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Secession (article) - part 1 of 2



SECESSION AS AN ETHNIC CONFLICT RESOLUTION :   THE CASE OF  THE SHAN STATES
(Part 1 of 2)

Delivered at the conference - The Implementation of the Right to
Self-Determination as a Contribution to Conflict Prevention - held in
Barcelona from 21 to 27 November. The Conference was sponsored by the
UNESCO and "UNESCO Centre of Catalonia" was responsible for all the
arrangements.

Presented by: Sai Myo Win


1. INTRODUCTION

Generally speaking, the outcomes of implementing the Right to
Self-determination fall roughly into two categories. It could be understood
in a strong or a weak sense. While the strong sense insists that a nation
be given statehood, the weak sense only requires that a nation be given
some form of self-government. Weak national self-determination is thus
compatible with a multinational state in which nations are given some
political autonomy. It is clear that the weak notion of self-determination
can encompass differing degrees of self-determination, including
confederations, federations, consociational democracies, and unitary states
with subnational autonomy - that is, regional parliaments, local
governments and so on.(1)

It is the strong type of outcome, or rather "secession", that has the most
controversial impact on today's global political landscape. Thus, existing
nation-states stonewall developements in this direction, making use of
accepted norms of "non-intervention" and "territorial integrity" to protect
their vested interests in preventing dismemberment of their national
territories. Regardless of such unfavourable conditions, the literature on
self-determination is growing at an alarming rate. This is, of course, due
to a lot of related factors which have been reinforcing and complementing
one another. These are the successful implementation of self-determination
in former Soviet Union, Yugoslavia, Czechoslovakia and so on, which has
helped heightened the flames of ethnic upsurge; the end of the Cold War and
the formation of "New World Order" leading to the reassessment of moral
values, involving accommodation of self-determination; the rising influence
of non-state actors and growing awareness among the general  population
regarding human rights violations around the world; and the accessibility
of  new information technology which are instrumental in keeping the
general public adequately informed.

However, the intention and scope of this paper is a very limited one. The
first purpose is to try to put the argument forward that "secession" or
"ethnic separation" should be regarded as an alternative to coercively
imposed national unity, which would contribute to the resolution of ethnic
conflicts. And secondly, to encourage the United Nations and the
international community to go beyond presently accepted decolonization
procedures based on the "salt water doctrine", so as to be able to
implement a more practical decolonization process to cover the whole
spectrum of colonialism in its truest and fullest sense. And thirdly, to
help solicit the formation of international law, which might be able to
address the right of self-determination, including the right of seccession.
This paper will discuss  selected works of some political scientists with
special regard to theoretical aspects of "secession", which in turn, will
be later used to shed some lights on the self-determination position of the
Shan people.

2. THEORETICAL ASPECTS OF SECESSION


Before beginning theoretical aspects of secession , it will be more
appropriate to briefly  discuss the  working definitions of "nationality",
"right to self-determination" and "secession".

2. 1. NATIONALITY

Defining a "nation" is not an easy task and different interpretations have
been advanced, leading to considerable dispute. However, one very common
and plausible account maintains that a group of individuals constitute a
nation if they define themselves as such and if they share a common culture
and history. (2)

 A more precise definition is found in the Covenant Of The Unrepresented
Nations And Peoples Organization, Article 6(a): A Nation or People shall
mean a group of human beings which posesses the will to be identified as a
nation or people and to determine its common destiny as a nation or people,
and is bound to a common heritage which can be historical, racial, ethnic,
linguistic, cultural, religious or territorial. A section of a people
constituting a minority, living on a portion of its ancestral territory,
incorporated into a State other than a State represented by that People, is
included in this Article´s definition. (3)

The most practical definition of a nation probably is that of the most
eminent  of contemporary students of nationalism, the late Hugh
Seton-Watson, and it resembles that of Renan. Seton-Watson wrote that after
a life time of study he was driven to the conclusion that no `scientific
definition´of a nation can be devised; yet the phenomenon has existed and
exists. A nation exists he says when a significant number of people in a
community consider themselves to form a nation, or behave as if they formed
one. It is not necessary that the whole of the population should so feel,
or so behave, and it is not possible to lay down dogmatically a minimum
proportion of a population which must be so affected. When a significant
group holds this belief, it possesses `national consciousness´. (4)

2. 2. RIGHT TO SELF-DETERMINATION

The right to self-determination is the right of peoples to determine their
own destiny. In particular, the right allows a people to choose its own
political status and to determine its own form of economic, cultural and
social development, free of outside interference. The exercise of this
right can result in a variety of different outcomes ranging from political
independence to forms of autonomy or association to full integration within
a state. (5) Self-determination is an accepted and established human right
and is fundamental to all other rights. (6)

The highest level or the strongest sense of national self-determination is
"secession". A community secedes when it breaks away from its present state
and founds its own independent state. Secession thus involves the creation
of a new state with sovereign jurisdiction over its citizens. (7) 

Various ethnic groups who see themselves as nations seek statehood for a
variety of reasons. They range from a sense of exploitation in the larger
multiethnic state;  the belief that greater prosperity may be obtained by
breaking away from the existing state;  the belief that national
aspirations cannot be fulfilled without statehood;  the need to follow
other ethnic secessions in a disintegrating state; (8) and intolerable
human rights violations and genocide commited by the dominating ethnic
group or groups.

2. 3. THEORIES OF SECESSION

Since it is not possible to include all the theories of secession advanced
by various scholars and political scientists, summarized versions of the
selected works of a few analysts  have been presented to obtain an overview
of the theories of seccession.

2. 3. 1. ALLEN BUCHANAN

According to Allen Buchanan, two basic theories of the right to secede may
be identified as Remedial Right Only Theories and Primary Rights Theories.
While Remedial Rights Only Theories assert that a group has a general right
to secede if and only if it has suffered certain injustices for which
secession is the appropriate remedy, Primary Rights Theories assert that
certain groups have a general right to secede in the absence of any
injustice. Once the focus is aimed at institutions, and hence on the
importance of states, the Primary Rights Theories are deficient according
to the criterion of minimal realism; are not consistent with morally
progressive principles of international law; and create perverse
incentives. By failing to take institutional considerations seriously in
attempting to formulate a right to secede, analysts have produced theories
that do not assist to build a humane and effective response to secessionist
conflicts. (9)

 The Remedial Right Only Theories also allow that there can be special
rights to secede if (a) the state grants a right to secede ( as with the
seccession of Norway from Sweden in 1905), or if (b) the constitution of
the state includes a right to secede ( as does the 1993 Ethiopian
Constitution ), or perhaps if (c) the agreement by which the state was
initially created out of previously independent political units included
the implicit or explicit assumption that secession at a later point was
permissible (as some American Southerners argued was true of the states of
the Union). If any of these three conditions obtain, one can speak of a
special right to secede. (10)

As an advocate for the principle of territorial integrity, Allen Buchanan
sees that it serves two fundamental morally legitimate interests: the
interest in the protection of individual security, rights, and
expectations, and the interest in the integrity of political participation.
(11) But it has to be accompanied with what he termed as "The Morally
Progressive Interpretation of the Principle of Territorial Integrity", as
opposed to an "absolutist" interpretation of this principle. While an
absolutist interpretation makes no distinction between legitimate and
illegitimate states, extending protection to all existing states, the
progressive interpretation applies only to legitimate states. States are
not legitimate if they (a) threaten the lives of significant portions of
their populations by a policy of ethnic or religious persecution, or if
they (b) exhibit institutional racism that deprives a substantial propotion
of the population of basic economic and political rights. Clearly, an
absolutist interpretation, which has little to recommend it, is inferior to
the progressive interpretation (12)

2. 3. 2. DARREL MOELLENDORF

>From the perspective of the demands placed upon the state, the most extreme
form of self-determination is secession. A claim to self-determination
through secession is a claim both to a separate sovereign legal structure
which would carry out the governance of a new state and to some territory
upon which the state would exist.

 Darrel Moellendorf argued that a prima facie right to secede is defensible
on liberal grounds, and this is not just a remedial right, but it is
constrained by other considerations of justice. The interest of individuals
in being governed by  state structures to which they consent and the value
of one´s cultural membership together make up the basis for the
justification of the right of nations to secede. (13)

 Addressing the question of the right to secede  requires invoking a second
value in addition to the consent of the governed. This is the value of
cultural membership. According to Will Kymlicka, the liberals should
recognize cultural membership as a primary good. His argument involves two
main claims. The first is that in addition to the pursuit of one´s
conception of the good, liberals usually recognize the fundamental value of
the ability to revise rationally one´s conception of the good. The ability
to revise rationally one´s conception of the good has traditionally been
seen by liberals to require the freedom of speech and association as well
as a liberal education which provides the requisite information and
psychological capabilities.

 Kymlicka´s second claim is that in order for individuals to make rational
revisions in their life plans, they require not only freedoms and
education, but also a context in which life options have meaning to them.
This context is the cultural structure in which ways of life get presented
to them. Such a cultural context is then a necessary condition for a
fundamental value of liberalism. In addition Kymlicka argues that one´s own
culture is important because cultural structures are not easily replaced.
(14) If a segment of a nation no longer wished to be governed by the
current state, and if that segment did not have the right to secede, then
the members of that segment would be unable to satisfy both their interest
in being governed by a state to which they consent and in maintaining their
culture. (15)

However, in justifying and implementing the right to secede, the legitimate
security and material interests of the citizens left behind must be
enumerated. These include the following:
1) the security of the state before hostile forces;
2) the legitimate claims of the state to resources; and
3) the legitimate claims of the citizens of the state to distributed
resources.
In addition, those residing in the territory claimed by the seceding nation
must be assured that their rights are secure. These include the following:
4) the human rights of the residents of the area claimed by the new state; and
5) the equal political rights and privileges of all citizens, including
national minorities, in the new state. (16)

2. 3. 3. SIMON CANEY

The central claim advanced by Simon Caney is that the national
self-determination and secession are legitimate because and to the extent
they promote the well-being of the members of a nation. (17) The argument
makes three claims:
1) Political institutions that further people´s well-being are pro valuable.
2) An individual´s membership of a nation furthers his or her well-being.
3) A nation state can best further a nation´s culture.
Therefore, national self-determination is valuable. (18)

The first claim that a political arrangment that furthers people's
well-being is valuabale is plausible. People clearly care about their
well-being and their quality of life and generally on this basis it would
be implausible to devise a political system that fails to promote this
important concern.(19)

The second one is more controversial. The claim that a person's membership
of a nation furthers their well-being is, however, supported by two
considerations. First, as Will Kymlicka has emphasized in much of his work,
individual freedom requires that individuals have a choice of different
conceptions of good to pursue and this, in turn, requires a culture which
instantiates an array of conceptions of the good. Individual choice thus
requires the existence of a rich and varied culture. Furthermore, for most
people this role is played by their national culture.(20) Thus, as Avishai
Margalit and Joseph Raz argue, members of a nation draw on their culture to
select ways of life instantiated in that culture. A national culture is
therefore an important source of conceptions of good. (21) Secondly, one
can plausibly argue that belonging to a community is one element of a
fulfilling life. We all value being a part of a community and for many
people membership of a nation is an important source of well-being. They
take pride in the achievements of their nation and wish to see their nation
flourish. This might involve anything from supporting their nation's music,
literature, poetry, sport and pastimes and/or protecting their historic
monuments and countryside. For both these reasons, then, national cultures
further people's well-being. (22)

The third claim is that self-governing nations are best suited to promote
national cultures. This is also supported by two arguments. First, as
Margalit and Raz  point out, national self-government is defensible on
instrumental grounds as the institutional framework most likely to promote
the interests people have in their national culture.(23) The reasoning
underlying this claim was that, unlike multinational states, nation-states
have both the incentive and the ability to foster their nation's culture
and heritage. Members of a nation are more concerned than outsiders to
further their own culture and consequently politicians in a nation-state
will have a greater incentive to promote that nation's culture than would
politicians in a multinational state in which that nation is a minority. In
addition, because they have political autonomy they can implement political
measures to protect their national cultures : they can thus use public
subsidies to support their national heritage or, like the French state, can
protect their cinema industry and media from being dominated by American
imports.(24)

The intrinsic argument also supports the third claim, where the promotion
of a national identity necessitates its embodiment in political
institutions. A nation-state has symbolic importance for a national culture
which a multinational state cannot provide. (25) The value to people of a
political recognition of their identity can be tremendously important. Thus
both the instrumental and the intrinsic arguments provide support for the
claim that national self-government best promotes a nation's culture and
way of life. (26)

To sum up: the "well-being" argument maintains that a person's membership
of a nation furthers their well-being (providing a menu of choices and
being a component in many people's well-being) and it also maintains that
national self-determination is required in order to promote national
cultures. Hence, national self-determination is valuable. (27)

However, to justify the secession of nations from multinational states,
other values and moral claims of other people have to be taken into
account. It suggests that any plausible account of national secession must
contain two types of precondition.
1) An internal constraint : the new state must treat its citizen justly.
This requires, for example, that it respects the political and economic
rights of the minorities within it.
2) An external constraint : the new state must also honour its
international obligations and thus treat non-citizens justly.This condition
has two implications. First, is to honour the rights of stateless persons
and citizens of other states and observe international principles of
distributive justice, in order to gain legitimacy of national secession.
Secondly, national seccession may be illegitimate if its occurence would
destabilize other just political arrangements.(28)

 2. 3. 4.  JAN TULLBERG & BIRGITTA S. TULLBERG

They argue that ethnic separation should be regarded as an alternative to
national unity, and not simply dismissed as impossible. A decision on
separation or unity should be made democratically by the group whose
separation has been proposed. (29)

An inability to distiguish between the two opposed principles of
internationalism and ethnic separatism would be less serious if it were not
closely coupled to the problem of war and peace. As many brewing conflicts
have an ethnic basis, the lack of a consistent moral approach to this
problem is serious indeed. Since the end of World War II, between 7 and 16
million people have been killed in ethnic conflicts (Gurr and Harff, 1988).
Why the deficiency exists is easy to explain: in the absence of safe and
simple solutions, it is tempting to fall back on a disguised opportunistic
flexibility - i.e., we lend full support to diametrically opposed
principles, and then jump back and forth between them. (30)

A great drawback of the separatist concept is that it rarely advances a
viable solution to the problem it addresses. The dissatisfied minority
ceases to be a minority in the new state, yet new minorities arise, showing
that the essential dilemma has been resolved only in the eyes of extreme
optimists. When it comes to carving regions out of the old state,
separatism always has high hopes. However, since the seccessionist movement
will strive to incorporate as many of its supporters as possible, few from
the old minority group are likely to end up on the wrong side of the new
border, but many from the old majority group probably will. This is
especially likely because majority groups frequently migrate into a
minority's historical homeland, and historical borders play a key role when
a new state is formed.

Thus, separation recreates the old problem with reversed roles : the new
state inherits a significant minority from the old majority group. Serbs
number more than half a million in Croatia and 1.5 million in
Bosnia-Herzegovina, and there are 25 million Russians outside Russia. If
separatism is to solve the problems it claims to cope with, its perspective
must be adjusted. The sacredness of a given border is seldom obvious. Since
both the former border and the new "rightful" one are the result of
coercion and war, strong grounds for changing the status quo are required.
As with any change, a qualitative improvement should be demanded to justify
the cost and trouble involved. (31)

A separatist solution is analogous to a divorce. As warmly as we advocate
living in harmony and mutual respect, a breakdown in pratice means that it
is presumably better to divide the domain than to endure unity dominated by
conflict. Like a private household, national property is then a stumbling
block to be divided. Under present day procedures, separatists typically
receive either nothing or too much. The majority group does not necessarily
lose by getting a smaller country - it gains if a long term, peaceful
solution is established, in which it avoids the problem of a (rightly or
not) disaffected minority. Despite the loss of territory, then, both states
may actually benefit by having a united population. Even if a border is
drawn as proposed above, some people will find themselves on the wrong side
of it. A model to solve this problem could consist of three principles:
° each state is responsible for accepting people of its own nationality;
° each state is entitled to evict members of the other group; and
° each individual may emigrate to the "right" state. (32)

As for deciding upon separation, a simple majority democratic judgement
should not be considered sufficient. This decision is fundamental, and
therefore deserves a two-third majority, as is required for constitutional
amendments in many countries. By the anology with divorce, it should also
be enough that one of the parties wants out. (33)


2. 3. 5. ARGUMENTS FOR AND AGAINST SECESSION

To sum up : Arguments have been advanced for and against the right of
seccession on moral grounds. (34) Secession may be morally justified to
protect liberty; to escape severe economic exploitation; to preserve one's
culture when it is in danger of being eliminated; to serve as an instrument
of self-defense against state-organized violence against the ethnic group;
and to rectify an unjustified or illegal annexation. It may also be
justified because there is inherent merit in the right of ethnic groups to
exercise self-determination.

 Conversely, secession may be opposed on moral grounds to protect the
legitimate expectations of the rest of the people, which may be jeopardized
by the seccession of one group; to provide self-defense if secession makes
the remnant state economically nonviable; to protect the principle of
majority rule, which may be jeopardized if those who do not agree are
allowed to secede; to preserve a state in which there has been no serious
political or civil violation of a minority group; to prevent anarchy
through the domino effect, whereby the entire state may unravel; to prevent
the seceding territory from wrongfully bolting with the heavy central
government investments in the region; and to ensure that the haves who
simply wish to separate themselves from the have-nots for no other reason
than that they are rich and the rest are poor do not do so. (35)

3. SECESSION : THE SHAN STATES AS A CASE STUDY

Before proceeding with the right of secession with a special focus on the
Shan States, it will be more appropriate to briefly look into its
historical background. Although the claims of self-determination encompass
all the ethnic groups, including the Shans, which are part and parcel of
the present day multiethnic state, Burma or Myanmar, as the ruling military
regime likes it to be known, the aim of this paper as stated from the
outset is to highlight the secession issue of the Shan States. As such, the
relating claims of other ethnic groups will only be discussed generally
within the framework of the right to self-determination as a whole without
exhaustive indepth study. The reason for choosing the Shan States is only
due to familiarity and accessibility of related documents, to this writer.

3. 1. HISTORICAL BACKGROUND

The Shan States is situated in the north-eastern part of Burma, bordering
China, Laos, Thailand and the Karenni State. It lies at an average of 2,000
feet above sea level and the hightest point, Mount Loilaeng, is 8,777 feet.
It covers a surface of 62,500 square miles (160,000 square km). Bisected
north to south by the Salween river, the Shan States is composed of broad
valleys and pine and evergreen forests. 

The population is estimated at 7 - 8 million, the majority of whom are Tai.
The spoken languages are Shan mainly, but also English and Burmese.
Theravada Buddhism is the predominant religion, although Hinduism,
Christianity, Islam and animism flourish too. The main agricultural
products are: rice, tea, tobacco, vegetables and opium. Rich also in
mineral resources and abundant in timber, the Shan States has the potential
for a self-sufficient economy.

The history of the Shan people goes back to 650 BC, when they are said to
have migrated from China to present day Burma and the Shan States. By the
end of the 13th century, the Shan ruled all of Burma (then called Ava
Kingdom) and by mid-14th century they had created an empire which stretched
to Yunan of China in the north, Tenasserim of Burma in the south, Assam of
India in the west and parts of Laos and Thailand in the east.

At the end of the 16th century, the Shan kingdom declined. Even so, the
Shan had been recognized by both the Chinese and Burmese as a separate
entity. In 1887, the Shan States became a British protectorate. In 1922,
the Shan were granted a distinct status and the ?Federated Shan States"
were established by the British rulers.

The historic Panglong Agreement in 1947 between Burma and the Shan States
paved the way for the "Union of Burma Constitution", which followed their
joint independence from the British in 1948. The "Federated Shan States"
became "Shan State" when the Union with Burma was formed. And it reverted
to its old name when Burma's generals staged a coup and abolished the Union
Constitution and occupied the Shan States in 1962. Since then, the Shans
have been waging a resistance movement against Burmese military oppression
and for self-determination (36)

3. 2. TERRITORIAL RIGHTS

If historical claims coupled with centuries of continuous settlement within
recognized boundary could be accepted as territorial rights of a people,
the Shans definitely have an undisputable claim to the mass of land which
is presently called the Shan States.

According to historians, the (Tai) Shans lived as an independent people,
south of Yangtse river in China, round about 650 B.C. Certain descendants
of those (Tai) Shan people are said to have migrated into Burma and Shan
State.Their kin, descended from the same ancestors, now inhabit northern
Assam, Yunan, Laos, Cambodia and Thailand. The (Tai) Shan people had been
gradually pushed south, at about the start of the Christian Era by the
advance of the Tartars. About 650 A.D. the (Tai) Shan people established
the famous Nanchao empire. During the years 736 to 754 A.D. the Nancho
(Tai) Shans extended their rule into the upper basin of the Irrawaddy River
and came into contact with the (Pyu) who were then rulers of the Upper
Burma plains. In around 1253 the Kingdom fell into the hands of the
Chinese. The Shans unwilling to live under foreign domination, moved
towards the south in strength, to seek freedom. They joined up with Shans
already in the area, and in 1262 took over Chiengrai, in 1296 Chiengmai and
in 1351 took Ayuddhya, and established their own kingdoms. In Upper Burma
the Shans established the kingdoms of (Mong Kawng) Mogaung and (Mong Yang)
Mohnyin, and in the Shweli basin, the Mao Kingdom. (37)

Thus, it is fair to conclude that the Shans have inhabited the area called
Shan States, since time immemorial and are the legitimate and rightful
owners of the territory.

3. 3. THE PEOPLE OF SHAN STATES AND THE SHAN NATION


In defining the term "people", the United Nations Education, Scientific and
Culture Organization (UNESCO) and the Unrepresented Nations and Peoples
Organization (UNPO) are almost identical. In 1990, the UNESCO-mandated
committee of experts came out with a definition in its final report of a
people as "a group of individuals which enjoy some or all of the following
common features:
(a) a common history;
(b) racial or ethnic identity;
(c) cultural homogeneity,
(d) linguistic unity,
(e) religious or ideological affinity,
(f) territorial connection,
(g) common economic life."(38)

Furthermore, the UNESCO report also shares the UNPO position that "the
group as a whole must have the will to be identified as a people or the
conciousness of being a people."(39)

The Shans satisfy most of the criteria mentioned above, which have long
been accepted norms by the international establishment. The most crucial
and indispensible characteristic, perhaps, is their consciousness of their
own identity and their assertiveness of the will to exist. Moreover, if the
Thais and Laos, who stem from the same ancestor as the Tais or Shans,
migrated to the south and formed respective countries, and could be termed
as nations and peoples, there is no reason to leave out the Shans or Tais
as a nation and people, and they should be accepted as such. 

3. 4. AN INDEPENDENT STATE UNDER MILITARY OCCUPATION

The country we all know as Burma or Myanmar, as termed by the Burmese
military regime, is a country made up of at least three countries, namely:
Burma Proper, Karenni State and Shan States. The Shan and the Karenni
joined Burma in their struggle for self-determination from the British and
jointly attained independence on January 4, 1948.

However,  in 1962 the Burmese military sized state power in a coup and
declared the Union Constitution abolished. In so doing, the Burmese
terminated the only existing legal bond between them and the other ethnic
nationalities. The declaration of the suspension of the Constitution was in
effect a self denunciation that Burma had overnight become an
aggressor-nation instead of partner. Thus, in a legal-constitutional sense,
the Union of Burma ceased to exist. (40)

The Burmese military regime has been attempting to hold the defunct union
together by sheer military force, whilst the real and only solution is
political. The Shan and the Karenni on their part have been waging a war of
resistance to free themselves from the yoke of Burmese domination. This is
also true for all the other non-Burman ethnic groups, who are being
subjected to the Burmese military's Burmanization and forced assimilation.
The significant difference is that  the Shan and Karenni conflict with the
Burmese military could be argued as "international", due to the fact that
the Shan and Karenni joined the Union of Burma on an equal political
footing, whereby both nations were constitutionally granted or enjoyed the
right to secede after a trial period of ten years following the attainment
of joint-independence from the British.