'Americanization' of Baluchistan!

A resolution, demanding self-determination for the people of Baluchistan, Pakistan’s largest province, tabled by Congressman Dana Rohrabacher in the halls of the Capital 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 but think whether the United States has actual designs of further cutting down Pakistan into pieces. The Foreign Office has dubbed the move as violation of international laws. Amb. Abdullah Hussain Haroon has called it ‘…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 by 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 Baluch 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 as pretext to enforce 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’, reads a few lines from the judgment in the Lotus Case. Therefore, while the United States and its supreme legislative body, is empowered under the international law to discuss, debate, and even pass legislation in favor of demanding right of self-determination for the people of Baluchistan, it however is restrained from invading and occupying Baluchistan 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 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). So 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 right of self-determination often leads to independence! However, 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 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 has 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 not help the cause of Baluch separatists and their international advocates. However, there is another school of thought. The opposite view is that any ethnic group, living either under a Colonial power, or 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” as 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 the 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 right under international law. However, the Court emphasized 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 Baluch separatists’ right to independence. What the resolution has however done is that it has put the ball back in our court. If the Baluch have genuine grievances (they certainly do), they must be addressed. The powers that be simply cannot brush their genuine demands aside by labeling them as treasonous. Callousness is one luxury we cannot afford in Baluchistan, 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’.