LEGAL ISSUES ON BURMA NO. 11, APRIL 2002
BURMA LAWYERS' COUNCIL
FEDERALISM IN BURMA
Federalism and Self-Determination: Some Reflections
Venkat Iyer*
Federalism has, for many decades now, been seen an answer to the challenges posed by multi-ethnic societies the world over. In some cases, the idea has worked, while in others it manifestly has not. Where it has failed, the reasons have often lain as much with human deficiencies as with systemic shortcomings.
Whatever the record, there is no doubt that the federal concept has come decisively under the spotlight in the post-Cold War era — an era which has been characterised by the unleashing of nationalist and ethnic tensions on a large, and even unprecedented, scale. In some cases — the former Soviet Union and the former Yugoslavia come readily to mind — the discussion has taken place against the backdrop of bloody conflict, as people keep searching for newer and better ways to accommodate long-suppressed ethnic and other differences and live in some kind of relative harmony.
It is reasonably clear that while federations can be a binding force, enabling the creation of unity in diversity, they can also often be the first step towards secession. As one leading commentator explained in a recent book: "[ D] ue in part to the constitutive nature of multiethnic federations, where provincial and ethnic boundaries coincide, the politics of nationalism is rarely far removed from the arena of federal politics, feeding into a set of grievances which in one form or another have the potential to mobilise individuals behind calls for the territorial redistribution of power, including independence". 1
Whether or not a federal solution will work in a given jurisdiction, therefore, depends on a number of factors, not least the nature of the federal arrangements, the fairness with which the system is operated by all parties concerned, and the degree of political maturity displayed by the leadership at both federal and provincial levels. As long as the costs of remaining a member are not seen as excessive in relation to the benefits accruing from membership, there is a reasonable chance of the federation succeeding.
Self-determination
Federalism is, of course, only one aspect of the broader question of self-determination. Given that the issue of self-determination often features prominently in discussions about the future of multi-ethnic societies such as Burma, this article will attempt to examine some of the legal questions surrounding this rather contentious concept.
The first thing to note about self-determination is that it is still a rather nebulous concept. In the words of one scholar, it is "one of those unexceptionable goals that can be neither defined nor opposed". And yet it occupies pride of place in international human rights instruments, and is one of the most widely-used campaigning slogans in world politics. It has increasingly been used by diverse separatist movements who base their claims to statehood on ethnic identity.
How far are such claims tenable in law? There is no easy answer to this question. Generally speaking, national/ ethnic identity as a basis for statehood does not find much support in international law. As Diane Orentlicher notes in a recent article: "In large perspective, international law has in recent decades embraced a cosmopolitan, liberal vision of states, their relationships with their citizens, and their relations with each other. While respect for pluralism within states is part of that vision, liberal internationalists have largely disdained ethnic particularity as an organising principle of political legitimacy, emphasising instead liberal republican values of civic equality. In similar fashion, global adherence to human rights principles in the post-war decades has affirmed a cosmopolitan faith in universal norms that would displace the parochial values of an obsolete nationalism". 2
The problem lies in the fact that separatist claims by ethnic minorities within a nation clashes head-on with one of the well-entrenched principles of international law, namely the territorial integrity of established states — a principle that is often referred to as a "fortress-like concept of state sovereignty". Under this principle, once a state had been established, it enjoyed considerable independence from interference by outside forces, and was free to decide how to deal as it pleased with separatist or other forces within its jurisdiction.
This principle finds expression in the 1970 Declaration on Principles of International Law Concerning Friendly Relations and Cooperation among States in Accordance with the Charter of the United Nations which, after affirming the principle of self-determination in general terms, goes on to say: "Nothing in the foregoing paragraphs shall be construed as authorising or encouraging any action which would dismember or impair, totally or in part, the territorial integrity or political unity of sovereign and independent States conducting themselves in compliance with the principle of equal rights and self-determination of peoples as described above and thus possessed of a government representing the whole people belonging to the territory without distinction as to race, creed or colour". 3
The only exception that was recognised was in respect of states under colonial rule. In the Declaration on the Granting of Independence to Colonial Countries and Peoples, adopted by the General Assembly of the United Nations in 1960, for example, it was made clear that all peoples "subject to alien subjugation, domination and exploitation" would have a right to self-determination by virtue of which they could "freely determine their political status and freely pursue their economic, social and cultural development". 4
Interestingly, among the most strident voices in favour of limiting the right of self-determination to countries under colonial rule were the governments of the newly-independent former colonies, who were keen to ensure that secessionist movements within their territories (of which there were quite a few, especially in Africa) could not claim a further right of "internal" self-determination.
Internal self-determination
Even so, some scholars have, in recent years, advanced the view that it may yet be possible for national minorities within the boundaries of an established state to claim the right of self-determination (including seces sion) under certain circumstances. Frederic Kirgis, Jr., for example, suggests that the extent to which they can achieve this would vary depending on the circumstances prevailing in the country in question: "One can thus discern degrees of self-determination, with the legitimacy of each tied to the degree of representative government in the state. The relationship is inverse between the degree of representative government, on the one hand, and the extent of destabilisation that the international community will tolerate in a self-determination claim, on the other. If a government is at the high end of the sale of democracy, the only self-determination claims that will be given international credence are those with minimal destabilising effect. If a government is extremely unrepresentative, much more destabilising self-determination claims may well be recognised". 5
If this analysis is to be accepted, the claims of a minority to secede from state under a repressive dictatorship would be considered legitimate. Kirgis sees the right of self-determination as existing in a continuum, with secession at one extreme and limited autonomy at the other.
A similar approach has been taken by Alan Buchanan who has argued that secession, whilst not always justified as an expression of the right to self-determination, may nevertheless be considered legitimate in certain limited circumstances. 6 He sees the right to secede as a "remedial" right: a remedy of last resort for serious injustices. In his analysis, the following would qualify as justifying grounds for secession: (a) persistent and serious violations of individual human rights; (b) past unredressed unjust seizure of territory; (c) discriminatory redistribution of resources within a state. 7
The first of these grounds (the "oppression theory") was used to justify the secession of East Pakistan from the erstwhile state of Pakistan in the early 1970s — a secession which resulted in the creation of Bangladesh, which was admitted as a member of the United Nations in 1974. But this theory is not without its problems. For a start, there is no agreed definition of what constitutes "oppression" for the purposes of the theory. One test, proposed by Onyeonoro S. Kamenu requires that "on the basis of hard empirical evidence, the members of the seceding group could no longer live in peace and security, or fulfil their legitimate individual aspirations, within the larger political community." But Kamenu adds a rider which may make the fulfilment of this test much harder that one would imagine at first blush: "However, for this rationale to be plausible it must be demonstrated that all other political arrangements capable of ensuring the aggrieved group a measure of self-determination short of outright independence have been exhausted or repudiated by the dominant majority". 8
Another problem with the "oppression theory" is that any intended secession will have to be achieved without outside intervention (given the rule against disruption of the unity and territorial integrity of states by foreign forces), which is practically quite difficult, if not impossible. (East Pakistan, for instance, could hardly have seceded without the help it received from India, but in this, as in other cases, politics overrode the strict requirements of the law when it came to the recognition of Bangladesh).
A further problem with the "oppression theory" is that "it does not accommodate the desires of ethnic groups to create their own nation-states. The prerequisite for secession underpinning the "oppression theory" is not ethnic differentiation but oppression. It was the fact of oppression, rather than the fact that the Bengalis were linguistically, ethnically, and culturally different from other Pakistanis, which ultimately justified the creation of Bangladesh as a separate and independent state under the oppression theory. Many ethnic groups find this an unsatisfactory basis upon which to justify secession". 9
The legal niceties described above do, of course, often take a back seat in the face of realpolitik, as the Bangladesh case so starkly illustrated. A more recent example of politics intervening to throw in doubt settled legal principles concerns the former Yugoslavia where the finding of an international tribunal to the effect that the country had been subjected to dissolution rather than secession has been hotly contested. In the opinion of one of the critics, "The response of the international community to the events of Yugoslavia has done much to weaken the principle of territorial integrity and to encourage the notion that self-determination can be achieved through secession from an independent and sovereign state". 10
Conclusion
The right to self-determination is fraught with many difficulties, both practical and legal. Although it has been given pride of place in the post-war international human rights instruments, there is no consensus on what the contours and the content of this right are. The situation has not been helped by inconsistent international practice, which has in turn bred a certain amount of cynicism among many observers.
Increasingly, there is a trend on the part of international law to overcome some of the problems of ethnic self-determination by classifying ethnic groups as "minorities" and attempting to guarantee such groups cultural, linguistic and religious freedoms on a universal basis. And within states, attempts still continue, as they have done over the decades, at accommodating ethnic and other differences through such mechanisms as federalism, autonomy and the like. Just over a decade ago, one commentator spoke of "a federal revolution sweeping the world" 11 : it is a moot question whether that claim can be made today when the world is facing at once the contradictory pressures of globalisation and fragmentation.
Endnotes
* BSc, LLM, PhD, Senior Lecturer in Law, University of Ulster at Jordanstown, United Kingdom.
1. Graham Smith, "Mapping the Federal Condition: Ideology, Political Practice and Social Justice". In: Graham Smith (ed.), "Federalism: The Multiethnic Challenge". London: Longman, 1995, p. 10.
2. Diane Orentlicher, "Separation Anxiety: International Responses to Ethno-Separatist Claims". Cited in Henry J. Steiner and Philip Alston (ed.), "International Human Rights in Context". Oxford: Oxford University Press, 2 nd Edition, 2000, p. 1250.
3. G. A. Res. 2625 (XXV), 24 October 1970.
4. G. A. Res. 1514 (XV), 14 December 1960.
5. Frederic Kirgis, Jr., "The Degrees of Self-Determination in the United Nations Era". American Journal of International Law, Vol. 88, No. 304, 1994, p. 306.
6. Alan Buchanan, cited in Steiner and Alston, supra note 2, at p. 1287.
7. He defines discriminatory redistribution as a practice whereby "the state implements taxation schemes, property rights schemes, regulatory policies, or economic developments programmes that systematically work to the disadvantage of some groups while benefiting others in morally arbitrary ways".
8. Onyeonoro S. Kamenu, "Secession and the Right to Self-Determination: An OAU Dilemma". Journal of Modern African Studies, Vol. 12, No. 355, 1974, p. 361.
9. Thomas D. Musgrave, "Self-Determination and National Minorities". Oxford: Oxford University Press, 1997, p. 192.
10. Ibid. at p. 207.
11. D. Elazar, "Federal Democracy in a World Beyond Authoritarianism and Totalitarianism". In: A. McAuley (ed.), "Soviet Federalism, Nationalism and Economic Decentralisation". Leicester, U. K.: Leicester University Press, 1991, p. 7.