Right of Self-Determination in Perspective of Bangladesh

Abrar Yasir:

Czech Jurist Karel Vasak (1929-2015) is called the pioneer of differentiating three generations of human rights in the legal arena. In 1977, he was the first person to coin this legal phrase before the world which gained considerable attention at that time. He propounded rights which are civil and political in nature such as the right of life, the right to equality, the right to equal protection under the law, the right to an impartial trial, the right of freedom of movement, the right of freedom of assembly, the right of freedom of association, the right of freedom of expression, the right of freedom of religion etc. as the first generation of human rights whereas he opined ‘Program Rights’ i.e the  rights which are socio-economic and cultural in nature such as the right to basic necessities, the right of preservation of cultural heritage, the right to social securities like the unemployment benefits, disaster relief etc as the second generation of human rights. He is also the first legal scholar who has included the ‘Right to Self-Determination’ as the third generation of human rights along with the right to development, the right to live in a clean environment, the right of accessibility to natural resources, the right of intergenerational equity and sustainability. (Third generation human rights are basically ‘Collective’ in nature as opposed to the first and the second generation of human rights because the first and the second generation of human rights apply to an individual exclusively whereas the third generation of human rights apply to a group of people).

This article aims at elucidating the concept of right to self-determination in brief and its applicability in the matter of Bangladesh.

As a protest against years of ethnical discrimination, exploitation, oppression and tormenting, Bengali people of the country named Pakistan, to claim their right of self-determination declared independence on 26th march, 1971. But the history behind the birth of Bangladesh was not a happy one. Bangladesh got footholds as an independent country through a gruesome war.

According to Montevideo Convention, 1933, four pre-conditions of Statehood are –

(a) A permanent population

(b) A specific border

(c) A government system

(d) The sovereignty

But, according to public international law, recognition of a State based on only these four factors is not enough. Because, a State cannot achieve proper Statehood until it acquires international recognition.

There are two theories in vogue in this matter. The first one is the ‘Declaratory Theory’ and the second one is the ‘Constitutive theory’. Constitutive theory is sort of impractical in today’s era because it adamantly supports the vague notion that the recognition of a State depends on the consideration of other States which forms de-jure basis for that country whereas the declaratory theory emphasizes on giving recognition to an already-existing factual situation negating the notion of unnecessarily interfering in the internal matter of other States. Though the United States of America is the biggest proponent of the constitutive theory, in Sokoloff v National City Bank, 1924, Justice Benjamin Nathan Cardozo (1870-1938) of the Court of Appeals of the State of New-York himself advocated indirectly in favor of the declaratory theory by recognizing the Soviet Union and the acts of Bolshevik Soviet authority on behalf of the Soviet Union as valid.

It should be mentioned here that, Jurists like Hersch Lauterpacht (1897-1960) and J.G Starke (1911-2006) didn’t support either of the two theories and opined that the true position falls between the declaratory and the constitutive theories. According to their opinions, Statehood may exist despite recognition but recognition brings a new entity into relations with other States and pragmatically political convenience and economic interests guide this act of recognition. Hence we have seen the evolvement of theories like the Tobar Doctrine (1908), the Estrada Doctrine (1930), the Stimson Doctrine (1932) and the Hallstein Doctrine (1955) regarding recognition.

However, it’s also true that, interference in the internal affairs of a State is against the principle of ‘jus cogens’ rule. International community should not have any headache about the internal affairs of a State though under these two matters the international community is bound to interfere in the internal affairs of a State. Firstly, when a state deprives its people from their human rights and secondly when a population living in a state gets to exercise their right of self-determination.

Self-determination can be defined as a collective right which is based on respect for equal rights and the equality of opportunity which ensures people to freely choose their sovereignty and political status with no external interference.

It is an age old concept

Though right of self determination has been recognized in public international law much later, we can trace its age old root in ‘Poleis’ at the Mesopotamian culture in Iraq or at the Hellenistic culture in Greece.

At the Medieval Period, the British, the French, the Russian, the Spanish, the Austrian or the Japanese emperors were involved in a shameless race to gain the control of the world by spreading imperialism and colonialism, but after the Industrial Revolution (1760-1840) many groups of people within a colony began to recognize their shared history, geography, language, and customs. Nationalism emerged as a uniting ideology not only between the competing powers, but also for the groups that felt subordinated or disenfranchised inside larger States and this elixir of nationalism inspired the underprivileged, the exploited and the tortured population to continue their struggle for their right of self-determination.

In modern times, we see the successful implementation of the self-determination right through the declaration of independence of the North American states of British colonies in 1776 which now has created the most powerful nation on earth i.e. The United States of America. In 1789, through the French revolution, the doctrine of self-determination got an extended meaning- the self-determination right of the people is to be based on liberty, equality and fraternity.

Throughout the 19th century, ‘Self-Determination Theory’ gained its impetus due to the emancipation of Latin American States which were colonized by the Spanish and the Portuguese rulers.

During and after the First World War, the principle of self-determination was encouraged by the USA President Woodrow Wilson (1856-1924). It came into limelight as an attempt to overshadow the ‘Decree on Peace’ (1917) proclaimed by Vladimir Lenin (1870-1924). In his ‘Fourteen Points’ which was proclaimed on 7^th January, 1918, there was no direct mention of the term of self-determination, but he believed the concept of self-determination was a pre-condition to ensure peace and hence he boldly opined in favor of liberation of Non-Turk communities of Ottoman Empire as an impetus to his theory. (It should be mentioned hereby, self-determination has two aspects, internal and external. Internal self-determination is the right of the people of a State to govern themselves without outside interference. External self-determination is the right of the peoples to determine their own political status and to be free from alien domination, including formation of their own independent state. However, Mr. Wilson believed in only ‘Internal Self-Determination’, he rejected the concept of ‘External Self-Determination’, and, that is why he is called the proponent of ‘Conservative Theory’ of self-determination). Despite being internationally lauded, Mr. Wilson’s theory didn’t see the light in the ‘Covenant on League of Nations’. However, later on, in Aland Islands Dispute, 1921, this theory got its recognition from the League of Nations itself.

In the writings of Karl Marx (1818-1883) and Vladimir Lenin (1870- 1924), the right of self-determination was discussed several times and that’s why after the Bolshevik War establishment of the right of political sovereignty based on self determination was included specifically in the constitution of Soviet Union. But, Lenin’s view failed to get unanimous support and he came into disagreement with Rosa Luxemburg (1871-1919) in this regard because Vladimir Lenin believed that political and economic equity among communities of people/laborers is the basis of self-determination, and, if it gets violated, people become entitled to protect their right of self-determination even through the means of war (that’s why he’s called the proponent of ‘Radical Theory’ of self-determination), on the other hand, Rosa Luxemburg believed that this doctrine would create class divisions among communities of people/laborers and ultimately would thwart the evolvement of communist movements throughout the world. Later on, Joseph Stalin (1878- 1953) and few other Soviet Leaders like Nikita Khrushchev (1894-1971) and Leonid Brezhnev (1906-1982) were inclined to follow the footsteps of Rosa Luxemburg in this issue as a weapon to impose their authoritarian rules and that’s why we have seen many times the violation of this very right by the Soviet Russian leaders in the pretext of protecting communism.

Not only in the Soviet Union but also in many other States, movements were seen in favour of the right of self-determination at the beginning of the 20th century. For instance, between 1920 to 1930, Canada, New Zealand, the Irish Free State, the Commonwealth of Australia, the Union of South Africa became free from the British Colonialism and on the other hand Lebanon was manumitted from the French Colonialism.

After the end of the Second World War, the concept of self-determination was formally adopted in the United Nations Charter, 1948. Attempts were made to implement this doctrine during the period of the Second World War through the help of Atlantic Charter, 1941 as this doctrine was informally adopted in this charter at first but it was not accomplished at all at that time because Winston Churchill (1874-1965) was disinclined to see the implementation of this doctrine as he was not easy with the fact of losing his colonies and Franklin D. Roosevelt (1882-1945) did not raise any objection in fear of losing a friendly State like the United Kingdom at trying times like the Second World War. However, Clement Attlee (1883-1967) came in power after the defeat of Winston Churchill in 1945 and because of his liberal attitude towards the ‘Right of Self-Determination’ many colonized countries achieved freedom one after another mainly in Asian and African continent from the British rule. And, being inspired from the decolonization movement of former British colonies, colonial countries under the French and the Dutch rules also followed the same path and succeeded to achieve the same glorious fate.

And, due to its overwhelming success at that period, in international instruments like the Decolonization Declaration, 1960, the International Covenant on Civil and Political Rights, 1966, the International Covenant on Economic, Social and Cultural Rights, 1966 and the Friendly Relation Declaration, 1970 self-determination doctrine got easily adopted.

However, point to be noted, before Bangladesh got her freedom, only the implementation of self-determination right against the colonial powers were supported by the international community. It was thought that, if a group of population of an already founded State claimed to implement their right of self determination against their mother State, it would stand against the concept of ‘Sate-integrity’ and hence it would unlikely attract the support from the international community.

And that’s why we can see, before 1971, claims in favour of the right of self determination of the peoples of Katanga, Biafra, Sudan, Chad, Ethiopia, Tibet, and Kurdistan were not recognized by the international community at any circumstances.
Why international community decided to hold the right of self-determination of the people of Bangladesh higher and decided to reconsider the principle of ‘State-Integrity’ is absolutely something to think about. Every researchers of public international law will be interested to know, which was not possible in the matters of Katanga or Sudan, how it became possible in the matter of Bangladesh? Mainly we need to know why international law did not consider the declaration of independence in hopes of implementing self-determination right of Bangladesh as a separatist step?

Some causes can be highlighted in this regard

Firstly, unusual distance in geographic position between East and West Pakistan prevailed.

Secondly, Between East and West Pakistan noticeable lingual, traditional, cultural, political and economic discrimination were seen.

Thirdly, the demand of right of self-determination of the people of East-Pakistan was proposed by democratic leadership.

Fourthly, the demand of right of self-determination of the people of East-Pakistan was raised by the majority of people (almost fifty five percent people) of the State of Pakistan.

Fifthly, the demand of right of self-determination of the people of East-Pakistan was not an isolated incident; rather it grew firm through various exploitations, discriminations and tortures from 1947 to 1971. After the failure of various kinds of peaceful protest, deliberation, and compromise, the people of East-Pakistan were forced to declare independence.

Sixthly, the heinous genocide of the 25^th March, 1971, solidified the right of self-determination of the people of East-Pakistan.

Finally, the sympathetic attitude and associated assurance of the powerful part of the international community created a congenial atmosphere in favour of the right of self-determination of the people of East-Pakistan.

So, without any vestige of doubt, it can be claimed that our independence movement in hopes of achieving self-determination was a ground-breaking event in the arena of public international law. It redefined the concept of self-determination which later inspired countries like Eritrea, Kosovo, South Sudan to achieve their right of self-determination and thus developed a new jurisprudence in public international law.

However, there’s no point in denying the fact that still today this doctrine is not free from defects. Even today, no standards have been set up to check out what criteria satisfy the grounds of evoking this doctrine because the practical application of this doctrine is sort of complicated considering the impact of ‘Great Powers Rule’. There’s always a speculation that public international law almost always gives in before powerful countries and it gets distorted and misinterpreted in the interest of those countries. Without the approval of big powers, oppressed people’s dreams cannot be materialized even to a simple extent. That’s why Catalonia’s demand of self-determination succumbed to a stupendous defeat due to objection raised by the Spanish Supreme Court by not even recognizing their rights to arrange a referendum. In this issue, powerful European Countries indirectly voiced in favor of the Spanish rule on Catalonia as they feared the Catalan referendum might trigger secession movements in their own countries. It should be mentioned hereby, the Supreme Court of Canada took quite a contrary view against the view taken by the Supreme Court of Spain. The Supreme Court of Canada is credited with expounding the ‘Liberal View’ of self-determination. In its advisory opinion, in the matter of Reference re Secession of Quebec, 1998 case, the Supreme Court of Canada drew inspiration from the theory of Ludwig Von Mises (1881-1973) on self-determination and held this doctrine to be congruous with the four basic structures of the constitution of Canada namely Federalism, Democracy, Rule of Law along with Constitutionalism and Minority Rights and held that the process of arrangement for ‘Quebec Referendums’ was valid. Despite the liberal view taken by the Canadian Supreme Court, Quebec Referendums didn’t see the light because the people of Quebec didn’t want to part ways with Canada. Like the ill-fated Catalonian people, logical freedom movements of Palestine, Chechnya or the Rohingya people still remain a far cry due to the pulling of strings and power struggles by the USA, Russia and China respectively. And, as long as, this ‘Great Powers Rule’ continues, public international law will remain enthralled as a toothless tiger in this regard.

Abrar Yasir: lecturer at a private university. Email-Abraryasir101@gmail.com