SECESSION AS AN ETHNIC CONFLICT RESOLUTION

SECESSION AS AN ETHNIC CONFLICT RESOLUTION : THE CASE OF THE SHAN STATES

Presented by: Sai Wansai

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.

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)

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.

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)

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.
4. In addition, those residing in the territory claimed by the seceding nation must be assured that their rights are secure. These include the following:
5. the human rights of the residents of the area claimed by the new state; and
6. the equal political rights and privileges of all citizens, including national minorities, in the new state. (16)

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)

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)

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)

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 13^th century, the Shan ruled all of Burma (then called Ava Kingdom) and by mid-14^th 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 16^th 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)

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.

1. a common history;
2. racial or ethnic identity;
3. cultural homogeneity,
4. linguistic unity,
5. religious or ideological affinity,
6. territorial connection,
7. 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.

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.

Ultimately, the struggle for independence, for self-rule – for the right of a people to be a master of it own destiny – is the struggle for human rights. Let us therefore remember that while human rights begin with independence, they do not end there. It is the solem duty of all new nations – whether in Africa or Asia – to honour their independence by rewarding their peoples with genuine human rights for all, including the right to development and all civil and political rights. (41)

The issue of the legitimacy of the states and governments is outlined in the UNPO Statement On Self-Determination as below:-

States exist for the sole purpose of fulfilling three fundamental tasks: 1) to protect the population of the state; 2) to promote the economic , social and cultural welfare of that population; and 3) to represent the interest of that population externally, that is, internationally.

Where a state, or its government, does not fulfill these functions over a period of time, but instead represses or even kills the people it is supposed to protect; destroys their culture, economically exploits them; or represents other interests other then those of the people, then that state or government lacks legitimacy in respect of the whole population of the state or that section of population which it oppresses. (42)

The right to secede is beautifully expressed by J. M. Mukhi in his speech titled: The Right to Self-determination and International Responsibility.

There has been debate and discussion as to what is the ambit of this phrase: "the right to self-determination". Does it include the right to secede? Of course it does. There is a god-given right to secede. A people remain in political association, whether a confederation, a federation or a unitary state, by consent and under certain basic assumptions. When these assumptions are belied, when they are subject to tyranny, to intolerable treatment, of course they are entitled to break free. (43)

In this connection, it is imperative to highlight the atrocities and human rights abuses of the Burmese military regime in the Shan States, which in turn, will illuminate the illegitimacy of its rule.

The Burmese military is one of the most notorious regime still in power and its atrocities and human rights abuses have gained so much attention that international bodies such as the United Nations, the International Labour Organization and European Union have been condemning it on a regular routine basis, year in and year out. The Burmese military regime on its part has become so accustomed to such condemnations that it neither cares nor does anything to improve its human rights violations‘ records. Instead, it goes on with its regular routine of ethnic suppression and crime against humanity, which seems to be the only policy it can think of to maintain power. It will, of course, be impossible to list its wrong-doings in this short presentation. Thus, only a summarized version of the regime’s human rights abuses within the Shan States is presented here, although it is by no means the only ethnic group that has to bear the brunt of the Burmese military’s atrocities in an area known to the world at large as Burma.

Population displacement and forced relocation in the Shan States are not new. They have been common occurrences since the Burmese Army first came to the Shan States in 1950 on the pretext of driving away the Chinese Nationalist (KMT) Kuomintang, who were pushed into Shan States from Yunan Province of China by Mao Tse Tung's troops. All kinds of human rights violations were committed by both the Burmese Army and the KMT alike.

The situation became worse after the military seized power in 1962 and resistance forces sprang up all over Shan States. In their attempts to crush the forces of the opposition, one of the strategies of the Burmese Army has been the "Four Cuts" operation aimed at cutting the food, funds, intelligence and recruits provided by local villagers to the resistance armies. This often involved forcing whole village tracts to move to strategic sites which could be closely guarded. Throughout the past thirty years, large areas of Shan States have been repeatedly disrupted in this way. However, the massive forced relocation begun by the (SLORC) State Law and Order Restoration Council in the Central Shan States in 1996 and continuing up to this day is totally unprecedented in scale.

Since March 1996, the Burmese military regime has forcibly relocated over 1,400 villages throughout 7,000 square miles in Central Shan States. Over 300,000 people have been ordered to move at gunpoint into strategic relocation sites. No assistance has been provided to them.

The relocation program has intensified during 1997 and 1998, with new areas being forced to relocate, and existing relocation sites being forced to move again. Vast rural area of 11 townships have been turned into depopulated "free-fire" zones.

During 1997 there was a sharp increase in the number of extrajudicial killings by the regime’s troops, with repeated massacres of villagers caught outside the relocation sites. In one township alone, ( SHRF) Shan Human Rights Foundation has documented the killings of over 300 relocated villagers.

The villagers in the relocation sites are used for forced labour by the junta’s troops. They must work as porters, build roads, and perform tasks such as digging ditches or building fences at the nearby military camps without food or pay.

As a result of the relocations and the attendant human rights violations by the Burmese military against the Shan villagers, some 80,000 of them have fled to Thailand. (44)

Apart from all such abuses, the Burmese military regime is employing a special tool of war against non-Burman ethnic populations : the rape of non-Burman ethnic women.

The UN Special Rapporteur on Burma stated in January, 1998 that Burmese troops have been abucting "increasing numbers of women , including young girls and the elderly" who have become victims of rape and other abuses. Based on his report, the UN Commission on Human Rights Resolution on Burma of April 1998 expressed "deep concern" about violations against women in Burma, "in particular forced labour, sexual violence and exploitation, including rape."

The Shan village of Kaeng Kham in Kunhing was rocked by this epidemic of military rape. According to a 1996 Shan Human Rights Foundation report, sexual attacks at Kaeng Kham village often occurred at night after the village men left for work at a local logging company. The highly specific report states that : "A platoon of troops from LIB 519, led by Sergeant Hla Phyu are stationed at Kaeng Kham village. At night, while the men were away, Sergeant Hla Phyu and his men repeatedly raped the women, going from house to house. Every adult women in this small village has been raped."

A 1997 Shan Human Rights Foundation report documents the mass murder of dozens of Shan women and girls after being gang raped by Burmese soldiers. According to the report, on September 15, 1997, 120 troops led by Captain Htun Mya found 42 women and 57 men hiding in the forest in Kunhing township. The troops gang-raped all the women for two days and two nights. After that, all the 99 villagers were reportedly killed by the soldiers.(45)

In July 1998, a commission of the International Labour Organization concluded after a year long study that Burma’s regime –in particular its military – engages in forced labour on a massive scale. This "gross denial of human rights" involves pressing women and children to walk ahead through suspected minefields, build roads and perform other dangerous and unpaid tasks. Resistance is met with torture, rape, beatings and murder. (46)

The Burmese military has been trying to achieve its policies of "Burmanization", coupled with "ethnic cleansing" and "forced assimilation" by making life unbearable for the Shan people. This involves all kinds of harassment: violation of all their rights (including livelihood and means of sustenance), the systematic employment of terror, the encouragement of lawless behaviour of the Burmese armed forces and the killing of individuals and most commonly the mistreatment of women (rape) so as to humiliate the men and psychologically scar the children.

If the human rights abuses and atrocities committed by the Burmese military regime could be seen as injustice and thus should be given the right to secede, according to almost all theorecticians of secession, including Allen Buchanan’s Remedial Rights Only Theories and J. M. Mukhi’s god-given right to secede, then the Shan has every right to opt for separation from the now defunct Union of Burma.

1. The Shan States has been the ancestral home of the Shan people from time immemorial.
2. It is a separate and distinct political, national and cultural entity throughout history; and into the present.
3. On the 11^th February 1947, it was unanimously decided by all the Saophas and representatives of the people of the Shan States held in Panglong that the Shan National Day be celebrated on the 7^th February every year (47)
4. The Shan States entered into political union with Burma on an equal footing, under a treaty, the Panglong Agreement in 1947. The fact that there was a treaty signed between the Shan States and Burma underlines and emphazises the Sovereignty of the Shan States and its people.(48)
5. The 1948 independence granted by the British was in effect a joint-independence by Shans and the Burmese. Co-independence was understood by all parties, including Burman leaders, as being the key operative word.
6. The 1952 martial law proclamation and the Burmese troops' invasion ostensibily to fight the Kuomintang invaders but actually to subjugate the Shan States, is naked aggression by one nation against another, which is still in process.
7. The 1961 federal reform movement, spearheaded and proposed by the Shan State Government and supported by all other nationalities, is in effect the last legal effort and political solution, to ward off the growing ethnic conflicts between the Burmans and non-Burmans by introducing amendments to the Union Constitution which was federal only in form but unitary in practice.
8. The unilateral action of the Burmese military regime in abolishing the Constitution of the Union of Burma in 1962, automatically frees the Shan States and the Shan people from all contractual obligations, both legal and constitutional, to that union.
9. Since then, the conflict in Shan States may be defined as international, rather than purely domestic or internal.
10. The ongoing gross human rights violations, forced relocations, forced assimilations and genocides perpetrated by the Burmese military regime are crimes against humanity.

Given such circumstances, the Shan States has no other choice than to strive for self-determination to preserve its national identity and to realize the well-being of the Shan people.

Futhermore, judging the Shan’s right of secession from theorectical point of view, the following assessments could be made.

1. The Shan’s secession case is identical with the Remedial Rights Only Theories advocated by Simon Caney, for the Shan have suffered injustices at the hands of their occupiers and thus, is entitled to secession which is the appropriate remedy. The clear evidence of human rights abuses and atrocities committed by the Burmese military regime inflicted upon the Shan populace is there for all to see.
2. The Shan case is also in line with the special rights to secede, within the context of Remedial Rights Only Theories. The Constitution of Union of Burma includes the right of secession for the Shan, after a trial period of ten years, which has been denied by successive Burmese governments. Thus, to rectify the unjustified illegal annexation, the Shan States has the right to opt for secession.
3. The consent of the governed and the value of one’s cultural membership advanced by Darrel Moellendorf, and the well-being argument of Simon Caney center around cultural identity and national self-determination. Accordingly, the suppression of cultural identity of the Shan people contradict directly with the consent of the governed and a set of their cultural values.It is clear that the present multinational state structure of Burma, together with its ethnic suppression policy, is in no way plausible for the Shan cultural identity to flourish. Thus seccession of the Shan States could be justified on moral grounds to protect liberty, to escape severe economic exploitation, to preserve its culture of being eliminated and to serve as an instrument of self-defense against the violence of Burmese occupying forces.
4. Judging from the armed and political resistances of the Shan people from 1957 to the present day and the (SNLD) Shan Nationalities League for Democracy’s attainment of the majority vote within the Shan States in 1990, (the only election held after the 1962 military coup) but still being refused their right to exercise political power by the ruling Burmese military regime, one can conclude that the Shan want political divorce. Furthermore, the decision on separation or unity could still be made democratically, as advanced by Tullberg, under the auspices of United Nations or international community

However, while most of the people would readily agree to the argument of the Shan’s secession issue morally and theorectically, substantial and practical help has still been lacking, as is the case of each and every non-state nation struggling to gain international recognition.

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.

Taking into account the particular situation of peoples under colonial or other forms of alien domination or foreign occupation, the World Conference on Human Rights recognizes the right of the peoples to take any legitimate action, in accordance with the Charter of the United Nations, to realize their inalienable right of self-determination. The World Conference on Human Rights considers the denial of the right of self-determination as a violation of human rights and underlines the importance of the effective realization of this right.

In accordance with the Declaration on Principles of International Law concerning Friendly Relations and Cooperation Among States in accordance with the Charter of the United Nations, this shall not be construed as authorizing or encouraging any action which dismember or impair, totally or in part, the territorial integrity or political unity of sovereign and independent States conducting themselves in compliance with the principle of equal rights and self-determination of peoples and thus possessed of a Government representing the whole people belonging to the territory without distinction of anykind. (49)

According to this declaration, the notion of "territorial integrity" and its entitlement would be only applicable for the governments adhering to accepted international norms of human rights and representing peoples of the whole territory without discrimination of any kind. This would exclude illegitimate governments, which are violators of human rights from benefitting from this notion of "territorial integrity".In other words, under such illegitimate rules, an ethnic group?s right to exercise self-determination would be met with more flexibility and acceptance, even if it means "secession".

But in practice this question repeatedly comes down to that of the recognition by existing states of new states. At the turn of the century, James Crawford writes that some fifty acknowledged states constituted the world community. This number is now approaching two hundred. All of the new states having been carved out of existing states. This suggests that a fair amount would have been learned as to how the procedure works. But this has not been the case. (50)

The result of such deficiency can be detected in the implementation of the right to self-determination, starting from the end of the Second World War. Secession in itself is not considered illegal, as is shown by the admission of Pakistan in 1947 as a member of the United Nations when it split from British India, and then the admission of Bangladesh as a member when it left Pakistan. And, of course, the new emerging states can also attest to this. (51) There were only 165 states in the world before the breakup of Yugoslavia and the Soviet Union. Along with the "velvet divorce" between the Czech and Slovak parts of Czechoslovakia in 1992 and the emergence of an independent Eritrea from Ethiopia in 1993, 19 other new states were added to the membership of the United Nations between 1991 and 1993 because of the disintegration of the Soviet Union and Yugoslavia. (52)

The unevenness of the application of national self-determination can be observed in the cases of the former Soviet Union and Yugoslavia on the one hand, and Biafra independence movement from Nigeria in the late 1960s , on the other. While the Western powers applied the principle of national self-determination to formerly communist countries of Europe, the notion of territorial integrity was considered appropriate for the Biafra independence movement. In the same vein, while Bangladesh, which broke free from Pakistan with the help of massive Indian military invasion, has attained statehood, the Turkish Cypriots, who broke free from the Greek majority independent state in 1974 with the help of Turkish forces from Turkey, were refused recognition.(53)

In large part this "postwar" legal muddle over claims to self-determination arose because they were too often assessed in terms of cold-war advantage or disadvantage. (54) The same is still true for all non-state nations struggling for self-determination. Apart from having to fight an uphill battle against the rule of the game established in favour of existing states, secessionist movements are required first to establish their own existence or ableness to exercise sovereignty in the face of powerful opposition state or states within which they are still located; or at least a recognized state of belligerency is needed, before application for international legal rights could be applied. (55)

Thus, the legal response to ethnic demands for self-determination, in the absence of clear legal rules, could be termed "muddled", although it is not necessarily to be disparaged. (56)

The role of the United Nations in implementing the right to self-determination within the mould of decolonization, is clearly one of the greatest achievements of our time. .

In the 38 years since the adoption of the Declaration on the Granting of Independence to Colonial Countries and Peoples, some 60 former colonial Territories inhabited by more than 60 million people have attained independence and joined the United Nations as sovereign members.(57) However, according to the UN’s count, there are still 17 territories left to be decolonized but the actual numbers, which fit into this category, are far higher. To neglect this reality and stick to the UN accepted count would be tantamount to denying that other ethnic conflicts around the world, which are the major sources of crisis, tensions and conflicts do not exist.

The argument here is that there is an urgent need for practical and theoretical innovations, to be able to address the management of this type of conflict in the interest of peace and harmony in the world. As decolonization, in all its different aspects, is the key, the first place to start is to redefine what colonialism is , to better fit the existing landscape of today’s global political conflicts.

Points of discussion should include, among others, the following:-

1. The Alien Concept and alien-ness should not be limited to only Europeans and Westerners but should also include African, Asian and Latin American, irrespective of skin colours.
2. Maintenance of the former largely, European colonial boundries as irreversible and sacrosanct national state boundries should be reviewed on a case to case basis. This is an unending source of ethnic conflicts affecting international stability.
3. The question of geographical separateness or "The Salt Water Doctrine" between colonizer and colonized should not be the sole factor, but cultural, ethnic, linguistic and historical factors should be also taken into account, in determining the "alien-ness" of the colonizer.
4. The cases of one colonial regime replacing another are also contributing factors to many of the existing conflicts in the world today. A large number of oppressed and non-state nations are experiencing this type of colonialism, when one dominant ethnic group took over the mantle of the former colonizer and monopolize state power at the expense of the other ethnic groups. (58)

Another approach is to advance the formation of international law, which might be able to address the right of self-determination, including the right of secession.

In order to be able to proceed forward, the international community could start with the Remedial Right Only Theories, which as the name implies, recognize a general right to secede only as a remedy for injustice. The thrust of the theories has already been presented in the section on "Theories of Secession". According to Allen Buchanan:

A proposal for an international legal right to secede ought to be morally progressive, yet at the same time at least minimally realistic. A morally progressive proposal is one which, if implemented with a reasonable degree of success, would better serve basic values than the status quo. Preeminent among these values is the protection of human rights.

A proposal should build upon, or at least not squarely contradict, the more morally acceptable principles of existing international law, when these principles are interpreted in a morally progressive way. If at all possible, acceptance and implementation of a new principle should not come at the price of calling into question the validity of a well-entrenched, morally progressive principle.(59)

Thus, in soliciting the formation of international law capable of addressing the claims of Rights of Self-Determination, Remedial Right Only Theories would stand a better chance of success, since the theories advance a much more restricted right to secede and are less of a threat to the territorial integrity of existing states. Hence, they are more likely to be incorporated into international law.(60)

If the said arguments could be entertained and the international community would be ready to discuss the possibilities of the Remedial Right Only Theories being incorporated into existing international laws concerning the right of secession, it would already be doing a great service and justice to the major portion of the oppressed non-state nations and peoples.

Beyond decolonization, the Security Council had, in the name of "international peace and security" found it appropriate in 1991 to act to protect the Iraqi Kurds, creating a "safe haven" in the Kurdish area north of 36^th parallel .(61) Again, the United Nations found it possible to intervene in ethnic conflicts citing, as in the case of a Balkan war crimes panel resolution, "obligations and international humanitarian law".(62)

In June 1992, the United Nations Secretary-General submitted to the Member States An Agenda for Peace, a report presenting an integrated programme of proposals aimed at identifying potential conflicts, bringing about their resolution, and building peace among former adversaries in the post-conflict period. In the area of preventive diplomacy, it was recommended to increase the use of confidence-building and fact-finding activities, as well as the establishment of an early-warning system for assessing possible threats to peace. (63)

Clearly, in spite of all this, the United Nations still has a tall order to fulfill, if the ethnic conflicts raging around the world are to be stopped or at least put under control. To do this, the right to self-determination, which is part and parcel of Universal Human Rights, has to be addressed. In turn, the United Nations and the international community should begin to ponder the formation of international laws, institution building and implementation agencies in this direction, so that the aggrieved unrepresented nations and peoples‘ quest for self-determination could be facilitated.

But the reality is that the United Nations has been on this track for a few decades, notably with the implementation of the decolonization process, with tremendous success for all to see. Under this UN procedure, in the duration of 38 years, some 60 former colonial territories inhabited by more than 60 million people have attained independence, although this might be limited to the "Salt Water Doctrine" type of colonies.

The point to be made here is that if the international community is ready to deepen , reform and enlarge the existing institutions to initiate the commitments of moral obligation, theoretical soundness and political will, the world will be in a position to advance the notion of "Self-Determination" which is an accepted and established part of Universal Human Rights.

To put it in more concrete terms, it will be helpful to restate the UNPO recommendation made known on the occasion of the conference titled: The Question of Self-Determination, in 1996.

The international community should assist in the promotion and organization of referanda, under United Nations auspices, which specifically address claims of self-determination. An additional idea is to work for the establishment of a court of arbitration which is constituted to examine claims of self-determination and to provide binding judgements when the claims are found to be legitimate and viable. Other options, albeit secondary in desirability and efficacy, could be Human Rights Council reporting to the General Assembly of the United Nations and/or an International Court of Human Rights, a High Commissioner for Self-Determination, and reorganized Decolonization Committee. (65)

NOTES:

1. S. Caney, Self-Government and Secession : The Case of Nations, in The Journal of Political Philosophy, Vol. 5, No. 4, 1997, pp. 352 – 353.
2. Ibid., p. 352.
3. UNPO Yearbook 1996, published by Kluwer Law International, The Hague, The Netherlands, 1997, p.11.
4. W. Pfaff, The Wrath of Nations : Civilization and the Furies of Nationalism, published by Simon and Schuster, Touchstone Edition, 1994, USA, p. 58.
5. The Question of Self-Determination : The Cases of East Timor, Tibet and Western Sahara, Conference Report (UN, Geneva, 25 – 26 March 1996), UNPO Publication, p. vi.
6. Ibid., p. xv.
7. S. Caney, p. 353.
8. Raju G. C. Thomas, Nations, States, and Secession : Lessons from the Former Yugoslavia, in Mediterranean Quarterly, Vol. 5. No. 4, Fall 1994, pp. 40 – 65.
9. A. Buchanan, Theories of Secession, in Philosophy and Public Affairs, 26(1), Winter 97, pp. 31 –61.
10. Ibid., p. 36.
11. Ibid., p. 49.
12. Ibid., p. 50
13. D. Moellendorf, Liberalism, Nationalism, and the Right to Secede, in Philosophical Forum, 28 (1-2), Fall – Winter 96-97, pp. 87 – 99.
14. Ibid., p. 90.

15. See also W. Kymlicka, Multi-Cultural Citizenship: A Liberal Theory of Minority Rights, Oxford University Press, 1995, Chapter 4, pp. 42 – 44.

16. D. Moellendorf, p. 91.
17. Ibid., pp. 92 – 93.
18. S. Caney, p. 352
19. Ibid., p. 361.
20. Ibid., p. 361.
21. Ibid., p. 361.

22. See also W. Kymlicka, pp. 82 – 89 and 105.

23. Ibid., pp. 361 – 362.

24. See also A. Margalit and J. Raz, National Self-Determination, in Journal of Philosophy, 87 (1990), p. 449.

25. Ibid., p. 362.
26. Margalit and Raz, pp. 450 –451.
27. S. Caney, p. 362.
28. Margalit and Raz, pp. 451 – 453.
29. S. Caney, pp. 362 – 363.
30. Ibid., p. 363.
31. Ibid., pp. 370 – 371.
32. J. Tullberg & B. S. Tullberg, Separation or Unity? A Model of Solving Ethnic Conflicts, in Politics and Life Sciences, September 1997, Beach Tree Publishing, UK., p. 237.
33. Ibid., p. 237.
34. Ibid., p. 238.
35. Ibid., pp. 238 – 239.
36. Ibid., p. 239.
37. A. Buchanan, Secession: The Morality of Political Divorce from Fort Sumter to Lithuania and Quebec, Boulder, Colo.:Westview, 1991, pp. 27 – 125.
38. Raju G. C. Thomas, pp. 40 – 65.
39. Historical Facts About The Shan States, Condensed and Revised Edition, published by the Shan State National Congress, 1994.
40. Document containing proposal for the Revision of the Constitution of the Union of Burma, submitted by The Shan State, 1961, translated by Sao Singha, p. 2.
41. UNESCO, International Meeting of Experts on Further Study of the Concept of the Rights of Peoples: Report and Recommendations,1990.
42. Ibid.

43. See also UNPO Covenant, Article 6(a) in UNPO Yearbook 1996, p. 11.

44. For more comprehensive reading, please see Historical Facts About The Shan States, pp. 8 – 20.
45. UN Press Release, SG/SM/6571,OBV/47, 22 May 1998. Struggle for Independence, for Self-rule is Struggle for Human Rights, Secretary-General States.
46. The Question of Self-Determination, p. 43.
47. Ibid., p. 6.
48. The Shan Human Rights Foundation, Dispossessed, April 1998.

49. Amnesty International, Myanmar: Atrocities in the Shan State, 15 April 1998.

50. The Nation, Ethnic Cleansing: Rape as Weapon of War in Burma, Editorial & Opinion, 31 May 1998.
51. ILO, Forced Labour in Myanmar (Burma), Report of the Commission of Inquiry appointed under article 26 of the Constitution of International Labour Organization to examine the observence by Myanmar of the forced Labour Convention, 1930 (No. 29), Geneva, 2 July 1998.

52. The Washington Post, Burma Crackdown, 14 September 1998.

53. Aung Than Kyaw, Shan National Day, Shan National Anthem and Shan National Flag, in Golden Jubilee Shan State Magazine, published by U Khun Kyaw (General Secretary), Taunggyi Association, Rangoon, 1997, pp. 33 – 34.

54. Shan National Flag and Anthem were also approved by the Council of Saophas and Representatives of the People of Shan State at Panglong, on the 11^th February 1947, which was signed by Hkun Pan Sing, the President.

55. The Panglong Agreement signed on the 12^th of February, 1947, paved the way for the drawing of Union Constitution, which was instrumental in attaining the joint-independence on the 4^th of January, 1948 from the British. The Panglong Agreement and the Union Constitution together emphasized the right of the Shan and Karenni to secede from the Union, after a trial period of 10 years.
56. World Conference on Human Rights: The Vienna Declaration and Programme of Action June 1993, published by UN Department of Information, NY., p. 29.
57. D. P. Moynihan, Pandaemonium: Ethnicity in International Politics, Oxford University Press, 1993, p. 147.
58. Ibid., p. 151.
59. Raju G. C. Thomas, Nations, States and Secession: Lessons from Former Yogoslavia, pp. 40 – 65.
60. Ibid.
61. D. P. Moynihan, p. 153.
62. Ibid., pp. 151 – 152.

63. Raju G. C.

64. D. P. Moynihan, p. 152.
65. UN Press Release, UN General Secretary, Kofi Annan’s Statement, 22 May 1998. (SG/SM/657 OBV/47)
66. For more comprehensive reading please see China’s Tibet: The World Largest Remaining Colony, UNPO Publication, 1997.
67. A. Buchanan, Self-Government and Secession: The Case of Nations, p. 42.
68. Ibid., p. 45.
69. D. P. Moynihan, p. 152.

70. UNPO Yearbook, p. 94.

71. D. P. Moynihan, p. 173.
72. Basic Facts About The United Nations, UN Publication, NY., 1995, p. 29.
73. Dan Smith, Kriege und Konflikte, Fischer Taschenbuch Verlag GmbH, Frankfurt am Main, 1997, pp. 90 – 95.
74. The Question of Self-Determination: The Case of East Timor, Tibet and Western Sahara, Conference Report, UNPO Publication, pp- xv – xvi.