May 07, 2015

Nagalim: Legal Arguments for Self-Determination

The Naga people declared independence from the British in 1947, although within a few years India had forcibly annexed Nagaland to its territory. Since then, India labels every Naga struggle or movement for independence as terrorist. However, the present situation is comparable to a colonial domination and therefore the Naga have a legal right to self-determination. 

Below is an article published by The Sangai Express:

Revolution, though, may be considered illegitimate in Kantian postulate, is nevertheless recognised as an inalienable right which belongs to the “people” since the American Declaration of Independence, 1776. In like manner, the principle of “right to self-determination” today has been recognized under international law as a “jus cogens” norm constituting an obligation “erga omnes” from which no state can derogate. While a post-nation state dimension of the concept has been rapidly emerging, India has officially reserved the applicability of the norm to any section of people within its boundary for conventional tactical calculations in the Asian geo-political theatre.

Nagas declared their independence from British India on the 14th of August, 1947. However, India with its Chinese-itching complex, lately adopted the policy of Northeast expansionism. India invaded the Naga nation and brought its territory under military occupation since early 1950s. Naga nation was forcibly annexed and partitioned thereto. The existing Nagaland state was forcibly engrafted on 1st December, 1963 and a puppet Government was inducted therein. Naga people’s struggle and resistance continue till date challenging India’s armed occupation. However, India by semantic manipulation of the conflict narratives, constantly labels the legitimate struggle of the Nagas as “secessionist” and their organisations as “terrorists”, “rebels”, “insurgents”, or “guerrillas” to deny the state of “belligerency”.

Be that as it may. The UN General Assembly Resolution 3103 (XXVIII), 1973 regards all “armed conflicts involving the struggle of peoples against colonial and alien domination and racist regimes” as international armed conflicts. Consequently, the Indo-Naga conflict being an armed conflict involving the struggle of people against colonial domination must be considered an international armed conflict which has “locus standi” under international law. Alongside this fundamental recognition, the “right to self-determination” is enshrined in the UN Charter and the common Article 1 of the International Covenant on Civil and Political Rights (ICCPR), 1966 and the International Covenant on Economic, Social and Cultural Rights (ICESCR), 1966 declares that “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”.

The term “peoples”, however, in the Charter connotes that the right to self-determination under international law is conferred only upon a “people”. The pertinent question is what constitutes a “people”? According to UNESCO Experts’ “Justice Kirby definition”, a group in order to qualify as a “people” must possess some or all of the following common features: (a) a common historical tradition; (b) a racial or ethnic identity; (c) cultural homogeneity; (d) linguistic unity; (e) religious or ideological affinity; (f) territorial connection; and (g) common economic life.” Moreover, the group “must have the will to be identified as a people or the consciousness of being a people”; and it “must have institutions or other means of expressing its common characteristics and will for identity.” Thus, what is crucial for a group in order to qualify as a “people” is the consciousness of the group as being a “people” with distinct identity and the group need not be necessarily large. As opined by the Canadian Supreme Court in Re Secession of Quebec, a “people" may even include a portion of the larger population of an existing state. However, the term “people” should not be confused with the “indigenous peoples” or “minorities”, “indigenous peoples” and “minorities” are ordinarily entitled only to “right to internal self-determination” and not to “external self-determination”.

Now the moot question is can the Nagas be said to possess the status of a “people”. Nagas for that matter have no ethno-linguistic, racial, religious or cultural consanguinity whatsoever with India, let alone ideological affinity. More importantly, Nagas have consistently asserted their separate identity with the collective will to be identified as a “people”. The Government of India in fact through its Amsterdam Declaration dated 11.07.2002, officially so recognized by declaring the “history” and “situation” of the Nagas as “unique” – “unique history” in the sense that “Naga nation has never signed any document of accession with India in the history of formation of the Indian Union” and “unique situation” in the sense that “Naga issue accordingly is not a case of secessionist insurgency” and on personal appraisal of these crucial historical facts by the then Deputy Prime Minister of India, L.K. Advani himself, the same was formally so recognised. Thus, there hardly can be any dispute with regard to the established status of the Nagas as a “people” and the same has also been so recognized by other sovereign nations including international bodies such as UNPO. In any case, if the inhabitants of Somaliland could be considered a “people” as distinct from the greater Somali community, the status of “people” in the case of Naga nation is so much the more incontrovertible and legitimate.

It is true that “unilateral declaration of independence” and “secession” in itself are not prohibited under conventional international law. Kosovo for instance controversially declared independence from Serbia on 17th February, 2008, against which Moscow fiercely contested as violative of Serbia’s sovereignty while Washington fully backed the action. However, the International Court of Justice in its advisory opinion dated 22.07.2010, opined that Kosovo’s “unilateral declaration of independence” was not against any principle of international law. Likewise, the Canadian Supreme Court in Re Secession of Quebec observed that “secession” by itself is not prohibited under international law and the federal government of Canada cannot deny the right of Quebec to pursue “secession”, should a clear majority of the people of Quebec choose that goal.

Conversely, from the case of Katangese Peoples’ Congress vs. Zaire, it appears that a racial or ethnic “minorities” howsoever distinct do not have the right to secede from their parent states in the absence of concrete evidence of violations of human rights. The pertinent question is when does the right to secession accrue to “peoples” and “minorities”? The observation of the Canadian Supreme Court in Re Secession of Quebec suggest that a “people” who is blocked from the meaningful exercise of its right to internal self-determination is entitled to exercise the right to secession. Thus, what is crucial for the “indigenous peoples” and “ethnic minorities” under conventional international practice is that denial of due internal autonomy and human right violations may confer on them the status of a “people” entitling them forthwith to the right to secession.

Per contra, contemporary international developments seem to suggest an emergence of a post-nation state dimension of the concept. The Scottish Independence Referendum 2014 in particular is significant in two radical ways in light of the fact that Scotland does not claim Scottish people as oppressed people. First, it decisively alters the requirement of oppression and denial of internal autonomy as the precondition for valid exercise of right to secession. Second, it reinvigorates the relevance of regional nationalism in the contemporary. The permissive state behaviour of Britain in particular arguably demonstrates that “indigenous peoples” and “ethnic minorities” may validly secede if they so desire irrespective of whether or not there is denial of right to internal self-determination or violation of human rights.

The inevitable conclusion is Nagas being a “people” under colonial and alien subjugation are undoubtedly entitled to the “right to self-determination”. Even assuming arguendo that Nagas do not possess the status of a “people” but constitute a mere “ethnic minority” within the Indian Union, the history of armed suppression and the immensity of war crimes and human right violations committed by the Indian armed forces under the regime of the Armed Forces (Special Powers) Act, 1958 would unquestionably entitle the Nagas to the right to exercise the right of secession. In any case, if East Timor in the similar case of Indonesian occupation is entitled to the right to self-determination as held by the International Court of Justice, Nagas “right to self-determination” must likewise be assumed to be equally irreproachable.