Introduction

On 10^th September 2023, hundreds of Sikhs lined up in the town of Surrey, British Columbia, Canada to cast their vote towards the “Khalistan” Referendum, a voting exercise that is being organised across several countries by the US-based Sikhs for Justice (SfJ) organisation seeking to create an independent Sikh homeland in northern India called Khalistan. As per a spokesperson for SfJ, the group intends to bring the results to the UN to garner support for Sikh self-determination on the basis of religion and language. Given the prominence of self-determination as a right conferred upon all peoples as a jus cogens norm in international law, the SfJ’s cause seems noble on the surface. However, a look behind the curtain reveals a deliberate misinterpretation of the meaning of self-determination and the actual right it bestows.

Origin & Evolution of the Right to Self-Determination

As per celebrated legal scholar Yoram Dinstein, self-determination means that “every people is entitled to determine freely its future course.” After World War II, the promotion of self-determination among colonized peoples became one of the chief goals of the United Nations. The Charter of the UN in its Article 1(2) specifically mentions ‘self-determination’ to be a measure strengthening universal peace. The sentiment is repeated in Article 2 of the UN Declaration on the Granting of Independence to Colonial Countries and Peoples as well as in Article 1 of both the ICCPR and the ICESCR among others.

The right to self-determination has undergone a steady progression in international legal jurisprudence. Within the decolonization paradigm, it was widely accepted that colonized peoples did not possess governments representative of their interests and the principle of self-determination was interpreted in that context as entailing the right to separate or secede from the colonizer and form a new independent state. Such self-determination is referred to as “external” self-determination.

Outside of the decolonization paradigm, the principle has typically been interpreted to entail internal autonomy for the relevant people within an existing mother state; the right to form a representative regional parliament, elect government officials, as well as the respect of other non-political minority rights. Many in the international community argue that outside of the decolonization paradigm, peoples only have internal self-determination rights.

Nonetheless, external self-determination has occurred outside of the decolonization context and is supported by some scholars in limited circumstances. This view recognizes that in instances of extreme persecution or non-representation of the interests by the mother state, a non-colonized people ought to be able to exercise external self-determination through remedial secession. Illustrations include exceptional situations like in Bangladesh, Eritrea or Kosovo where external self-determination was recognised due to large scale human rights abuse being suffered by the “peoples” subjugated.

The SfJ’s demand for “protection for Sikhs from human rights abuse by India” strongly suggests a want for remedial secession through external self-determination. In furtherance of this want, a unilateral referendum showcasing a huge majority of the people polled wanting an independent Sikh State might not be a zero-sum game.

Referenda as a Means to External Self-Determination

The power of unilateral referenda in terms of their sociological legitimacy cannot be denied. Such unilateral referenda may prove to be a strong strategic tool in the hands of groups seeking legitimacy for their cause. These referenda may influence the decisions and behaviour of states, the international community and the judiciary, despite lacking the vital element of enforcement due to the absence of the formal agreement of the parties.

The case of the Aaland Islands is a seminal example. Post Finnish independence, residents of the Aaland Islands submitted two petitions to the Swedish King demanding their adhesion to Sweden. Given the transformative stage the state of Finland found itself in at the time, an International Committee of Jurists found that the petitions brought the principle of self-determination into play and concluded that the dispute could not be left by international law to the sole jurisdiction of Finland.

All this is to say that a true reflection of self-determination of the Punjabi “people” could potentially have had a legitimizing role for the Khalistani cause in sociological terms. It may even have been considered within a process of “persuasion through arguments” to justify a new title to territory. This attempt at securing legitimacy fails completely however due to its non-compliance with a condition sine qua non for the exercise of self-determination, i.e., the conferment of the right to “all peoples.”

Misinterpretation of the Right to Self-Determination

As Yoram Dinstein opined, “the right of self-determination is conferred in “all” peoples and not merely on some peoples in non-self-governing territory.” The SfJ’s “referendum” exclusively polls Punjabi diaspora for their vote on the creation of Punjab as separate nation-state. Not a single person in the physical territory of Punjab has participated in such referendum seeking to create a nation on the land where Punjab sits currently. Furthermore, given the SfJ’s ban on Indian territory having been accused of supporting violent extremism, no Punjabi residing in Punjab is likely to get to participate in such a referendum anytime in the near future.

This fact alone completely negates any politico-legal value that this referendum may hold. Without a consensus of “all” people forming stakeholders to the cause, the referendum is null and void and its results unrecognisable to India, Canada or international law. As professor James Crawford once proclaimed, “we may conclude that an entity may not claim statehood, if its creation is in violation of an applicable right to self-determination.” A parallel illustrating the necessity for procedural legitimacy in referenda may be drawn with the unilateral declaration of independence made based on the result of such a referendum by the white-minority government in Southern Rhodesia. The referendum on the constitution was declared as invalid by the UN, because as Colin Warbrick noted, “the illegality stemmed from the fact that it had been established without the consent of the people of the territory as a whole.”

The author, Manik Arora, is a final year Law student at Symbiosis Law School, Pune, India. He holds an ardent interest in the study of International Law and aims to complete Graduate studies in the subject.

Read more on Asian law topics in the Asian Journal of International Law.