Abstract
Even until a few decades ago, international law and its principles could hardly be contemplated as playing catalytic roles in fashioning the rights of people at domestic levels. Today, a number of international instruments are not only constituting the rights of people, but also people are giving much more prominence to rights enshrined in international law and demanding their implementation at domestic levels. In this context, Nepal presents a noteworthy case, especially in regard to the protection and promotion of the rights of minority groups, ethnic groups, and indigenous peoples at the domestic level in consonance with international laws related to the rights of self-determination. Against this background, this chapter examines the issue of the right to self-determination, its external and internal application, its epistemology, and problems associated with its implementation in the context of state restructuring in the post-conflict period of Nepal.
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Notes
- 1.
Bhandari , Madan (1990). The 27 Points Criticism to the Draft of the 1990 Constitution . reprinted In Surendra Bhandari & Budhi Karki (Ed.), Future of the Nepalese Constitution. Kathmandu: Law Associates Nepal, point 7.
- 2.
See Steinrte, Elina & Wallace, Rebecca M. M. (2008). International Law: Nutcases. Sweet & Maxwell, p. 58.
- 3.
See ICJ , Advisory Opinion of June 21, 1971 on Legal Consequence for States of the Continued Presence of South Africa in Namibia (South-West-Africa) Notwithstanding Security Council Resolution 276. The ICJ noted that “Furthermore, the subsequent development of international law in regard to non-self-governing territories, as enshrined in the Charter of the United Nations , made the principle of self-determination applicable to all of them. The concept of the sacred trust was confirmed and expanded to all ‘territories whose peoples have not yet attained a full measure of self-government’ (Art. 73). Thus it clearly embraced territories under a colonial régime.”
- 4.
See ICJ , Advisory Opinion of October 16, 1975 on Western Sahara . The ICJ observes that “General Assembly resolution 1514 (X V) provided the basis for the process of decolonization which has resulted since 1960 in the creation of many States which are today Members of the United Nations . It is complemented in certain of its aspects by General Assembly resolution 1541 (XV), which has been invoked in the present proceedings. The latter resolution contemplates for non-self-governing territories more than one possibility, namely: (a) emergence as a sovereign; independent State; (b) free association with an independent State; or (c) integration with an independent State.”
- 5.
An independent state might have different forms of governments: presidential, parliamentarian, monarchical, authoritarian, unitary, federal, and so on.
- 6.
The former USSR, former Yugoslav Republic, the United States of America, and India might be taken as the examples of voluntary association. However, the term “voluntary” might be contested or understood at different levels in these examples. Generally, the modality of association can be reflected in the federal structure of a government.
- 7.
The example of integration can be taken from all federal structures that do not allow voluntary secession and all unitary structures across the globe.
- 8.
See Steinrte and Wallace, supra note, p. 60.
- 9.
See The League of Nations, Report of the International Committee of Jurists Entrusted by the Council of the League of Nations with the Task of Giving an Advisory Opinion upon the Legal Aspects of the Aaland Islands Question, Official Journal of the League of Nations, Special Supplement No. 3 (1920). The Committee of Jurists observed that “Positive international law does not recognize the right of national groups, as such, to separate themselves from the State of which they form part by the simple expression of a wish, any more than it recognizes the right of other States to claim such a separation. Generally speaking, the grant or refusal of the right to a portion of its population of determining its own political fate by plebiscite or by some other method is, exclusively, an attribute of the sovereignty of every State, which is definitively constituted.”
- 10.
See Saw, Malcolm N. (2008). International Law. Cambridge University Press, 6th ed, pp. 973–977.
- 11.
See Article 2 (4) the UN Charter, which provides that “All Members shall refrain in their international relations from the threat or use force against the territorial integrity or political independence of any state, or in any other manner inconsistent with the Purpose of the United Nations .” The Security Council Resolution 242 of 1967 emphasizes the “inadmissibility of the acquisition of territory by war.” Similarly, GA Res. 2625 of October 24, 1970, provides that “… the territory of a state shall not be the object of acquisition by another state resulting from the threat or use of force. No territorial acquisition resulting from the threat or use of force shall be recognized as legal.”
- 12.
See Cassese, Antonio (1998). Self-Determination of Peoples: A Legal Reprisal. Cambridge University Press, pp. 11–13, 32–33. Cassese observes that “It was the French Revolution that proclaimed the principle, though mainly as a ban on territorial annexations or changes ignoring the wishes of the populations concerned, as well as, to a lesser extent, a criterion of democratic legitimation of governments. It was however the French Revolution itself that first, and in several cases, trod the principle underfoot.”
- 13.
See The American Declaration of Independence 1776. It proclaims that “… endowed by their creators with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness. That to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed, That whenever any Form of Government becomes destructive of these ends, it is the Right of the People to alter or to abolish it, and to institute new Government, laying its foundation on such principles and organizing its power in such forms as to them shall seem most likely to effect their Safety and Happiness … a Tyrant, is unfit to be the ruler of a free people.”
- 14.
See Lenin, V. I. (1972). Collected Works Vol. 20. Moscow: Progress Publishers, pp. 17–51.
- 15.
Id., pp. 393–454. In fact, Lenin contributed more papers on the issue. For example, in 1916 he also wrote Theses on the Socialist Revolution and the Rights of Nations to Self-Determination. Collected Works Vol. 22. Moscow: Progress Publishers, pp. 143–156.
- 16.
See Articles 1–3 of the Atlantic Charter 1941, http://avalon.law.yale.edu/wwii/atlantic.asp. Accessed 12 April 2013.
- 17.
See Cassese, Self-Determination, supra note, p. 16.
- 18.
The fifteen states united as USSR were Armenia, Azerbaijan, Byelorussia, Estonia, Georgia, Kazakhstan, Kirghizstan, Latvia, Lithuania, Moldavia, Russia, Tajikistan, Turkmenistan, Ukraine, and Uzbekistan.
- 19.
See Stalin, Joseph (1953). Marxism and the National Question. J. Stalin Works Vol. 2. Moscow: Foreign Language Publication House, pp. 300–303. Stalin stresses that “… it turned out that we need cultural-national autonomy, of course (of course!) in the interests of the proletariat! … But in that case, to erect national organizational and cultural barriers between the workers would have been the unwise things to do! … who artificially erect and reinforce barriers, which are breaking down, and which nobody needs? … Instead of a common organization we shall have separate national organizations … At all events, we can assure … the glorious banner of internationalism ….”
- 20.
Supra note. Lenin. Theses on the Socialist Revolution. Lenin claims that “The right of nations to self-determination means only the right to independence in a political sense, the right to free, political secession from the oppressing nation … Consequently, this demand is by no means identical with the demand for secession, for partition, for the formation of small states. It is merely the logical expression of the struggle against national oppression in every form … The recognition of self-determination is not the same as making federation a principle. One may be a determined opponent of this principle and a partisan of democratic centralism and yet prefer federation to national inequality as the only path towards complete democratic centralism. It was precisely from this point of view that Marx, although a centralist, preferred even the federation of Ireland with England to the forcible subjection of Ireland to the English … The aim of socialism is not only to abolish the present division of mankind into small states and all national isolation; not only to bring the nations closer to each other, but also to merge them. And in order to achieve this aim, we must, on the one hand, explain to the masses the reactionary nature of the ideas of Renner and Otto Bauer concerning so-called cultural national autonomy … Just as mankind can achieve the abolition of classes only by passing through the transition period of the dictatorship of the oppressed class, so mankind can achieve the inevitable merging of nations only by passing through the transition period of complete liberation of all the oppressed nations, i.e., their freedom to secede.”
- 21.
See Articles 1(2) and 55 of the United Nations Charter, 24 October 1945, UNTS. 1(XVI).
- 22.
See Declaration on the Granting of Independence to Colonial Countries and Peoples, GA Res.1514 (XV) of December 14, 1960. Articles 1 and 2 of the declaration read, “(1) The subjection of peoples to alien subjugation, domination and exploitation constitutes a denial of fundamental human rights , is contrary to the Charter of the United Nations and is an impediment to the promotion of world peace and co-operation. (2) 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.”
- 23.
See Declaration on Permanent Sovereignty over Natural Resources, RA Res. 1803 (XVII) of December 14, 1962.
- 24.
See Declaration on Principles of International Law concerning Friendly Relations and Co-operation among States in accordance with the Charter of the United Nations , GA Res. 2625 of October 24, 1970.
- 25.
See Xanthaki, Alexandra (2007). Indigenous Rights and United Nations Standards, Cambridge University Press. Kindle Location 1627.
- 26.
Id., Kindle Location 1703.
- 27.
Article 3 of the United Nations Declaration on the Rights of Indigenous People, 2007 reads, “Indigenous 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.”
- 28.
See Xanthaki, supra note. Kindle Location 1734.
- 29.
Id.
- 30.
Article 4 of the UNDRIP reads, “Indigenous peoples, in exercising their right to self-determination, have the right to autonomy or self-government in matters relating to their internal and local affairs, as well as ways and means for financing their autonomous functions.”
- 31.
See (1931) PCIJ, Ser. A/B, no. 41.
- 32.
See Dworkin , Ronald (1978). Liberalism. In S. Hampshire (Ed.), Public and Private Morality. Cambridge University Press, p. 127; cited in Dworkin, Gerald (1988). The Theory and Practice of Autonomy. Cambridge University Press, p. 4.
- 33.
See Kant , Immanuel (2005/1785). Fundamental Principles of the Metaphysics of Morals. Gutenberg Ebook, pp.78–79.
- 34.
Id., pp. 83–84.
- 35.
See Xanthaki, supra note. Kindle Location 2900.
- 36.
See the Preamble of the United Nations Declaration on the Rights of Persons Belonging to National or Ethnic, Religious and Linguistic Minorities, adopted by the General Assembly Resolution 47/135 of December 18, 1992. The Preamble provides that “Reaffirming that one of the basic aims of the United Nations, as proclaimed in the Charter, is to promote and encourage respect for human rights and for fundamental freedoms for all, without distinction as to race, sex, language or religion.”
- 37.
Id., The Preamble further states that “Inspired by the provisions of article 27 of the International Covenant on Civil and Political Rights … Considering that the promotion and protection of the rights of persons belonging to national or ethnic, religious and linguistic minorities contribute to the political and social stability of States in which they live.”
- 38.
See Declaration on the Granting of Independence to Colonial Countries and Peoples, UN General Assembly Resolution 1514 (XV) of December 14, 1960.
- 39.
Id., Article 6 reads, “Any attempt 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 .”
- 40.
Id., Article 7 reads, “All States shall observe faithfully and strictly the provisions of the Charter of the United Nations , the Universal Declaration of Human Rights and the present Declaration on the basis of equality, non-interference in the internal affairs of all States, and respect for the sovereign rights of all peoples and their territorial integrity.”
- 41.
See Kymlicka , Will (2010). Minority Rights in Political philosophy and International Law. In Samantha Besson & John Tasioulas (Ed.), The Philosophy of International Law . Oxford University Press, p. 379. Kymlicka writes, “The emergence of minority rights in international law had different origins. It was largely stimulated by the experiences of post-communist Eastern Europe. After the end of the Cold War, there was initially great optimism that liberal democracy would emerge around the world. Instead, what occurred in many post-communist countries was violent ethnic conflict. Overly-optimistic predictions about the replacement of communism with liberal-democracy were supplanted with pessimistic predictions about the replacement of communism with ethnic war.”
- 42.
Id., p. 395.
- 43.
See Cassese. Self-Determination, supra note, p. 59.
- 44.
See UN Treaty Series. Parties to ICESCR & ICCPR . http://treaties.un.org/doc/Publication/MTDSG/Volume%20I/Chapter%20IV/IV-3.en.pdf. Accessed 21 March 2013.
- 45.
See Cassese, Self-Determination, supra note, at 61.
- 46.
Id., pp. 61–62.
- 47.
Id., p. 62.
- 48.
See Henkin, Louis et al. (1999). Human Rights . Foundation Press, p. 88. See also Steinhardt, Ralph G. (2009). International Human Rights Lawyering: Cases and Materials. West, pp. 1316–17.
- 49.
See Frank, Thomas M. (1992). The Emerging Right of Democratic Governance. American Journal of International Law. 86, p. 46. The author mentions that “Since self-determination is the oldest aspect of the democratic entitlement, its pedigree is the best established. Self-determination postulates the right of a people organized in an established territory to determine its collective political destiny in a democratic fashion and is therefore at the core of the democratic entitlement.”
- 50.
See Committee on State Restructuring and Distribution of State Power , A Concept Paper and Preliminary Draft on Restructuring the State, proposed Article 13, at 20 (January, 2010).
- 51.
See European Commission for Democracy through Law, Opinion on the Constitutional Situation in Bosnia and Herzegovina and the Powers of the High Representative, paras. 44 & 59, CDL-AD (2005) 004 (March 11, 2005).
- 52.
See Kallen, Evelyn (2004). Human Rights . In Ellis Cashmore (Ed.), Encyclopedia of Race and Ethnic Studies. London: Routledge, p. 191.
- 53.
In this book, justice problems are understood as the social, economic, cultural, and political problems persisted in Nepalese society.
- 54.
See CSR, supra note, para. 2.1.2. It observes, “Although, a restructuring of the state encompasses all aspects of the state structure and its operational methods, the scope of the authority assigned to the Committee of State Restructuring and the Distribution of State Power by the Constituent Assembly Rules, 2008, relates only to the restructuring of the hierarchy of governments (e.g. federal, provincial, local, etc.), in particular setting up hierarchies at the provincial level. Therefore, the act of building structures and operational modalities of provinces and local governments is adopted as the main subject matter of state restructuring.” [My translation, from the original document in Nepali]
- 55.
Id., para. 2.1.1. The CSR observes, “Habitually, the structure of a country or a state reposes unchangeably. However, the structure of a regime changes has been changed at the will of the rulers or the need of a state or the wish of the people. Reconsideration upon the vertical and horizontal composition and the role of state’s apparatuses and other similar agencies of a state stands as the subject matter of state restructuring.” [My translation, from the original document in Nepali]
- 56.
Id., para. 2.1.1. The CSR observes, “Along with the regime, the existing style of governance of Nepal is centralized in its nature. Based on the distinctive characteristics of the Nepalese society and its particularities, together with the desire expressed by the people’s movement and the aspirations of the left-behind or compelled to be left-behind communities, the Nepalese regime suits to be a federal one and the governance thus should be autonomous devised on the clear distribution of authority , rights and duties between the different levels of governments.” [My translation, from the original document in Nepali]
- 57.
Id., para. 2.1.1. The CSR claims, “Formulating new structures in line with the federal composition with a view to ensuring geographical, ethnic, linguistic, cultural, and provincial autonomy based on the principles of territorial integrity, indivisibility, and sovereignty of a state is understood as the restructuring of the state . A restructuring of the state is not an act of creating a new state, but it is an act of internal remodeling of the regime and its structures. In the present context, therefore, within the existing international boundary of Nepal, to redraw and rebuild the internal structures (such as: the development regions, districts, municipalities, and villages) of Nepal is understood as the restructuring of the state.” [My translation, from the original document in Nepali]
- 58.
Id., para. 2.1.1. The CSR claims, “Assuming the future possibilities and possible aspirations of the people in reconstructing a new Nepal by ending the class, ethnic, linguistic, regional, gender, social, cultural, political and other discriminations and inequalities prevalent in the existing structure of the state is also acknowledged as the restructuring of the state . In this regard, the old political and social equilibrium cannot be stable and adequate; instead it should overcome by the requisite of development with needed changes and transformations fashioned by a long and complex path of conflicts and struggles experienced by the humanity. Therefore, in this course, the introduction of changes to the internal structure and system of governance on the different levels of governments and their institutions is also the intrinsic part of the state restructuring. Along with these changes, distribution of political, economic, and administrative authorities or the redistribution of state authorities in a new module into the all organs and institutions of state structure and governments at all levels is also the act of state restructuring.” [My translation, from the original document in Nepali]
- 59.
Id., para. 2.1.1. The CSR notes, “Transforming a unitary or centralized state into a federal structure and vice a versa is also the act of state restructuring. We comprehend changes, reforms, or alterations into the unequal and discriminatory practices crafted in different historical contexts by the centralized or unitary state of Nepal as the state restructuring. In conclusion, to address the problems not addressed by the centralized regime by building and rebuilding the physical infrastructures, and utilization of internal and external resources in a new way is also a part of the state restructuring.” [My translation, from the original document in Nepali]
- 60.
Id., para. 2.1.1. The CSR notes, “In quintessence, effective and people friendly institutionalization of state apparatuses, and by creating an appropriate and accessible atmosphere for the optimum increment of access and participation of all people, especially those classes, ethnic and cultural groups left out or compelled to be left out by the state practices and structures is meant to be the restructuring of state in the context of Nepal.” [My translation, from the original document in Nepali]
- 61.
See Article 1 of the Belgian Constitution, 1994.
- 62.
Id., Article 2.
- 63.
Id., Article 3.
- 64.
Id., Article 4.
- 65.
See Fabre, Elodie (2009, July). Belgian Federalism in a Comparative Perspective. Vives Discussion Paper No. 5. www.econ.kuleuven.be/vives. Accessed 23 March 2013.
- 66.
See Despotovic, Ljubisa & Stojanovic, Drode (2011). Belgian Consociative Democracy, An Outline for A Portrait of Unsuccessful Federalism . Megatrend Review, 8, 89–100.
- 67.
See generally Sen , Amartya (1992). Inequality Reexamined. Clarendon Press
- 68.
See generally Atkinson, Tony (1983). The Economics of Inequality. Oxford University Press, 2nd ed.
- 69.
See generally Lydall, Harold (1968). The Structure of Earnings. Clarendon Press.
- 70.
See generally Thurow, Lester (1969). Poverty and Discrimination: Studies in Social Economics. Brookings Inst. Pr.
- 71.
See generally Solow, Robert M. (2000). Growth Theory: An Exposition. Oxford University Press, 2nd ed.
- 72.
Se generally Stiglitz, Joseph E. (2013). The Price of Inequality. W. W. Norton & Company.
- 73.
See Sen, supra note. Inequality Reexamined: see also Sen , Amartya (1999). Commodities and Capabilities. Oxford University Press; Nussbaum, Martha & Sen, Amartya (Ed.), (1993). The Quality of Life. Oxford University Press.
- 74.
See Thapa, Hari B. (2013c). Inter & Intra-Party Conflict: An Explanation of Political Game-Playing [Daliya Doondha: Rajnitik Chalkhelka Belibistar]. Kathmandu: Sangri-La Books, p. 199.
- 75.
See Prasad , Jayanta (2012). Nepal as a Federal State: Lessons From the Indian Experience. In V. R. Raghavan (Ed.), Nepal as a Federal State: Lessons from the Indian Experience. New Delhi: Vij Books India Pvt. Ltd. Kindle Location 114.
- 76.
Id., Guruswamy, Menaka. Indian Federalism – That Which was not Constitutionally in Tender. Kindle Location 336. Menaka argues that what makes the Indian model unique is how the constitution drafters envisaged a more unitary and less federal country in the text of the constitution. But in practice, the country has become far more federal than as it was envisaged.
- 77.
Id.
- 78.
Id., Prasad also refers to the observation of Jawaharlal Nehru , who wrote, “… Nepal was the only truly independent nation of South Asia. And, as the day of India ’s independence drew closer, the national leaders became convinced that India could not possibly attain its true potential without effective direction being provided by a strong central government.”
- 79.
See Nehru , Jawaharlal (1936). Indian and the Worlds. London: George Allen & Unwin Ltd., pp. 226–262.
- 80.
Id., p. 237.
- 81.
See generally Sen , Amartya (2006). Identity and Violence: The Illusion of Destiny. W. W. Norton & Company.
- 82.
See Koller, Arnold (2002). Introduction to the Swiss Model of Federalism . A paper presented at the International Conference on Federalism in 2002. http://www.forumfed.org/libdocs/IntConfFed02/ICFE0208-ch-Koller.pdf. Accessed 23 March 2013.
- 83.
See generally Desalegn, Deza (2011). Ethiopia ’s Ethnic Federalism and the Rights of Regional Minorities. VDM Verlag Dr. Müller.
- 84.
See generally Smith, Lahra (2013). Making Citizens in Africa: Ethnicity, Gender, and National Identity in Ethiopia . Cambridge University Press.
- 85.
See generally Yihunie, Dires Desyibelew (2011). Conflict in Federalism Governance: Inter-Ethnic Conflict Evidenced in the Ethiopia Ethnic Based Federalism. LAP Lambart Academic Publishing.
- 86.
See generally Pareto , Vilfredo (2009). The Transformation of Democracy. Transactions Publishers, 4th rep, p. 37.
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Bhandari, S. (2014). Right to Self-Determination and Restructuring the Nepalese State. In: Self-Determination & Constitution Making in Nepal. Springer, Singapore. https://doi.org/10.1007/978-981-287-005-6_6
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