Professor Dr. Taj Mohammad Breseeg
Baloch and the right of self-determination
Abstract
The principle of self-determination forms the most pragmatic basis of reconciling group identity within the community of nations and facilitates governance models that promote stability and regional security. Since the British occupation (1839) and the forced merger (Iran-1928, and Pakistan-1948) of the Baloch land, the question of the right to self-determination is raised. In the last two decade, many peoples and states obtained their independence, sometimes in a diplomatic way, sometimes after armed struggle. The republics of the former Yugoslavia, the Baltic states of former Soviet Union, East Timor, Kosovo and the South Sudan a few to be named. So what about the Baloch? With a population around 15 million people, the Baloch people nowadays are the largest ethnical group in the south-west Asia, without an appropriate future. Are the Baloch entitled to have an own state? In this article not only juridical but inevitably political aspects of the Baloch question as well, will be dealt with.
Right of self-determination
Following a Congressional hearing, earlier this year, on the human rights situation in Balochistan, debate on the question of right to self-determination for the Baloch, came to the international spotlight again. On February 17, 2012, a resolution introduced by a Republican Congressman from California, Dana Rohrabacher and co-sponsored by House Representatives Louie Gohmert and Steve King, asserting that the people of Balochistan that are “currently divided between Pakistan, Iran, and Afghanistan, have the right to self-determination and to their own sovereign country[1],” adding that they should be afforded the opportunity to choose their own status among the community of nations.
What is the right of self-determination? During the early 20th century, the Baloch began to consider the concept of right to self-determination, a notion introduced by the British amid the division of the Baloch country among themselves and their neighbouring countries (Iran and Afghanistan). Since then the Baloch nationalist movements have been trying to establish their legitimacy by appeals to nationalism and the right of self-determination throughout Balochistan. Their demand for the right to self determination relates to the collective right of the people.
After the end of the Cold War, there was a strong revival of interest in national self-determination among political theorists and international legal theorists. Today, with many ‘nations without states’ asserting their right to self-determination, what can political theory tell us about identifying nations and specifying principles (and practices) of national self-determination?
The idea of a right to ‘collective self-determination’ is a difficult one – how can a group, as opposed to an individual, have a ‘right’? To argue that a nation has a right to self-determination is, some might argue, to overlook what rights are, and who can claim them. The right to self-determination is a collective right, exercisable only by groups, and allows those groups to choose their sovereign political status freely. It is enshrined in Article 1 of the UN Charter and restated as a founding principle of numerous other conventions. There are two facets to the right of self-determination: first, the external aspect, which relates to the nature of a group’s status in international law, and second, the internal aspect, which relates to the right of a group to choose a system of governance within the territory that it purports to define. Groups that seek to assert a right to self-determination must establish a distinguishable culture, a history of independence or self-rule in an identifiable territory, and a will and capability to self-govern.[2]
Self-determination initially has its roots in the decolonization process when the people of colonial territories called for the creation of a new political order which would express their political will and enable them to achieve their economic, social and cultural development goals. It has been a legitimate demand to liberate a country from the yoke of the colonial rulers. In fact, it “served well those who sought to dissolve empires”.[3]
Historically, in the early 20th century, W. Wilson and V.I. Lenin came out forcefully in support of the right of national self-determination for linguistic and colonised peoples.[4] The First World War resulted in the dismemberment of the Austro-Hungarian, Czarist, German and Ottoman empires. By the year 1922, many independent states came into being in central Eastern Europe. In place of the Congress of Berlin came the League of Nations, from which non-Europeans were not excluded. After the Second World War, the process of decolonisation began in earnest. Between 1945 and 1960, much of Asia and Africa secured their freedom by various peaceful and violent means. Since then, the number of independent states grew by nearly 50 percent, from approximately 120 to 190 in the mid-1990s.[5]
The UN defines the 'people entitled to 'self-determination' as those living under colonial rule.[6] People in sovereign states which were democratically ruled, were not entitled to further 'self determination'. This decision was taken in two General Assembly rulings. These are: "UN General Assembly Declaration on the Granting of Independence to Colonial Countries and Peoples (1960) and the UN General Assembly Declaration of Principles of International Law concerning Friendly relations among States" (1970).[7] These declarations affirmed the territorial unity of sovereign states. The 'self-determination' principle should not be interpreted in such a manner as to dismember the territory or political unity of sovereign states, which were conducting themselves in compliance with the principle of equal rights, and had a government which represented the whole people with no distinction as to race, creed or colour.[8]
The principle of self-determination has now often been propagated to acquire a sovereign independent nation state for an ethnic group in a multi-ethnic state. In this respect, however, unlike the case of former colonial lands, such claims need not necessarily include an external recognition of a new statehood, according to the “UN Declaration of Human Rights”.[9] Instead, the claim may focus on the internal aspects of self-determination, including the right to a particular form of self-governance such as autonomy or federalism. In practice, however, the possible outcome of an exercise of self-determination will often determine the attitude of governments towards the actual claim by a people or nation. While claims to cultural autonomy may be more readily recognized by states, claims to independence are more likely to be rejected by them. Nevertheless, the right to self-determination is recognized in international law as a right of process (not of outcome) belonging to peoples and not to states or governments.[10]
Resolution 1514 however contained an important restriction, article 6 states: "Every attempt directed to a whole or partial destruction of the national unity or territorial integrity of a country is incompatible with the aims and principles of the UN Charter." According to this clause, colonies have the right of self-determination, however respecting the existing borders. This is also known as the principle of territorial integrity. The territorial borders, drawn by the former colonial occupants are respected by the new formed states, in the international practice.[11]
However, the meaning and application of the idea of the right to self-determination evolved, and it obtained a larger content during the course of the twentieth century. On the occasion of the 25th anniversary of the United Nationsin 1970, resolution 2625 was adopted. In this resolution an enumeration of the state of affairs in international law is given, the text of resolution 1514 is more or less repeated. Also the principle of territorial integrity is raised, however, there is added that protection of the territorial integrity is only valid for a state that "conducts itself in accordance with the principle of equal rights and self-determination and is ruled by a government that represents the whole population belonging to the country without distinction as to race, creed or colour." In other words, protection of the territorial integrity is no longer an automatism. When a state doesn't respect human rights (internal self-determination), then protection of territorial integrity can lapse and an external right of self-determination can 'arise'. "A right of secession exists when a people is subject to colonial, foreign, or any other form of domination." "There is no respect for territorial integrity of a state when the national- or territorial unity turns out to be a fiction, to justify in fact colonial- or foreign domination" according to the reporter of the UNO sub-commission on Prevention of Discrimination and Protection of Minorities.[12] The prevailing doctrine also provides in a similar possibility to break through the principle of territorial protection.
It is worth mentioning that in international law there is no international constitution which dominates the states, starting point remains the sovereignty of the state. Moreover, there is no international police force who can exact compliance of resolutions or international agreements. In this way the UNO doesn't have legislative capacity like national legislators have. Compliance and creation of international law is mostly effected by the international state practice. When analyzing a possibly right of self-determination in international law, it is therefore important also to take a look at this international 'customary law'. Customary law in national law consists out of two elements, the opinio juris and the practice. In international law we can derive the opinio juris from the treaties and resolutions, which are in the end created and signed by the states themselves. For deriving the international practice we just have to see how states conduct themselves. In the field of decolonisation the international conduct of states was very obvious; self-determination via decolonisation of western colonies was effected. Hereby, self-determination had become a concrete right.[13]
Focusing solely on the existing positive international law, Balochistan is not a traditional colony nor occupied by a western colonial power, moreover, the territory, is spread over 3 countries. This means, that the right on an appropriate state for the Baloch by resolution 1514 is being blocked, merely because of the right of maintenance of territorial integrity of the countries Pakistan, Iran and Afghanistan. Although on the first sight the Baloch do not have the right of an independent Balochistan as a whole, there can be situations within the individual states which are very relevant for the right of self-determination. For example the republics of the former Yogoslavia and the Baltic states of former Soviet Union, were not traditional colonies, still they became independent.
In the Baloch case, as in many others, the claim of self-determination involves the assertion of autonomy or independence by ethnic groups within already-established sovereign states. With this in mind, how can one explain an “external recognition” to the Baloch and others, who are demanding an outright independence, while their case is viewed as “internal self-determination” in accordance to the existing international law? As argued by Bucheit, “the degree of oppression determines the available remedy, varying from protection of minorities up to the ultimate remedy of secession.[14]
In the international practice there are compelling examples in this respect. Under the international law, if a state fails to protect or respect the human rights of its citizens or the people under its rule, then that state is not allowed to disguise its atrocities by claiming sovereignty and referring such violation as an internal matter in order o continue repression and violation of human rights. For example: the imposition of “No Fly Zone” by the Security Council for Kurds in Kurdistan against brutal forces of Iraq, and also when Serbia used force to suppress Kosovars, the Security Council acted by adopting numerous resolutions, and finally authorised the NATO for aerial bombardment of Serbian forces to prevent human catastrophe are instances that involved direct international action.[15]
In comparison to the Baloch case, the independence of East Timor and the Baltic States of former Soviet Union, offer a good parallel. The East Timor was a Portages colony and as the colonial power decided to leave the area, according to the UN rules on former colonies, the administration would have been passed to the UN until a referendum. But instead of that East Timor was invaded and occupied by the Indonesian armed forces, just few days, after its independence in 1975. On July 17, 1976, the country officially became a province of the Republic of Indonesia. The people of East Timor fought against this occupation for 24 years. Finally, with the intervention of the International Community, on 30th August 1999, a referendum was held for East Timor self-determination. Defying threats and intimidation by Indonesia’s army and its East Timor puppet pro-Indonesia militias, the majority of East Timorese voted for freedom.[16] On 20th May 2002, this tiny territory achieved independence from its giant neighbor Indonesia.
When the Baltic States seceded from the former Soviet Union, the international community viewed their situation as qualitatively different from other Soviet Republics, because of their prior existence as independent states-a status which was undone by a coerced treaty of annexation. Based on this argument, the Baltic people were able to define their circumstances as a form of alien occupation, adding a legal force to their political claims to self-determination. Likewise, Balochistan had remained an independent state before the Pakistani invasion and occupation, and it was annexed to Pakistan under a forced treaty.
The essence in both cases was that for the people, there no longer, was a possibility to escape within the existing states, the violence and discrimination. Juridical or political alternatives were not available or exhausted, and the only remedy left was secession by means of forming their own states. In both cases, the state violated human rights of a distinct group in a serious way and so eventually lost their right to territorial protection.
The Baloch people, like the people of East Timor and the Baltic states of former Soviet Union, view themselves as an occupied people and have done so since March 27, 1948, when the Pakistan armed forces invaded Balochistan. They never voted to join Pakistan. On the contrary, the Baloch parliament voted unanimously against the incorporation, into the new state of Pakistan. Therefore, the concept of alien occupation and alien subjugation are very relevant to the Baloch and the legalization of their claim, the right to self-determination.
As argued, the right to se
lf-determination is central to the concept of people (nation) and its affirmation of national cultural specificity. Its importance lies in the right of choice.[17] Whether self-determination means the restoration of independence or greater regional autonomy within a federal Pakistani or Iranian states, is a matter of choice for the Baloch people. As it is the international practice, the best way to resolve the Baloch issue would be for these states to authorize an internationally supervised and monitored referendum to allow the people of Balochistan to freely and democratically determine their own future, so that the outcome of a people's choice should not affect the existence of the right to make a choice.
[2] A. D. Smith, National Identity, pp. 73-74; Inayatullah Baloch, The Problem of Greater Baluchistan, pp. 8-10.
[3] Amitai Etzioni, "The Evils of Self-Determination", in: Foreign Policy, no. 89, Winter 1992-93, p. 21.
[4] V. I. Lenin, The National Liberation Movement in the East, Moscow: Progress Publishers, 1974, pp. 233-37; G. E. Fasnacht, Acton’s Political Philosophy. An Analysis, London, 1952, pp. 126-139.
[5] Greerups Förlag AB, Gleerups Skolatlas, Uppsala: Gleerups, 1993.
[6] Per Ahlin, och Pål Wrange, Folkens Självbestämmanderätt, (Right of Self-determination of People), i serien "Världspolitikens Dagfrågor", Stockholm: Utrikespolitiska Institutet, 1990, pp. 8-9.
[7] Ibid., p. 4.
[8] Ibid., pp. 7-8.
[9] Ibid., pp. 8-9.
[11] ICJ Reports (1975) pp. 38-40, paras. 79-83., see also p. 36, para. 70.
[13] ICJ Reports (1975), p. 36, para. 71.
[15] Daskalovski, Zidas. Claims to Kosovo: Nationalism and Self-Determination. In: Florian Bieber & Zidas Daskalovski (eds.), Understanding the War in Kosovo. L.: Frank Cass, 2003. ISBN 0-7146-5391-8, pp. 13-30.
[16] United Nations, The United Nations and East Timor: SelfDetermination through Popular Consultation (United Nations Department of Public Information, New York, 2000) pp. 6-10.
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