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Autonomy

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Autonomy and self-determination

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Autonomy

  1. 1. Autonomy & Self- determination 1
  2. 2. • Autonomy is derived from a Greek word 'autonomia: auto-"self" and nomia- "custom or law" hence when combined understood to mean "one who gives oneself one's own law". • Autonomy is a concept found in moral, political, and bioethical philosophy. Within these contexts, it is the capacity of a rational individual to make an informed, un- coerced decision. "the freedom to make one's own choices, and independence of persons". • Black's Law Dictionary has defined Autonomy as 1. The right of self government; 2. a self governing Nation; 3. an individual's capacity for self-determination. • Hence, autonomy is an individual’s capacity for self-determination or self- governance. Beyond that, it is a much-contested concept that comes up in a number of different arenas. Moral autonomy, usually traced back to Kant, is the capacity to deliberate and to give oneself the moral law, rather than merely heeding the injunctions of others. Personal autonomy is the capacity to decide for oneself and pursue a course of action in one’s life, often regardless of any particular moral content. Political autonomy is the property of having one’s decisions respected, honored, and heeded within a political context. 2
  3. 3.  Self-determination has thus been defined by the International Court of Justice (ICJ) (in the West-Saharan case, 1975) as the need to pay regard to the freely expressed will of peoples.  International Work Group for Indigenous Affairs (IWGIA) has defined as the right to participate in the democratic process of governance and to influence one’s future politically, socially and culturally. However the right to self-determination is the right of a people to determine its own destiny. In particular, the principle allows a people to choose its own political status and to determine its own form of economic, cultural and social development.  The origin of the principle of the self determination can be traced back to the American Declaration of Independence 1776 and the French Revolution 1789; The core of the principle lies in the American and French instances that the Government should be responsible to the people. 3
  4. 4.  One of the earliest proponents of a right to self-determination was U.S. President Woodrow Wilson. A month after his famous "Fourteen Points" speech to the U.S. Congress in January 1918 (in which the term "self- determination" does not appear), he proclaimed: "Self-determination" is not a mere phrase. It is an imperative principle of action, which statesmen will henceforth ignore at their peril....despite Wilson's injunction, attempts to turn self-determination from a "mere phrase" into a binding norm did not occur for over 40 years, following the deaths of tens of millions in two major wars.  The principle of Self-determination became the guiding principle for the reconstruction of Europe following World War I. While the Covenant of the League of Nations did indirectly addressed the principle of self- determination (without using the word) in the system of mandates that it established, identification of the mandates and implementation of the system was wholly dependent on politics, not law. 4
  5. 5.  The principle was incorporated into the 1941 Atlantic Charter and the Dumbarton Oaks proposals which evolved into the United Nations Charter. Its inclusion in the UN Charter marks the universal recognition of the principle as fundamental to the maintenance of friendly relations and peace among states.  The essence of the Wilsonian concept of self-determination consisted of the notion of self-government of peoples. There is also considerable theorizing among the Communists on the subject of self-determination. Lenin was the means of reliazing the dream of worldwide socialism. He was the first to insist to the international community, that the right of self determination be established as a general criterion for the liberation of peoples. Lenin's thesis on the socialism revolution and the right of nations to self-determination published in March 1916 contains the first compelling enunciation of the principle. 5
  6. 6.  The two leading statesmen Lenin and Wilson proclaimed the theory of self-determination. Lenin conceived of it primarily as an anti colonialist postulate and Wilson advocated self-determination essentially as a standard of democracy and a regulatory criterion for the break up of the empires defeated at the end of the First World War (chiefly the Austro-Hungarian and Ottoman Empires)  The principle of self-determination is prominently embodied in Article I of the Charter of the United Nations as "To develop friendly relations among nations based on respect for the principle of equal rights and self-determination of peoples, and to take other appropriate measures to strengthen universal peace". The International Covenant on Civil and Political Rights (ICCPR) 1966 and the International Covenant on Economic, Social and Cultural Rights (ICESCR) 1966, entered into force only in 1976; Common Article 1 of these Covenants provides that: "All peoples have the rights of self-determination. By virtue of that right they freely determine their political status and freely pursue their economic, social and cultural development." 6
  7. 7.  The right of self-determination has also been recognized in other international and regional human rights instruments such as Part VII of the Helsinki Final Act 1975 and Article 20 of the African Charter of Human and Peoples' Rights as well as the Declaration on the Granting of Independence to Colonial Territories and Peoples. It has been endorsed by the International Court of Justice. Furthermore, the scope and content of the right of self- determination has been elaborated upon by the United Nations Human Rights Committee and Committee on the Elimination of Racial Discrimination as well as international jurists and human rights experts.  The present Constitution of Kingdom of Nepal 2072 has entailed and recognized people's sovereign right and right to autonomy and self-rule and part-3 of the constitution of Nepal has guaranteed some important fundamental rights as Right to live with dignity, Right to freedom, Right to equality, Rights relating to justice, Right against untouchability and discrimination, Right to freedom of religion, Right against exploitation, Right to language and culture, Rights of Dalit, Right to social justice, Right to social security etc.  The right of self-determination of peoples is a fundamental principle in international law which has evolved within a framework of respect for the territorial integrity of existing states. 7
  8. 8.  The leading case concerning to self determination of individual is the case of John F. Kennedy Memorial Hospital V. Heston (1971)-"Adult's Right to Resist Blood Transfusions (Religious freedom as guaranteed by the first amendment of the constitution been violated) which was decided by The Supreme Court of New Jersey.  Delores Heston, a 22 year unmarried woman, was severely injured in a car accident. Upon entry to the hospital, it was determined that she would not survive without surgery for her reptured spleen. She also required a blood transfusion. Ms. Heston and her parents are Jehovah's witnesses, a religion which forbids blood transfusions. Ms. Heston mother opposed the transfusion and signed a release of liability for the hospital and its personnel. The hospital then made an emergency application to a judge for the appointment of guardian, with directions to consent to the transfusion, arguing that Ms. Heston's death was imminent without the transfusion. The court authorized the transfusions to save Heston's life based on the grounds that, if medical science requires a blood transfusion to preserve the life of a person, the person may not be deprived of his right to live because of religious objections. But such a decision directly conflicted with her religious rights as guranteed by the constitution and a question raised that; How should the state interest of preserving life be weighted against the individual's autonomy? Freedom of religion -" There is no constitutional right to choose to die". The practice of one's religious belief has generally been freely allowed in the United States so long as it does not infringe upon constitutionally protected rights of others. The Supreme Court of New Jersy has modified this principle by justifying the restraint of an indivudual in the practice of his religious beliefs, not to perserve the constitutional rights of others, but to protect that individual from himself. 8
  9. 9.  In international law, the right of self-determination that became recognized in the 1960s was interpreted as the right of all colonial territories to become independent or to adopt any other status they freely chose. Ethnic or other distinct groups within colonies did not have a right to separate themselves from the "people" of the territory as a whole. Today, the right of groups to govern themselves is increasingly intertwined with human rights norms, in particular the rights of minorities and indigenous peoples.  "The doctrine of national self-determination," says Sarah Wambaugh, "is based on and inseparable from that of popular sovereignty."" More recently, Kurt Rabl has said that viewed in historical perspective, the doctrine of the 'right of self-determination' has evolved to mean that no people must be forced to live under foreign domination or under a constitutional system which it does not agree to. Every people has the right to live within its own territory in external freedom and internal liberty. 9
  10. 10.  Juristic opinion varies widely on the question of the nature of the principle of self-determination. To some writers, recognition of the principle of self- determination represents a new development in international law. To others it means nothing more than the declaration of an already existing rule of international law. Whatever the relative merits of these opposing views, the fact remains that it is part of the United Nations Charter and has profound legal significance to contemporary world politics.  On the question of the meaning and range of the principle, opinions among jurists also vary. According to Kelsen, "self-determination of peoples" as sovereignty of the states or sovereign equality. Ross, however, came very close to a correct interpretation when he wrote that self- determination means a right for a people or a group (in a sociologico- ethnographical sense) to determine the national dependency of the territory inhabited.  On the positive side this would mean a right to claim territorial changes in accordance with the wishes of the population; on the negative side it would mean that no territory could be ceded unless confirmed by a plebiscite. 10
  11. 11.  The other major contemporary debate is whether self-determination should be interpreted as incorporating a right to democratic governance and/or certain rights of self-governance by minorities and indigenous peoples, short of a right to independence. The right of self-determination extends to economic, social and cultural matters. The fact that it has so far not been employed for this purpose, or employed to the same degree as in the case of political matters, does not in any way preclude its being invoked on future occasions.  Self-determination has two aspects, internal and external. Internal self- determination is the right of the people of a state to govern themselves without outside interference. External self-determination is the right of peoples to determine their own political status and to be free of alien domination, including formation of their own independent state. However, independence is not the only possible outcome of an exercise of self- determination. 11
  12. 12.  The question has also been raised as to whether the right of self-determination belongs to an individual or to a group of people. The cases that have come up for discussion and decision in the United Nations would seem to suggest that the right of self-determination belongs to a collectivity rather than to an individual. This is not to say that self-determination cannot become an individual right; but so far no efforts have been made to vest in the individual the right of self- determination.  In many nations in South East Asia and pacific regions there are continuing struggles for indigenous and ethnic group arresting their claims and interest in land and natural resources against the majority population? Indigenous communities are experiencing the common challenges of maintaining traditional access to use of land and natural resources in their communities, these includes: Protection of environment and local cultural traditions, Opportunity to participate in decision making bodies, The desire for social and cultural autonomy, Oppressive and restrictive government policies and Legally recognized rights to land and natural resources management.  However, neither the principle of self-determination nor its application has been widely accepted in practice, although there are indications that a number of governments and/or international human rights bodies especially in Latin America, Africa and some other developing countries are sympathetic to the claims of indigenous peoples for self-government and control over their traditional territories. 12
  13. 13. References:  The Constitution of Kingdom of Nepal, 2015  Mukhiya, Bal Bahadur., (2015), Comperative Jurisprudence Part-II , Aditya Mukhiya & B.B. Mukhiya, Bhaktapur  Black's Law Dictionary 9th Edition  http://digitalcommons.law.yale.edu, Fiss, Owen M., "The Autonomy of Law" (2001). Faculty Scholarship Series. Paper 1316; (access date 5 July 2016)  http://scholarship.law.duke.edu,The Meaning and Range of the Principle of Self-determination, M. K. Nawaz (access date 5 July 2016)  http://www.iwgia.org/human-rights/self-determination (access date 7 July 2016)  http://www.iep.utm.edu/autonomy/(access date 7 July 2016)  http://www.un.org/en/charter-united-nations, (access date 7 July 2016)  http://www.ohchr.org/en/professionalinterest/pages/ccpr.aspx (access date 8 July 2016)  https://en.wikipedia.org/wiki/Autonomy (access date 5 July 2016)  http://www.unpo.org/article/4957, July 19, 2006  http://http://www.miami.edu/index.php/ethics/projects/guardianship_and_ethi cs/module_6_-_religion/ July 19 , 2016 Thank you! 13

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