New Delhi, Oct 23 (UNI) Shifting emphasis from self determination to the quality of protections for minorities within the framework of national laws was suggested by Chief Justice of India K G Balakrishnan tonight.
It's ''in the interest of promoting international peace and stability,'' Justice Balakrishnan observed while delivering the V K Krishna Menon Memorial Lecture 2008.
The event marking the 34th death anniversary of independent India's first High Commissioner to London-- subsequently Defence Minister-- was addressed among others by former Punjab and Haryana Chief Justice Vijender Jain.
Justice Jain spoke about Indian espousal of non-alignment-- coined by Menon for ''countries not aligned to the right or left''-- as a pursuit against injustice in world affairs.
Justice Balakrishnan's address centred on The Right Of National Minorities To Seek 'Self-Determination' Under International Law, a topic he said he saw as a ''pertinent issue'' in the field of public international law.
The CJI recalled Menon's defence of Indian stand on Kashmir in the United Nations Security Council and ''foundational role in shaping'' independent India's foreign policy.
''One can proceed with the assumption,'' Justice Balakrishnan said, ''that national minorities do not have an absolute right of self-determination in keeping with the view that they cannot be identified with the word 'peoples' as used in the UN Charter.'' This, he said, was exemplified by Indian declaration in respect of Article 1 of the International Covenant on Civil and Political Rights.
It ''affirmed that the right to 'external' self-determination applied only to the people under foreign domination and... not... to sovereign independent states or to a section of the people or nation.'' Justice Balakrishna drew the distinction between a ''whole population'' exercising the right of self-determination in cases of historical disruptions-- such as colonial rule-- and national minorities doing so in cases of ''continuing oppression.'' He also pointed to the problems in ''ascertaining the will of a minority to secede from an independent State''-- as not all of its members may favour such a move.
''The identification of a minority's will may itself be based on objective criteria such as language, ethnicity, race, religion and cultural practices or on subjective criteria which involves an expression of the will to secede such as a referendum, a popular movement or demands made by political parties representing a national minority.
''The recognition of a legal right of self-determination becomes problematic because not all members of a minority community identified on the basis of objective criteria may be in favour of exercising such a right.'' He said the existence of oppression or unrepresentative government ''obviously needs to be proved'' with reference to a high threshold.
India, for instance, ''is a prominent practitioner of the philosophy of legal pluralism by way of allowing Muslim, Christian, Parsi and Jewish communities to adhere to their respective personal law regimes.'' He cited the co-existence of parallel personal law regimes in Israel where separate systems co-exist for Orthodox Jews and Arabs besides the secular law on matters such as marriage, divorce and inheritance.
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