THE EVENTS IN EAST PAKISTAN, 1971
 


Preface
Part I:  Introduction
Part II: Outline of Events in East Pakistan
           1-25 March, 1971
           25-March-18 December, 1971
Part III: Legal Position under Pakistan Law
Part IV: Legal Position under International Penal Law
Part V: Right of Self-determination in International Law
Part VI: The Role of the United Nations
Part VII: The Role of India
Summary of Conclusions

Right of Self-Determination in International Law

 

The principle of the right of a people to self-determination seems self-evident, but there is no more explosive issue in today's world. What constitutes a people? In what circumstances can they claim the right? What is the extent of the right? Does it include a right to secession? How is the right to be reconciled with the principle of the territorial integrity of each Member State of the United Nations?

The problem was succinctly stated by U Thant in his 'Introduction to the Report of the Secretary-General' in 1971:

'I feel obliged to mention a problem which has been almost daily in my mind during my time as Secretary-General. I refer to the violation of human rights within the frontiers of a state. Theoretically, the United Nations has little standing in such situations - and they are all too common...

'A related problem which often confronts us and to which as yet no, acceptable answer has been found in the provisions of the Charter, is the conflict between the principles of integrity of sovereign States and the assertion of the right to self-determination, and even secession, by a large group within a sovereign State. Here again, as in the case of human rights, a dangerous deadlock can paralyse the ability of the U.N. to help those involved.'

The notion of the right of a people to self-determination amounts to a de jure recognition of a sociological phenomenon: the concept that certain human groups constitute' peoples' and that a people constitutes an entity having a legal personality or status analogous with that of a human person, and is accordingly entitled to certain rights and fundamental liberties which, like those of the individual, must be respected. In practice the sovereignty which, according to the principle of self-determination, should rest with peoples, is assumed by organs of the state, and in many if not most states of the world any attempt by a group within an existing state to assert the right of self-determination will be regarded as a form of treason. In consequence, the will to assert the right is often manifested by a violent challenge to an established power with a view to obtaining by force a change of status, the legitimacy of which will be sanctioned if and only if the use of force carries the day.

The concept of self-determination finds its origin in the modern concept of nationalism in which the sovereignty of the feudal Prince is replaced by the sovereignty of the people. This revolutionary and recent intervention arose from the evolution of ideas during the 17th and l8th centuries which were institutionalised in the French Revolution. The Declaration of the Rights of Man established the legal basis for these nationalist and revolutionary rights, the rights of peoples and of individuals. The socio-juridical transformation was radical. All the attributes formerly attaching to the person of the Prince were conferred on the 'sovereign people'. The new sovereign became a new socio-juridical entity, the Nation, in which was vested the sole authority to exercise the right of sovereignty.

If we consider the question in this original context, we are led to the conclusion that the right of a people to self-determination means, legally speaking, the right of people to constitute either alone or jointly with other peoples, a sovereign nation. This interpretation is confirmed by the Charter of the United Nations, whose Preamble opens with the words:

'We the Peoples of the United Nations. ..'.

thus marking the difference between People and Nation. And by Article 1(2) of the Charter, one of the purposes of the United Nations is:

'To develop friendly relations among nations based on respect for the principle of equal rights and self-determination of peoples ...'.

It is even more clearly stated in the International Covenants on Economic, Social and Cultural Rights and on Civil and Political Rights. Article I, which is common to both Covenants, reads:

'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. ...

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 realisation of the right of self-determination, and shall respect that right, in conformity with the provisions of the Charter of the United Nations.'

The important principle is, therefore, established that the duty to 'promote the realisation of the right of self -determination' is imposed upon all State Parties and not merely upon the colonial powers. This implies some limitation upon the absolute sovereignty of existing nation states.

Article 1 of the International Conventions on Human Rights follows the wording of Article 2 of the 1960 Declaration on the Granting of Independence to Colonial Countries and Peoples. Similar terms are to be found again in the important 'Declaration of Principles of International Law concerning Friendly Relations and Cooperation Among States in accordance with the Charter of the United Nations', which was approved by the General Assembly in 1970 by Resolution 2625 (XXV). This is the most authoritative statement of the principles of international law relevant to the questions of self-determination and territorial integrity. The conflicting principles are stated in the Preamble to the Declaration in these terms:

'The General Assembly,

...

Convinced that the subjection of peoples to alien subjugation, domination and exploitation constitutes a major obstacle to the promotion of international peace and security,

Convinced that the principle of equal rights and self-determination of peoples constitutes a significant contribution to contemporary international law, and that its effective application is of paramount importance for the promotion of friendly relations among states, based on respect for the principle of sovereign equality,

Convinced in consequence that any attempt aimed at the partial or total disruption of the national unity and territorial integrity of a state or country or at its political independence is incompatible with the purposes and principles of the Charter, ...'

The Declaration then proclaims 7 principles of international law relating to friendly relations and cooperation among states. One of these is 'The principle of equal rights and self-determination of peoples '.

Under this principle it is stated:

'By virtue of the principle of equal rights and self-determination of peoples enshrined in the Charter of the United Nations, all peoples have the right freely to determine, without external interference, their political status and pursue their economic, social and cultural development, and every state has the duty to respect this right in accordance with the provisions of the Charter.'

The form which self-determination may take is stated in these terms:

'The establishment of a sovereign and independent state, the free association or integration with an independent state or the emergence into any other political status freely determined by a people constitute modes of implementing the right of self-determination by that people.'

Finally, the duty of a state towards a people claiming the right to self-determination is stated as follows:

'Every state has the duty to refrain from any forcible action which deprives peoples referred to above in the elaboration of the present principle of their right to self-determination and and freedom and independence. In their actions against, and resistance to, such forcible action in pursuance of the exercise of their right to self-determination, such peoples are entitled to seek and to receive support in accordance with the purposes and principles of the charter.'

One cannot fail to be struck by the extremely wide scope of these provisions asserting the sovereign right of all peoples to self-determination. Moreover, it is the free determination by a people of the form of their political status, without external interference, which constitutes the exercise of their right to self-determination; a decision freely taken automatically leads to the acquisition of a status, and it becomes an infringement of international law for any state to attempt to deprive them of that status by forcible action, and if any state does so, other states should give support to the people asserting their right of self-determination.

Turning to the conflicting principle of territorial integrity we find it stated under 'The Principle of Sovereign Equality of States' that 'all states enjoy sovereign equality' and that sovereign equality includes as one of its elements:

'(d) The territorial integrity and political independence of the state are inviolable.'

This principle has to be given full weight when considering the extent of the right of self-determination of peoples. Not only does the general part of the resolution assert that 'each principle should be construed in the context of other principles', but under the principle of equal rights and self-determination of peoples it is expressly stated:

'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.'

This courageous attempt to reconcile the two conflicting principles still leaves a number of difficulties. In the first part it says that the principle of territorial integrity is to prevail in the case of sovereign states conducting themselves 'in compliance with the principle of equal rights and self-determination of peoples'. This seems to recognise that a state may include more than one 'people' each of whom is entitled to self-determination, but implies that self-determination is something which can be achieved within the framework of a larger state. Presumably what is contemplated is a reasonable measure of autonomy, perhaps within a federal state. If so, the term 'self-determination' in this passage has a different meaning from the passages quoted earlier which equate self-determination with freedom and independence. The final phrase makes clear that if a state is conducted in compliance with the principles of equal rights and self-determination of peoples, it must have a government representing 'the whole people belonging to the territory without distinction as to race, creed or colour '.

This passage must also be considered in the light of another principle not referred to in the Declaration of Principles. It is a widely held view among international lawyers that the right of self-determination is a right which can be exercised once only. According to this view, if a people or their representatives have once chosen to join with others within either a unitary or a federal state, that choice is a final exercise of their right to self-determination; they cannot afterwards claim the right to secede under the principle of the right to self-determination. It was on this principle that the claim to independence of the southern states in the American Civil War and of Biafra in the Nigerian Civil War was resisted. It is submitted, however, that this principle is subject to the requirement that the government does comply with the principle of equal rights and does represent the whole people without distinction. If one of the constituent peoples of a state is denied equal rights and is discriminated against, it is submitted that their full right of self-determination will revive.

Against the background of these legal principles, we propose to consider:

(I) whether the population of East Pakistan constituted a 'people' in the sense in which the term is used in the U .N .Charter and other relevant instruments of international law;

(2) if the answer is 'yes' whether the people of East Pakistan were entitled in international law to assert a right to independence under the principle of self-determination.

In considering these questions, we shall base our judgments on the texts already referred to, incorporating the general consensus of opinion of the Nations of the world on this subject, and we shall strive to interpret them in a restrictive sense, in view of the obvious dangers involved in adopting an excessively wide interpretation.


(1) Did the Population of East Pakistan Constitute a 'People'?

First, we must seek to establish, as best we can, what constitutes 'a people' having the right to self-determination. As we have seen, the Declaration of Principles of International Law is silent on this question, and equally, no guidance is to be obtained from the Charter of the United Nations or the two International Covenants on Human Rights.

It may be helpful to begin by examining what groups do not, or not necessarily, constitute a people. Clearly there can be many minorities, linguistic, racial or religious, which have legitimate rights as such, but which are not entitled to claim the right to self-determination. Regional groupings and regional loyalties may be very real and of great importance, without their populations constituting peoples

within the meaning of this doctrine. Again, a tribe is not to be regarded as such as a people, but rather as a group of clans. Successful nations achieve a real unity in diversity of many different elements. The right of self-determination is not intended to encourage separatism for every grouping which goes to make up the complex pattern of a historical nation.

The difficulties of the problem perhaps become clearer if one tries to establish a list of the characteristics possessed by a people, to establish as it were a composite picture permitting its identification.

If we look at the human communities recognised as peoples, we find that their members usually have certain characteristics in common, which act as a bond between them. The nature of the more important of these common features may be:

-historical,
-racial or ethnic,
-cultural or linguistic,
-religious or ideological,
-geographical or territorial,
-economic,
-quantitative.

This list, which is far from exhaustive, suggests that none of the elements concerned is, by itself, either essential or sufficiently conclusive to prove that a particular group constitutes a people. Indeed, all the elements combined do not necessarily constitute proof: large numbers of persons may live together within the same territory, have the same economic interests, the same language, the same religion, belong to the same ethnic group, without necessarily constituting a people. On the other hand, a more heterogeneous group of persons, having less in common, may nevertheless constitute a people.

To explain this apparent contradiction, we have to realise that our composite portrait lacks one essential and indeed indispensable characteristic - a characteristic which is not physical but rather ideological and historical: a people begins to exist only when it becomes conscious of its own identity and asserts its will to exist. A modern example is the ancient Jewish people who have exerted their will to exist as a separate Israeli nation only during the present century. This leads us to suggest that the fact of constituting a people is a political phenomenon, that the right of self-determination is founded on political considerations and that the exercise of that right is a political act.

What is plain is that there is no single, authentic answer to the question 'what is a people' ? All the official texts ignore it, presumably owing to the difficulty of definition. In a matter where passions are so easily aroused, this ambiguity is dangerous and can lead to extremely grave consequences. We do not propose ourselves to attempt to formulate any comprehensive definition. Rather, in the absence of any accepted objective criteria, we propose to consider the question whether Bangladesh constituted a people by applying the various criteria referred to above.

Historically, the links between East and West Pakistan are of modern origin, apart from the fact of their both having been included in the much larger Moghul and British empires. Racially, if we may use this non-scientific term to express differences of physical appearance, dominant characteristics and behaviour, the population of the eastern and western wings may be said to be of different races, though both belonged to the wider Indo-Aryan race. Linguistically there was a marked difference. In East Pakistan 98% of the population spoke Bengali, compared with under 2% speaking Urdu, the principal language of Pakistan. The languages, which are written with a different script, each have a rich culture and literature of their own. Religion was the chief common factor shared between the two wings. Though there were important religious minorities, the great majority of both populations practised the Moslem religion, and as we have seen it was the determination to create a strong Islamic state which was the principal motive force in the foundation of Pakistan. Geographically, the eastern and western wings were separated by over a thousand miles of foreign territory, and their geographical features were very different. This in turn was reflected in social differences. The staple diet of West Pakistan was corn and that of East Pakistan was rice. West Pakistan turned naturally for its cultural and commercial exchanges towards the Arab Middle East arid Iran, East Pakistan towards India and the Asian Far East. Economically, the two wings hardly comprised a natural unity, and the economic conflict with India resulted in East Pakistan being cut off from their natural economic outlets and trading partners in the neighbouring parts of India. Quantitatively, each of the wings was large enough in population and territory to constitute a separate nation state.

Together these various factors constitute a strong body of presumptive evidence in support of the contention that there existed a distinct Bengali people. The only real common bond was the Moslem religion. It is important to remember, however, the profound hold which this religion has upon its adherents, the concept of an Islamic state being one in which the whole culture and civilisation is permeated by Moslem ideology.

Turning to the last of the suggested criteria, the conscious identity of themselves as a people and with the political will to self-government, it was only in the later political evolution of the state of Pakistan that one finds significant evidence that the people of East Pakistan thought of themselves as a separate people. Long before the foundation of Pakistan there was, of course, a Bengali people which included the predominantly Hindu population of West Bengal. It was, however, by a deliberate choice of the state legislators in 1946 that the decision was made that East Bengal should join the Moslem state of Pakistan rather than maintain the unity of Bengal within a secular Indian state.

The first landmark in the move towards greater autonomy of East Pakistan was the 1954 elections, when the United Front in East Pakistan won 97% of the seats, and routed the Moslem League which had constituted the foundation of the unitary Pakistan state. Although the struggle was one for greater provincial autonomy, the motive force was an awakening national consciousness and the determination, clearly expressed by democratic means, to free themselves from the domination of West Pakistan.

In the 1970 elections the population had a further opportunity to express their views. The results of these elections, by their near unanimity, take on the force of a referendum. There can be no doubt that the principle which won that consensus of opinion was the single basic notion of autonomy, the religious question having played little or no part in the voting. As regards the juridical framework within which that autonomy might be realised, while there were some who believed that autonomy could never be achieved without secession, the great majority of voters were content to accept the Awami League proposals for autonomy within a federal constitution. What is of significance for our present purpose is that the electorate of East Pakistan showed that what they really hoped for was to be able at last to manage their own affairs as they wished, without having to receive orders from or render account to people whom they tended to see as a domineering and alien power whose attitudes and behaviour had provoked resentment.

It seems impossible to deny that the result of the 1970 election established that the population of East Pakistan now considered themselves a people with a natural consciousness of their own and were claiming a high degree of autonomy within the federal state of Pakistan. In these circumstance, assuming as we do that an independent nation state may include more than one 'people' we consider that by 1970 the population of East Pakistan constituted a separate 'people' within the 'whole people' of the state of Pakistan.
 

(2) Were the People of East Pakistan Entitled in International Law to Assert a Right of Independence under the Principle of Self-Determination?

The starting point on this issue was the decision by the elected representatives of what became East Pakistan to opt for union with West Pakistan rather than for union with West Bengal within the state of India. Many would argue that this constituted an exercise by the people of East Bengal of their right (if any) of self-determination. As against this it may be said that this question had not been an issue in the campaign when the legislators were elected, and that the choices open to them did not include independence for East Pakistan. Nevertheless, they were elected representatives at the time and it seems right to accept that this was an exercise of the right of self-determination by the people of what became East Pakistan. In these circumstances, no further exercise of the right would arise in international law so long as they were being accorded 'equal rights and self-determination ... and thus [were] possessed of a government representing the whole people belonging to the territory without distinction as to race, creed or colour '.

A strong case can be made out for saying that the people of East Pakistan would have been entitled to claim independence before the 1970 election on the grounds that the denial of 'equal rights' which they had suffered since the institution of the state of Pakistan brought into force their right of self-determination. Until the 1970 election, they had never been allowed equal representation, the doctrine of 'parity' between the two wings being itself a denial of equality. Bengalis were heavily under-represented at all levels of the civil service and military forces. The economic and social disparities were even more striking. East Pakistan was consistently denied its fair share of investment, economic aid and development, and the per capita income of its population which was 18% lower than that of the west in 1949-50; was 75% lower by 1967-68. There was the same disparity in social, educational and health fields. It is these factors which led the people of East Pakistan to claim that they were in the words of the Declaration of Principles approved by Resolution 2625 subject to 'alien subjugation, domination, and exploitation [which] constitutes a violation of the principle [of self-determination], as well as a denial of fundamental human rights, and is contrary to the Charter '.

After the 1970 election the case for saying that East Pakistan was being denied equal rights largely disappears. These elections were for the first time held on the basis of one man one vote in order to elect an assembly to draw up a new constitution. There was no discrimination against East Pakistan either in the conduct of the election or in terms of the Legal Framework Order under which it was held. That Order contained conditions about the powers of the central government, and directive principles to safeguard the Islamic State, but these applied equally to East and West Pakistan. The Awami League would no doubt contend that the refusal to grant the Six Points was itself a denial of 'the principle of equal rights and self-determination of peoples'. As we have seen, the Declaration of Principles of International Law seems to imply that a separate people within a nation state are entitled to a high level of self-government in order to develop their own cultural, social and economic institutions. But how is it to be determined what that level should be? On what criteria can it be said that the Six Points complied with the principle, whereas a federal constitution within the Legal Framework Order would not have done?

The reason why President Yahya Khan would not allow a constitution to be drawn up in accordance with the Six Points is clear. He considered that in any constitution which would have resulted, the powers of the central government of Pakistan would have been weakened to the point where the future territorial integrity and political unity of Pakistan was threatened. It is easy to understand this attitude. As a military leader, it came naturally to him to think that a strong central government was the best and indeed the only way of maintaining the unity of the state. As he believed in the legality of his own Presidency and of his martial law regime, and was supported in this belief by the earlier decision of the Supreme Court in Dosso's case1, he naturally considered that he was entitled and indeed that it was his duty to refuse to permit a constitution to be drawn up which did not comply with the conditions he had laid down in the Legal Framework Order.

We have already considered in Part III the legality of the martial law regime under Pakistan law, and have seen that the Legal Framework Order under which the elections were held was invalid. It may be argued from this that the Constituent Assembly itself was invalid and that the only way of returning to legality was by recalling the old National Assembly elected under the 1956 Constitution, and transferring the Presidency to the Speaker of the Assembly. In the circumstances prevailing, and in particular after the result of the 1970 election, whatever the strict legal position may have been, the old assembly would have lacked any political authority. The only practical way, it is submitted, of returning to legality would have been by convening the Constituent Assembly and allowing it to draw up a new constitution. These, however, are matters of domestic law. President Yahya Khan's regime had been internationally recognised as the Government of Pakistan, and its authority could not be challenged in international law.

It must also be remembered that the Awami League had no mandate for independence, not did they claim to have one. They had fought the election on the Six Points programme of autonomy within a federal constitution. It was only when the army made it clear by their crack-down that they were not prepared to entertain a constitution on this basis that the Awami League leaders proclaimed the independence of Bangladesh and called for armed resistance.

Therefore, if the Declaration of Principles of International Law is accepted as laying down the proper criteria, it is difficult to see how it can be contended that in March 1971 the people of East Pakistan, or the leaders of the Awami League on their behalf, were entitled in international law to proclaim the independence of Bangladesh under the principle of self-determination of people.

It does not follow from this, of course, that the action of the Awami League leaders in calling for armed resistance to the army cannot be justified under the domestic law. As we have seen, the martial law regime was illegal and the old constitution had broken down and was completely discredited. It was necessary to draw up a new constitution for the state of Pakistan. The 1970 elections had resulted in a clear decision in favour of a certain level of provincial self-government. Let it be conceded in favour of General Yahya Khan that this would have seriously weakened the power of the central government. Nevertheless, it still recognised the territorial integrity and political unity of Pakistan. It may be that the only way of maintaining this unity was by reducing the power of the central government. As we have seen in Part I, the all-India constitution which Mr. Jinnah would have been prepared to accept in 1946 would also have resulted in a weak central government. Provided that the majority were ready, as they were, to grant an equal degree of autonomy to the people of West Pakistan, it is difficult to see why on democratic principles their will was not entitled to prevail. If the people of West Pakistan were not prepared to accept a constitution on this basis, the only remedy would have been partition of the state. The minority were not entitled to force their preferred constitution upon the majority.

In our view it was not in accordance with the principles of the Charter of the United Nations for a self-appointed and illegal military regime to arrogate to itself the right to impose a different form of constitution upon the country, which was contrary to the expressed will of the majority. As the army had resorted to force to impose their will, the leaders of the majority party were entitled to call for armed resistance to defeat this action by an illegal regime.


Footnotes:

1See Part III above.


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