GUJARAT NATIONAL LAW UNIVERSITY

SYNOPSIS

Right to SelfDetermination
A Constitutional Perspective
Authored by
V. Mrudula
12B154
Student of Law and Arts
Gujarat National Law University

Submitted to
Jagadeesh Chandra T G,
Assistant Professor of Law,
Gujarat National Law University

INTRODUCTION
Self-determination is defined as free choice of ones own acts without external compulsion;
and especially as the freedom of the people of a given territory to determine their own
political status. It can also be defined as the ability or power to make decisions for oneself,
especially the power of a nation to decide how it will be governed. In other words, it is the
right of the people of a nation to decide how they want to be governed without the influence
of any other country. The latter is a complex concept with conflicting definitions and legal
criteria for determining which groups may legitimately claim the right to self-determination.
This often coincides with various nationalist movements.
Self-determination embodies the right for all peoples to determine their own economic, social
and cultural development. Self-determination has thus been defined by the International
Court of Justice (in the West-Saharan case) as: The need to pay regard to the freely
expressed

will

of

peoples1.

It is important to stress that for indigenous peoples the term self-determination does most
often not imply secession from the state. The right of self-determination of peoples is a
fundamental principle in international law. It is embodied in the Charter of the United
Nations and the International Covenant on Civil and Political Rights and the International
Covenant on Economic, Social and Cultural Rights. Common Article 1, paragraph 1 of these
Covenantsprovidesthat:
All peoples have the rights of self-determination. By virtue of that right they freely
determine their political status and freely pursue their economic, social and cultural
development.
The right of self-determination has also been recognized in other international and regional
human rights instruments such as Part VII of the Helsinki Final Act 1975 and Article 20 of
the African Charter of Human and Peoples Rights as well as the Declaration on the Granting
of Independence to Colonial Territories and Peoples. It has been endorsed by the International
Court of Justice. Furthermore, the scope and content of the right of self- determination has
been elaborated upon by the United Nations Human Rights Committee and Committee on the
Elimination of Racial Discrimination as well as international jurists and human rights
experts2.
1 Summary of the Advisory Opinion of the International Court Of justice on the
West Saharan Case, 16 October 1975.

HISTORICAL BACKGROUND
The political origins of the modern concept of self-determination can be traced back to
the Declaration of Independence of the United States of America of 4 July 1776, which
proclaimed that governments derived their just powers from the consent of the governed and
that whenever any Form of Government becomes destructive of these ends, it is the Right of
the People to alter or to abolish it. The principle of self-determination was further developed
during the French Revolution, with the doctrine of popular sovereignty, which required
renunciation of all wars of conquest and contemplated annexations of territory to France only
after plebiscites.
In the 19th century and the beginning of the 20th century the principle of self-determination
was interpreted by nationalist movements as meaning that each nation had the right to
constitute an independent State and that only nationally homogeneous States were legitimate.
This so-called principle of nationalities provided the basis for the formation of a number of
new States and finally, at the end of World War I, for the dismemberment of the AustroHungarian, Russian, and Ottoman Empires. The principle of self-determination was also
prominent in the unification processes of Germany and Italy, which to a large degree were
based on national characteristics in which plebiscites played an important part (Germany,
Unification of).
Self-determination further evolved when it was espoused by the socialist movement and the
Bolshevik revolution. Defined and developed by Lenin and Stalin, the principle of selfdetermination was represented as one of international law. It should, however, be mentioned
that the right of self-determination in Soviet doctrine existed only for cases where it served
the cause of class conflict and so-called socialist justice; it was only a tactical means to serve
the aims of world communism and not an end in itself.
During World War I, the President of the United States, Mr Woodrow Wilson championed
the principle of self-determination which he included in his Fourteen Points (1918). Although
this proposal formed the basis of the peace negotiations with the Central Powers, self2 Christian Erni and Marianne Jensen, Self- Determination of Indigenous People, Volume 3 ,
Indigenous Affairs, International Work Group for Indigenous Affairs, 2001.
http://www.iwgia.org/images/stories/sections/human-rights/self-determ/docs/selfdetermination.pdf
(last Visited 03 September 2016.

determination was subsequently far from fully realized in the Paris peace treaties. It was,
however, reflected in a number of plebiscites held by the Allies in some disputed areas and it
was one of the basic components of a series of treaties concluded under the auspices of
the League of Nations for the protection of minorities (see also Minority Protection System
between World War I and World War II). Finally, in Art. 22 Covenant of the League of
Nations, the mandates system was devised as a compromise solution between the ideal of
self-determination and the interests of the administrative powers. However, selfdetermination as a general principle did not form part of the Covenant of the League of
Nations and therefore was, for the duration of the League of Nations, a political rather than a
legal concept. This was confirmed by the Council of the League of Nations and its expert
advisors in the land Islands dispute of 192021 even though, in the particular circumstances
of the case, autonomy rights were granted to the population concerned (Report of the
International Committee of Jurists Entrusted by the Council of the League of Nations with the
Task of Giving an Advisory Opinion upon the Legal Aspects of the land Islands Question
5).

IMPORTANCE OF THE STUDY

The Importance of this study arises from the observations of militant Insurgency in some
parts of Indian such as some of the North-eastern states of India and Jammu and Kashmir.
The natural Questions that arise from observations of such unrest are, whether the Indian
Nationality is imposed upon them or whether, the people of such states have determined
themselves as Indian citizens.

AIMS AND OBJECTIVES

The aims and objectives of this research is to study the right to self determination from a
constitutional perspective and compare it with United States and Srilanka in order to draw an
comparative analysis as to the extent to which we have conformed to providing this very
basic human Right. The study also aims to find out and comment on how important it is to
provide people with the right to self-determination in the light of national integrity and
sovereignty.

HYPOTHESIS

This paper hypothesises that India has give, Right to self determination to its people as far as
it has been practical, in the light of Keeping its national Security and Integrity intact, by the
Special Provisions in its Constitution under Articles 370 and 371 A-I.

METHODOLOGY
The research methodology which the researcher proposes in preparing this dissertation is
primarily doctrinal in nature. The scope of the research is limited to primary and secondary
sources. Certain books, journals, online article and publications will be referred to gain
knowledge on the subject. The Researcher intends to analyse Indian constitutional provisions
against Constitutions of , United states and Sri Lanka to throw light on how we have
provided the right to self determination to our citizens to produce the worlds largest and
most diverse democracy.
Mode of citation A uniform mode of citation will be followed.
Method of writing A descriptive and analytical method of writing will be adopted.

LIMITATIONS OF STUDY
Although this research aims to form a comprehensive study, there may be some limitations.
First of all, since this is a doctrinal research, it may not delve much into the political aspect,
which is quite dynamic of the issues, since this is a purely legal research.
Second, while the researcher as strived to maintain objectivity in the study, she is only aware
much more deeply about India, while the research will try hard to make a comprehensive
analysis of the constitutions of the other nations, the research can only rely on the available
secondary sources of information while commenting on those nations.

CHAPTERIZATION (Tentative)
1. Introduction
2. Right to Self Determination: A constitutional Perspective
2.2.

Indian Constitutional Position

2.3.

The United states Constitutional Position

2.4.

Sri lankan Constitutional Position

2.5.

A Comparative Analysis

3. Issues Related to Self Determination

3.1. Kashmir and North East of India
3.2. Tamil People of Sri Lanka
3.3. Native American and Other Minorities in United States of America
4. Suggestions and Conclusion

REVIEW OF LITERATURE
There is quite wide range of literature on the topic of right to self determination, but this
paper particularly draws inspiration from an article titled Why India Should Oppose the
Right to Self-determination3,which shall be critically analyzed from a constitutional
perspective. For the purpose of study and understanding of the subject, the article SelfDetermination4 has been referred to. Another piece of work Right to Self Determination for
Kashmiri People: an International Law Perspective 5 has studied, what the researcher intends
to, but with a lack of full understanding of the Indian Constitutional Position, which this
3 Balraj Puri, Why India should oppose the right to self determination, Peoples Union for Civil
Liberties Bulletin, April, 2001.
4 Daniel Threr, Thomas Burri, Self- Determination, Max Planck Encyclopaedia of Public International Law
[MPEPIL], December 2008.

paper attempts to throw some light on. With regard to the North eastern states, a paper titled
Internal Self Determination: An Alternative to the Secessionist Movements in Indias North
East6 has been published, which will be further analyzed in this work. Secession and SelfDetermination7 a chapter from a book by the Oxford handbook of Comparative
Constitutional Law is a well researched work on the subject matter this paper intends to
explore. Apart from these there are other works, but they are written from a

strictly

International Law Perspective with less emphasis on the Constitutional Point of view, hence
will not be referred.

5 Muhamadd Mumtaz, Right to Self Determination for Kashmiri People: An International Law Perspective,
International Journal of Business, Economics and Law, Vol. 1, 2012.

6 Maling Gombu and Julie Buragohain, Internal Self Determination: An Alternative to the
Secessionist Movements in Indias North East, Volume 10, Manupatra,1998.
7 Susanna Mancini, Secession and Self- Determination, The Oxford Handbook of Comparative Constitutional
Law, May 2012.