit themselves at the expense of others, maintain the stability of global industrial and supply chains, eliminate all forms of protectionism, and promote regional trade and investment liberalization to help the world economy recover.

They should also set concrete goals for peaking carbon emissions and attaining carbon neutrality in accordance with the principle of shared but differentiated responsibilities, as well as pursue a green and low-carbon development path, to combat climate change.

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International Law

Debunking the Sovereignty: From Foucault to Agamben

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“Citing the end of Volume I of The History of Sexuality, Agamben notes that for Foucault, the “threshold of modernity” is reached when politics becomes bio-politics—when power exercises control not simply over the bodies of living beings, but, in fact, regulates, monitors, and manufactures the life and life processes of those living beings.” For Agamben, the term politics in the western context is effectively a politics of Sovereignty and consequently, for Agamben, Sovereignty itself is inherently bio-political.

In the latter context, the term bio-politics is not modern rather it is ancient. Here, Agamben comes in disagreement with Hannah Arendt and Michel Foucault. Perhaps, this is why, Agamben dedicated his widely cited work “Homo Sacer” to reconcile the bio-political theory of Hannah Arendt and Michel Foucault to grasp the decisive moment of the Modernity. In order to reconcile the bio-political theory of Hannah Arendt and Michel Foucault, Agamben uses the concept of “Bare Life” or “Sacred Life“.

According to Agamben, Michel Foucault has overlooked the writings of Hannah Arendt, and hence, the gap should be filled. To illustrates his understanding of the modern bio-politics, Agamben imagines the “the concentration camp and the structure of the great totalitarian state of the twentieth century. For Agamben, in the modern times every political space has become a camp that is why he has used the term concentration camp instead of the city state.

Hence, for Agamben, the camp is a place where law is nothing and the existence of beings is reduced to a bare life. Moreover, a camp is place where the sovereign decision acts without any consequence and thus the existence of every man is reduced to a bare life. Thus in his famous work, Agamben aspires the return of the sovereign by rejecting the Foucaultian Methodology. Although both Foucault and Agamben are against the concept of totalitarianism but the only divergence exists in their methodology. But according to several scholars, on one side Agamben is against the concept of totalitarianism but on the other hand he attempts to resurrect it by nullifying his initial argument.

In the latter context, there is a huge difference between Agamben and Foucault when it comes to the question of bio-politics, law, sovereignty, life and law. Hence, the divergence can be understood from the context of ontology, epistemology, metaphysics, politics, methodology and normativity. For instance, unlike Foucault, in his famous work “Homo Sacer” Agamben defines the concept of sovereignty from the Schmittian Standpoint, that is a sovereign means;” he who decides on the exception”. This is why, various experts deemed Agamben as the radical, who is trying to resurrect politics as opposed to Sovereignty.

On the contrary, just like Foucault, Agamben consider the concept of the bare life as the nucleus of the sovereign power. However, on the other hand, Agamben embraces the argument of Carl Schmitt that the concept of “Exception” lies at the heart of the Sovereign Power or Sovereignty.

Hence, when it comes to the Sovereignty and Bare life, it is the inclusion of zoe within the bios only by the means of Zoe’s exclusion. Here Zoe means (Bare Life) while Bios means (Political Life). Moreover, in Agamben’s definition of ‘Sovereignty’ does surrounds institutions rather it defines the abstract and exceptional relationship between the Zoe and Bios. Hence, basically, it is through this particular exceptional and abstract relationship, Agamben attempts to define the context and prevailing dynamics of the Western Politics. In contrast, Agamben defines the context of Sovereignty within the standpoint of the exception, perhaps, here the “exception” resembles the return of “The Sacred” in the Roman law. No doubt, it is a clear fact that “the sacred” in the Roman law serves as a kind of bridge between Aristotle and Modernity.

In the latter Context, it can be said that for Agameben the term sovereignty is not just a social or political phenomenon rather a trans-historical Phenomenon. On the contrary, for Michel Foucault, the term sovereignty is a recent phenomenon, whose origin can be traced to the power of the feudal monarchy during the middle Ages. Nonetheless, the fact should be kept in mind that whether it was in the ancient times or modern day, Sovereignty has played a key role in underlying the Social Contract. 

According to the Foucaultian definition, the theory of Sovereignty relies on the subject, whose sole power is to establish the unity of power. More precisely, in the Foucaultian context, the theory of the Sovereignty assumes three ancient elements: First, a subject who must be subjectified, the unity of power must be established, and the legitimacy, that must be respected by all (Subject, unitary power, and the law).

Basically, the latter three elements clearly explains the dynamics of the feudal power during the Middle Ages. Moreover, from the Foucaultian standpoint the concept of discipline and bio-power are essential concepts surrounding term “Sovereignty”.

Another difference between Foucault and Agamben was that Agamben equates the concept of Sovereignty with the state, whereas, Agamben laments the erosion of the modern day State-Sovereignty equivalence. Nonetheless, the fact cannot be denied that Foucault failed to use the historical Schema in order to understand the meaning of sovereignty first from the standpoint of discipline up to the level of the security and the bio-power. For Foucault, discipline within the context of sovereignty only exists in the ancient world, however, in the modern times, it has been replaced by the concept of bio-power and the security. Hence, for Foucault, in the ancient times, the Penopticon can be seen as a great dream of the Sovereignty.

On the other hand, the fact cannot be denied that in the modern times, the concept of sovereignty has entered into the innate symbiosis with various professions ranges from jurists, doctors, scientists, scholars and even priests. It was the famous German Jurist Carl Schmitt, who first grasped the definition of sovereign exception, which is nothing less than the limit concept of the doctrine of the state and the law. Hence, the fact cannot be denied that here the concept of state and sovereignty resembles each other.

Hence, if we put the Agamben’s and Foucaultian definition of sovereignty into context then it becomes clear that the concept of sovereignty in Agamben’s perspective is not united rather it is more historical and continuous. More precisely, in Agamben’s perspective the concept of sovereignty is historical, which can be stretched from the time of Aristotle to the Modern day.

Similarly, for Agamben, the subject of the sovereign power, which is the result of the division of Zoe/bios, have been polluted or corrupted over the course of the centuries. Moreover, during this particular course, the domain of the Zoe was extended to a significant level, whereas, the domain of the bios was diminished by unfolding its actual perspective. As a matter of fact, throughout his writings, Agamben subscribes to the juridico-discursive concept of power, which for Foucault was insufficient for understanding the very concept of the modern bio-politics. In contrast to the above, the fact cannot be denied that through his major contributions, Michel Foucault attempted to project the “entire western reflection on Power“.

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