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The claim for ‘Khalistan’: Legality under international law

Under international law, territorial integrity is the rule and secession is an exception, and the latter may be regarded as legal only when the dual thresholds of gross human rights abuse and lack of internal self-determination are met. 

What are the roots of the Khalistani movement?

DEMANDS for a land ‘for the’ or ‘of the’ pure is not new in the context of the Indian subcontinent. The last time, in 1947, when someone had demanded a land ‘of the pure’ or ‘for the pak’, the subcontinent had witnessed the largest mass migration of people in the history of the world, apart from untold suffering and loss of lives.

Around the same time, in the 1940s, the Akali movement led muted demands for a ‘homeland’ for the Sikhs encompassing areas which included most parts of present-day Indian Punjab and Pakistani Punjab, and some parts of present-day Haryana and Himachal Pradesh. As with most history which exists in the grey, the demand for a separate homeland at the time did not necessarily mean a separate ‘country’, but rather fluctuated between the demand for a separate country and for the creation of a separate Punjabi-speaking province or ‘suba’ within India.

Another milestone in the movement for a separate Sikh homeland was the Anandpur Sahib resolution passed by the Shiromani Akali Dal in 1973, which called for greater autonomy for Sikhs ‘within’ the Indian State. For most parts of the following decade after 1973, demand for this ‘promised land’ remained on the backburner, until the ‘Man from Moga’ arrived.

Who is Amritpal Singh Sandhu, and why is he compared with Jarnail Singh Bhindranwale?

The militant Jarnail Singh Bhindranwale’s name rings sharply across the spectrum of modern Indian history. He came out of the shadows of Rode, a village in the Moga district of Punjab. Bhindranwale’s time as a Sikh militant leader was when, in many ways, the aforementioned dichotomy broke, and the idea of a separate country for the Sikhs crystallised, even though ambiguity surrounds whether he ever personally advocated for a separate Sikh nation.

Unlike Bhindranwale, who never ‘on record’ demanded a separate homeland, Sandhu and his followers openly espouse Khalistan. 

This ‘promised land’ was both romantically and pragmatically referred to as ‘Khalistan’, the land of ‘Khalis’ or ‘pure’. Bhindranwale’s story after that and its aftermath is well documented and requires no repetition.

Fast forward to 2022. On September 29, thousands of Sikhs gathered at Bhindranwale’s village Rode for a ‘dastar bandi’ (turban wearing) ceremony. The elders rose up and tied a holy turban on the head of a young man, in a way initiating him for a great cause. The man sat with a solemn yet resolute face.

The scenes in Rode seemed like a second coming of Bhindranwale. The young man at the center of this was Amritpal Singh Sandhu. The self-styled militant monk is the head of a social organisation called Waris Panjab De (heirs of Punjab). Styled after Bhindranwale, sounding like him, and cast in Bhindranwale’s image, Sandhu recently held the Indian State hostage in a scuffle with the Punjab police in Ajnala.

Like all good followers, Sandhu seems to have outdone his ideological mentor Bhindranwale. Unlike Bhindranwale, who never ‘on record’ demanded a separate homeland, Sandhu and his followers openly espouse Khalistan.

Also read: Expressing discontent against State is not sedition: Punjab and Haryana High Court

How does international law look at secession?

While secessionist demands are not new in history, the legality of secession is definitely a moot point. Since ‘secession’ can never be fully appreciated purely under municipal laws of a country as most countries do not allow constitutional secessions, the legality of secession has to be assessed based on the parameters of rulemaking under international law.

A norm becomes customary international law when it satisfies the following elements:

  1. State practice (if the norm/custom is widely practiced/abstained from by States); and
  2. Opinio juris(if the States acting on/abstaining from such practice believe it is legally incumbent upon them to act in that manner or not to do so for pragmatic reasons).

The argument for the existence of a right to secede is characteristically based on the principle of ‘self-determination’. We hear this as a buzz word in relation to Hong Kong–China, Kashmir–India, Balochistan–Pakistan, or in any other geo-political scenario where certain groups are claiming a right to secede.

Self-determination of people is considered to be one of the fundamental principles of modern international law and is enshrined as one of the aims of the United Nations (UN) in its Charter, and in fact has been considered to have reached the status of erga omnes which means it is a right in rem, owed by all States towards ‘all’ other States and people. In contemporary international law, self-determination is usually understood to mean either internal self-determination (internal democracy and autonomy), or external self-determination (secession).

Secession is usually pitted against sovereignty of States and principles of territorial integrity. State sovereignty and territorial integrity are founding principles of the international order after the Peace of Westphalia in 1648, which concretised the modern nation States system. Secession, to be accepted as an exception to this rule of sovereignty and territorial integrity, needs to prove itself to pass the muster of international customary law-making.

What are some prominent judicial precedents, State practice and opinio juris in relation to secession?

Dissolution of Yugoslavia

In the early 1990s, four of the six constituent republics of the Socialist Federal Republic of Yugoslavia (SFRY) declared independence. Two of them, Croatia and Slovenia, adopted the language (which proves State practice, the first element required for international law making) which emphasised their right to secede on two grounds: (i) Lack of internal self-determination; and (ii) Gross human rights violations.

The opinio juris in this case can be proven from the conduct of other countries, which accepted the above arguments, and the opinions of the Badinter Arbitration Committee, which was set up by European Economic Community to resolve legal issues concerning a partition of the SFRY. Opinion No. 1 (of the total fifteen by the committee) proclaimed that the breakup of SFRY was a case of “dissolution”.

Kosovo from Serbia

Kosovo declared independence on February 17, 2008 from Serbia. The declaration of independence made reference to “years of strife and violence in Kosovo, that disturbed the conscience of all civilised people” and the lack of international self-determination.

State practice and opinio juris can be deduced from the way the international community accepted this. Backed by American interventionism, till now, 101 member States of the UN have accepted Kosovo’s secession. Some States have treated this as sui generis and an exceptional situation to territorial integrity.

Secession, to be accepted as an exception to the rule of sovereignty and territorial integrity, needs to prove itself to pass the muster of international customary law-making. 

Further, in the UN Security Council resolution no. 1244, adopted under Chapter VII of the UN Charter, while lip service was paid to territorial integrity, its operative paragraphs effectively created a situation in which the secession was termed acceptable.

Bangladesh from Pakistan

This story is well known, Bangladesh was born out of Pakistan in 1971, aided by the midwife, India. Recognition of this secession, as one knows, is fait accompli, and today Bangladesh and its liberation war is considered legal by virtually all the member nations of the UN.

In the case of Bangladesh as well, two important premises on which the secession was based were: (a) Lack of internal self-determination, whereby West Pakistan denied a legitimate election win to the Awami League (party representing the Bengali Muslims) in the 1970 general elections, and the systemic oppression and exclusion of Bengalis from public life; and (b) Gross violation of human rights — the disgraceful Operation Searchlight amongst many other instances.

Aland Island Case

In 1920, people of the Åland Islands in Finland, who were predominantly Swedish in terms of ethnicity, sought to secede and join their ‘kin’ State Sweden. The report of the International Committee of Jurists entrusted by the Council of the League of Nations stated the following: “Positive International Law does not recognise the right of national groups, as such, to separate themselves from the State of which they form part by the simple expression of a wish.” However, it also stated that “[t]he separation of a minority from the State of which it forms part and its incorporation in another State can only be considered as an exceptional solution, a last resort when the State lacks either the will or the power to enact and apply just and effective guarantees,” thus recognising an oblique right to secede, as a ‘last resort’ when the State lacks the ‘will’ or the ‘power’ to enact and apply ‘just and effective guarantees’.

Katangese Peoples’ Congress versus Zaire

After Zaire gained independence from Belgium in 1960, people of its region of Katanga argued in favour of secession, to form an independent state. In 1992, the president of Katangese Peoples’ Congress requested the African Commission on Human and Peoples’ Rights (ACHPR) to recognise Katanga’s independence. In its judgement, the ACHPR denied the Katangese right to secede and proclaimed:

“In the absence of concrete evidence of violations of human rights to the point that the territorial integrity of Zaire should be called into question and in the absence of evidence that the people of Katanga are denied the right to participate in government as guaranteed by Article 13(1) of the African Charter [on Human and People’s Rights], the Commission holds the view that Katanga is obliged to exercise a variant of self-determination that is compatible with the sovereignty and territorial integrity of Zaire.”

It can be concluded that the decision implies that in a case of “evidence of violations of human rights” and “evidence that the people of Katanga are denied the right to participate in government”, external self-determination or secession may be considered legitimate.

Kevin Ngwanga Gumne et al. versus Cameroon

The ACHPR repeated a similar position when the people of South Cameroon sought to secede from Cameroon. The Commission declared, in a 2009 judgment, that in order for people to have a right to external self-determination, they must satisfy criteria cited in the aforementioned Katanga case. According to the Commission:

[T]here must be: “concrete evidence of violations of human rights to the point that the territorial integrity of the State Party should be called to question, coupled with the denial of the people, their right to participate in the government as guaranteed by Article 13.1 [of the African Charter].”

Reference Re: Secession of Quebec

In 1995, the province of Québec of Canada held a referendum to determine if the territory should secede from Canada. A request for an advisory opinion was made to the Supreme Court of Canada to opine on the legitimacy of a potential secession.

The Canadian Supreme Court noted in a 1998 judgment that the exercise of people’s self-determination is limited by territorial integrity of the State: “international law expects that the right to self-determination will be exercised by peoples within the framework of existing sovereign states and consistently with the maintenance of the territorial integrity of those states.”

The threshold set by the test cases under international law requires that the human rights abuse be institutionalised and be directed towards the group in question. This is not the case with Sikhs in India.

But it also added that “in the exceptional circumstances… a right of secession may arise.” The court stated: “the underlying proposition is that, when people are blocked from the meaningful exercise of its right to self-determination internally, it is entitled, as a last resort, to exercise it by secession”.

Also read: Through the Remedial Lens: The Curious Case of Unilateral Declaration of Secession

Is there any validity in the secessionist claims for Khalistan?

From the above instances, it can be safely concluded that territorial integrity is the rule and secession is an exception, and may be regarded as legal only when the dual thresholds of gross human rights abuse and lack of internal self-determination are met.

To assess whether the Sikhs or the people of Punjab have or lack self-determination, guidance must be sought from the above test cases. For instance, in the case of Kosovo, English political journalist, historian and academic Sir Noel Malcolm summarised the state of affairs in Kosovo as follows:

Every aspect of life in Kosovo has been affected. Using a combination of emergency measures, administrative fiats and laws authorising the dismissal of anyone who had taken part in a one-day protest strike, the Serb authorities have sacked the overwhelming majority of those Albanians who had any form of state employment in 1990. Most Albanian doctors and health workers were also dismissed from the hospitals; deaths from diseases such as measles and polio have increased, with the decline in the number of Albanians receiving vaccinations. Approximately 6,000 school-teachers were sacked in 1990 for having taken part in protests, and the rest were dismissed when they refused to comply with a new Serbian curriculum which largely eliminated teaching of Albanian literature and history.”

Even in the case of Bangladesh and the other test cases, people who demanded secession were not only discriminated against de facto, but were discriminated against de jure, that is, by written laws and State policies. The same cannot be said to be the case with the Sikhs/Punjabis. In fact, some ways in which internal self-determination has been ensured in Punjab are as follows:

  1. The Punjab Reorganisation Act, 1966, which carved out a separate state of predominantly Punjabi speaking-Punjab, guaranteed cultural and language rights for Sikhs under the framework of law.
  2. There is no prohibition on Sikhs to hold public office, and in fact, two Sikhs have held the highest offices in India, the Presidentship and Prime Ministership.
  3. Punjab enjoys a significant chunk of the pie of the country’s Gross Domestic Product, and Punjabis enjoy a relatively higher standard of life than the average Indian.
  4. Punjabis are well represented in the Armed Forces.

In terms of the other criterion, that is, gross human rights violations, while instances of human rights violations cannot be disregarded and of course exist in Punjab as they do elsewhere in India, the threshold to satisfy this criterion is whether there is ‘institutionalised’ abuse of human rights of Sikhs/Punjabis, especially directed towards them as an ethnic or other identifiable group.

As people claiming to be part of a civilised society, one cannot condone human rights abuse, and even a single instance of human rights abuse is one too many.

Punjab went through a traumatic period from the late seventies until mid-nineties, and the nation is ashamed by the heart-breaking anti-Sikh riots of 1984. However, the threshold set by the test cases under international law requires that the human rights abuse be institutionalised and be directed towards the group in question. This, in my estimation, is not the case with Sikhs in India.

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