The Law

Right to Self-determination Under International Law

In 1918, U.S. President Woodrow Wilson prophetically proclaimed "self-determination is not a mere phrase. It is an imperative principle of action, which statesmen will henceforth ignore at their peril”.

In the last 100 years, new states have emerged either through decolonization, secession, dissolution, merger and peace treaties. Most of these methods are noncontroversial and states employing them are welcomed onto the world stage.
For the people of Punjab two methods are available for independence the first being secession, unilaterally declaring independence from India, and the second being the solution, dissolution of India as a nation state resulting in the creation of several smaller states. Below we will examine secession then dissolution as a means of liberating Punjab from Indian occupation. But first we need to understand different doctrines of international law governing self-determination.

Doctrines

Montevideo Convection

In 1933 during the Convention on the Rights and Duties of States the Montevideo Convention articulated 4 features the state as a person of international law should possess. Those criteria being:

  • A permanent population;
  • A defined territory;
  • Government;
  • Capacity to enter into relations with the other states.

It is questionable how stringently a state must comply with this list. This is because today there exist states that do not possess all the attributes listed but are nevertheless recognized internationally. An example of this can be found in Israel. Israel is one example of an internationally recognized state that has yet to define its permanent border, thereby failing to satisfy the Montevideo Convention. While on the other hand, there are others that do meet the defined criteria but are nevertheless not considered states. Taiwan meets all four aspects of the Montevideo Convention but is not recognized as a state internationally.

In the case of Punjab, we do have a permanent population, defined border, a government, and capacity to enter into relations with other states. When we reach the threshold of independence, we will be able to satisfy the Montevideo Convention.

Uti Possidetis Juris

When determining the borders of new states, the international community presumptively applies the doctrine of Uti Possidetis. Uti possidetis juris was primarily used during the period of decolonization in Latin America and Africa. It allowed for colonial borders, irrespective of how arbitrary they were, to be established as international borders. The reasoning behind applying uti possidetis when new states immerged is, firstly, it reduces the potential for violence because the borders of each state is predefined and not able to change through aggression. Secondly, it is believed that a “cosmopolitan democratic state” will have the capacity to function within any boundary thereby making pre-independence borders as acceptable as any other. However, this presumption can be rebutted especially where the occupying state maliciously abuses this principle.

Uti Possidetis Juris is a rebuttable presumption as was done in the case of Kosovo. Kosovo was a part of Serbia when Serbia declared independence. The doctrine of Uti Possidetis required Kosovo to remain a part of Serbia because the borders of Serbia could not be changed under this principle. However, the international community recognized the need to change Serbia's borders to better reflect the people's needs.

In the case of Punjab our initial borders will be the current state of Indian occupied Punjab. But, we will also rebut the principle of Uti Possidetis Juris due to the unauthorized carving up of Punjab. Once independent, we will use all means to re-integrate territories unjustly removed from Punjab.

Internal vs External Self-Determination

To limit independence movements in the immersion of new states, self-determination is viewed through two streams. External self-determination enjoys all rights and recognitions bestowed upon an independent nation state. Internal self-determination involves “a people’s pursuit of its political, economic, social and cultural development within the framework of an existing state”, as was stated by the Supreme Court of Canada on the question of Quebec’s independence.

Peoples aspiring for independence our now encouraged, in some situations, to first explore the option for internal self-determination. However, those who have suffered human rights violations at the hands of the state they wish to secede from are exempt from internal self-determination and recognized as having the right to external self-determination.

The Punjab would be exempt from internal self-determination due to India's massive human rights violation against the Sikh peoples. This includes the 1984 Sikh Genocide in which over 30,000 Sikhs were systematically exterminated in the period of three days. This also includes the systematic campaign of terrorism unleashed by the Indian state through its paramilitary forces and police during the period of 1984 to 1996.


Secession

Secession involves a territory declaring itself unilaterally independent from a state without that states consent. In the case of Punjab, when we declare independence from India it may be a unilateral declaration due to the fact India will likely object.

Article 1(2) of the Charter provides that one of the purposes of the United Nations is to “develop friendly relations among nations based on respect for the principle of equal rights and self-determination of peoples”. Furthermore, Article 55 provides that the United Nations shall promote a number of goals 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 word “peoples” is internationally accepted as encompassing those groups that have a common language, religion or ethnicity and not only to independent states. This is because while drafting the charter the representatives had the option of using the word “state” instead of peoples, but they nevertheless opted to pick “peoples” which includes those peoples without a state of their own.

The International Covenant on Civil and Political Rights and the International Covenant on Economic, Social and Cultural Rights adopted by the UN General Assembly in 1966 also reaffirm this interpretation of peoples. Article 1(1) provides: “All peoples have the right to self-determination. By virtue of that right they freely determine their political status and freely pursue their economic, social and cultural development.” By once again using the term “peoples” and not states the international community acknowledged the right to self-determination was not a state monopoly but applicable to all peoples.

In the case of Punjab, Punjabi is the common language uniting all Punjabi people. Punjab is home to all major religions; however, it is the Sikhs that are predominant in Punjab. Thus, based on language and religion the Punjabi people are a “peoples”, as per the UN understanding of the word, and there for their right to self-determination is protected under the UN Charter.

Some have questioned if the right to self-determination for peoples, those groups without the state of their own, conflicts with Article 2(4) of the UN Charter, which states “all members shall refrain in their international relations from the threat or use of force against the territorial integrity or political independence of any state”. The argument here is because the UN charter protects the territorial integrity of a state, non-state actors cannot unilaterally declare independence.

However, the International Court of Justice clarified this position when it ruled in the matter related to Kosovo. The International Court of Justice stated that states declaring themselves unilaterally independent are not bound to respect the territorial integrity of their parent state. Thus, under international law unilateral declarations of independence are not illegal even where the occupying state argues their constitution does not allow for succession.

This interpretation is also consistent with India's own beliefs. India did not respect Pakistan's territorial integrity with regards to Bangladesh, rather, India recognized Bangladesh's right to self-determination thereby violating Pakistan's territorial integrity.

Disintegration

Dissolution occurs when one state disintegrates into smaller states. The international community is generally more willing to accept the appearance of new independent states when dissolution occurs.
When Yugoslavia disintegrated, the international community was unsure as to what was happening. Some were arguing that the various dates claiming independence from Yugoslavia were secessionist movements. Those who made this claim were attempting to place obstacles in front of the various peoples attempting to gain independence by arguing they should only attain internal self-determination and not full external self-determination.
However, when the international community examined the situation in the former Yugoslavia they determined what the world was witnessing was not several secessionist movements, rather, this was the disintegration of Yugoslavia. By making this determination the path to independence for the Republic of Macedonia, Bosnia and Herzegovina, Montenegro, Serbia, and later Kosovo was cleared.
India today is itself facing several liberation movements. Viewed independently they may be labelled secessionists, however, viewed collectively it will reasonably be recognized as the dissolution of India. Today in India the following states, or peoples within these states, are opposing Indian occupation:

  • Punjab (Khalistan)
  • Gorkhaland
  • Assam
  • Kashmir
  • South India
  • Maoist insurrection (40% of current India)
    • Assam
    • Arunachal Pradesh
    • Meghalaya
    • Manipur
    • Mizoram
    • Nagaland
    • Tripura
  • South India (Dravida Nadu)
    • Andhra Pradesh
    • Karnataka, Kerala
    • Tamil Nadu
    • plus the territories of Lakshadweep and Puducherry

These states constitute a majority of India today and working collectively can legally declare the disintegration of India is underway there by clearing the path for independence and universal acceptance.