THIRD REPORT:
THE MATTER: RIGHT OF SELF-DETERMINATION OF THE NEPALESE IN DARJEELING
DISTRICT OF WEST BENGAL STATE.
NEPALEE AGITATORS ARE DEMANDING ‘GORKHALAND’ BY SEPARATING THE STATE
WEST BENGAL IN INDIA – AND THE HUMAN RIGHTS.
Government of India ratified the International Covenant on Civil and
Political Rights and International Covenant on Economic, Social and
Cultural Rights in 1979.
‘RIGHT OF SELF-DETERMINATION’ IS NOT APPLICABLE IN INDIA AND NATURALLY
IT IS NOT APPLICABLE IN DARJEELING.
Article 1(2) of CHAPTER I [Purpose and Principles] of CHARTER OF
UNITED NATIONS (signed on 26 June 1945) reads: “The Purpose of the
United Nations are – To develop friendly relations among nations based
on respect for the principle of equal rights and self-determination of
peoples, and to take other appropriate measures to strengthen universe
peace.”
Article 1(1) of Part-I of International Covenant on Economic, Social
and Cultural Rights reads: “All people 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.”
Article 1(1) of Part-I of International Covenant on Civil and
Political Rights reads: “All people 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.”
DECLARATION BY THE GOVERNMENT OF INDIA
WHERE AS the International Covenant on Economic, Social and Cultural
Rights and the International Covenant on Civil and Political Rights
were adopted by the General Assembly of the United Nations in
Resolution 2200 (XXI) of 16 December 1966, which Covenants are
reproduced in the Annexure to this Document AND WHERE AS it is fit and
expedient to accede to the aforesaid Covenants subject to the
following Declarations:
Declarations
I. With reference to Article I of the International Covenant on
Economic, Social and Cultural Rights and Article I of the
International Covenant on Civil and Political Rights, the Government
of the Republic of India declares that the words “the right of self-
determination” appearing in those articles apply only to the peoples
under foreign dominations and that these words do not apply to
sovereign independent States or to a Section of a people or nation
which is the essence of national integrity.
II. It with reference to Article 9 of the International Covenant on
Civil and Political Rights, the Government of the Republic of India
takes the position that the provisions of the article shall be so
applied as to be in consonance with the provisions of clauses (3) to
(7) of Article 22 of the Constitution of India. Further under the
Indian Legal System, there is no enforceable right to compensation for
persons claiming to the victims of unlawful arrest or detention
against the state.
III. With respect to Article 13 of the International Covenant on Civil
and Political Rights, the Government of the Republic of India reserves
its right to apply its law relating to foreigners.
IV. With reference to Article 4 and 8 of the International Covenant on
Economic, Social and Cultural Rights and Article 12, 19(3), 21 and 22
of the International Covenant on Civil and Political Rights, the
Government of Republic of India declares that the provisions of the
said article, shall be so applied as to be in conformity with the
provisions of Article 19 of the Constitution of India.
V. With reference to Article 7(c ) of the International Covenant on
Economic, Social and Cultural Rights, the Government of Republic of
India declares that the provisions of the said article, shall be so
applied as to be in conformity with the provisions of Article 16(4) of
the Constitution of India.
NOW THEREFORE, BE IT KNOWN that the Government of Republic of India,
having seen and considered the said Covenants do hereby accede to same
subject to the afore-mentioned Declarations.
Signed by Indian on 07/03/1979.
The right of self-determination was not really born until the United
Nations adopted the Decolonization Resolution 14, (XV) of December 14,
1960.
This said the first time, briefly and
concisely: “All peoples have the right to self-determination; by
virtue of that right they freely determine their political status and
freely pursue their economic, social and cultural development ” (para
2). To be sure, the resolution had anti-colonial slant. That was why
it was so controversial. The Third World above perceived the right of
self-determination applying solely to subordinate peoples and
territories. An Article was inserted into both of the International
Covenants in 1966.
BANGKOK DECLARATION, 1993:
Adopted by the Ministers and Representatives of the Asian States, who
met at Bangkok from March 29 to April 2, 1993 pursuant to United
Nations General Assembly resolution 46/116 on Human Rights, adopted 30
points Declaration –
---------Welcoming the increased attention being paid to
human rights in the international community ---------- Reaffirming
their commitment to principles contained in the Charter of the United
Nations and Universal Declaration of Human Rights --------
Reaffirming the principles of respect for national sovereignty,
territorial integrity and non-interference in the internal affairs of
States ----- Reiterating the interdependence and indivisibility of
economic, social, cultural, civil and political rights, and the
inherent interrelationship between development, democracy, universal
enjoyment of all human rights, and social justice which must be
addressed in an integrated and balance manner --- Convinced that
economic and social progress facilitates the growing trend towards
democracy also the promotion and protection of human rights ---- (8)
Recognize that while human rights are universal in nature, they must
be considered in the context of a dynamic and evolving process of
international norm setting, bearing in mind the significance of
national and regional particularities and various historical, cultural
and religious backgrounds; (13) Stress that the right of self-
determination is applicable to people under alien or colonial
domination or foreign occupation, and should not be used to undermine
the territorial integrity, national sovereignty and political
independence of States.
EQUITY AND HUMAN RIGHTS:
The two central pillars of the
United Nations Charter and of the post second world war international
order: national sovereignty and the right of self-determination. Both
have come under increasing skepticism, and indeed attack. The right of
self-determination was initially proclaimed with reference to
countries under colonial rule and the process of the independence of
erstwhile colonial territories has now been completed for all
practical purposes.
Events have given rise to a number
of demands for self-determination on grounds of real or perceived
ethnic and other identities and real or perceived violence and
discrimination from majority communities. But it is generally
recognized now that it is not wise to encourage all such demands for
two reasons – FIRST, the right of self-determination was never
supposed to be an absolute right. It is not easy to determine where
the truth lies between rival claims about legitimate interests of
different groups and how they are or might be affected; SECOND and
more important consideration arises from the fact that the present
world polity has emerged as a result of historical forces of long-
standing. As a result, practically all nations states are composite
entities comprising of more than one linguistic, religious or ethnic
group or tribe. There is no practical way of redrawing the map of the
world on the notion that ‘each identity will have a nation state of
its own’. It is not simply possible to redraw maps logically, and any
attempt to draw them again by force will inevitably lead to much
violence and ethnic cleansing. This is the reality, people should be
encouraged to live together in pluralistic societies.
GLOBAL NEIGHBOURHOOD:
It is time
to begin to think about self-determination in a new context – the
emerging context of a global neighbourhood rather than the traditional
context of a world of separate states. The demand for separation and
the resort to violence in support of it often follow the frustration
of constitutional efforts to secure less drastic changes. This points
to the importance of governments being sensitive to the aspirations of
ethnic or other groups that feel alienated or threatened. Most of the
nearly 200 nation-states in the world consist of more than one ethnic
group. There is consequently considerable scope for discord and
conflict. But there is also a positive side to pluralism as manifest
in several successful multiethnic states. Diversity need not become a
cause for division. A challenge to governance is to make it a source
of enrichment.
If tragedies are not be multiplied one
hundredfold, concern for the interests of all citizens, of whatever
racial, tribal, religious, or other affiliation, must be high among
the values informing the conduct of people in the world that has now
become a neighbouhood. There must be respect for their rights, in
particular for their right to lead lives of dignity, to preserve their
culture, to share equitably in the fruits of national growth, and to
play their part in the governance of the country. Peace and stability
in many parts of the world could be endangered if these values are
neglected. The world community needs to strengthen protection of these
rights, even as it discourages the urge to secede that their
frustration can breed., Governance in the global neighbourhood faces
no stronger challenge.
GNLF AND RIGHT OF SELF-DETERMINATION:
President of GNLF (Gorkha National Liberation Front) Shri Subhas
Ghissing (Ghising) sent a Memorandum on 23/12/1983 to – His Majesty
the King Birendra Bir Bikram Shadev, Narayan Hiti King Palace,
Kanthmandu, Nepal. In this Memorandum he mentioned – “Benign Sir, …………
under such complexities and deep rooted illusion they have
[unknowingly considered themselves as the true citizens or inhabitants
of Independent Union of India and India as their motherland or country
since Independence] just after three years of Bharat Independence the
Indo-Nepal Treaty if 21st. July, 1950 and British-Nepal Treaty of
30th. October, 1950 also did virtually nothing to repair the damaged
fate of the said Gorkhas and vis-à-vis [their ceded land and
territories] and revoked exactly the same damaging terms and
conditions of the said past treaties and agreements of the then
British Government and Nepal; and such as act of inhuman of these two
merciless treaties has [directly violated the very principle of right
of self-determination] proclaimed by the President Woodrew Wilson, in
his 14-points programme on 8th. January. 1919 on the face of the
International Peace Treaty and at the same time violated the very
principle and essence of Universal Declaration of Human Rights adopted
by the General Assembly of the United Nations on 10th. December, 1948;
and thus [permanently sealed the fate of the whole settled Gorkhas in
present Independent India] by sustaining the same old dehumanizing
cruel method of out dated [colonialism, feadism, barbarism and
fraudism] that the {Gorkhas were perpetually subjected to fight the
wars of other countries} by losing everything of their own National
Identity, Political safeguard and their [historical homeland] and
destiny……………”
Human Rights philosophy, jurisprudence support national unity,
integrity and sovereignty.
Darjeeling was not a part of Nepal and the staying of Nepalese in
Darjeeling, was not the result of force applied to citizens of Nepal
to reside in Darjeeling. Darjeeling was the part of the dominions of
the Raja of Sikkim. Nepal with the possession considerable military
strength by Gurkha soldiers, captured Darjeeling during the early
nineteenth century and extended the dominion as far as the River
Tista. Gurkhas were the warriors who fought for the king of Gorkha,
Prithivi Narayan Shah in the 18th. Century. In view of the
hopelessness of further resistance (Anglo-Nepal war 1814-1816), the
Gurkhas signed a treaty in Sagauli on the 28th. November, 1815. Under
the influence of the war party in Nepal, its Government hesitated to
ratify the treaty and hostilities began again. Ooterlony, now in
supreme command of the British troops (East India Company), advanced
within fifty miles of the capital of Nepal and defeated the Nepalese
at Makwanpur on the 28th. February, 1816. This led the Nepal
Government to ratify the treaty, the Sagauli Treaty early in March
next and made Nepal a protectorate.
As a result of Sagauli Treaty, the Raja of Sikkim RESTORED the area of
Darjeeling between Mechi and Tista rivers by a treaty, the Treaty of
Titaliya in 1817. Two officer of British India recommended the present
place of Darjeeling as a site for a sanatorium. General Lloyd was
directed to start negotiations with the Raja of Sikkim and he
succeeded in obtaining the execution of a DEED OF GRANT by the RAJA OF
SIKKIM on 1st. February, 1835. THIS DEED OF GRANT, which is
commendable short, runs as follows –
“The Governor-General having
expressed his desire for the possession of the hills of Darjeeling on
account of its cool climate, for the purpose of enabling the servants
of his Government, suffering from sickness, to avail themselves of its
advantages, I the Sikkimputtee Rajah out of friendship for the said
Governor-General, hereby present Darjeeling to the East India, that
is, all the land south of the Great Runjeet river, east of the
Balasur, Kahali and Little Runjeet rivers, and west of the Rungpo and
Mahanandi rivers.” This was an unconditional cession.
The word GURKHA originated from GORKHA, a hilly state in Nepal, where
king Prithivi Narayan Shah originated and he had very strong, loyal,
tough and devoted army, named or called Gurkha and relied on the
contribution of Gurkha army he succeeded in uniting Nepal in one
Kingdom, which was divided into 50 tiny states and Gorkha was one of
them.
‘GORKHA’ IS NOT THE NAME OF A ETHNIC GROUP OR RACE but they are
‘NEPALESE’ recruited as soldier in GURKHA REGIMENT or GORKHA
REGIMENT.
THE NEPALESE RECRUITED AS SOLDIERS ARE DESCRIBED OR NAMED AS “GURKHA”
soldier. UPON INDEPENDENCE OF INDIA IN 1947, THE SPELLING WAS CHANGED
TO “GORKHA” soldier. After separation or retirement from the Regiment
they are, as usual, a Nepali.
Date:
11/08/2008.
Dipak De
[Human Rights Activist;
M.Phil in Human Rights; United Nations on line volunteer on Human
Rights; Member of Amnesty International; in touch with: PWAP, India;
PUCL, India; AHRC, Hongkong]
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