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    The right to self-determination and the right to rebel — Global perspectives

    Presentation at the International Conference for Human Rights and Peace in the Philippines

    Quezon City, Philippines
    20 July 2013

    PANEL 3. Struggle for just and lasting peace

    By ANNA MORRIS and RICHARD HARVEY
    Haldane Society of Socialist Lawyers
    NDFP International Legal Advisory Team

    This paper will deal with three distinct but inter-related topics, the right to self-determination, the right to rebel and the right to freedom from exploitation. It will seek to offer some global perspectives on each of these three topics and suggest ways in which international law can be used by citizens, activists and lawyers to enforce the basic rights of peoples here in the Philippines and abroad.

    1. The Right to Self-Determination

    Over 15 years ago in The Hague, the “City of Peace”,1 the Government of the Philippines and the NDFP signed the Comprehensive Agreement on Respect for Human Rights and International Humanitarian Law (“CARHRIHL”). The Agreement between begins with these fundamental words:

    “Respect for human rights and international humanitarian law is of crucial importance and urgent necessity in laying the ground for a just and lasting peace.”

    It correctly affirms that:

    “[T]he principles of human rights and international humanitarian law are universally applicable.”

    And, by Article 2(1) of CARHRIHL the parties agree:

    “[T]o confront, remedy and prevent the most serious human rights violations in terms of civil and political rights, as well as to uphold, protect and promote the full scope of human rights and fundamental freedoms, including:

    1. The right to self-determination of the Filipino nation by virtue of which the people should fully and freely determine their political status, pursue their economic, social and cultural development, and dispose of their natural wealth and resources for their own welfare and benefit towards genuine national independence, democracy, social justice and development.

    Human rights are indivisible and universal. In order to guarantee and enforce those rights, fighting for the rule of law is the first duty of the people’s lawyer. Those of us who have worked with those struggling for human rights, whether in South Africa or Palestine, in Colombia or Ireland, in Puerto Rico or East Timor, know from first-hand experience that there can be no just or lasting peace without the right of peoples to self-determination. Without self-determination there is no guarantee of human rights at all. It is that right to self-determination I would like to focus on here.

    A just and lasting peace has to be negotiated in good faith. When our colleagues in South Africa negotiated with the criminal apartheid regime, they were told to sign up to a new constitution before the first free elections were held. They rightly refused, saying ceasefires may be up for negotiation; a timetable for the transition of power may be up for negotiation; but human rights belong to all the people by right, they are never up for negotiation. It was only after the new Parliament was elected that a new constitution was written by all the people and for all the people. That is self-determination in action. And it produced arguably the finest constitution the world has yet seen.

    Former colonial powers like Britain and France and neo-colonial powers like the United States sometimes act as though they had invented the whole idea of human rights. They support repressive governments and military regimes when they want to do business with them. They send arms to rebels in other countries that they want to undermine. They tell us that the rebels they arm are fighting for democracy and human rights while the regimes they back are preventing states from collapsing into anarchy.

    Their idea of democracy has little to do with self-determination of peoples. Their policies are shaped by the determination of transnational corporations to make a profit from people, whatever the price in blood and suffering. The right to self-determination has crystallised into customary international law with the help of declarations and resolutions of the United Nations. But, as the World Court has recognised, this right was not granted by beneficent colonial powers. Instead, that right: “had first been written painfully, with the blood of the peoples in the finally awakened conscience of humanity. And without those same peoples, mainly of Asia and Africa … would it have been possible to have achieved that impressive number of declarations and resolutions whereby the great principles they had helped to consecrate have been translated into law and applied to the reshaping of international relations?”2

    You here in the Philippines know what that judge meant when he spoke of a right, written painfully, with the blood of the peoples. You know how hard it is to finally awaken the conscience of humanity; how difficult it is for the people to “fully and freely determine their political status, pursue their economic, social and cultural development, and dispose of their natural wealth and resources for their own welfare and benefit towards genuine national independence, democracy, social justice and development,” to come back to the words of the CARHRIHL.

    But that is what the Government of the Philippines signed up to over 15 years ago. They did not agree out of the kindness of their hearts. They agreed because the people had fought for – and won – those rights. They agreed because they do not have any option: to deny those rights would be to violate the basic principles of international law enshrined in Common Article of the International Covenant on Civil and Political Rights and the International Covenant on Economic Social and Cultural Rights which reads, in part:

    Article 1

    1. All peoples 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.
    2. All peoples may, for their own ends, freely dispose of their natural wealth and resources without prejudice to any obligations arising out of international economic co-operation, based upon the principle of mutual benefit, and international law. In no case may a people be deprived of its own means of subsistence.

    To violate CARHRIHL, in other words, is to violate international law. CARHRIHL is not up for renegotiation because human rights are not up for renegotiation. Any government that deprives its people of the right to self-determination gives them a new right: the right to rebel. International law clearly proclaims that: “the denial of fundamental human rights … is contrary to the Charter of the United Nations,” and that:

    Every State has the duty to refrain from any forcible action which deprives peoples … of their right to self-determination, freedom and independence. In their actions against and resistance to, such forcible action in pursuit of the exercise of their right to self-determination, such peoples are entitled to seek and receive support in accordance with the purposes and principles of the Charter.

    In other words, if a state uses force to deprive peoples (i.e. you) of their (your) right to self-determination, freedom and independence, not only do those peoples (you) have the right to take action against such a state, they (you) also have the right to call on the international community (us) for support. These are not the words of some radical lawyer from the other side of the world trying to stir up a revolution with fiery rhetoric: this is customary international law, binding upon all States by the 1970 Declaration on Principles of International Law concerning Friendly Relations and Co-operation among States in accordance with the Charter of the United Nations (the “Friendly Relations Declaration”).3

    2. The Right to Rebel: Do Rebels have Rights?

    Parks and squares in Turkey and Brazil have been thronged in recent weeks with peaceful demonstrators and rioting police. In Egypt, millions flocked to Tahrir Square to the excitement of the international media, resulting in what some call a coup d’état and others the continuation of a revolution. Meanwhile, unnoticed by most western media, similar events in Bulgaria forced one government to resign in February and the government that replaced it looks set to collapse as the country has been in turmoil for months.4 The people are rebelling.

    The “Arab Spring” embraced so enthusiastically by the Western media two years ago has turned distinctly wintry in parts of North Africa and the Near East. Syria is descending the same spiral of death and dismemberment as Iraq and Afghanistan. The United States and EU use phrases like “humanitarian intervention,” and “responsibility to protect,” not to prevent the sufferings of innocent victims of war crimes but to advance the geopolitical interests of great economic powers and transnational corporations. It seems that some rebels must be supported and armed while others must be repressed and crushed.

    Human rights belong to all. They belong equally to those who demonstrate against political and economic injustice; to those who rebel against the oppression of military-backed regimes and to those who struggle for self-determination against companies that seek to pollute their environment, corrupt their ecology and destroy the lives and livelihoods of indigenous peoples.

    Those of us who stand in solidarity with people struggling for self-determination have a duty to bear witness to violations of their human rights. Where people are driven to believe there is no alternative but to take up arms as part of the struggle for self-determination, it is not for us, as outsiders, to judge whether that belief is correct or to what extent this or that armed action is justified. Our duty is to stand up clearly and unequivocally for the rights of those who rebel. When a woman decides to join the armed struggle to protect her ethnic group, her village, her children; she doesn’t thereby give up her human rights. When a revolutionary soldier is taken prisoner by the armed forces of the government he is fighting against, he is entitled to the full protections of international humanitarian law.

    In affirming this principle, we affirm our support for Article 6 of the CARHRIHL:

    The Parties are aware that the prolonged armed conflict in the Philippines necessitates the application of the principles of human rights and the principles of international humanitarian law and the faithful compliance therewith by both Parties.

    We, as human rights defenders, are called to bear witness; to gather evidence and present it to human rights bodies; to name and shame those responsible for unlawful killings, torture and inhuman and degrading treatment; and to call to account the corporations who violate the right of people to a clean and healthy environment, fair working conditions and other social and economic rights.

    In 1980, as soon as Optional Protocols I and II to the 1949 Geneva Conventions came into force, the ANC filed with the Red Cross a declaration that the liberation movement considered itself bound by the terms of the Protocols. This bold strategy enabled lawyers representing ANC fighters before the apartheid regime’s courts to assert that their clients’ actions were protected by international law.

    In the same way, here in the Philippines, the NDFP issued its Declaration of Undertaking to Apply the Geneva Conventions and Protocol I on 5 July 1996. By doing so, the NDFP has assumed rights and duties under Protocol I, on top of those provided for under common Article 3 of the 1949 Geneva Conventions and under its Protocol II. Members of the armed forces of the Government of the Philippines who are taken prisoner are entitled to the protections of the Geneva Conventions and the same rights are claimed for combatants of the New People’s Army and its allies.

    In the context of an armed struggle, it is particularly important that to protect the most vulnerable. In that respect, the NDFP’s Declaration on the Rights of Children provides a model that any country should be proud to adopt. As we so often find, it is the oppressed themselves who are best placed to articulate what rights they are fighting for and who show the greatest concern for future generations.

    3. Freedom to Exploit or Freedom from Exploitation?

    History shows that if we leave it to the mining multinationals, the oil corporations and the logging companies to determine what rights future generations will have, then they will destroy the planet in the long term in order to maximise their profits in the short term.

    As we have seen, international human rights law gives to all people the rights asserted under the CARHRIHL to pursue not only the political status of peoples, but also “their economic, social and cultural development,” and their right to “dispose of their natural wealth and resources for their own welfare and benefit towards genuine national independence, democracy, social justice and development.”

    In practice, this right is meaningless unless multinationals are held to account for their crimes against the people. In 1992, the United Nations “Earth Summit” in Rio de Janeiro highlighted the need for a global response to the actions of those industries which have a global impact. Illegal logging and other forms of ecological destruction in the Philippines have an environmental impact on the whole planet. It should concern us as much in London as it does you in Manila.

    International environmental law has established principles that must be enforced against those industries and the ways they operate. For example, the “Polluter Pays” principle requires cleaning up oil spills, repairing scarred landscapes and paying reparations to people forced from their lands. But this is not enough. Some environmental disasters cannot be simply “cleaned up,” like Fukushima and Chernobyl. So the “Precautionary Principle”5 requires governments to anticipate, prevent or minimize the causes of climate change and mitigate its adverse effects. This shifts the burden of proof onto industries. Environmentalists do not have to prove beyond a reasonable doubt that the environment will be seriously or irreversibly damaged. Once it is shown that there is a reasonable likelihood of such a threat to the environment, the burden shifts to industry to show in advance that its actions will not damage the environment. After all, a major oil spill in the Arctic would trigger untold and irreversible damage on a global scale.6

    At the same time as the 1992 Rio Earth Summit was discussing the wording of these principles of environmental law, our colleagues in South Africa were putting them into practice. They were writing a new constitution, the first in the world to adopt “ecologically sustainable development” as a right. Section 24(a)(iii) of that Constitution provides:

    “Everyone has the right to have the environment protected, for the benefit of present and future generations, through reasonable legislative and other measures that secure ecologically sustainable development and use of natural resources while promoting justifiable economic and social development.”

    We have read the 2012 Year-end Report on the Human Rights Situation in the Philippines by the respected human rights NGO KARAPATAN. We have seen the documentation on murders of environmental activists in the Philippines. Your natural wealth and resources do not belong to mining and logging companies that murder, terrorise and steal the land from indigenous people with impunity.7 As international human rights activists, we also bear witness to the shocking record of human rights violations around the world by corporations such as BHP Billiton, Exxon-Mobil; Xstrata; Anglo-American and Rio Tinto, to name but a few. Why do we name them? Because all these giant extractive industries are here in the Philippines, in Mindanao, which holds more than half the estimated mineral wealth – your mineral wealth. KARAPATAN has called on us in the international community to:

    Investigate complaints and reports of human rights violations, including adverse environmental impacts, of mining and other extractive industry projects of corporations operating in Mindanao and with primary listing under [inter]national stock indexes and headquartered in [our countries]8

    KARAPATAN’s report on human rights violations stands as a devastating indictment of the Government of the Philippines, as well as of those transnational corporations that benefit from the destruction of your environment.

    The Government of the Philippines is bound by international law to respect its commitments in Article 2 of the CARHRIHL “to pave the way for comprehensive agreements on economic, social and political reforms that will ensure the attainment of a just and lasting peace.”9

    As you move forward along the road to attaining that just and lasting peace, you will be travelling a path similar to that taken by our colleagues in South Africa, in Ireland and elsewhere. Just as we have worked with them, we promise to work with you, to be there for you, to bear witness with you and to celebrate with you the inevitable triumph of your people’s struggle.

    RICHARD HARVEY & ANNA MORRIS
    LONDON, JULY 2013


    1. CARHRIHL was signed 16 March 1998 in The Hague, Netherlands
    2. Legal Consequences for States of the Continued Presence of South Africa in Namibia (South West Africa) Notwithstanding Security Council Resolution 276 (1970) 1971 I.C.J. 16, 74. Judge Ammoun.
    3. UN General Assembly Res. 2625 (XXV): Declaration on Principles of International Law concerning Friendly Relations and Co-operation among States in accordance with the Charter of the United Nations. The [Declaration] “Solemnly proclaims the following principles:
      …The principle of equal rights and self-determination of peoples…“[B]earing in mind that subjection of peoples to alien subjugation, domination and exploitation constitutes a violation of the principle [of self-determination], as well as the denial of fundamental human rights, and is contrary to the Charter.…“Every State has the duty to refrain from any forcible action which deprives peoples referred to above in the elaboration of the present principle of their right to self-determination, freedom and independence. In their actions against and resistance to, such forcible action in pursuit of the exercise of their right to self-determination, such peoples are entitled to seek and receive support in accordance with the purposes and principles of the Charter.”
    4. “Bulgaria’s president has said another early election should take place to deal with daily anti-government street protests”: http://www.bbc.co.uk/news/world-europe-23201170.
    5. See Article 3.3 of the Rio Convention (the United Nations Framework Convention on Climate Change (UNFCCC, 1992)): “The Parties should take precautionary measures to anticipate, prevent or minimize the causes of climate change and mitigate its adverse effects. Where there are threats of serious or irreversible damage, lack of full scientific certainty should not be used as a reason for postponing such measures, taking into account that policies and measures to deal with climate change should be cost‐effective so as to ensure global benefits at the lowest possible cost.” (Emphasis added).
    6. The risks from Arctic oil exploration were highlighted by BP’s Deepwater Horizon disaster in the Gulf. The precautionary principle requires companies to show – before such a disaster occurs – that it won’t. See: http://blog.oceanconservancy.org/2012/12/05/commission-releases-report-on-arctic-oil-spill-research/; http://www.greenpeace.org.uk/blog/climate/shells-arctic-failure-obamas-chance-act-20130301; http://www.greenpeace.org.uk/blog/climate/risky-business-how-shareholders-pensions-and-councils-are-being-exposed-risks-arctic-oil-20130521
    7. 2012 Year-end Report on the Human Rights Situation in the Philippines, p.40, Table 1, Profile of Extrajudicial Killings in Mindanao.
    8. 2012 Year-end Report on the Human Rights Situation in the Philippines, Recommendations addressed to the International Community, p.51
    9. Article 2. The objectives of this Agreement are: (a) to guarantee the protection of human rights to all Filipinos under all circumstances, especially the workers, peasants and other poor people; (b) to affirm and apply the principles of international humanitarian law in order to protect the civilian population and individual civilians, as well as persons who do not take direct part or who have ceased to take part in the armed hostilities, including persons deprived of their liberty for reasons related to the armed conflict; (c) to establish effective mechanisms and measures for realizing, monitoring, verifying and ensuring compliance with the provisions of this Agreement; and, (d) to pave the way for comprehensive agreements on economic, social and political reforms that will ensure the attainment of a just and lasting peace. (emphasis added)

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