At the seminar entitled "Self-determination and Patani Peace" at Prince of Songkla University in Pattani on June 7, mock referendum ballots were distributed to the attendants to explore the possibility for a referendum for a "Patani State", or the secession of Yala, Pattani, Narathiwat and four districts of Songkhla -- the population of which are predominantly Muslims -- from the rest of Thailand.
Apart from the sensitive question of whether the time is now rife for such a referendum, "self-determination" needs to be correctly understood.
The right to self-determination is the right of peoples to freely determine their political status, and freely pursue their economic, social and cultural development. It is consecrated in the UN Charter, the 1966 International Covenant on Civil and Political Rights (ICCPR) and the 1966 International Covenant on Economic, Social and Cultural Rights (ICESCR), all of which are legally binding in Thailand.
However, international practice has clarified -- through the UN General Assembly Resolution on Friendly Relations of 1970, the Helsinki Final Act adopted in 1975 by the Conference on Security and Cooperation in Europe and the Vienna Declaration and Programme of Action adopted by the World Conference on Human Rights on June 25, 1993 -- that this right is aimed at ending Western colonialism while prohibiting, beyond the decolonisation context, any attempt to disrupt the national unity and territorial integrity of a state or country or its political independence.
Thailand has declared that the term "self-determination" in the ICCPR and the ICESCR shall be interpreted as being compatible with that expressed in the 1993 Vienna Declaration.
Paragraph two of the Vienna Declaration adds to the 1970 Declaration and the 1975 Final Act the qualification that the territorial integrity or political unity to be safeguarded is that of "independent states conducting themselves in compliance with the principle of equal rights and the self-determination of peoples and thus possessed of a government representing the whole people belonging to the territory without distinction of any kind".
This condition has been interpreted by Canada's Supreme Court regarding the secession of Quebec in 1998 and elaborated in the separate opinions of two judges of the International Court of Justice in its advisory opinion in 2010 on the Accordance with International Law of the Unilateral Declaration of Independence in Respect of Kosovo, as follows. The right to self-determination only generates, at best, a right to "external self-determination" in situations of former colonies; where a people is oppressed, as for example under foreign military occupation; or where a definable group is denied meaningful access to government to pursue their political, economic, social and cultural development in the exercise of their "internal self-determination".
After the end of Western colonialism, self-determination in cases of foreign military conquest happened in Asia when Kuwait was liberated from Iraq in 1991 and East Timor from Indonesia in 1999. In Africa, Eritrea became an independent sovereign state in 1993 after winning the war of resistance to Ethiopia's annexation of Eritrea from Sept 1, 1961 to May 24, 1991.
Self-determination because of dissolution of a sovereign state took place when the Soviet Union dissolved and Czechoslovakia was split into the Czech Republic and Slovakia. In the early 1990s, constituent republics of the Socialist Republic of Yugoslavia disintegrated to become Bosnia and Herzegovina, Croatia, Macedonia, Montenegro, Serbia and Slovenia.
Beyond the cases just mentioned, modern-day secession has been successful only in three cases -- Bangladesh in 1971, Kosovo in 2008 and South Sudan in 2011.
The 1971 independence of Bangladesh that seceded from Pakistan was unique in many ways. Bangladesh, then called East Pakistan, inhabited mostly by ethnic Bengalis, was separated from Pakistan geographically by thousands of kilometres of India's territory and had never been linked in any way to Pakistan, except they were both under British rule. Pakistan's disregard of the result of the December 1970 general elections that gave the East Pakistan-based Awami League an overwhelming mandate for the autonomy of East Pakistan and Pakistan's brutal suppression of the separatist Bengali nationalist movement in East Pakistan, to the extent that it was allegedly tantamount to genocide, led to the military intervention and subsequent victory by India against Pakistan.
In February 2008, Kosovo unilaterally declared its independence from Serbia. This was the unfinished disintegration of the former Yugoslavia, followed by the emergence of the Kosovo Liberation Army in 1997 to secure Kosovo's outright independence, the use of force by Nato in 1999 to stop Serbia's widespread ethnic cleansing against Kosovo's ethnic Albanian population which accounted for 93% of Kosovo's population and the deadlock faced by the UN in finding a mutually acceptable solution to the status of Kosovo vis-à-vis Serbia. Interestingly, Thailand is one the 101 states that have formally recognised Kosovo's independence.
South Sudan gained independence on July 9, 2011, following civil wars in Sudan from 1955 to 1972 and 1983 to 2005, the latter resulting in a peace agreement giving the south an autonomy for six years, followed by the referendum in January 2011 that overwhelmingly approved the south's independence from Sudan.
The situations in Thailand's southernmost border provinces are far below the threshold for external self-determination. Notwithstanding with and as a precaution, Thailand should address grievances in its southernmost provinces and authorities must fulfil Thailand's international legal obligations as stipulated in human rights treaties to which Thailand is a party, such as the ICCPR, the ICESCR and the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment.
Thailand cannot invoke its internal law as justification for its failure to perform these treaty obligations. Besides, law enforcement authorities have to abide by the rules of engagement in law enforcement operations as codified in the 1990 UN Basic Principles on the Use of Force and Firearms by Law Enforcement Officials.
Kriangsak Kittichaisaree is a former ambassador of Thailand, a former chairman of the UN General Assembly's Working Group on the Administration of Justice at the United Nations and a Visiting Fellow at the University of Oxford. Self-determination is a topic covered in his forthcoming book 'War and Peace in Asia'.
