Can the People of Arakan Claim for the Right to External Self-determination (Independence)?

(A Legal Analysis from International Law Perspective) 

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By Khaing Aung Win**

(Section 1)

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In 2019, Arakan Army’s*** Chief Major General Tun Mrat Naing told the Irrawaddy that the political objective of the Arakan Army (AA) is to form Arakan a confederation in Myanmar (Burma).(1) To achieve this objective, Arakan must be first a sovereign independent State. This is because, a confederation can be formed only by the sovereign independent States.(2) Therefore, Arakan must secede from Myanmar (Burma) and claim for independence (i.e. the Right to External Self-determination) to form a confederation in Myanmar (Burma). If Arakan secedes from Myanmar (Burma) and claims for independence, will the secession and claim for independence accord with the International Law? In this article, I will examine whether the legal position on self-determination and secession under international law will support the separatist claim for Arakan.

Self-determination under International Law

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In order to examine, from the international law perspective, whether or not the right to external self-determination or independence can be claimed by the people of Arakan, it is necessary to outline the legal evolution of self-determination under the international law.

The UN Charter

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The charter of the United Nations Organisation ( the UN Charter) is the first international legal instrument to enunciate self-determination as a principle of International law.(3) Previously, at the time of the League of Nations, self-determination only had the status of political idea or an imperative principle of action.(4) “Self-determination” is mentioned twice in the UN Charter, once in Article 1(2) in the section concerning the organisation’s purpose and principles and once in Article 55 in the section concerning international economic and social cooperation. The two Articles make reference to “Self-determination” are both in the context of developing “friendly relations among nations.” In neither case, however, is self-determination positively defined.

Some authors, like Hunnum, are of the opinion that self-determination as a principle was still weak and contentious at the time of the creation of the UN.(5) Rosalyn Higgins looks at it from a very different perspective stating that “the UN Charter seems to be the right of the peoples of one State to be protected from interference by other States or governments.(6) This implies that the term “Peoples” in the UN Charter signifies the entire populations of the member states of the UN.

The opening words of the UN Charter, “we, the people of the United Nations” offer further support for this concept of the term Peoples.”

It is evident from this that the term ‘nations’ refers to ‘states’ and hence ‘peoples’ to those having their own states.(7) Instead, this interpretation is also in line with the founding principles of the UN Charter, particularly the principles of territorial integrity of state and non-intervention  in domestic affairs.(8)

The Colonial Peoples under the UN Charter

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The Chapter XI of the UN Charter, entitled “Declaration regarding Non-Self-Governing Territories (NSGTs)”, was intended to apply only to territories, known as “colonies” at the time of passing the Charter.(9) Article (73) under the Chapter XI created certain obligations for the administering powers over these kinds of territories, including the obligations to ensure their political, economic, social and educational advancement, to develop their self-government, and to transmit regularly certain information to the Secretary General regarding the territories.(10)

Chapter XI, however, did not stipulate any special decolonization right for those territories. About 74 territories under eight different administering powers, were listed as “Non-Self-Governing Territories” (NSGTs) in the UN Resolution 66 (I) on 13 December 1946.(11)

The Chapter XII, entitled “International Trusteeship System,” established the Trusteeship Council as one of the main organs of the United Nations and assigned to it the task of supervision the administration of Trust Territories placed under Trusteeship System. Eleven territories were placed under trusteeship system at the San Francisco  Conference 

in 1945.(12)  The main goal of the trusteeship system was to promote the advancement of the inhabitants of trust territories, and their progressive development towards self-government or independence. However, the Chapter XII, like the Chapter XI, did not provide any special decolonization right for the inhabitants of the Trust Territories.

The Chapter XI and XII of the UN Charter had framed the relationships of subordinations between the administering powers and the non-self-governing and trusteeship territories, and had legitimised them as a necessary transitional situation. (An important development in the practice pursuit to Chapter XI and XII was the “Declaration on the Granting Independence to Colonial Countries and Peoples” in 1960.)

In sum, under the UN Charter, self-determination did not translate into the right for colonial peoples to achieve independence or into the right for minority groups to separate from sovereign mother states.

The meaning of self-determination under the UN Charter was, thus, the freedom of the population of a sovereign state to determine its internal political order without external interference.

The UN. General Assembly  Resolutions 1514 (XV) and 1541(XV)

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Another meaning of self-determination emerged in 1960, due to the struggle throughout the 1950s of socialist and developing countries for the complete abolishment of colonialism.(13) In this instance, self-determination evolved from mere principle of international law into a right of peoples. This is prescribed in the 1960 UN. General Assembly Resolution 1514 (XV), entitled “Declaration on the Granting of Independence to Colonial Countries and Peoples.

According to the General Assembly Resolution 1514 (XV), “All peoples have the right to self-determination; by virtue of this right, they freely determine their political status and freely pursue their economic, social and cultural development.”

The Resolution also condemned all subjection of peoples to alien subjugation, domination and exploitation and urged that immediate steps to be taken to advance the independence of Non-Self-Governing Territories, the Trust Territories and all other territories that had not yet attained independence in order to transfer of all powers to the peoples of these territories.

The UN. General Assembly Resolution 1541 (XV) complemented Resolution 1514 (XV) by establishing the factors to determine when it was necessary to send the information required by Article 71 (e) of the Charter, which served then as a way to identify colonial territories. There were two prima  facie factors to identify them. First, the territories  had to be geographically separated and, ethnically and culturally distinct  from the country administering it. Second, once this was established, the colonial condition was then confirmed if the relation between the administering state and the territory placed the latter in a position of subordination.(14) 

The Resolution 1541 (XV) also specified, the achievement of “full measure of self-government” - that is, “complete independence and freedom” - could take the following three forms (Principle VI): (a) Emergence of sovereign independent state; (b) Free association with an independent state; (c) Integration with an independent state. The legal position on self-determination from the provision of the Resolutions 1514 (XV) and 1541 (XV) can be summarised as follow:

1. All peoples subjected to colonial rule had the right to achieve independent statehood. A colony was defined as a territory which is geographically separated and distinct  ethnically and culturally from the country administering it. Thus, it is evident that “Non-Self-Governing Territories” and “TrustTerritories” designed under Chapter XI and Chapter XII of the UN Charter are colonial territories or colonies.(15)
2. The right (i.e. to achieve independent statehood) entitled to a “people as a whole, living in a given colonial territory. Thus, if various ethnic groups lived in a single colony, their right to self-determination (here to achieve independent statehood) had to be exercised as a whole, with all ethnic groups uniting to a single “People,” depriving some ethnic groups of the opportunity to seek the right achieve independent statehood.This observation flows from the principle of “Uti Possidetis,” leading toward the respect of colonial borders and their elevation to the status of international frontiers.(16)
3. The right (i.e. to achieve independent statehood) did not apply to various ethnic groups already organized in the form of State, which were not under colonial rule or alien domination, since Resolution 1514 (XV) condemned any attempt aimed at the partial or total disruption of the national unity and territorial integrity of a country.(17)

In sum, the meaning of self-determination in this instance was, thus, the right of colonized peoples to achieve independent statehood, but not the right of non-colonized peoples (minority or ethnic groups) to separate from a sovereign mother state.

The ICCPR and ICESCR

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Further development of the right to self-determination took place with the creation of two additional treaties in 1966; the International Covenant on Civil and Political Rights (ICCPR) and the International Covenant on Economic, Social and Cultural Rights (ICESCR). The first Article of both covenants is identical:

Article (1)

1. All peoples have the right of Self-determination. By virtue of that right, they freely determine their political status and freely pursue their economic, social and cultural development.
2. All peoples may, for their own ends, freely dispose of their natural wealth and resources without prejudice to any obligations arising out of international economic cooperation.
3. The states parties to the present covenant, including those having responsibility for the administration of Non-Self-Governing and Trust Territories, shall promote the realization of the right of self-determination and shall respect that right, in conformity with the provisions of the Charter of the United Nations.

Under the covenants, the right of self-determination was developed into two different formats; internal and external self-determination.(18)

Non-Colonized Peoples (Ethnic or Subnational groups) living within large mother or existing state become entitled to internal self-determination. Non-colonized peoples, thus, did not acquire the right to seek independence from their mother or existing states.

The covenants granted peoples of dependent territories (colonies and trusts) the right to freely decide their international status. Thus, colonized peoples acquired the right to determine their fate: to form an independent state or to remain a part of their mother or existing colonizer or to associate with another state.(19)

Internal and External Self-Determination

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Internal Self-Determination is meant participatory democracy; the right to decide the form and identity  of  rulers by the whole population of a state  and the right of a particular group within the state to participate in decision making at the State Level. Internal self-determination can also mean that the right to exercise cultural, linguistic, religious or (territorial) political autonomy within the boundaries of the existing state.(20)

External Self-Determination is meant the right to decide on the Political Status of a People and its place on the international community in relation to other states. It can also mean that the right of  a minority group that qualifies  as a people to separate from existing state of which the minority group concerned is a part, and to set up a new independent state.(21)

In other words, “Internal Self-Determination” can take the form of participatory democracy, federalism, local government and self-government within the existing state or any other arrangement that conforms with the wishes of the people but compatible with the sovereignty and territorial integrity of the existing state. 

“External Self-Determination,” on the other hand, can take the form of independence or separation or secession or self-government outside the existing state, or any other association that conforms with the wishes of the people, which may not be compatible with the sovereignty and territorial integrity of the existing state. 

The Friendly Relations Declaration (FRD)

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The development of legal principle of Self-Determination continued with what has become one of the most influential legal instrument regarding self-determination, sovereign equality of states, territorial integrity and many other aspects of international law. The “Declaration on Principles of International Law Concerning Friendly Relations and Co-operation among States in Accordance with the Charter  of the United Nations,” more commonly referred to as the Friendly Relations Declaration (FRD), was adopted by the UN General Assembly through its Resolution 2625 (XXV) of 24 October 1970. This Resolution confirmed the right already established in favour of colonial peoples by Resolution 1514 (XV).(22) It’s main aim was not, however, the colonial question, but the relations among States. In this vein, it made a broader approach of self-determination, recognizing it for all peoples by virtue of the principle of equal right and self-determination of peoples enshrined in the Charter of the United Nations.

In contrast with Resolution 1514 (XV), Resolution 2625 (XXV) established a balance between the self-determination rights of the peoples and the territorial integrity of the states.

The Paragraph 7 of Principle (V) reads as follow:

 

“Nothing in the foregoing paragraphs shall be construed as authorizing 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.”(23)

Notwithstanding the working-out of this provision in the form of a Saving Clause, it 

connotes the recognition of the right to self-determination also to ethnic or minority groups that qualify to be “Peoples” within existing states as well as the requirement for governments to represent the governed.(24)

An inverted reading of the Saving Clause preconditions the right of a non-colonized people to separate from an existing state on the denial of the right to democratic self-governance (i.e. internal self-determination) and/or a serious violation of fundamental human rights against it by the existing state.(25)

Arakan Could not Claim Independence During Decolonization Context. Why?

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Arakan (also known as Rakhine) is situated between Myanmar (Burma) on the east and Bangladesh on the west, and separated from Myanmar by the Arakan mountain ranges (also known as Arakan Roma). It is also bordered by the India and Bangladesh on the north and bounded on the southwest by the Bay of Bengal. The present total area of Arakan is about 18,500 sq-miles. According to publicly available information, Arakan population is currently 4 millions (in 2020), and predominantly ethnic Arakanese (80%) and Rohingya Muslims (20%). Regarding Rohingya Muslims, some historians argue that Rohingya Muslims are the direct descendents of immigrants from the Chittagong District of East Bengal (present-day Bangladesh), who migrated into Arakan during the British Colonial rule.(26)

Arakan had a history of independent statehood dating back to antiquity.(27) Only in the late eighteen century did the Kingdom of Arakan lose its independence to its eastern neighbour, the Burmese Kingdom. Arakan’s monarchy formally ended in 1826, when it was ceded to British-India according to the “Treaty of Yantabo” signed between the British and Burmese King.(28)

There had not been a State of Burma in the pre-colonial history. The Burmese Kingdom co-existed with the neighbouring independent kingdoms as Kingdom of Arakan and Kingdom of Mon, and they frequently waged war with one another.(29)

After the British had conquered the Burmese Kingdom in 1885, the province of Burma was created by the British, bringing kingdoms of Arakan and Mon, and other separate territories belonged to non-Burman ethnic peoples as Chin, Kachin, Karen, Kareni and Shan together, to form a single colony unit, and then annexed to British-India.(30) Modern State of Burma was formed and took shape under the British colonial rule in 1937 when it began to be administered separately by Burma Office under the secretary of state for India and Burma of the British colonial power.(31)

When Burma was given independence as Union of Burma, incorporating Arakan into it in 1948, the British transferred political power to Burmese ethnic group against the will of the people of Arakan; no plebiscite or referendum was held to establish the will and the wishes of the people of Arakan. Thus, Arakan felt under the rule of Burmese ethnic group, successor to the former colonial power on decolonization.

After independence of Burma, Arakan was trapped within the internationally recognized, territorial integrity of successor state of Burma, depriving it of the opportunity to claim independence (i.e. the right to external self-determination) which it enjoyed in the pre-colonial history. This is because, during the decolonization period, the right of self-determination was recognized as the right to become free from colonial rule, and the peoples entitled to achieve independent statehood were defined as the inhabitants of a colony, but not as ethnically distinct groups within the colonial territory or established state.(32)

The 1960 UN. General Assembly Resolution 1514 (XV) declared “self-determination” to be a right that entitles “all peoples” to “freely determine their political status and freely pursue their economic, social and cultural development.(33) The Resolution also provided that the populations of “Trust Territories” and “Non-Self-Governing Territories” are peoples, and that those populations are entitled to “ complete independence,” or what has become known as “external self-determination.”(34)

Moreover, the Resolution 1514 (XV) stated that any attempt aimed at the partial or total disruption of national unity and territorial integrity of a country is incompatible with the purposes and principles of the Charter of the United Nations.(35)

So whereas the UN Resolution 1514 (XV) entitles colonized peoples to form their own states, it also reaffirmed the territorial integrity of all states.

The 1960 UN. General Assembly Resolution 1541 (XV) defined a territory as a “colony,” if it is geographically separate and ethnically and/or culturally distinct from its administering country.(36)

It confirmed that the overseas non-self-governing territories under Chapter XI of the UN Charter are colonial territories or colonies.(37) It also stated that a non-self-governing territory under Chapter XI of the UN Charter can achieve “a full measure of self-government” through emergence as a sovereign independent state, free association with and independent state or integration with an independent state.(38)

Taken together, the two Resolutions provided that Non-Self-Governing Territories under Chapter XI and Trust Territories under Chapter XII of the UN Charter are colonial territories  or colonies. Conversely, Arakan’s situation was not analogous to the colonial situation of an “overseas” non-self-governing territory. So Arakan was not eligible to be categorised as a colony, and thus, the right to achieve independent statehood granted by the UN. General Assembly Resolutions 1514 (XV) and 1541 (XV) did not apply to the people of Arakan.

Hence, the people of Arakan could not claim the right to external self-determination (i.e. to achieve independent statehood) during decolonization context of 1960s and 1970s.

However, since the independence of Burma in 1948, characteristics of pseudo-colonialism have been witnessing in Arakan due to the successive Burmese regimes’ denial of internal self-determination of the people of Arakan, commission of gross human rights violations against the people of Arakan and practising policies that systematically discriminate against the people of Arakan in the distribution of wealth.

In the next section (i.e. Section 2), I will further examine, from the international law perspective, whether or not the people of Arakan can claim independent statehood outside the Decolonisation Context.

(To be continued )

Khaing Aung Win

02. 12. 2020

 

Notes

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*Frequent reference will be made to the terms ‘Internal’ and ‘External’ self-determination, which represent theoretical distinctions. “Internal self-determination” means the right to authentic self-government, that is the right for a “people”  really and freely  to choose its own  political and economic regime, while “External self-determination” implies the choice of international status of the people and the territories where its lives.  (See A. Cassese, Self-determination of Peoples, A Legal Reappraisal, Cambridge University Press, 1995, UK, P. 72 and 101.)

** Khaing Aung Win is Former Adviser of Arakan National Council (ANC).

*** Arakan Army is a Rakhine (Arakan) armed group in Myanmar (Burma) founded in 10 April in 2009. It is the military wing of the United League of Arakan, and currently led by Major General Tun Mrat Naing. It is the largest insurgent group in Arakan state of Burma, and waging war with the Myanmar Army.

1. See Nan Lwin Hnin Pwint, " Confederation the Only Option for Arakanese People, AA Chief says ', the Irawaddy, 11 January 2019, Available from: https//www.irawaddy.com/news/Confederation-option-arakanese-people-aa-chief-says.html
2. See   John Macornic, Understanding the European Union, Published by PALGRAVE, 175 fifth Avenue, New York, NY. 10010, Second Edition 2012, P. 7.
3. See  A.Cassese, Self-determination of Peoples: A Legal Reappraisal, Cambridge University Press, 1995, P. 19-33
4. Ibid. P. 26
5. Hannum, Hurst, Rethinking Self-determination, in Mccorquodale, 2000, P. 205.
6. Rosalyn Higgins, Self-determination and Secession in Julie Dahlitz (ed), Secession and International Law, The Hague, TMC Asser Press, 2003, P. 23
7. Ibid P. 23
8. See The UN Charter,  Article 2 (4) and Article 2 (7)
9. James Crawford, The Creation of States in International Law, Oxford University Press, New York, Reprinted 2011. P. 607
10. (10) See the UN Charter, Article 73.
11. (11) The UN’s Standard Study refers to 72 territories. (See United Nations and Decolonization (2001). (http://www.un.org/Depts/dpi/decolonization/brochure/UN/page.html). There are now only sixteen remaining Non-Self-Governing Territories (Chapter XI-territories…see http://www.un.org/Depts/dpi/decolonization/trusts.htm).
12. (12) See The United Nations, Trusteeship Council, available at www.un.org/en/sections/about-un/trusteehip-council/Index-html. (In 1994, Palau achieved independence, as a last Trust Territory and became a member of the UN. Before its independence, ten Trust Territories had already achieved independence or chosen to become part of an administering State. The UN Trusteeship Council has ceased to exist since 1994.
13. (13) See A. Cassese, Self-determination of Peoples: A Legal Reappraisal, Cambridge University Press, 1995, P. 71
14. (14) See Annex, Principles which should guide Members in determining whether or not an obligation exists to transmit the information called for in Article 73 (e) of the Charter of the United Nations, G.A. Resolution 1541, UN GAOR, 15th Session, Supp. No.16 (A/4684), 15 December 1960.
15. (15)“Colonial Peoples” are often equalled to “Peoples of Non-Self-Governing Territories at UN. See G.A. Resolution 1541 (XV) which declares that Non-Self-Governing Territories (NSGTs) that were known to be “of colonial type in 1945. The identification of NSGTs as colonies is also found in the information provided by the UN Department of Public Information. See for instance “The Basic Facts about the United Nations (New York: Department of Public Information 1998) which on P. 275 claims that the peoples of the NSGTs live under colonial rule).
16. (16) See Milena Sterio, “Self-determination under International Law”, Routledge, NewYork, 2013, P. 11-12. (During decolonization period, the principle of “Uti Possidetis” was applied to limit the territorial borders of the newly independent states. As the colonies were given independence, the so-called “Salt water theory” developed through the UN practice as a practical solution to problems that were anticipated when colonies, that in many cases were not ethnically homogenous, were to be given independence. The principle of “Uti Possidetis”  means that the holder of the right to independence is territorially defined and includes all inhabitants of the whole colony which is separated from the governing metropolitan state by a barrier of salter water. This meant that fragmentation of a colonial territory was not accepted).
17. (17) See Hector Gros Espiell, The Right to Self-determination: Implementation of United Nations Resolutions, UN doc.E/CN.4/Sub.2/405/Rev.1,1980. Para. 68.
18. (18) See Milena Sterio, “Self-determination Under International Law, 2013, P. 11.
19. (19) See A. Cassese, Self-determination of Peoples: A Legal Reappraisal, Cambridge University Press, 1995, P. 52-62.
20. (20) See M.C Van Walt Van Praag and O. Seroo, Report and Analysis of the International Conference of Experts on the “Implementation of the Right to Self-Determination as a Contribution to Conflict Prevention” held in Barcelona, 1998.
21. (21) Ibid
22. (22) See Friendly Relations Declaration annexed to UN General Assembly Resolution - 2625 (XXV), 24 October 1970, Principle 5, Paragraph 6.
23. (23) Ibid, Principle 5, Paragraph 7.
24. (24) See David Raic, Statehood and the Law of Self-Determination (Vol 43 edn, Kluwer Law International 2002) P. 262, see also Antonio Cassese, Self-determination of Peoples, Cambridge University Press, P. 114.
25. (25) See Milena Sterio, Self-Determination under International Law, Routledge, NewYork, 2013, P. 20.                                                                                                                       See also John Dugard and David Raic, The Rule of Recognition in the Law and Practice of Secession, in M.Kohen (ed), Secession: International Law Perspectives (Cambridge University Press, New York, 2004) P. 102, 103.
26. (26) See Aye Chan, The Development of a Muslim Enclave in Arakan (Rakhine) State of Burma (Myanmar), SOAS, Bulletin of Burma Research, Vol 3, N0 2, Autumn 2005, ISSN 1479-8484.
27. (27) See San Shwe Bu, Arakan’s Place in the Civilization of the Bay (a Study of Coinage and Foreign Relations, J.B.R.S. Vol XV, part 2, 1925.
28. (28) See James Mill, the History of British-India, Abridge and Edited by Willian Thomas, University of Chicago Press, 1975.
29. (29) See J.S. Furnivall, Colonial Policy and Practice, Cambridge University Press, London, 1948, P. 12.
30. (30) See James Mill, the History of British-India, University of Chicago Press, 1975.
31. (31) The Government of Burma Act 1935 confirmed that  separation would occur on April 1, 1937 ending 51 years of the country being ruled as a province of India.
32. (32) See The UN, General Assembly Resolutions 1514 (XV) and 1541 (XV) of 1960.
33. (33) See Article (1). Declaration on the Granting of Independence to Colonial Countries and peoples, GA Res. 1514, UN GAOR, 15th Secs, Supp. No. 15, UN Doc. A/4654 (1960).
34. (34) Ibid, Article (5).
35. (35) Ibid, Article (6).
36. (36) See G .A. Resolution 1541 (XV), 1960, Principle (IV).
37. (37) Ibid, Principle I.
38. (38) Ibid, Principle VI.