LEGAL ISSUES ON BURMA JOURNAL No. 10 - DECEMBER 2001
BURMA LAWYERS' COUNCIL
Secession and Self-Determination in the Context of Burma’s Transition
B.K. Sen*
The word ‘secession’ has originated from the concept of ‘self-determination’. Apart from its historical context, ‘self-determination’ can also be seen in its plain meaning. The Oxford Dictionary defines ‘self-determination’ as, “The right of a nation or people to decide what form of government it will have or whether it will be independent of another country or not”. The second part of this definition is easy to understand. A nation or people has the right to be independent of another country when under subjugation of that country. But sometimes it is difficult to determine whether a nation striving for selfdetermination is actually a nation. In this regard, the classic case is that of India.
At the time the British colonialists led their war of conquest, India was a fragmented country although under one Mogul monarchy. The Mogul rulers themselves were foreigners and they tried to consolidate their rule by divideand-rule policies, coupled with some reforms from time to time. The question arises whether there were any movements striving for the right of selfdetermination under the Mogul rule. At that time, the right of selfdetermination was symbolized by the strivings of the princes holding prior suzerainty over their own people. That kind of self-determination did not result in the improvement of the conditions of the people—it was merely the transfer of subjugation from one ruler to another. Nevertheless, it was seen as selfdetermination. When India was further consolidated under British rule and emerged as a nation, the movement for the right of self-determination transformed the existing concept of self-determination to its true meaning. It conformed to international standards that the people of India had a right to end foreign rule and determine their own form of government.
The Concept of ‘Nation’
The concept of ‘nation’, in the first part of the definition of self-determination, may be a problematic issue itself. The Oxford Dictionary defines ‘nation’ as a “large community of people, usually sharing a common history, language, etc., and living in a particular territory under one government”. In India, a two-nations concept was applied in the colonial days. This concept was entirely based on religions, namely Hinduism and Islam. It had nothing to do with ethnicity. It was claimed by the Muslim leaders that Islam was the binding force for constituting an Islamic nation. Under the British, India was partitioned and the regions with a Muslim majority constituted themselves into a union named Pakistan. A new country was born out of the claim for right of self-determination. The irony was that the largest wing of Pakistan (East Bengal, with a Muslim majority for the whole of Pakistan) itself seceded from Pakistan two decades later and established a sovereign country named Bangladesh. This is actually the only example of successful unilateral secession since 1945 (even though its emergence could hardly be called unilateral), but also established the fallacy that religion can be the basis of a nation or state. In the case of Bangladesh, language became the motive for the emergence of the new state, although ethnicity was a latent force. Obviously the definition of ‘nation’ often proves to be misleading. Although political scientists have come to their own formula so as to define what a ‘nation’ is, it is not that important for the purpose of the issue addressed in this article. The ethnic minorities in Burma do not claim to be a nation. The general definition given above is enough cogent. It might instead be interesting to confine the discussion to ‘people’.
The Concept of ‘People’
If we want to define the word ‘people’, the Oxford Dictionary is again helpful and gives several definitions: (a) “All the persons belonging to a nation, race, tribe or community”; (b) “Those persons who live in a particular place or have a particular nationality”; and (c) “The citizens of a country, especially those with the right to vote”. The question that arises here is whether a ‘people’ can have the right to self-determination. Of course, they have the right to decide their form of government. The dilemma begins when certain groups claim a right to form their own government which is different from the one which others may form or have formed. Groups of people living in the same territory can have no right to form separate governments for themselves. They will have to participate with all others in the process of forming the government in respect of the entire territory and submit to the government formed by majority decision. This does, of course, not deny their right of dis-sent and their right to pressurize the government of the majority toward reforms. However, it is well-settled in law that minority groups have no right to form their own governments in the areas they predominantly inhabit. In this context the term ‘nation-state’ is used to denote a territorial political unit under the official control of a national or ethnic group which in such case is usually the majority of the population. ‘Official control’ is emphasized because constitutionally and according to International Law, nation-states and their territories are considered to belong to national or ethnic groups. That is why nation-states are, as a rule, named after the dominant or majority group; thus Germany is the land of the Germans, Turkey the land of the Turks, etc. If this were not so, there would be total fragmentation and increased animosity. More importantly, there would be no economic progress or development— civil war and instability would be the common fate of all. This does not mean that the minority has to submit to arbitrary decisions made by the majority. The right of the minority in this context would be to protect its political, cultural and other rights. Self-determination would certainly mean the right to determine the form of government. Inherent in this is the right to have a charter of rights and to have institutions safeguarding these rights. The majority, however, cannot be thrown out either on real or imaginary grounds of discrimination or denial of self-government. A working arrangement to live in coexistence has to be evolved and that is a federal arrangement, a federal constitution.
Federal Constitutions and Self-Determination
What is this federal constitution? Is it a device to perpetuate fraud on the minorities? Or will it provide the right of secession to the minorities in the event they so desire because of consistent oppression or discrimination by the majority? It has even been said that “Federalism does not mean anything to the non-Burman groups unless the right to self-determination, including the right to secession, is part of it”.1 This statement needs a serious scrutiny. Clubbing the two concepts of federation and secession, which are contradictory in terms, is inaccurate. No federal constitution contains a provision of secession. On the contrary, a federation does not permit separation. Federal unions have been formed after voluntarily relinquishing the separate existence of units. It is therefore unimaginable to think in terms of separation within the framework of a federation. The classic case is that of the United States of America. When the southern states had joined the federation of the USA and thereafter refused to abide by the federal decision to abolish slavery, they threatened to secede from the Union and declared themselves seceded states. Although the issue apparently was slavery, in reality it was an issue of secession. Abraham Lincoln succinctly said that “The Union is One and Indivisible”. He saw the United States as an indestructible whole. It is wrong to assert that a federation is meaningless without secession. In the parameter of federation, secession has no legitimacy.
Unilateral Secession of Colonial Territories
Secession is the attempt by some region in a political system to become independent of the rest of the state and rule itself as an autonomous nation. Chapters 11 and 12 of the Charter of the United Nations made specific provision for territories of colonial type, i.e. dependent territories geographically distinct from the territory of the parent state. None of the Articles of Chapter 11 and 12 actually use the phrase “right to self-determination”. However, the concern of the United Nations was evidently the progress to self-government of the peoples of dependent territories. The territories concerned fell into two classes: trust territories and non-self-governing territories.
The trust territories included in particular the territories formerly covered by the system of mandates under the League of Nations, as provided for in Article 22 of the Covenant of the League. Mandated territories were taken from Germany and the Ottoman Empire (Turkey) after the First World War. The administration of those territories was conferred on the victorious states. Those mandated territories which had not achieved independence were to be brought under the International Trusteeship System by separate agreements under Article 77 of the Covenant.2 Although this Article envisaged that certain additional territories might be brought under the Trusteeship System by agreement, in fact this only happened in the case of Somalia (Italian Somaliland).
The non-self-governing territories were dealt with in Chapter 11 of the Covenant. According to Article 73, these were “territories whose peoples have not yet attained a full measure of self-government”. Initially these territories were identified by a voluntary listing process by the states responsible for their administration: Australia, Belgium, France, Great Britain, the Netherlands, New Zealand, and the United States. Problems however arose when Spain and Portugal, which only became United Nations members in 1955, refused to bring any of their colonial territories within the system. In response to this, the General Assembly of the United Nations specified criteria for non-selfgoverning territories. Apart from the Spanish and Portuguese colonies, only Southern Rhodesia and certain French territories (of which the most recent was New Caledonia) belonged to this category.3
The subsequent development of international law in regard to non-selfgoverning 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 trust was confirmed and expanded to all “territories whose peoples have not attained a full measure of self-government” (Article 73). Thus it clearly embraced territories under a colonial regime. Important in this regard is the Declaration on the Granting of Independence to Colonial Countries and Peoples, 4 embracing all peoples and territories which “have not yet attained independence”. However, the principle of self-determination which was made ap-plicable to non-self-governing territories, did not involve automatic rights of unilateral secession for the people of those territories. In the vast majority of cases, the progress to self-government or independence was consensual and achieved peacefully. It occurred with the agreement of the state responsible for the administration of the territory, in accordance with law and pursuant to arrangements between the government of that state and local leaders. These arrangements dealt with the modalities of transfer of power. The United Nations did not advocate or support unilateral rights of secession for non-selfgoverning territories, except where self-determination was opposed by the colonial power, for instance in the Portuguese African colonies—Angola, Mozambique and Guinea-Bissau.
A few colonial territories have opted for a formal association arrangement with the former colonial power, under which they achieved some form of separate status falling short of independence. They did not become United Nations members in their own right. This applied to, for example, Puerto Rico (United States) and the Cook Islands (New Zealand). More recently similar arrangements were made with different parts of the United States Strategic Trust Territory of the Pacific Islands (Micronesia, Marshall Islands and Palau) which have been geographically regarded as independent. Other former colonial territories have been integrated in a state following an act of selfdetermination, including the Cocos/Keeling Islands (Australia), Greenland (Denmark), and the Northern Mariana Islands (United States). The people of some other territories, such as Bermuda, have voted to remain dependent and continue to fall within Chapter 11 of the Charter of the United Nations.
Unilateral Secession of Non-Colonial Territories
Outside the colonial context, the United Nations are extremely reluctant to admit a seceding entity to membership against the wishes of the government of the state from which it has purported to secede. Where the parent state agrees to allow a territory to separate and become independent, the terms on which separation is agreed between the parties concerned will be respected. If independence is achieved under such an agreement, rapid admission to the United Nations will follow.5 Unilateral secession achieved in any other way has attracted no international support or recognition since 1945.
There have been numerous cases of attempted or threatened unilateral secession of non-colonial territories since 1945, such as Biafra (Nigeria), Katanga (Congo), Kashmir and East Punjab (India), Karen and Shan states (Burma), Cyprus (Turkey), Chechnya (Russian Federation), and Kurdistan (Iraq/Turkey). In all these cases one common feature can be observed: where the government of the state in question has maintained its opposition to the secession, such attempts have gained no international recognition. This has been true even when other humanitarian aspects of the situations have caused international concern and also action. For example, the situation of the Kurds in northern Iraq has been a matter of international concern, triggering action by the Security Council under Chapter 7 of the Charter of the United Nations, and by individual states by way of both civil and military intervention. But these operations have been explicitly carried out on the basis of the territorial integrity of Iraq—despite continued Iraqi repression of the Kurds and the stringent United Nations response to most other aspects of Iraqi policy.6
It is precisely because of the threat represented by unilateral secession to many states, and the potential for instability, that states are insistent on the principle of territorial integrity. Inclusion of a provision of right of secession in a federal constitution is, apart from being ultra vires of the constitution, a potential seed to cause its destruction. Such a provision keeps alive the idea and symbolism of separation. Even where a region has a strong sense of local identity or of shared interests conflicting with the rest of society, secession seldom succeeds. Hardly anywhere is the idea of secession seen as legitimate. In international practice there is no recognition of a unilateral right to secede based on a majority vote of the population of a sub-division or territory, whether or not that population constitutes one or more ‘peoples’ in the ordinary sense of the word. In international law, self-determination for peoples or groups within an independent state is achieved by participation in the political system of the state, on the basis of respect for its territorial integrity. Even in the context of separate colonial territories, unilateral secession was an exception. Selfdetermination was in the first instance a matter for the colonial government to implement. Only if it was blocked by that government did the United Nations support unilateral secession. The Baltic states form an exception altogether: they were strictly not ‘new’ but re-emerged in the 1990s after their illegal annexation in 1940.
It has always been possible for a group to separate from a state and achieve independence by gaining exclusive control over its territory (if necessary, by winning a war of independence). The Spanish American colonies did so in the early 19th century. Secession of this kind was a process, which could take many years and which might, or might not, lead to a successful outcome. This could either be seen as an expression of inherent rights to be free from oppression, or as an act of treason. But, however described, unilateral secession did not involve the exercise of any right conferred by international law. International law has always favoured the territorial integrity of states.
Indivisibility: A Synonym for Territorial Integrity
This pattern is reflected in the so-called ‘safeguard’ clause in the United Nations General Assembly Resolution 2625, the Friendly Relations Declaration of 1970.7 In accordance with this clause, a state whose government represents the whole people on a basis of equality complies with the principle of selfdetermination in respect of all of its people, and is entitled to the protection of its territorial integrity. The people of such a state exercise the right of self-determination through their equal participation in its system of government.
The fundamental laws of many other federations and unitary countries in the world contain express provisions guaranteeing the survival of the state. If we are to declare that a federation is indivisible, we must be sure we understand why that is so, both legally and constitutionally. The principle of indivisibility was enshrined, for instance, in Canada’s constitution in 1867. It was preserved and confirmed in the advisory opinion of the secession referendum in 1998—the people of Canada agreed that if Canada was indivisible in 1868, then Canada remains indivisible today.
Canada’s constitution was not drafted in ignorance. When the Canadian federation was being designed, the neighbouring United States were emerging from a civil war. In 1861, President Abraham Lincoln interpreted the American Constitution as binding him with the duty to maintain the American nation. Some southern states had tried to secede from the union but eventually that would not last very long. Yet history teaches us that the American people did not abandon their sovereignty and that Lincoln fulfilled his constitutional obligations. Of course, this dramatic episode in American history did not escape the attention of Canada. ‘Indivisibility’ is a synonym for ‘territorial integrity’, an attribute belonging only to sovereign states. Because Canada is a sovereign state, it has the right to international recognition of its territorial integrity. In order to maintain Canada’s sovereign status, the Government of Canada has the inescapable duty to preserve Canada’s territory from any threat, whether internal or external.
The right to territorial integrity is also recognized by the international community in a number of international instruments, such as the Declaration on Principles of International Law Concerning Friendly Relations and Cooperation Among States, and the Charter of the United Nations. By comparison with the acceptance of self-determination leading to the independence of colonial territories (so-called ‘external self-determination’), the practice regarding unilateral secession of non-colonial territories is clear. The principle of territorial integrity has been significant: since 1945 no state which has been created by unilateral secession has been admitted to the United Nations against the declared wishes of the government of the predecessor state.8
In the case of Burma, the problem of secession has been compounded. This right of secession was incorporated in the 1947 Constitution when the country was established as a sovereign state, the Union of Burma. At the time the Constitution entered into force, three ethnic minorities were given the right to secede from the Union after ten years. This was clearly a historical legacy, apart from the question as to why the issue was not settled otherwise, accord-ing to international standards. The 1947 Panglong Conference has been made the rock bottom of the ethnic right to separation. At that time, only three ethnic nationalities signed the Panglong Agreement—when the 1947 Constitution was framed, giving the right to secession, only three ethnic states existed. Later, four additional states were formed, making a total of seven ethnic states. But the right to secession given in the Constitution was not an automatic right: it was subject to a constitutional legal process.9 In spite of forty years of armed struggle and the grip of secession fever, at no point in time have the ethnic nationalities unilaterally operated as sovereign states. Although the fiat of the Rangoon government might not have reached them, by and large the Burma Army (predominantly composed of Burmans) reigned the countryside. After prolonged armed struggle, sixteen armed ethnic groups entered into cease-fire agreements with the Burma Army. The ‘official control’ in the entire country continued to remain with the central authorities. The overall situation in respect of secession is nebulous and has failed to dent the geographical unity of Burma.
It is not suggested that armed struggle has failed or that armed struggle is destined to fail in a movement for self-determination. What is argued is that armed struggle is the last recourse. By and large the movement has to be sustained on the principles of peaceful negotiation. There are examples galore. In South Africa, the anti-apartheid movement (after prolonged armed struggle) switched over to peaceful negotiations within a week. So is the case in the conflict between Palestine and Israel: negotiations continue to be at the top of the agenda. Even in the case of Burma, the anti-fascist armed struggle against the Japanese invaders was not continued against the British colonialists, although they came back to reoccupy the country. The freedom struggle entered into a new phase of negotiation with the British rulers. The consummation of the negotiations was the complete independence of Burma, in other words, secession from the British Empire. The issue of secession has to be seen in its specific context, shorn of its emotional and false consciousness in order to avoid the quandary of secession.
Federation with the Right of Secession: A Legal Fallacy
Some people maintain that, since the 1947 Constitution had a provision for secession, the new constitution should contain a similar provision. But did it help the ethnic nationalities to achieve secession, whatever it meant, or was for whatever reason its realization prevented? The 1947 circumstances and conditions were peculiar to time and place, and are likely to have no overwhelming relevance to present events. At that time, neighbouring India was swept away by the secession movement which eventually led to the creation of a new state, carved out of British India. The entire anti-colonial movement stood at the threshold of disintegration. U Aung San, the architect of Burma’s independence, envisaged this danger in Burma. Hence, a constitution was put into place which could present unity against the excuse not to transfer power. In the bargain some unfederal elements were incorporated in the constitution. These unfederal elements were a check and balance against immediate secession. They were designed so that in the first decade mutual trust could be built up—the provision of secession remained dormant and non-effective. It was a fair exchange between majority and minority ethnics.
In today’s context, if the minority ethnics demanded the right of secession together with maximum autonomy for their respective states, it would be unfair. It would be a case of having one’s cake and eating it too. The ethnic leaders have to make up their minds whether they want to live in harmony with the ethnic majority, and if so, let there be bargaining on the issues of autonomy. The threat of secession can neither be legally sustainable, nor can it be used as a bargaining chip. To imagine negotiations from the viewpoint of independent states willing to form a federal union, is a legal fallacy. Attempts to frame state constitutions, however well-motivated these may be, cannot give any legitimacy to the state constitutions being drafted by the ethnic leaders. There is a need for understanding the state powers which they want for themselves within the framework of a future federal constitution. It could be a blueprint of power-sharing without any hidden agendas, provided it also addresses the core issue of federal authority.
Federalism, Constitution and Reconciliation
Reconciliation in Burma, dignified and honourable, has to be reflected in the constitution. The constitution must be lawful, morally sound, and intellectually consistent. History has bequeathed to us a paradigm which we have to refine according to our own needs and characteristics. We have to learn the lessons of history. We cannot escape history. The way to reconciliation in Burma has been outlined in federalism. Federalism has been generally described as a form of government in which power is constitutionally divided between different authorities in such a way that each exercises responsibility for a particular set of functions and maintains its own institutions to discharge those functions. In a federal system, each authority therefore has sovereignty within its own spheres of responsibilities, because the powers it exercises are not delegated to it by some other authority. The precise balance of power between the central and state authorities in federal systems varies between federations and, over time, also within a particular system. In the United States of America, for example, powers not originally granted to the federal government (such as the power to impose a federal income tax) have been acquired by constitutional amendment. Less formal methods to alter the balance between federation and state have been court interpretations of the proper spheres of activity of federal and state authorities, as was done over reappor-tionment of congressional seats and criminal procedures in the United States in the 1960s.10
It is most important that there has to be one country, although systems may vary. Given this commitment, the need then would be to design the framework of governance. If such a framework is based on sound principles with mechanisms for redress in the event of violations, there need not be any apprehension for domination or discrimination. These mechanisms, together with increased democratic consciousness, will enable proper rectification of deviations.
Claims have been put forward that in the case of Burma, representation in the government should be based on the equality of ethnic nationalities, irrespective of the strength of their population. This would mean that the basic principles of democracy and equality are eroded. The essence of democracy—one person, one vote—would be upturned. Because democracy for the minority cannot be at the expense of the democracy for the majority. Both have to respect each other’s rights and design mechanisms to safeguard an inclusive democracy. This is not an impossible task, provided there is the will to do it. A new kind of federalism to meet Burma’s peculiar needs has to be evolved. All countries with federal constitutions have had to evolve their own versions.
Globalization and the rapid and impressive developments in technology, transportation and telecommunications have transformed many countries. Information has become a most important element in today’s world. Even nonindustrial societies are gradually being transformed into information societies. National borders are becoming meaningless or porous. Nevertheless, ethnocultural and religious groups are increasingly asserting to have distinct territorial boundaries to separate themselves from the larger national units to which they belong. This can only be resolved by meticulous application of the Rule of Law in all spheres of political, economic, and social activities of the people. To the extent these new ideas can flow, the new generations of the ethnic groups in Burma will be freed from prejudice and mistrust. Trust begets trust. The leaders of all nationalities know about the struggles of minorities in other parts of the world and the global trends favouring democracy. They know the need for accelerating the process of democratization, to start respecting the human rights of every citizen.
Secession: A No-Win Situation
Today the scenario exists in an entirely different context. The movement for the right of secession, after three generations of meandering, has entered into a blind alley. It is a no-win situation. The debate on the subject of secession has been going on for four generations. The measures of armed struggle and its brutal suppression have added an inter-ethnic dimension to it. Tension and conflict have increasingly become more compelling issues. What is needed is to halt the purposeless debate on secession and start with a revision of visions, based on sound evaluation of the past. Such a process usually starts with feelings of war fatigue. In need of a new direction, a new road-map has to be drawn—which is, in legal terms, the constitution. The constitution is the real wall between chaos and civilized progress. But can it guarantee the ethnic groups their right to self-determination? And if not, what then? The alternative to a constitution is armed struggle. Of course, the ethnic nationalities could continue their struggle for decades, but that would only become for eternity (as is the case with India and Pakistan). Imagine that, for example, a sovereign Shan State comes into existence. It would have to coexist with its neighbour, the Burman State. The two states would not be able to live in harmony after having broken away from each other in feud and bloodshed. The conflict would aggravate and even lead to wars, as has happened with India and the seceded state of Pakistan.
In such a situation, the best alternative is not separation but reconciliation. This reconciliation must not be a fraud. It has to be genuine and based on the tested principles accepted by the international community. Even if people might think that the transition would be endangered, the path to reconciliation is the only option. This, together with the invisible (and invincible) power of the Rule of Law, will result in a radical transformation of the country. A new Burma would emerge. But these developments cannot affect the established rules and practices with respect to self-determination and the territorial integrity of states. International law and the United Nations lend no support to the view that peoples within independent states have a unilateral right to secede. However, the hidden bright spot in the otherwise dismal situation is that the people will be free from military dictatorship, and also free to create a government that does work. But more important than the government is the basic wealth of the land, and the intelligence, diligence and patience of its people.
Endnotes
* The author is an Executive Committee Member of the Burma Lawyers’ Council.
1. Khin Maung Win, “Federalism and Burma”. Legal Issues on Burma Journal, No. 9, August 2001, p. 60.
2. However, the International Court of Justice held that there was no automatic transfer of mandated territories to the trusteeship system. See: “Status of South West Africa Advisory Opinion”. The Hague: Interna-tional Court of Justice Reports 1950, p. 128.
3. On Portuguese territories, see Paragraph 1 of the United Nations General Assembly Resolution No. 1542 (XV) of 15 December 1960. Paragraph 5 of this Resolution deals with Spanish territories. On Southern Rhodesia, see General Assembly Resolution No. 1747 (XVI) of 28 June 1962. On New Caledonia, see General Assembly Resolution No. 41/41A of 2 December 1986.
4. Declaration on the Granting of Independence to Colonial Countries and Peoples; United Nations General Assembly Resolution No. 1541 (XV) of 14 December 1960.
5. On United Nations admission practice, see: R. Higgins, “The Development of International Law Through the Political Organs of the United Nations”. Oxford: Oxford University Press, 1963, pp. 11-57; and also, J. Crawford, “The Creation of States in International Law”. Oxford: Clarendon Press, 1979, pp. 132-137.
6. See: Security Council Resolutions No. 686 of 2 March 1991; No. 687 of 3 April 1991; No. 688 of 5 April 1991; and No. 949 of 15 October 1994. Each of these Resolutions explicitly affirms Iraq’s territorial integrity.
7. Declaration on Principles of International Law Concerning Friendly Relations and Cooperation Among States in Accordance with the Charter of the United Nations; United Nations General Assembly Resolution No. 2625 (XXV) of 24 October 1970. Paragraph 7, “The Principle of Equal Rights and Self-Determination of Peoples”.
8. Bangladesh, although it applied for UN admission in 1972 (S/10759), was not admitted until 1974, subsequent to its recognition by Pakistan.
9. “The Constitution of the Union of Burma”, 24 September 1947, effective 4 January 1948. According to Chapter 10, Article 204, “The President shall (…) order a plebiscite to be taken for the purpose of ascertaining the will of the people of the State concerned”. And Article 206 stipulated that, “(…) All matters relating to the exercise of the right of secession shall be regulated by law”—which means, regulated by parliament. This changes unilateral into bilateral secession.
10. David Robertson, “Dictionary of Politics”. London: Penguin, 1993, pp. 184-185.