By Taimoor Ashraf
Mar 7, 2012
A resolution demanding self- determination for the people of Balochistan, Pakistan’s largest province, tabled by Congressman Dana Rohrabacher in the halls of Capitol Hill, has stirred frenzy in Pakistan. Alarm bells have started to ring, forcing many to think whether Uncle Sam is up to his usual antics! An insecure country, which has had to endure the humiliation of dismemberment in 1971, cannot help but think whether the US has actual designs of further cutting Pakistan into pieces. The Foreign Office has dubbed the move as a violation of international laws. Ambassador Abdullah Hussain Haroon has called it “...the West’s ongoing movement against the Muslim world”. This is not so. The Americans may have violated Pakistani sensibilities. However, they are perfectly under the ambit of international law for discussing the matter. Furthermore, a closer look at the principle of self-determination is required, since the law as it stands today does not help either the Baloch separatists or their international ‘friends’.
The law as it has developed ever since the landmark Lotus Case (1927) PCIJ Ser. A No. 10, stipulates that every nation-state has the right to legislate on any matter, be it within its borders or outside. A country under prescriptive jurisdiction of law may pass legislation on any international event, territory, property, person, wherever they may be present. This, however, does not mean that the country, in pursuance of its law(s) may invade and occupy the other country on the pretext of enforcing its law(s). The same Lotus Case, which empowers a sovereign state to legislate on matters outside of its territorial boundaries, also restricts the enforcement of such law outside of its boundaries. “The first and foremost restriction imposed by international law upon a state is that — failing the existence of a permissive rule to the contrary — it may not exercise its power in any form in the territory of another state,” read a few lines from the judgment in the Lotus Case.
Therefore, while the US and its supreme legislative body is empowered under international law to discuss, debate, and even pass legislation in favour of demanding the right of self-determination for the people of Balochistan, it is nonetheless restrained from invading and occupying Balochistan to enforce any such legislation.
The passing of the UN General Assembly Resolution on the Granting of Independence to Colonial Territories and Peoples in 1960 developed the principle of self-determination as a legal right rather then a political philosophy. It is a post-Colonialism, post-World War II development, which has essentially become one of the most fundamental principles of customary international law today. The International Court of Justice in Portugal v Australia 1995 ICJ Rep 90, declared the principle of self-determination as ‘one of the essential principles of contemporary international law’. Furthermore, in another case, the Court in its advisory jurisdiction stated that ‘the right of the peoples to self-determination is today a right erga omnes’ (Palestinian Wall Advisory Opinion 2004 ICJ Rep para. 88). Therefore, even if Congressman Rohrabacher had not raised the issue, the principle stood regardless, upholding one of the most fundamental legal rights. But this is not what makes us fidgety; it’s the fact that the right of self-determination often leads to independence! Notwithstanding that, this understanding too needs close scrutiny.
In the Western Sahara Case 1975 ICJ Rep 12, the Court defined the principle by stating that self-determination “requires a free and genuine expression of the will of the peoples concerned”. The judgment naturally begs the question: which ‘peoples’ are entitled to exercise such a right? The jurisprudence on the issue is, however, still unsettled, and as a result two distinct schools of thought have emerged.
The traditionalists, since the principle developed out of the womb of Western colonialism, are of the view that only those who were/are occupied by a foreign state may exercise this right. Palestinians and their right to self-determination is one ripe example. This school of thought does not foresee a distinct ethnic group, existing within an independent state, exercising the right of self-determination. If the law develops along these lines in future, it certainly would help the cause of the Baloch separatists and their international advocates. Nevertheless, there is another school of thought.
The opposite view is that any ethnic group, living either under a colonial power or in an independent state, may exercise this legal right. The EC Arbitration Commission on Yugoslavia has bolstered their case. The Commission is of the view that people living in an independent state may exercise this right given that they achieve the factual prerequisites (e.g. permanent population, defined territory, government, capacity to enter into legal relations, etc) for statehood as listed in the Montevideo Convention on Rights and Duties of States 1933. This essentially implies secession. However, to assuage the fears of federal states, the Commission has made “factual independence” a prerequisite to exercising the right of self-determination. The Commission, furthermore, does not disallow a federal state from preventing secession lawfully (some would suggest even forcefully). Case Concerning Certain Questions Relating to Secession of Quebec from Canada 161 DLR (4th) 385 is a relevant case in point. The Supreme Court of Canada was approached on Quebec’s independence from Canada and its validity under both Canadian and international law(s). The Court was of the opinion that a political sub-unit of an independent state does not enjoy secession as a right under international law. However, the Court emphasised that the government of the independent state must respect the ethnic group’s culture, language, etc. In short, for our purposes it is comforting to conclude that the existing international law does not support the Baloch separatists’ right to independence.
What the resolution has however done is that it has put the ball back in our court. If the Baloch have genuine grievances (they certainly do), they must be addressed. The powers that be simply cannot brush their genuine demands aside by labelling them as treasonous. Callousness is one luxury we cannot afford in Balochistan, at least not anymore. The onus is on the political leadership to stand up and be counted. In a perverse way we should be thankful to those who tabled this resolution for waking us up from our slumber.
Americans like Congressman Rohrabacher must not be able to ruffle our feathers but we must heed the advice of another American who in 1858 had said: “A house divided against itself cannot stand.”
The writer is an advocate of the high court
Source: The Daily Times, Lahore