Inotoli Zhimomi
The representative teams from Delhi and the Nagas, under the leadership Isak-Muivah group of the NSCN, have reportedly resumed their negotiations. This current effort marks the 60th round of talks in the past 15 long and hard running years. This time around there is much speculation that there is finally some substance in the intentions of the Government of India (GOI). This is yet to be substantiated. Careful observation must be maintained. There is nothing new in whispers of a long awaited settlement in the protracted political deadlock. For so long now, the outcome of each round of talk has resembled the previous round. Hopes are dashed, belief turns into disgruntlement.
Since the departure of the colonial British, the relationship between the GOI and the Nagas has been punctuated by forced annexation, militarization, cease-fires, and the staggering amount of peace talks. Through the endless paragraphs and chapters of this story, blame games and justifications for the many wrong-doings play a dominant role. On one side is India’s lack of political vision and its refusal to see why the Nagas’ claim for self-determination is not illusionary; and on the other is the Nagas’ tendency to succumb to the weaknesses of factional fighting. Despite all of these factors, India’s desperate hope that somehow the in-fighting and the complexities of the Naga political fabric will eat away at the Nagas’ big picture vision – their rights to self-determination - has proven unfounded. After all these years, none of these trials - not even the draconian Armed Forces Special Power Act of 1958 and the consequential loss of many innocent Naga lives nor the horrors of the factional fights – have negated the Nagas desire to be accorded their rights. We are here talking about an extraordinary history of persistence, spread over six decades and more.
Nagas believe their struggle for self-determination is a genuine people’s movement. It is not just the cause pushed by a few groups of the ‘underground’. That latter characterization is a notion conveniently projected and exploited by the GOI and by those who fear any threat to territorial unity. The immense campaign by the various bodies of civil society, including those of India, demonstrates such a belief.
This time around, unprecedented events have delivered some welcome punctuation to Indo-Naga story. In June this year, the Naga Hoho, the peak body representing the Naga traditional institutions, journeyed to Delhi to present the public’s desire for the ongoing political deadlock to be resolved. Currently, all 60 members of Naga Legislative Assembly are headed to Delhi to push for an Indo-Naga political settlement, following a cross-party resolution made last month. Some significant contributions have helped accelerate the process. Among many, the initiatives of the Forum for Naga Reconciliation (FNR) has delivered major achievements. One of them is the historic ‘Covenant of Reconciliation’, signed by three Naga political factional parties namely, the NSCN/GPRN, NNC/FGN and GPRN/NSCN on June 13, 2009.
On February 29, 2012, the FNR organized a public meeting. Over 50,000 community leaders representing Naga people from Nagaland, Manipur and Arunachal Pradesh came and met face-to-face with all the leaders of the ‘underground’ parties. The meeting called upon all Naga groups to end armed confrontations amongst themselves and join ‘Naga Reconciliation: A Journey of Common Hope’. These are extraordinary steps down the path of non-violence.
This time around, there is a compelling case that the GOI cannot ignore: the people’s desire to be respected and for their rights to be protected and to be provided with a platform to thrive.
And now there is a broader perspective that needs to be taken on the provision of rights for indigenous people, such as the Nagas. In September 2007, the United Nations General Assembly adopted the United Nations Declaration on the Rights of Indigenous Peoples. This initiative on the issue of indigenous rights was one of the first of its kind. Even more so, since indigenous people themselves were involved in draft this landmark accord. It took more than 20 years of negotiation and consultation between member states and indigenous peoples from around the world, through the Working Group on Indigenous Populations. Nagas, through the participation of civil society groups such as NPMHR and the campaign of the NSCN (IM) in and through the Unrepresented Nations and Peoples Organization (UNPO), have been part of this historic achievement. India is one of the 144 states that have signed this Declaration.
The Declaration is the most significant achievement in the protection of Indigenous peoples’ rights at the international level. The significance points back in comparison to the earlier international instruments, including the Declaration on the Granting of Independence to Colonial Countries and Peoples adopted by General Assembly resolution 1514 (XV) of 14 December 1960. This 1960 Declaration favours the member states with the UN’s ultimate support leaning towards the territorial unity of any given state. This principle is known for its rigidity. The fact that nations states are the only legitimate identities to benefit from the protection and enforcement of this principle would mean that indigenous peoples who are affected by this principle have no access to the privileged space the member states occupy in the UN. This contributed to a roadblock on indigenous aspirations and lack of space for their struggles to be acknowledged and redressed.
This helps explain the historic significance of the 2007 Declaration of the UN. It has created a different framework for indigenous peoples around the globe, the UN member states and international law. The underprivileged world of the indigenous people can now find a refuge within existing international human rights law. Indigenous people can assert their rights to be free from discrimination and secure in their identities and life choices. These rights are accounted for by the United Nations and within international law.
Self-determination and what it means for the Nagas.
One of the central rights of the Declaration is the right to self-determination. Article 3 of the Declaration proclaims the explicit terms of the self-determination:
Indigenous peoples have the right to self-determination. By virtue of that right they freely determine their political status and freely pursue their economic, social and cultural development.
Article 4 extends further provisions that:
Indigenous peoples, in exercising their right to self-determination, have the right to autonomy or self-government in matters relating to their internal and local affairs, as well as ways and means for financing their autonomous functions.
The above articles give recognition to the full and unqualified right of self-determination, focusing specifically on self-government and autonomy. Article 46(1) still retains the usual caveat of territorial integrity of the state. However, the provision of all other rights throughout the Declaration is unrestricted and helps to bolster the right to self-determination. For example, Article 5 reads:
Indigenous peoples have the right to maintain and strengthen their distinct political, legal, economic, social and cultural institutions, while retaining their right to participate fully, if they so choose, in the political, economic, social and cultural life of the State.
Member states are expected to consult and cooperate in the process of implementation of these and all other rights provided in the Declaration. Article 19 projects such a provision:
States shall consult and cooperate in good faith with the indigenous peoples concerned through their own representative institutions in order to obtain their free, prior and informed consent before adopting and implementing legislative or administrative measures that may affect them.
To say the least, the Declaration sheds some light on the recent steps being taken by various Naga bodies including the civil society organs. The negotiations and the push by these bodies in representing the aspirations of the community are given legitimation by the provisions of the Declaration. These provisions suggest new structures and modalities of participation are now within the realm of international human rights standards. It is a big step forward from the previous practice where such participation was reliant on the consideration of the state concerned. There are further recognitions included in Article 27:
States shall establish and implement, in conjunction with indigenous peoples concerned, a fair, independent, impartial, open and transparent process, giving due recognition to indigenous peoples’ laws, traditions, customs and land tenure systems, to recognize and adjudicate the rights of indigenous peoples pertaining to their lands, territories and resources, including those which were traditionally owned or otherwise occupied or used. Indigenous peoples shall have the right to participate in this process.
The UN provision above makes clear the responsibility of the state is to respect and ensure that such rights are recognised and maintained. The protection and promotion of the rights of Indigenous people ultimately goes beyond the state. According to Article 41, all international agencies of the UN and intergovernmental organisations are to ‘contribute to the full realization of the provisions of this Declaration through the mobilization, inter alia, of financial cooperation and technical assistance. Ways and means of ensuring participation of indigenous peoples on issues affecting them shall be established’. Further expansion of responsibility of the international communities are called for, as Article 42 provision says, the UN itself and its bodies ‘including the Permanent Forum on Indigenous Issues, and specialized agencies, including at the country level, and States shall promote respect for and full application of the provisions of this Declaration and follow up the effectiveness of this Declaration’.
India’s signing the Declaration doesn’t entail legal duties, it does however, creates human rights obligations under international standard. What the Declaration has also created is a historic opportunity for indigenous peoples such as the Nagas to lobby the GOI for law reform and policy changes. In other words, Nagas can use the Declaration in more formal ways by:
• Referring to it in lobbying those who represent them at all levels of government.
• Referring to it in court matters including the case like NPMHR v Union of India on the Repeal of Armed Forces Special Power Acts (if it ever get a second chance).
• Using it in media campaigns for rights.
• Most crucially, using it in the negotiation of the current self-determination process.
The current Indo-Naga peace-talks will be nothing less than the measure of India’s maturity in its democratic trajectory. Here is an opportunity for India, as a UN member, to set a good model internationally of the application of the principle of self-determination as set out in the Declaration. Recently, international concern over India’s treatment of indigenous communities and minorities including the Nagas has also surfaced in the UN bodies already through the visitation the Christoff Hyns, the UN Rapporteur. Mr Hyns was less than impressed with what he saw during his visit in March this year. His findings are due to be submitted to the Geneva-based Council in 2013. The report will highlight the ‘high level of impunity that the police and armed forces enjoy’. And the inaccessibility to fair prosecutions against the state army personnel as a result of the tight control of New Delhi will count against the nation that prides itself on being the largest democratic country in the world. It will be unwise for India not to take note of the counsel of the UN Rapporteur who has pressed the need for an immediate ‘repeal of the laws (AFSPA) providing for immunity from prosecution of the police and the armed forces’ and called for a body to be established to carry out proper investigation of human rights violations. All these recommendations must be weighed against India’s existing obligation as a signatory to the 2007 Declaration. Great developments emerging as the result of the Declaration, both among member states and at the UN level. Among them is the announcement by the General Assembly for the high-level plenary meeting known as the ‘World Conference on Indigenous Peoples’ scheduled for 2014. According to the President of the 66th session of the General Assembly, the conference is aimed at providing an opportunity to ‘share perspectives and best practices on the realization of the rights of indigenous peoples, with the United Nations Declaration on the Rights of Indigenous Peoples as the framework for discussions.’ As the first of its kind, the conference will provide a face-to-face opportunity for both the state government representatives and the representatives of the indigenous people from around the world addressing the agenda above.
There are great opportunities in all of this for both Nagas and the GOI. The Declaration provides some fine guiding tools for India to fulfill its obligations. It gives India an opportunity for new imagination in resolving past wrongs. A broad spectrum of rights and opportunities are likewise opened up for the Nagas, to optimize their rights and better their future both on the local front as well as on the international front.
This time around, there is some excitement, though we must always remain cautious, that yet another round of peace talks is taking place. Thousands of ordinary Nagas are expected to rally in their mountainous abodes, hoping and praying, literally, for a peaceful and just outcome. One can only hope that there is good faith among the negotiators both of the GOI and the Naga people. And that they have sufficient wisdom and vision to take account of all the consequences and implications of their talks, beyond those walls of the meeting room in New Delhi.
(The writer is currently studying Masters of Public and International Law at the University of Melbourne, Australia)
