ABSTRACT

The right to self-determination(Right) is one of the fallouts of the 1945 San Francisco
Conference of the United Nations; that individuals, group and a people are now elevated and
given the status of subject of international law as against the hitherto position when they
were mere objects. This meant that these persons can now like state actors maintain their
rights at international law. One of such rights is the right to Self-Determination. This Right
which was intended for decolonisation now found relevance in contemporary times in
independent sovereign States.
However, in spite of this development and advancement at international law; and as
fascinating and appealing as this Right appear to be, its realisation has continued to be
bedevilled with a lot of practical problems and controversies. First, procedurally, there is no
procedure for a people to approach the Commissions in charge of the enforcement of the
Conventions; and secondly, the question of the definition and scope of the phrase a people,
the coverage of the right to Self-Determination itself and its relevance in contemporary
societies in the light of its realisation.
This paper will examine these questions in the light of the international Conventions
which guaranteed the Right and will contribute that the Right is even more relevant in our
today societies than in the colonial days and that attempt to resist the realisation of the Right
could collapse into secession. But that the scope to which a people can exercise this right
within a sovereign state should be redefined. The paper willconclude that the Right is an
international political tool by Colonial Masters to continue to have hold on hitherto Colonial
States in the guise of human rights including the right toself-determination as this right only
exist on paper. The paper will recommend that if the Right is anything to be relied upon, State
parties should reflect the substantive rights in the conventions in the functional part of their
constitution for example all the rights covered by the chapter two of the Nigerian constitution
should be incorporated in chapter four of the constitution. Other recommendations will also
be made.

Introduction
The 1945 San Francisco Conference of the United Nation saw the beginning of the
emergence of human right at international law. Until this time, only States were key players in
the field of international law and issues of violations of human rights were not matters of
international law as this would amount to a usurpation of the sovereign rights of the State.
The resultant feature of the Conference is that a numbers of persons which hitherto were
mere objects of international law are now elevated and given the status of subject of
international law. These persons include the individual; Non-Governmental Organisations
(NGOS); groups; and a people. This meant that these persons can now like State actors
maintain their rights at international law.
One of such rights is the right to Self-determination. By this Right which literally mean
let the people decide, a people can now decide what and how they want their political, civil,
economic, social as well as their cultural status should be both within a sovereign State and at
international law. The right to self-determination has attained the status of jus gens at
international law. That is to say that it has enjoyed state practice and it is believed by States
as a binding norm of international law1. The Right is a peculiar one and can only be enjoyed by
a people. It is implicitly covered by the Universal Declaration of Human Rights (UDHR)2and is
well provided for by prominent international law instruments the United Nation Charter3,
the International Convention for Civil and Political Rights (ICCPR)4, the International
Convention for Economic, Social and Cultural Rights (ICESCR)5 and the African Charter for
People and Human Right (AFCPHR)6 to mention a few. A denial of this right to a people is
portrayed by the conventions as not acceptable by the international community.

. This is evident in the Namibia Opinion Case I.C.J. Rep. 1971, 16; the Western sahara Opinion Case I.C.J. Rep.
1975,12 cited in Bazuaye, B. and Enabulele, O: International Law; Benin city (Ambik Press 2006) p.211
2
. Art. 2; which provided for the right to equality; Art. 3. Right to life, liberty and security of person; Art. 4. Right to
freedom from slavery or servitude; Arts 16, 22 27 which represents social and cultural rights and Art. 17 which is a
species of economic right.
3
. Article 1(2) United Nation Charter 1945
4
rd
. Article 1(1)(2) & (3) of the International Convention for Civil and Political rights 1966 but came into force on 3
nd
January 1976, cited in Rheman, J. International Human Rights Law. 2 edition (Pearson Education Limited. 2010)
p.85
5
. Article 1(1)(2) & (3) of the International Convention for Economic, Social and Cultural rights 1966 but came into
rd
nd
force on 3 January 1976, cited in Rheman, J. International Human Rights Law. 2 edition (Pearson Education Limited.
2010) p.85
6
. Article 20 (1) (2) & (3) of the African Charter of Human and Peoples Rights cited in Idowu A. A.; Revisiting the Right
to self-Determination in Modern International Law: Implications for African states; European Journal of Social
Sciences Voumes6, Number4 (2008).

The Right simply put means ability of a people to decide what they want to do with
themselves in terms of governance, civil, economic, social and even cultures life. The Right
however has wonitself the name a controversial concept. This is because itcame at a time
when the business of colonisation was no longer yielding desirable fruits and there was the
need to shift ground to a more lucrative business; which of course would be impossible to
achieve except the colonised gain their freedom first. It was then believed that the purpose of
the Right was a focus on decolonisation.
Many African countries happily exercised the right and with little or no resistance they
got their independence. But what became of the faith of the well-established African
structures before colonisation? Was the exercise of the right able to restore these structures?
The Human Rights Committee (HRC) as well as the International Court of Justice (I.C.J.)
emphasised and insisted that the exercise of the Right must be in line with laid down
international law principle of Utipossidentisjuris (colonial boundaries must be maintained)7.
So the exercise of the right was not to include determination of their boundaries that were
well established beforethe colonial masters invasionof these territories.
This led a school of thought to believe and argue that the Right is meant for
decolonisation process and the process having finished, the life of the right is spent. They
argued that the same concept which gave birth to African States sovereignty cannot again be
reason for disintegration of the newly emerged independent state. For them the right is a
basis for secession and if allowed to apply to sovereign States, would be a basis for minority
group to secede.This reasoning, in fact, formed the basis of the Indian government reservation
at the singing of the two 1996 conventions.8One of the proponents of this view is Shaw.
According to Idowu, Shaw has said that where a non-self-governing territory has
attained independence, the principle of self-determination coupled with territorial integrity
will operate to protect the territorial unity and framework of the new state.9Idowu quoted
Shawon this argument as follows:

. see the frontier dispute case (Burkina faso v Republic of mali)I.C.J Rep. 1986.554.chamber of the international court
of justice cited in Bazuaye B., supra p. 212 where the I.C.J said that the essential requirement of stability in order to
survive, to develop and gradually to consolidate their independence in all fields, has induced African states judiciously
to consent to the respecting of colonial frontiers, and to take account of it in the interpretation of the principles of
self determination of peoples.
8
. The word self-determination appearing in this articles apply only to the people under foreign domination and that those words do not
apply to sovereign independent states or to a section of people or nations which is the essence of national integrity.Rheman, J.
Supra p. 88
9
. Idowu A. A.; Revisiting the Right to self-Determination in Modern International Law: Implications for African states:
European Journal of Social Sciences Voumes6, Number4 (2008). P. 48

Indeed a basic presumption of the application of self-determination

is that it will be exercise by the people in question within the territorial
framework of the entity administered by the colonial powers before
independence.
Consequently,Idowu argued that:
In framing propositions on the content of the doctrine, Shaw rules out a
right of self-determination by resident minorities in an independent state.
On the same basis, he has also concluded that secession from a state
cannot be based on the right to self-determination. This is by no means an
isolated view for according to Ambruster, sovereignty and selfdetermination are mutually exclusive because the principle of sovereignty
excludes logically the right to self-determination.10
Shaw according to Idowu concluded:
If international law guarantees the sovereignty of the existing states, it
cannot permit, at the same time that this sovereignty is infringed under
the title of the right of self-determination.11
This school of thought therefore concluded that the Right is applicable to colonial
nationssolely, for the purpose of regaining their independence12. But this is just one side of
the coin and perhaps the primary purpose of the Right. The verbiage13 of the relevant
conventions and some of the comments made on them14, made the Right applicable in postcolonial era. This brings us to the views of an opposing School of thought. Some of the
proponents of this School are Franck Thomas and Rosaline Higgins. Relying on the provisions
of the two 1966 Charters and Principle V111 of the Helsinki Accord of 1975, they argued that
the Right extends beyond decolonisation of pre- colonial nations to a people in an
independent sovereign State.
Franck Thomas has argued that: since the end of the cold war era and decolonisation,
the meaning of the Right and its territorial integrity counterpart has had to be considered in
the context of burgeoning post-modern tribalist secessionism, including separatist movement
10
11

. Ibid.
. Ibid.

12

. This argument can be understood to be correct in the light of the United Nations General Assembly
Resolution 1514 adopted by the UN General Assembly on the Declaration on the Granting of Independence
to ColonialCountriesandPeoples;
th
http://en.wikisource.org/wiki/United_Nations_General_Assembly_Resolution 1514 accessed 25 April 2013
13

. See article 2(1) of the ICCPR which is to effect that the Right is intended to be implemented within the territory
and jurisdiction of state parties and to be implemented at domestic level.; Rheman, J. ibid.
14
. The Human Rights committees General Comment on the binding nature of the covenant.;Rheman, J. Supra p. 89,
para. 4.

in the disintegrating Soviet Union and Yugoslavia, Eritrea, Kurdistan, the Basque and Corsican
regions, Scotland, Wales, Tibet, Sloviakia ... Quebec and in various homeland of Canada,
Australia, New Zealand and the United States. Rosaline Higgins said of the Right as a nonsecessionist right of a people in an independent State to participate in governance but that in
extreme circumstances of grave violations of human rights that secession is imperative.15Even
the proponents of the first School of thought agree on this point that secession is a better
option in the light of grave human rights violations and consistent denial of minority rights
and participation in governance. This paper will attempt to reconcile these views.
DEFINITION AND MEANING OF THE PHRASE A PEOPLE:In other to ascertain the beneficiary
of this very unique right to self-determination it is important to try to know the definition and
meaning of the word people as used in the various conventions to describe the beneficiary of
this Right. Literally people would mean a group of individuals. However, English words are
capable of having more than just a meaning and the meaning of words in most cases may be
derived from the context in which they are used.
Therefore if the above definition of a people is correct, applying it to the exercise of
the Right to self-determination would mean that any group of individualsanywhere will
qualify to exercise the rightto self-determination within a Community, School,Church,
sovereign State and even at the international level. This will mean chaos. Thus in other to
really and properlyappreciate the meaning of the word people it will be very appropriate to
look at some of the international instruments which made provisions for this Right to see the
context in which the word a people is used. In this regard this paper will look at the
provisions for the Right in the following international instruments: United Nation Charter;
UDHR; ICCPR; ICESCR; AFCHPR.
UNITED NATION CHARTER: This 1945 Charter gave the platform for the recognition of
human rights.16 The Charter in its article 1(2) provided for the right to self-determination of
people as a right belonging not to the individual17but a collective right belonging to a people.
The provision is reproduced:
To develop friendly relations among nations based on respect for the principle

of

equal

rights and self-determination of peoples, and to take the appropriate measures to strengthen
universal peace.18

15

. Ibid. note 8,p. 50.

. Bazuaye, B. and Enabulele., supra. p. 173
17
Article 1(2).United Nations Charter.
18
. ibid
16

An analysis of this provision will reveal the following phrases:

-

Friendly relations among nations

Equal rights

Self-determination of peoples. (Italics and mine and represents the functional

words to be analysed.)

NATIONS: Nations has been defined as a large group of people having a common origin,
language and tradition and usually constituting a political entity19.
Commenting on this definition Glanville L. Williams has this to say:
The nearest we can get to a definition is to say that a nation is a group of people bound
together by common history, common sentiment and tradition and usually (though not
always, as for example, Belgium or Switzerland) by common heritage. A state on the other
hand, is a society of men united under one government. These two forms of society are not
necessarily coincident. A single nation may be divided into several states, and conversely a
single state may comprise several nations or part of nations.20
This analysis is very true of the Ijaw nations of Nigerian. They are found in more than
one state of the country. They are in Rivers State, Bayelsa State, Delta State, Ondo State and
even in Edo State. Yet they are one nation, one people. And then, in BayelsaState for of Nigeria,
for example, you have the Ijaw nation, Urhobo nation and the Isoko nation. It is submitted that
using the plural of the word people peoples to describe the various people of various
nations mixed up under one colonial government was not an error but actually refer to precolonial nations. The United Nations declaration on the independence of African countries
speaks volume of this.21
EQUAL RIGHT: The use of the word equal rights presupposes that there had been an unequal
treatment somewhere -the colonial masters and the colonized. The colonised and the
indigenous people have been reduced by colonial domination to condition unworthy of
human beings. Looked at, this way, it is understood where the use of the word equal right is
coming from. They took away their rights not only as individuals but as a people. So they were
bereft of the powers to decide as a people what to do to themselves and with themselves in
terms of politics, economics, social and cultural development.
All of these rights were taken away. At this point they were no longer equal with the
colonial masters in terms of rights.The freedom to enjoy these rights determines to a large
extent the statusof human beings in a given society.But now the game seems to be over. There
19

th

. Blacks Law dictionary 8 edition.

.John salmond, jurisprudence, 136 cited by Glaville L. Williams in Blacks Law dictionary, ibid.
21
. Ibid. note, 11.
20

is the need to return the rights and to elevate the status of these peoples. But to whom were
these rights to be returned? The Individuals? No! The right is for the people to return to what
they were as nations before the colonial interference. It is a collective right intended for the
nations to gain their freedom.22
PEOPLE: People literally, simply mean a group of individuals. But chambers have defined it as
a body of people held together by belief in common origin, speech, culture, political union or
common leadership.23
This definition bears a striking resemblance to the definition of a nation given above24
These nations at the relevant time can be regarded as minority in a sense because even
though their population were much, they have no say even in the decisions of the things that
applies to them.25 The people make up the nation. Therefore the used of the word people to
describe the beneficiary of the Right at a time when the world saw that the business of
colonialism was no longer attractive could mean no other thing but a self determination of the
colonised people in the different nations. Hence the use of the plural peoples and not
people.
UNIVERSAL DECLARATION OF HUMAN RIGHTS (UDHR):
At the time the United Nation Charter came into force in 1945, it was proposed that it should
have an international bill of rights in the model of the United State constitution. This did not
happen because of the limitation of time. It was then agreed that it takes top priority. 26 So on
the 10th of December 1948, the UDHR was adopted with no negative votes but there was a
refusal to vote.27 USSR and its satellite countries were socialist countries. They refused to vote
because the declaration provided for the right to own property. South Africa also refuses to
vote because the declaration said that the blacks and white are equal when it was glaring that
the blacks in South Africa were never equal with the whites. To them it is a codification of lies.
Saudi Arabia a Muslim country would never accept that principle of men and women are
equal They also abstained from voting.28

22

Ibid note 17
st
. Chamber 21 Century Dictionary Revised edition. P. 1024
24
. Ibid. note. 17
25
. This was the reason why President Wilson idea of self-determination was seen a ridiculous. Because the people
cannot really decide until someone decide who they are. Rheman, J. Supra p.
23

26

Sutter K., Glogal Direction: www.Global-Directions.com cited in traisbach K., Revisiting Human Rights 111; Secular
and Religious Sources of Human Rights 17 20 May 2006.
27

. Ibid.
. Trying to create a common standard for all peoples of all nations in the glaring light of cultural diversity was an
intentional act. There can never be a common standard for all peoples of different origin, language, cultural
orientation. They knew they were cooking a meal that would never be ready for eating.
28

However the provisions were not intended to be binding.29Here again the word people
is used in relation to nations that were yet to govern themselves. What then is the relevance of
the UDHR when they knew it was not meant to bind any nation?
As the proposed bill of rights of the United Nations charter never came forth, it was then said
that the substantive provisions of the declaration were taken by all states as the authoritative
interpretation of rights intended for the Charter. More so at the drafting stage, state
representatives treated it as interpretation of human rights provisions of the Charter. So
whereas the UDHR provided for the right, theCharter provided for States obligation to
observe the rights in the UDHR; that is to say the Charter and UDHR are one and the same
document. They complement each other. The Declaration too has attained the status of
customary international law because of existing state practice and constant referral to it by
other treaties.30
The UDHR also It was said31 formed the basis of the two 1966 Charters ICCPR and
ICESCR because of the difficulty in implementing the different rights in the two different
conventions which rights were lumped up in the UDHR.32
It has also been argued that the rights in the UDHR possess the character of jus cogens. This is
because its provisions are firmly rooted in international law and now form part and parcel of
every human rights instrument. It is not possible to derogate from it. In its character as a jus
cogens, it is now binding on all states whether it is ratified by them or not. 33 This UDHR,
though not in explicit term, also provided for a collective right of peoples in nations to
freedom. Being a single document with the United NationsCharter, article 1(2) of the charter
which has been fully discussed34 applies.
INTERNATIONAL CONVENTION OF CIVIL AND POLITICAL RIGHTS (ICCPR) AND THE
INTERNATIONAL CONVENTION FOR ECONOMIC, SOCIAL AND CULTURAL RIGHTS (ICESCR):
It has been said that the difficulty in implementing these two sets of rights lumped up in the
UDHR necessitated these two rights.35 By the article 1 of these two instruments, it is provided:

29

. The chairperson of the Human Right committee Mrs Eleanor Roosevelt, noted that it is not and does not purport
to be a statement of law or of legal obligation, it is instead a common standard of achievement for all peoples of all
nations. Rheman J. Supra p. 79
30
. Rheman J. Supra. pp. 80 - 82
31
Ibid. note 25
32
. Ibid.
33
. This it appears to me is the international comity magic. They must find a way of making themselves relevant in the
affairs of states.
34
. see pages 7 - 9
35
. Ibid note 30.

Article 1(1)
All peoples have the right to self-determination. By virtue of that right they freely pursue
their economic, social and cultural development
Article 1(2)
All people may, for their own ends, freely dispose of their wealth and resources without
prejudice to any obligation arising out of international economic cooperation, based, upon the
principle of mutual benefit and international law. In no case may a people be deprived of its
own means of subsistence.
Article 1(3)
The State parties to the present convention including those having responsibility for the
administration of non-self-governing and Trust territories, shall promote the realisation of the
right of self-determination and shall respect that right in conformity with the provision of the
charter of United Nations.
Article (3) of the ICCPR:
Developing countries with due regard to human rights and their national economy, may
determine to what extent, they would guarantee the economic right recognised in the present
convention to non-nationals.
Article 25 ICESCR:
Nothing in the ICESCR shall be interpreted to impair the inherent rights of a people to enjoy
and utilize fully and freely their natural wealth and resources.
Also instructive in this regard is paragraph 4(e) of the Declaration on the Establishment of a
New Economic Order. It provides:
Full permanent sovereignty of every state over its natural resources and all economic
activities. In order to safeguard these resourced, each state is entitled to exercise effective
control over them and their exploitation with means suitable to its own situations, including
the rights to nationalization or transfer of ownership to its nationals, this right being an
expression of full permanent sovereignty of state. No state may be subjected to economic,
political or any other type of coercion to prevent the free and full exercise of this inalienable
right36
A perusal of the above provisions reveals some conflict in the provisions in terms of
who a people actually refer to. Whereas some of the provisions make it appears that the right
to self-determination is relevant to people in an independent sovereign State to enable them
have a say concerning their economic resources, other parts talk in terms of freedom of a
people who were under colonial domination; all within one convention.
36

. Rheman J. Supra p. 148. See also United Documents: Gathering a Body of Global Agreements;
http://www.un-documents.net/s6r3201.htm accessed 25th April 2013.
9

In other words, people here is used to refer to both persons in non-governing states and
persons in independent sovereign states. This is made more explicit in the provisions of
Article1 (3) of the ICCPR reproduced above. The UN secretariat commenting on the term
people as used in the conventions states that a people refers to a group of human beings who
may not comprise a state or a nation.37 The distinction between a nation and a state has been
drawn in this paper.38There is also the conflict of intentions in the different conventions39
making it possible for States to pick and choose which one to be bound with if at all. For
example, although Nigeria ratify the two 1966 convention, the issue of resource control of the
Niger Delta is stillbirth. Nigeria rather incorporates into its constitution something that is
near the provisions of paragraph 4(e) of the Declaration of New Economic Order.40
Now even though article 1(1) and (2) of the 1966 charters seems to be relevant to a
people in an independent sovereign state, It cannot be relevant to the people of the Niger
Delta of Nigeria in the light of section 44(3) of the constitution41 together with the provisions
of section 1(1) of the petroleum Act42 and the decision in the case of Gani Fewehinmi v
Abacha.43 In this case which facts touch on giving effect to the provisions of an international
treaty at domestic level, the apex court held that in the event of conflict between it and
another statute, the provisions of the treaty will prevail. This appeared to be the law on this
point but it was greatly criticized in the light of the fact that the constitution is supreme and
the decision does not represent the intendment of section 12(1) of the constitution.44 This
would have been good news because the law is what the judges say it is. But I do not think
that any judge has towed this line a will ever tow it again.
What is more, the ICCPR did not provide for the procedure of a people to submit
communication to its commission. It rather provided for individual and inter-state procedure
both under the convention itself and under the optional protocol. This optional protocol is a
complementary agreement where states agreed to be bound on the point that individual from
their states can present communications to the commission against the state on issues of state
violations of such an individuals human rights.
37

. Rheman J. Supra. p. 472

. Ibid. note, 19
39
. article 1(3) ICCPR and para. 4(e) The Declaration on the New Economic Order. Whereas the economic order is
saying that state has full permanent sovereignty over all economic resources, the convention is saying that a people in
an independent sovereign state can decide what to do with their economic resources with prejudice to any obligation
incumbent upon the state at international law.
40
. see section 44(3)of the constitution of the federal republic of Nigeria as amended. See also section 1(1) of the
petroleum act LFN 1990 which vest the exclusive ownership of every mineral resources in the country on the federal
government.
41
. Ibid
42
. Ibid
43
. (2000) 6NWLR (PT660) 228 particularly at 288.
44
. see details of the critics in Bazuaye, B. and Enabulele O., supra pp. 42- 46.
38

10

This no doubt places the state and the individual at the same position at a level beyond the
domestic level.

The corollary is that claims to self-determination under Article1of the

convention all failed.

According to Rheman J.:
Claims to self-determination have been invoked in a number of cases before the committee.
However as article 1 refers to the right of a people and the convention procedure concerns
individuals all claims under article 1 have been held inadmissible.45
This paper does not see the realisation of this Right in an independent sovereign State in the
near future without leaving adverse consequences. At least not in Nigeria. The Right can never
even be used by the people to determine their political structures. All over the world
leadership is imposed on the people and not by their decision through their votes; and the
United Nations will be the first to say that the elections are free and fair. The people of Nigeria
were denied their mandate through the Social Democratic Party (SDP) of June 12 1993, in an
election that was recorded the freest and fairest in the history of Nigerian elections.
The paper is simply saying that the right is international politics.
THE AFRICAN CHARTER: This Charter is one of the regional Charters that provided for the
right to self-determination. It refuses to draw a distinction between the so called first, second
and third generation rights like other Conventions and Charters did; but lumped them all up
in this single instrument. It recognised the fact that human rights go beyond individual rights
and that a persons right can be infringed also by reason that he a member of a group. Article
20(1)-(3) is very instructive in this regard and is hereby reproduced:
(1).

All peoples shall have the right to existence. They shall have the
unquestionable and inalienable right to self-determination.

(2).

Colonised or oppressed peoples shall have the right to free

themselves from the bonds of domination by resorting to any means recognized
by the international community

(3).

All peoples shall have the right to the assistance of the states
parties ....in their liberation struggle against foreign domination, be it political
economic or cultural.

A critical look at this provision shows that although the phrase all peoples was used, the right
here was intended for a people who have been wary and tired of colonial domination. The
preamble of the Organisation of African unity speaks volume of this fact. The preamble affirms

45

. Rheman J. Supra p 475.

11

the inalienable right of all people to control their own destiny.46Flowing from the above it has
been strongly argued by Rheman J. as follows:
That this Right was never intended for the individual or collective group rights. The reference
to peoples was largely framed in the context of the right to sovereign state equality, a move to
eradicate colonialism. There was no consideration of right to self-determination apart from an
emphasis on no-interference in domestic affairs of States, and the guarantee for the respect
for the sovereignty and territorial integrity of each state and its inalienable right to
independent existence.
Idowu has a counter argument on this point. He said:
As a writer has correctly observed, whilst article 20(2) is specifically directed
to
colonised or oppressed peoples, the other two paragraphs of article 20 ... are directed and
are applicable to all peoples. The distinction is clearly deliberate, for article 29(2) grants
colonized or oppressed peoples the more expensive right of resorting to armed conflict to
effect their right of self-determination. This is not expressly granted to other categories of
peoples, who are not categorised either as colonized or oppressed. It should be further noted
that article 19 of the charter which defines peoples does not qualify this term with colonial
or oppressed. Thus, the African right to self-determination could not have been intended to
be limited to colonial territories. In any case, even the term colonized and oppressed are
used disjunctively in article 20(2), with the resulting effect that peoples who are not under
colonial rule, but are oppressed, have a right of self-determination under the African
charter.47
It is submitted that if idowu had averted his mind to the issue of procedural capacity attaching
to a people as provided for in the Charter his argument would have been different.TheCharter
gave no procedural capacity to a people to submit communications to the commission. It only
gave such capacity to only state parties and the individuals. 48 It would have done so if the
right was intended for a people. The omission was deliberate.
PROCEDURAL CAPACITY: Having identified the beneficiary of the right to Self-determination
as provided in the various conventions, it will be appropriate to take a flipping look at the
procedures for redress in the case of violations. For the purpose of this paper we shall
consider only the United Nations Charter, The ICCPR and the AFCHPR.
PROCEDURE UNDER THE UNITED NATION CHARTER:
For purposes of redress in the case of violations of the provisions of the Charter, the
International Court of Justice (I.C.J.) was established in 1945 but began work in 1946. The
jurisdiction of the Court covers both contentious matters and advisory role. Its decisions do
not bind a State even though such a State is a party to the ICJ Statute except such a State
consents to the jurisdiction of the Court. The decisions of the Court are final. The advisory
jurisdiction is not open to States but its own organs in respect of legal advice.
46

. Rheman J. Supra p. 326

. Idowu A. A; ibid, pp. 52-53
48
. see article 47 54 of the charter for state parties procedure and article 55 for individual communications. None
for a people.
47

12

The Court cannot create new law i.e its decisions in one case cannot be cited as
precedents in another case of similar facts. It also does not decide on matters which have no
legal basis. There is neither jurisdiction for the individual or for a people.
ICCPR: The body in charge of implementing the substantive rights in this convention is the
Human Rights Committee (HRC). The body works on part time basis. Its functions can be
found in the ICCPR itself; the First Optional Protocol and the Rules of Procedure. Under the
rules in PT IV of the ICCPR followings is provided as follows:
Membership is 18 members to be elected from nationals of member state. They are expected
to be persons of high morals and impeccable character.49
Not more than one member from a state; members serve in their personal capacity and not as
representatives of their states but no provision for the independence of members from their
states government. Quorum for the purpose of business is 12 and so much more.
MECHANISM OF IMPLEMENTATION OF HRC:
There is compulsory reporting procedure to show States compliance with the provisions of
the convention. The HRC engage in general comments interpreting and explaining the
provision of the conventions. There is inter-state and individual complaint procedures which
can only commence after all domestic remedies have been exhausted.
There is a system of presenting the reports which include three types via: initial,
supplementary and periodic but no provision for sanctions for non-compliance with reporting
procedures by States or for incomplete reports. NGO as well as specialised agencies are
allowed to participate in the reporting process but must not comment on the States report.
No action can be brought against international or regional organisations even when they are
negligent in conducting the affairs of the convention.50
In the whole analysis, it is striking to note that the Right to self-determination is not
justice able under the optional protocol.51 Article 1 and 2 of the protocol explicitly refers to
individual even NGO cannot present communication on behalf of alleged victim. Yet the right
to self-determination is not meant for the individual. The likely conclusion is either that the
Right was never contemplated or that it was copied and pasted from other conventions.
MEANING AND SCOPE OF THE RIGHT:
Let the people decide was the surface meaning given to the doctrine of Self-determination as
enunciated by a professor of Political Science and a onetime president of the United States,
49

. No provision as to what will amount to high moral character who adjudged the standards.
. Rheman J. Ibid. 130
51
. Rheman J. Ibid. p. 126
50

13

President Wilson. The doctrine was however criticized as being ridiculous. Because, it was
believed that the people cannot decide until somebody decides who are the people.52
The Right to Self-Determination simply put means the ability ofa people to decide what they
want to do with themselves in terms of their political, civil social and even cultural aspect of
their lives.
The Right has been defined as the right of all peoples to determine their political future
and freely to pursue their economic, social and cultural development.53 The preamble of the
OAU defined it as the inalienable right of all peoples to control their own destiny for their own
ends.54 If this definition is correct which I suppose it is, in the light of Article 1 of the 1966
conventions, then once the beneficiary of the Right is identified, such a beneficiary can
determine what they as a people would do with their resources political, civil, social and
cultural endowment for their own ends (benefit).
THE SCOPE OF THE RIGHT: The scope of this concept has been a source of great debate
leading to two different Schools of thought on the issue. Whereas the one School of thought
argued that the Right is a secessionist Right targeted at allowing colonized territories regain
their freedom (decolonization) and the process having been over the life of the right is spent
and can only be relevant in and independent sovereign state as a basis of secession in certain
conditions and circumstances, the other School of thought insist that itis a non-secessionist
right of a people to participate in the affairs of their state to determine their destiny and that
secession is an imperative option at the extreme of grave violations of human rights.55 At least
the both Schools agree that the Right could be a basis for secession under certain conditions
and circumstances in an independent sovereign State. However, Idowu has told us that there
are three aspects to this Right56 He mentioned the external aspect of the concept; the first
internal and the second internal.
EXTERNAL ASPECT: He stated that by virtue of it peoples determine their international
political status (i.e) whether to enjoy complete political independence or merely, selfgovernment, merger with another State or one form of secession or another. It also includes
the right to decide to remain a dependent or even colonial state.
The School of thought that expressed the view that the Right does not extend beyond
decolonization of colonial nations to independent sovereign States obviously believed that
this was the only side to the coin (the Right). They feared that the right include secession and
if allowed to apply to sovereign independent State will go to affect the territorial integrity of
52

. Rheman J. Ibid. p. 473

. Idowu A. A. Ibid. p. 44
54
. Ibid note. 45.
55
. A detailed discussion of this argument is given at the introductory part of this work.
56
. Ibid.
53

14

the state. This fear informed the reservation expressed by the Indian state representative to
the commission at the signing of the ICCPR. The reservation is hereby reproduced:
The words self-determination appearing in this article apply only to the
peoples
under foreign domination and that those words dot not apply to
sovereign independent
states or to a section of people or nations which is the essence of national integrity.57
The Right to Self-determination as espoused in the mid 1940s and even now does not
necessarily include secession subject to a few exceptions. The exercise of the right is hydrahead, if it is allowed to apply.
FIRST INTERNAL ASPECT:
By virtue of this right people are allowed to be complete masters of their territory.
What Idowu termed the external aspect to the right cannot is actually inchoate without what
he termed as the first internal aspect. This is because it is the essence of the whole story of
the right to Self-determination and it was well captured by all the conventions, treaties and
declarations which pronounce this right whether implicitly or explicitly.
For the purpose of avoidance of doubt, paragraph 4(e) of the Declaration on the
Establishment of a New Economic Order is very instructive.58Yet on the
face of this glaring provision, many States59 who assumed independence in the sixties were
prevented by the same people who claimed to be granting freedom to colonized peoples, full
exercise of this Right. They could not pursue freely their economic, social and cultural
development. The corollary is that they were compelled to be, and tagged debtors of the
International Monetary Fund.60
SECOND INTERNAL ASPECT:
This aspect according to Idowu enable the people in the fledging states to freely determine
their political institutions, representative and to participate in the process of governance
democracy a right that still reside in the realms of fantasy in most African States including
Nigeria.(Italics are mine.) This aspect of the Right is very fundamental. This is because, having
emerged as a new State, it is imperative that there must be structures in place to subsist the
existence of the State such as political, civil, economic, social and cultural structures; and the
Right and thePower to decide what these structures should be ought to by the exercise of this
Right be in the exclusive reserve of the people of the State. Perhaps this is where the Right is
most relevant in contemporary societies not necessarily secession.

57

Rheman, note 8
. ibid note 39
59
. Idowu A. A. Ibid. p. 45.
60
ibid
58

15

The scope of the Right therefore covers not only independence and permanent sovereign
States (not absolute) from the colonial powers but also the right of a people of the State to
determine the affairs of the State.
SELF-DETERMINATION AND UTI POSSIDENTIS JURIS:
This principle can be better appreciated when it is looked at with decolonization periscope.
The principle means that colonial boundaries must be maintained. Before the colonial era,
Africans boundaries were fully established. Although there were no states at this time, each
nation knew their boundaries. However the colonial masters came and established their
own boundaries of African by alien who were without the knowledge of this well established
boundaries as a result of the scramble for and partition of Africa without the knowledge and
consent of the people.
Jeffry Herbst who studied this development on paper reported the speech of one of these
Boundaries Planners concerning the Nigerian boundaries thus:
In those days, we just took a blue pencil and ruler, and we put it down at Old Calabar, and
drew that blue line to Yola ... I recollect thin king when I was sitting having an audience with
the Emir of Yola surrounded by his tribe and it was a very good thing that he did not know
that I, with a blue pencil, had drawn a line through his territory.61
These were the boundaries that had to be maintained at independence. How would there be
peace in African? In at least two boundaries dispute cases62 the ICJ was firm in holding this
principle to be so. He observed:
The essential requirement of stability in order to survive, to develop and gradually to
consolidate their independence in all fields, has induced African states judiciously to consent
to the respecting of colonial frontiers, and to take account of it in the interpretation of the
principles of self-determination of peoples.
Indeed the African heads of states on 21st July, 1964 at Cairo made this resolution. But what
did we so immediately after their independence from the same people who just reaffirm and
consented to respecting....? Claims and counter claims arising from boundary disputes. A
scholar monitored this development on paper narrated the situation as follow:
Consequently, hardly had the African states attained independence, when claims and
counter-claims were being made by on African state
or the other on large territorial tracts
of the other. This, Somalia claim large territories insouthern Ethiopia (Ogaden) and
Northwest Kenyan and in Djibouti; territories in which there were large settlements of
Somali speaking people. Morocco claimed the whole of Western Sahara, Mauritania and parts
of Algeria.

61

. Jeffry Herbst, The creation and maintenance of Nation Boundaries in Africa: international Organisation (1989)
vol. 43.4 at p. 670 cited in Idowu A. A. Ibid. p.46
62
. In the frontier Dispute case (Burkina Faso n Repuplib of Mali) I.C.J. Rep. 1986,554; The Maritime Boundary
Cameroon v Nigeria , I.C.J. Rep. (2002), para 42.

16

Mauritania and Mali were engaged in territorial disputes, as were Ghana and Togo.63Burkina
Faso and Mali were not left out and also Cameroon and Nigeria.
(Underlines are mine.)
Without prejudice to the 1964 Cairo Resolution on the affirmation by African leaders
to respect colonial boundaries, it is submitted that these boundaries were actually imposed
and not consented to. This is because African nations at the relevant time were too naive, not
different from minors in the eye of the law who had no capacity to give valid consent. And in
the light of all they have been meant to experience, they were not in position to trade off this
golden opportunity by looking at the colonial masters in their faces and say no to the principle
of utipossidentisjuris in their exercise of the right to self determination. That would have
amounted to outright denial of the right. No wonder, Nigeria did not mention anything
concerning its boundary and neighbouring Cameroon at independence. Again they could not
give out what they do not have given the training they received they were not expected to do
more.
The principle of utipossidentisjuris, it is submitted is a limitation on the Right to Selfdetermination; and goes to show the fact that the Right was not meant for any good for the
Africans but coined to pave way for a more modern and polished form of colonialism.
THE RIGHT TO SELF-DETERMINATION AND SECESSION:
It has been argued strongly that the right to self-determination does not include
secession. This appeared to be the kernel of the argument of the School of thought that says
the right does not extend beyond decolonization of colonised nations to independent
sovereign States.64 This School feared, the Right if allowed in independent sovereign State,
would be a basis for secession of minority. The second School of thought agree with them on
this point but that the fact that it supports the colonised nations to break away from colonial
domination does not support the view that it will create room for secession when applied in
independent States.
Rosaline Higgins, one of the proponents of this view was emphatic when she declared
that the Right to Self-determination is a contemporary non-secessionist right of people within
an independent state that allow for the people participation in the affairs of the State but that
in the event of grave and extreme violation of human rights, secession is imperative. John
Dugard who belong to the first School of thought agrees with the Second School of thought on
this point that the right can be applied
to independent States to support secession on certain condition which he listed as follows:

63
64

. Ibid. note 59
. ibid

17

(i).

the people of the seceding territory constitute a distinct people,

having regard to their language, culture and historical experience;

(ii).

the people have a clear historical claim to the territory in question;

(Iii).

the territory occupied by the secessionist group came under the control

of

the

existing state by some unjustifiable historical event(as in the case of the soviet
unions annexation of the Baltic states);
(iv).

the will of the people of the territory has been expressed by means of a referendum
or election and shows very clear support for secession;

(v).

the human rights of the people have been seriously violated and they have been
denied proper participation in the government of the state from which they wish
to secede.65

The exercise of the Right if, allowed toapply without restriction is hydra-headed. It can by
exercise by a people anyway and any how they choose. It does not necessarily mean secession.
Thus whereas some state exercise it to declare their independence,66 other states exercise it
to unify.67 Some other preferred to break out68 and others exercise it to remain dependent
States.69 Others still, preferred to join existing States70 For Somali, it insisted in exercising the
Right to uniting all Somali people in other territories such as Ethiopia, Kenya, and Djibouti in
what it called Greater Somalia. To this people, if the right is anything to rely upon, it should
involve the transferof territories occupied by Somali people and their populations from the
Ethiopia and Kenya to Somali71
The Right therefore as has been said does not necessarily include secession except in
extreme cases where there is massive and discriminatory human rights violation that
approach genocide or when a group, community has been systematically excluded from
political and economic poweror when a minimum level of minority rights or a reasonable
demand for self government has been consistently denied.72 Indeed in the secession of
Yugoslavia there was war.
RELEVANCY OF THE RIGHT IN CONTEMPORARY SOCIETIES:

65

. Idowu A. A. Ibid p. 49.

. State like Nigeria, East Timor, Kosovo cited in Rheman J. ibid, p.477
67
. States like West and East Germany. ibid
68
. The former soviet Union and yogoslavia, Serbia, Kosovo, Ossertia. Ibid
69
. The inhabitants of Gilbratar preferred to remain with Britian,The Falkland Island preferred also to remain a Britain
colony and PactoRion preferred to remain in some form of association with the United States. Cited in Idowu A. A.
p.44
70
. Hawaii and Alaska prefer to join the United States. Ibid note 64.
71
. idowu A. A. ibid 46
72
. Hurst Hannum, The Right of self determination in the Twenty-first century, 55 Wash & Lee L. Rev., 773 (1998);
http://scholarly commons.law.wlu.edu/wlulr/vol.55/155/8. P.777
66

18

It has been noted in the introductory part of this work that if the Right to selfdetermination as guaranteed by the various conventions, declarations and treaties is anything
to rely on, then it is most relevant in our today societies. The United Nation Charter together
with the UDHR and the two 1996 Conventions pave way for the right of all people to exercise
the right to self-determination to determine their political, economic, civil, social and cultural
rights to their own benefits. According to Frank Thomas, the Conventions clearly intend to
make the right of self-determination applicable to the citizens of all nations, entitling them to
determine their democratic means.73
Indeed the Right now entitles people in all States to free, fair and open participation in
the democratic process of governance.Franck has said that if this participation is denied,
especially to a geographically separated and distinct ethnically and/or culturally related
people, secession may surface as a better option.74
In this way this paper agrees that the right is most relevant in contemporary societies.
This paper believes that in a society where State machineries are used as apparatus of terror
and to prosecute specific groups of the population instead of protection of the life and
integrity of citizens, the Right is relevant. In States where heads of States are now turning into
life and monarchical president making the presidency seat inheritable by their heirs even in
the light of grave violations of citizens human rights, the Right is seriously relevant.
In States like Nigeria where the peoples mandate in a most free and fair June 12, 1993
is denied, the Right is needed. In countries too, where so much as N78b and more is invested
in an election promising to be free and fair turned out to be systematic rigging and even the
United Nations was first toaffirm it free and fair, the Right is needed. In countries where the
mainstay of the nation accrues from a particular region yet such a region is neglected, the
people allowed to wallow in abject poverty, the Right is mostly need to enable them
determine their economic rights for their own ends even if it means secession.
AN APPRAISAL OF THE RIGHT TO SELF-DETERMINATION:
So much has been said about the Rights in the preceding paragraphs. The Right is indeed
relevant not only to pre-colonial nations but also in independent state. However much is still
left to be said. This is in terms of whether the Right as provided for in the relevant
conventions is mere window dress a programme to make the colonial power to continue to
be relevant in the affairs of the supposed freed States or was actually intended to use? This
question becomes relevant in the light of the enforcement mechanism of this Right, the
negative attitude of states as well as the international comity in terms of compliance with the

73

. Idowu A. A. ibid. p. 50
. ibid

74

19

decisions of the various committees. Indeed the provisions of the various conventions and
declaration are becoming standard for human rights legislations in Africa. According to
Bazuaye the provisions are gradually becoming the toast of constitutions of African
countries. For instance, the preamble to the constitution of Mali 1991 recognises the charter
as one of the purposes of the constitution. Section 7 of the constitution of the Republic of
Benin Law No. 70 -32 of 11th December 1990, makes the Charter an integral law of the land.
The preamble of the constitution of Cameroon 1972 as amended by Law No. 96 -06 of
18th January 1996 follows a similar pattern.75 Even Nigeria by chapter two and four of its
1999 constitution as amended incorporates these rights without making reference to the
Charters, Conventions or Declarations. It even domesticated the African Charter. However, the
question that still remains is whether the presence of this right in these constitutions is
conclusive of its enforceability. With respect, the position taken by Bazuaye is not conclusive
of the enforceability of the Right. Whatever is the provision of the constitution is subject to
interpretation. According to Oliver Wendell Holmes Jnr., The prophesies of what the courts
will do in fact, and nothing more pretentious are what I meant by the law.76 Who made the
judges?
ENFORCEMENT MECHINERIES: This sub head has been discussed under procedures in this
paper. It is striking to note that none of all the Charters, Conventions and Declarations
discussed which provided for the Right to self-determination made provisions for a people to
approach the relevant commissions to seek redress. The provisions are limited to States and
the individual. What is more! Even under the optional protocol to the two 1966 Conventions
the Right is not justiceable.77 It is submitted that if the right were not intended for window
dressing, machineries would have been put in place for a people to lodge petitions.
THE ATTITUDE OF STATES TO THE DESICIONS OF THE COMMITTEES:
State parties have always shown the attitude of non-compliance to the decisions of the
commissions and courts. Notwithstanding the fact that, no procedure is provided for a people
to approach the commission, the result would not have been different if it were provided for
in terms of non-compliance with its decisions by State parties. In the case of Ken SaroWiwa
and 8 others,Ken was before the commission where interim measures were ordered by the
commission. The Nigerian State Government in violation of that order Ken and the 8 other
were convicted and executed while the order of the commission subsisted.78 Nigeria did that
with impunity. Even if the Nigerian government was to be sanction; who suffers?
75

. Bazuaye, B. and Enabulele O., ibid. p. 185

. The Part of the Law; 10 Harvard Law Review. 457 (1897)
77
. ibid note 50.
78
. Bazuaye, B. and Enabulele O., ibid
76

20

The Government? or the people? Western Sahara is a nation that has expressed the intention
to exercise the Right to self-determination since 1976, but till date Morocco has continued to
keep the people under siege in full glaring eyes of the United Nations without any
consequence.79
THE RIGHT TO SELF DETERMINATION AND DOMESTIC LAWS:
State parties to the Conventions are fast at ratifying and domesticating. However enforcement
of the rights at domestic level is also a problem.80 In Nigeria for example, the resource control
issue of the Niger Delta is dead, at least until theSection 44(3) of the 1999 constitution as
amended is reviewed. At the signing and domesticating of all the treaties Nigeria knew it has a
neutralizer. However the Indian government at the signing of the 1966 Conventions never
pretended about its convictions. She expressed a serious reservation.81
THE ATTITUDE OF THE INTERNATIONAL COMMUNITY:
The attitude of the international community especially in the light ofSuper Powers politicking
with the Right to Self-determination speak volume of the fact the Right is international
politics. This can be seen in the secession of Ossetia from Georgia; and the secession of
Kosovo from Serbia. At the secession of Ossetia from Georgia the United States of America
insisted there must be no secession of Ossetia from Georgia. However the USSR quickly gave
recognition to Ossetia. On the other hand, Kosovo secession from Serbia USA gave recognition.
But USSR insisted no secession of Kosovo from Serbia. Indeed this No means just more than
it says. Experience has shown that the super powers can make life miserable for States like
this. Their consent is very vital. In the recent Daouya Island dispute between China and Japan,
the USA quickly mobilized and deported deadly weapon to support Japan. The United Nation
watched in silent.82
The above simply go to show the extent to whichthe Super Powers are trading with the
world. The right to Self-determination is no exception.
THE PEOPLE OF BAKASSI AND THE RIGHT TO SELF DETERMINATION:
Having analysed the working of the Right outside Nigeria, it will be appropriate to bring the
workings of the Right home. The Bakassi Peninsular was the reason for the Maritime
boundary dispute between Nigeria and Cameroon where the ICJ held ceding the peninsula to
Cameroon. The decision of the ICJ is final. Cameroon owns Bakassi Peninsular. What then

79

. Western Sahara Demand for Independence:http://www.state.gov/j/drl/rls/hrrpt/2012/nea/204390.htm

accessed on 25th April 2013
80

. Abacha v Ganifawenhimi supra

,.ibid. note 8
82
. CCTV News.
81

21

happens to the people of the Bakassi who see themselves as belonging to Nigeria and not to
Cameroon. They have a right to Self-determination which has nothing to do with the boundary
dispute between Cameroon and Nigeria. They have expressed their desire to join the Nigerian
people. The various Conventions have no machinery to accommodate their complaint as a
people. Nigeria as a country cannot do that for them. The Conventionssay they have the right
to self-determination to decide where they will be. They cannot reach the ICJ nor can they
access the commissions in charge of enforcement of the Conventions to pick up this right. How
do they now realise the right? - Agreat lacuna exists which was never a mistake.
CONCLUSIONAND RECOMMENDATION
The paper has shown painstakingly that the right to self-determination is attractive and
appealing and desperately needed in contemporary societies because of the promises which
the Conventions hold for the people. The paper also has shown through analysis that the Right
is international politics to continue to make themselves relevant in the affairs of the hitherto
colonial nations which are now independent sovereign States. In fact the whole story of
human rights at international law is a shift to a more modern form of colonialism. This is more
explicit in the light of the fact that neither the state parties nor the international community is
willing to be responsible. Theright to self-determination is not an exception.Their attitude is
summarised in the words of OsitaC. Eze: African countries and indeed the government of the
world over, are concerned with the material scope and degree of enforcement of such
international Rights. As long as they dealt with matters such as apartheid, colonialism and
refugees, they were not more inclined to comply. But when they touch on the activities of
modern states such as those that deal with matters of constitution, administration, justice and
police, which concern fundamental functions of the State, there is an obvious reluctance to
accept international supervision and enforcement.83 So either ways they are just not there.
It is recommended therefore that the Right as provided for by the relevant
Conventions, Charters and Declarations, should focuspart of its enforcement machinery on the
States who ratify the Conventions andwho pledged theobservance of same in their States,
such that the substantive rights as listed in the Charter and Conventions should be
incorporated in the functional part of State parties constitutions. For example the rights
provided for in Chapter 2 of the constitution of the Federal Republic of Nigeria should be
merged with those in Chapter 4; thejudiciary should be firm to make positive pronouncement
on them and the provision for immunity for heads of governments should be waived when it

83

. Osita c. E.; Human Rights in Africa: Selected problems (Lagos: Macmillian 1984) p.15, cited in Bazuaye, B. and
Enabulele O., ibid. pp. 186 -187

22

comes to issues of violations of human rights. The right to Self-determination should not be an
exception.
It is also recommended that the Right having been incorporated in the functional parts of
State partys constitution, the extent to which a people can rely on it within the State should
be defined to avoid situations of abuse of the Right.
It will be a step in the right direction if the various international instrument providing
for the right to Self-determination amend and improve on its procedures by creating a forum
for a people to visit the commissions or courts for redress in cases of a denial of the Right.
The African Charter on Human and Peoples Rights insistence on exercising the right to Selfdetermination in line with the principle of territorial integrity should also be looked at such
that Article 56(2) of the Charter be amended or strike out to give way to the exercise of this
Right in an independent sovereign States. This indeed will be in tune with modern realities.

23