Bipin Adhikari
Constitutional Law, Governance & Public Policy Issues
Home   About   Contact Us  Archives




 

 


Nepal Consulting Lawyers Inc

B. P. Koirala Archives & Records

Right to Self-determination

Discusion on this topic has suffered due to extremism among proponents and opponents.

Bipin Adhikari
The Kathmandu Post, December 17, 2009
Source: The Kathmandu Post

The quality of discussion as to the right to self-determination has always suffered in Nepal because of the awfully motivated efforts by activists either to contain it, or to misinterpret it in a way that no country can ever afford to apply it.

Although a sub-committee constituted to advise the Constituent Assembly Committee on Restructuring of State and Distribution of State Powers on this issue has already submitted its report, it does not in any significant sense address the magnitude of the issue, and its complexity and implication in a constitutional framework which is to be based on democracy and constitutionalism. It offers little in the way of concrete suggestions or strategies for realising the claim for indigenous self-determination in Nepal.

In international law, the application of the right to self-determination in the context of decolonisation or associated independence movements is much clear. The United Nations itself was created "to develop friendly relations among nations based on respect for the principle of equal rights and self-determination of peoples, and to take other appropriate measures to strengthen universal peace. In this context, both the International Covenant on Civil and Political Rights (ICCPR) and the International Covenant on Economic Social and Cultural Rights (ICESCR) hold on their right "to freely determine their political status and freely pursue their economic, social and cultural development".

This right has been applied in the context of people under colonial domination and foreign occupation. But even international law, the UN Charter or other covenants do not explain what independence means, or provide any enforcement mechanism to implement this right when violated.

Since the early 1990s, however, the right to self-determination has gone beyond that. It is everywhere, and with different undercurrents. It is no longer an issue of colonial domination or foreign occupation only. It is being applied also in the context of subgroups within the people of a country. These sub-groups may or may not include indigenous groups depending on the situation of a particular country. But where there are indigenous groups, the right to indigenous self-determination is being recognised to freely determine their political status, and pursue their economic, social and cultural development.

In many countries, increasing political overtones of this right has also helped undermine the valid claims in it. It has thus led to an increase in the number of conflicts within states, where subgroups seek greater self-determination and even full secession. This is precisely the reason many constitutions forbid the right to self-determination through secession, and many others do not recognise this right in express words, although it does significantly contribute to the jurisprudence of fundamental rights in any country.

In order to avoid this trend, the United Nations Declaration on the Rights of Indigenous Peoples adopted by the General Assembly in 2007, the latest document on the theme, holds two principles together: That indigenous peoples have the right to the full enjoyment, as a collective or as individuals, of all human rights and fundamental freedoms as recognised in the UN Charter, the Universal Declaration of Human Rights (UDHR) and international human rights law; and that "nothing in this Declaration may be interpreted as implying for any State, people, group or person any right to engage in any activity or to perform any act contrary to the Charter of the United Nations or construed as authorising or encouraging any action which would dismember or impair, totally or in part, the territorial integrity or political unity of sovereign and independent States".

In addition, the 2007 Declaration responds to all misconceptions by stating thereon that "in the exercise of the rights enunciated in the present Declaration, human rights and fundamental freedoms of all shall be respected". They could be subjected only to such limitations "as are determined by law and in accordance with international human rights obligations". "Any such limitations shall be non-discriminatory and strictly necessary solely for the purpose of securing due recognition and respect for the rights and freedoms of others and for meeting the just and most compelling requirements of a democratic society."

The 2007 Declaration makes it very explicit that the provisions set forth there should be interpreted in accordance with "the principles of justice, democracy, respect for human rights, equality, non-discrimination, good governance and good faith".

These fundamental principles leave little confusion to those who want to "operationalise" this principle in Nepal. In several countries, one can see patterns which are emerging pointing out to effective strategies that will allow communities to realise their goals in the framework of democracy, human rights and territorial integrity. It has been evidenced in both common law and civil law systems.

Many of the finished work of the CA thematic committees have already logically approached the issue of the right to self-determination through several specific content areas including provisions on basic collective and inclusionary rights, political representation, and recognition of identity variables in the letter and spirit of their preliminary drafts. So far, notwithstanding several drawbacks of the Constituent Assembly, it is difficult to find any report that betrays the cause of the indigenous people of the country.

Diverse jurisdictions can be looked into for additional models, for example, from the Saami Parliaments of Scandinavia to the Maori seats in the New Zealand Parliament to the Canadian experience in territorial governance for further discussion. Models help, but only when the ground situations are not overlooked. But issues like federalisation of the country based on ethnicity and grounding of rights jurisprudence on the concept of "premium rights" (agradhikar) going beyond the claims of affirmative action or reverse discrimination defy any such move.

Bipin Adhikari
lawyers_inc_nepal@yahoo.com


Copyright @ Bipin Adhikari,