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Revisiting the Right to Self-Determination in Modern International Law: Implications for African States
A.A. Idowu Department of Public Law, Faculty of Law Obafemi Awolowo University, Ile-Ife, Nigeria Abstract By virtue of Article 3 of the United Nations Draft Declaration on the rights of indigenous peoples, such peoples have the right to self-determination. Ipso facto, they can freely determine their political status and freely pursue their economic, social and cultural development. The United Nations Charter1 also recognizes the principle of equal rights and self-determination but the subsequent development of International Law has been such that self-determination is now recognized as a right under customary International Law2. Other subsequent developments in International Law in regard to non-self governing territories as enshrined in the Charter of the United Nations, made the principle of self-determination applicable to such territories3. In the present world order, the right of self-determination has assumed a subject of serious concern to all freedom-loving societies. What are the constituents of the right of self-determination? What is the significance of this right in Municipal and International Laws? What are the implications of the right of selfdetermination to non-independent and independent nations particularly, in Africa? Should the right of self-determination be limited to the activities of peoples of non-self-governing territories? These are some of the questions requiring solutions through research methods of primary and secondary sources of data undertaken in this article.
The right to self-determination of peoples is a fundamental principle of International Law4. This right is said to have evolved and developed during various periods of decolonisation5. The scope of the right post-colonialisation has been the subject of considerable debate and controversy6. In accordance with the Declaration of the United Nations General Assembly7 on Principles of International Law Concerning Friendly Relations and Co-operation among States in line with the Charter of the United Nations, it is also the duty of States to promote the right to self-determination of peoples. But the implementation of the principle of self-determination requires every State to promote, through joint and separate action, universal respect for, and observance of human rights and fundamental freedoms in accordance with the Charter of the United Nations Organisation. Again, taking into account the particular situation of peoples under colonial or other forms of alien domination or foreign occupation, the World Congress on Human Rights recognised8 the right of peoples to take any legitimate action, in accordance with the Charter of the United Nations, to realize their inalienable right of self-determination. The Congress considered the denial of the right of self-
1 2 3 4 5 6 7 8
Article 1. See for example, the Namibia Case, (1971) ICJ, Report, 16. Ibid. at p. 31. See also, the Western Sahara Case (1975) ICJ, Reports, 12 at 16. See International Human Rights Text and Materials (2001) 2nd ed., Sweet & Maxwell, London, 76. Ibid. 107. 39 U.N.G.A.R. (1994) Supp. 40 (A/39/40) 10-11. 2625 (xxv) of October 24, 1970 United Nations’ World Conference on Human Rights (Vienna Declaration and Programme of Action) June 1993, Part 1. Paragraph 2.
European Journal of Social Sciences – Volume 6, Number 4(2008) determination as a violation of human rights and underlines the importance of the effective realization of this right. Despite the above stated efforts of the United Nations Organisation, there are still incidents of war, violence and civil disobedience in various parts of the world due to different forms of struggles by peoples against activities of governments perceived to undermine their right of self-determination. Such violent incidents have led to colossal loss of lives and property almost in the nature of the disaster experienced during the Second World War and which led to the establishment of the United Nations Organisation whose fundamental objective is to “…. save the succeeding generation from the scorch of war which twice in our life-time has brought untold sorrow to mankind …”9 In order to sustain the efforts of the United Nations Organisation in pursuing this laudable objective, the right of peoples in all countries to self-determination must not be toiled with. This article examines the meaning and relevance of the concept of self-determination in modern International Law. It appraises the scope and the current status of the concept in the light of various academic and judicial opinions as well as the divergent influencing factors in different nations. The article proceeds to evaluate the implications of the right of self-determination for African States.
The Meaning of the Concept of Self-Determination
Self-determination may be defined as “the right of all peoples to determine their political future and freely to pursue their economic, social and cultural development. Politically this is manifested through independence as well as self-government, local autonomy, merger, association or some other forms of participation in government. It operates both externally and internally to ensure democratic government and the absence of internal or external domination. Umozurike’s definition10 bears a striking resemblance to the definition in Article 1 of the U.N. Charter common to the two international covenants on Human Rights, adopted by the U.N. General Assembly and opened for signature, ratification and accession on 16 December, 1966, which states as follows: “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.”11 The concept of self-determination consists of three fundamental aspects: (1) The external aspect, by virtue of which peoples determine their international political status, i.e., whether to enjoy complete political independence, or merely, self-government, merger with another state, or one form of association or another. It also includes the right to decide to retain a dependent or even colonial status.12 (2) The first internal aspect is by virtue of which the right of peoples to be the complete masters of their own territories is recognized. Thus, a State may be theoretically independent, and yet may be denied its right of self-determination as a result of the political domination of another State or States, or because it is prevented from exercising its right to “freely pursue its economic, social and cultural development”. Thus, soon after many afro-Asian States assumed political independence in the sixties, they realized that as a result of the economic domination of the developed States and existing practices in international trade, they were not free to pursue, for their own ends, their economic, social and cultural development. Consequently, both their political independence and their right of self-determination were
9 10 11
See the Preamble to the United Nations Cahrter. Umozurike, E.: Self-Determination in International Law (1972), archon Books Publishers, Hender, Connecticut., 7. The International Covenant on Economic, Social and Cultural Rights and the International Covenant on Civil and Political Rights, both ratified by Nigeria in July, 1993. Examples are: The inhabitants of Gilbraltar who consistently preferred their colonial status with Britain to being independent as a separate state or as part of Spain. The Falkland Islands had also prefered to remain a British Colony than as part of independent Argentina and Pueto Rico which also preferred to remain in some form of association with the United States, rather than be fully independent.
European Journal of Social Sciences – Volume 6, Number 4 (2008) curtailed. This led to the development of the concept of neo-colonialism, and the notorious IMF conditionalities imposed on helpless African debtor States.13 (3) The second internal aspect involves the right of the people freely to choose their political institutions, representatives and to participate in the process of governance. The definition of the concept in the late post-colonial era, that is, in the eighties and nineties, have not shown any significant change. Thus, F. Prazetanic defines it as: “the right of a people or a nation to determine freely by themselves, without any outside pressure, their political and legal status as a separate entity; preferably in the form of an independent State, the form of government of their choice and the form of their economic, social and cultural system.”14 Rosalyn Higgins also summaries the contents of the doctrine as the right of a people “to determine their political and economic and social destiny”15. Equally, Shaw has given a brief definition of the concept as the right of all peoples to determine their political status and pursue their own economic, social and cultural development16. All the above definitions similarly recognize the existence of certain basic factors in the doctrine, namely: the right of a people to determine freely, their political status and the form of their economic, social and cultural system.
Relevance of the Concept
The relevance of the concept and legal principle of self-determination seem not to require any explanation or justification. The United Nations Organisation today, has nearly 200 members. In 1945 when the Organisation was established, there were just over fifty members States because those were the only independent States in the world at that time. The other 150 or so territories were not independent, but were colonies under the rule and control of some independent States. The development and application of the principle of self-determination has ensured that over the last 50 years, these other 150 territories have emerged from colonialism to become independent states in their own right, enjoying sovereign equality with their former masters and other members of the international community. In Africa, there were in 1945, only two independent States, these were Ethiopia and Liberia. It was the implementation of the right of self-determination that made over 50 former colonies including Nigeria, to become independent since 1945. In the seventies, the world watched in some fascination, how the Portuguese and Spanish empires in Africa crumbled under the might of self-determination, giving rise to the States of Angola, Mozambique, Guinea-Bissau and Mauritania. But above all, the real miracle of our time was the collapse of the white minority regimes of Rhodesia, now Zimbabwe, Namibia and South Africa. But that is not all. The very success of the principle has brought in its wake, a host of problems, all over the world, Africa included. Once the external concept of self-determination was being fully realized, the international community, became increasingly confronted with the internal aspect. This is the right of peoples within an independent state, to freely choose their political institutions including the right to break-away from their state to form a new state or to join another existing state. Thus, the question arose whether self-determination was limited to territories under colonial rule or whether within independent states, constituent ethnic groups and nations or peoples, were also entitled to selfdetermination which could undermine the territorial integrity of such independent states. This problem reared its head in Africa, soon after the massive flood of independence swept into the continent in
See Christos Theodoropoulos (unpublished) LL.M Thesis titled The Process of Restoration of Sovereignty to the People of Namibia in the light of Contemporary International Law, 1878-1917, pp. 19-24, cited by Professor Itse Sagay in his paper titled; “Self-Determination in modern International Law and its Implications for African States” delivered at a Lecture in the Faculty of Law, Obafemi Awolowo University, Ile-Ife, Nigeria, Nov. 18, 1997,3. “The Basic Collective Human Right to Self-determination of Peoples and Nations as a prerequisite for peace: Its Philosophical Background and Practical Application” in Reveue de droit International (1991), Vol. 69, 263. “Post-modern Tribalism and the Right of secession” in Peoples and Minorities in International Law (1993), ed. C. Brolmann et al., Martinus Nijhoff Publishers, 32. See Shaw, L.: Title to Territory in Africa (1986), Clarendon Press, London, 93.
European Journal of Social Sciences – Volume 6, Number 4(2008) 1960. It is well known that the boundaries of African States are artificial, with nations and ethnic groups split into two or three between different States, while incompatible peoples and nations grouped together in States. It is of course common knowledge that these artificial states were delimited at the Berlin Conference of 1884 and other follow-up exercises in 1904 and 1920. The latter involving the division of German colonies amongst the victorious Allied and Associated Powers under the League of Nations Mandates System. According to A.I. Asiwaju: “It does not take much erudition to show the arbitrariness and artificiality of the intercolonial boundaries so negotiated for Africa under European domination. As indicated in an often quoted after-diner humor by Lord Salisbury, the British Prime Minister, at the signing of the Anglo-French Convention of 1890 in respect of Nigeria’s northern boundary, the Europeans themselves acknowledged the arbitrary manner of the boundary arrangements. We have been engaged in drawing lines on maps where no white man’s foot ever trod; we have been giving away mountains and rivers and lakes to each other, only hindered by the small impediment that we have never known where the rivers and lakes and mountains were.”17 Another Briton who participated in the drawing of the southern section of the NigerianCameroon border, was also recorded to have recalled, years after that: “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 thinking when I was sitting having an audience with the Emir of Yola surrounded by his tribe, that it was a very good thing that he did not know that I, with a blue pencil, had drawn a line through his territory.”18 Consequently, hardly had the African States attained independence, when claims and counterclaims were being made by one African State or the other on large territorial tracts of the other. Thus, Somalia claimed large territories in Southern Ethiopia (Ogaden) and Northwest Kenya and in Djibouti; territories in which there were large settlements of Somali speaking people. Morocco claimed the whole of Western Sahara, Mauritaria and parts of Algeria. Mauritania and Mali were engaged in territorial disputes, as were Ghana and Togo. These claims brought to the fore, the question whether self-determination was limited to territories under colonial rule, or whether within the independent African States, constituent ethnic groups, Nations or Peoples were also entitled to self-determination which could undermine the territorial integrity of such States. As was stated above, Somalia had never disguised its major objective of uniting all Somali people in Somalia, Ethiopia, Kenya and Djibouti into what it called “Greater Somalia”. To justify these irredentist claims, Somalia relied on the right of self-determination of all peoples including the Somali population living in the other territories mentioned above. This claim was not limited to the population of Somalis abroad only, but also to the territories occupied by them in Ethiopia and Kenya. In other words, the reliance on the principle of self-determination involved transfer of territory and populations from the Ethiopia and Kenya, to Somalia. The argument is that although there was no Somali State, prior to colonization which resulted in the splitting of Somali clans under different colonial masters, there was a Somali Nation and the Somalis now scattered in different States were entitled to exercise their right of self-determination to join Somalia in a single Nation/State. The principle of self-determination applied in this manner to independent States, was opposed by other African States as being contrary to another major principle of international law, that is, the territorial integrity of States. The organization of African Unity (OAU) states made their stand on this matter very clear when they passed the Cairo Resolution of 1964, confirming the validity or even the sanctity of colonial boundaries. In their resolution adopted on 21st July, 1964 at Cairo, the Heads of state and Government of African States held that the borders of African States on the day of independence, constituted, a tangible reality and therefore re-affirmed solemnly “the strict respect of all Member States of the Organisation for the principle laid down in Article IV paragraph 3 of the
Jeffry Herbst, “The Creation and Maintenance of National Boundaries in Africa” in International Organisation (1989) Vol. 43, 4 Autumn, at p. 670. Ibid.
European Journal of Social Sciences – Volume 6, Number 4 (2008) Charter” of the O.A.U. on respect for territorial integrity and pledged themselves to respect the frontiers existing on their achievement of independence. The intention and spirit of the resolution is that the borders of African States at the date of the resolution should remain inviolable and sacrosanct. No African State can lay claim to any part of the existing territory of another African State. The borders were to become ‘frozen’ as they were. Consequently, the question of claim to territories ‘owned’ before the European partition could not arise once such territories were within the borders of another African State. As to the question of selfdetermination, the resolution made it clear, by omitting the issue, that there could be no question of self-determination of people within an independent African State. The attitude of the O.A.U. to Morocco’s claim to Western Sahara and Biafra’s claim to independence, clearly ‘demonstrates at that time (the sixties) the fact that no loopholes or exceptions were permissible in the application of the resolution. But as will be seen later, time has brought with it a change of attitudes. There is of course, some paradox in a situation in which the independent African States were giving validity to the boundaries arbitrarily drawn up by the justifiably maligned Berlin Conference. The reason for this attitude was obvious. There was hardly an African State that was not afflicted by the plague of artificial boundaries and to accept the concept of self-determination as being applicable to the various national groups in a State, was to institute a state of collective insecurity. Every member wanted to protect itself from an attack on its vulnerable soft under-belly of artificial boundaries19. And so the question that immediately arises is whether there is no concept of self-determination outside de-colonisation. In other words, is it only the peoples of non-self-governing territories who are entitled to self-determination or are peoples in independent states also entitled to exercise the right? Of course if the answer to the first question is that there is no right of self-determination outside the process of de-colonisation, then one immediate consequence would be that the concept has become redundant, since virtually every territory is now independent. As one Writer has observed humorously: “Self-determination in the African context was not a doctrine interpreted as creating a populist entitlement to democracy, since de-colonisation was always followed in short order by the single party state and authoritarian rule. It seemed that the new governments of the former colonies regarded self-determination as a unique event occurring only at the moment of a colony’s independence. What has been called “one man, one vote, one time.”20 The issue of self-determination was prominent in the Western Sahara case.21 All parties supported the right of the peoples of Western Sahara to self-determination, but appeared to apply differing and self-serving contents to the concept. Thus, whilst recognizing that the principle applied to the territory, Morocco argued that in that particular context, it had to co-exist with the principle of territorial integrity, and that in certain cases, self-determination was deemed subordinate to territorial integrity. In an attempt to reconcile the two concepts to suit its own particular claim Morocco made three propositions: (i) That the right of self-determination existed with regard to non-self-governing territories in areas where no State had been recognized by the international community in the 19th Century. (ii) That the right did not exist in respect of independent States so as to destroy the unity of such countries. (iii) That in the case of States which had enjoyed international recognition prior to colonization and had been dis-membered, such as Morocco, self-determination gave way to reunification and the re-establishment of the former State’s territorial integrity.22
Ibid., 673. See Thomas, F.; “Post Modern Tribalism and the right of Sucession” in Peoples and Minorities in International Law (1993) ed. C. Brolmann et. al., Martinus Nijhoff Publsiehrs,10. I.C.J. Reports (1975) Pleadings CR, 75/8,11. Ibid,,11-16.
European Journal of Social Sciences – Volume 6, Number 4(2008) The fine distinction between the Somalian and Moroccan arguments are worth noting. Whilst both are claiming a pre-colonial existence for their larger nations, Somalia based its case on prior existence as a nation of Somali clans, whilst Morocco based its on prior existence as a state, i.e. an internationally recognized State which included Western Sahara. Again, Somalia’s call for the exercise of the principle of self-determination for the Somali people of Kenya, Ethiopia and Djibouti, entailed their participation in a referendum to decide whether or not they wanted to join Somalia, or remain in their current State. The states concerned opposed this call for referendum or Plebiscite on the ground that it was against their right of territorial integrity. In contrast to Somalia, Morocco did not want a plebiscite of the people of Western Sahara to decide whether they wanted to be independent by themselves as State or they preferred to merge with Morocco. Morocco’s view was that selfdetermination for the people of western Sahara, could be realised by their merger (re-unification) with Morocco, without a referendum to determine the true wishes of the people on the ground that selfdetermination in that sense, gave way to the re-unification and re-establishment of the pre-colonial State’s territorial integrity. This leads us to a consideration of the present scope and status of the concept of self-determination.
Scope and Current Status of the Concept
As stated above, there is currently a great controversy as to the present status of the concept. One school of thought accepts the position of the Orgnaisation of African Unity (OAU) now African Union (AU) that the concept is applicable to non-self-governing territories and peoples and that once a State gains independence, the doctrine stops applying to it. The issue then becomes that of the sanctity of the State’s territorial integrity. Self-determination and territorial integrity were therefore two stages in the same process, the transition from a non-self-governing territory to an independent State. The phenomenon is lucidly explained by Thomas Franck when he stated that the notions of Uti Possidetis (territorial integrity) and self-determination were quite simply treated as aspects of the same entitlement. According to him, peoples entitled to self-determination were defined as inhabitants of a colony in which: “The exercise of self-determination must occur, it was reasoned, within colonial boundaries, which would remain sacrosanct, unless the people as a whole within those boundaries freely elected to change them by integrating with another State.”23 Thus, Shaw, a proponent of this restrictive view of self-determination states that the concept as a legal principle under international law has been restricted to the colonial situation. For according to him, where a non-self-governing territory has attained independence, the principle of selfdetermination coupled with territorial integrity will operate to protect the territorial unity and framework of the new State. To him, “Indeed a basic presumption of the application of self-determination is that it will be exercised by the people in question within the territorial framework of the entity administered by the colonial power before independence.”24 Consequently, in framing propositions on the content of the doctrine, Shaw, rules out a right of self-determination by resident minorities in an independent state.25 On the same basis, he has also concluded that secession from a State cannot be based on the right to selfdetermination.26 This is by no means an isolated view for according to Ambruster, the sovereignty and self-determination are mutually exclusive because “the principle of sovereignty excludes logically, the right to self-determination. If international law
23 24 25 26
Thomas F.; “Post Modern Tribalism and the right of succession”, op. cit., 9. Shaw, L.; Title to Territory in Africa (1986) op. cit., 9. Ibid.,93. Ibid., 102, 215 and 216.
European Journal of Social Sciences – Volume 6, Number 4 (2008) 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.”27 In the Frontier Dispute case between Burkina Faso and Mali, the International Court of Justice (I.C.J.) appeared to have given some support to this restrictive view of self-determination, although its claim that the doctrine and that of Uti Possidetis in the context of territorial integrity, are reconcilable, reduces the effect of its pronouncement in this regard. According to the Court, although at first sight, the principle of Uti Possidetis conflicts outright with that of self-determination: “In fact, however, the maintenance of the territorial” status quo in Africa is often seen as the wisest course, to preserve what has been achieved by the peoples who have struggled for their independence, and to avoid a disruption which would deprive the continent of the gains achieved by much sacrifice. The essential requirement of stability in order to survive, to develop and gradually 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 self-determination of peoples.”28 The content of the Court’s Statement seem to limit the Principle to self-determination in the African context and furthermore, the weight given to political, rather than legal considerations, greatly reduces the potency of this passage as a legal authority for the restrictive view of self-determination. It is worthy of note that even the Writers who take the restrictive view of self-determination, admit that under certain circumstances, usually involving grave breaches of human rights, coupled with the fulfillment of some conditions, there is a universal right of self-determination, outside the process of decolonisation. Thus, John Dugard who states that self-determination does not normally include a right to secede, provides the following stringent exception to the rule29. According to him, where there is no agreement on the part of the component parts of a state to secession, the international community will not recognize the secession unless the following circumstances are present: (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 Union’s 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.” The opposing school of thought contends that self-determination is a dynamic and versatile principle which is equally applicable to all peoples regardless of whether they belong to a non-selfgoverning territory or a fully independent State. Thus, Franck notes for example, that both the Covenants on Political and Civil Rights and on Social Economic Rights, State in their first Article that 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. He also refers to principle VIII of the Helsinki accord of 1975 which stipulates that participating States will respect the equal rights of peoples and their right of self-determination, and that “all peoples always have the right, in full freedom, to determine, when and as they wish, their internal and external political status, without external interference.” Franck then points out that since the end of the cold war era and decolonisation, the meaning of the self-determination entitlement and its: “territorial integrity counterpart has had to be considered in the context of burgeoning post-modern tribalist secessionism, including separatist movements in the disintegrating
Quoted by Dietrich Murswick in his paper, “The Issue of Secession – Reconsidered” in Modern Law of self-Determination (1993) ed., Christian Tomuschat, Martinus Nijhoff Publishers, 23. Burkina Faso v. Mali, I.C.J. Reports (1986), 554,567. “Secession: Is the case of Yugoslavia a precedent for Africa”? in African Journal of International and Comparative Law (1993), Vol. 5, 173.
European Journal of Social Sciences – Volume 6, Number 4(2008) Soviet Union and Yugoslavia, Eritrea, Kurdistan, the Basque and Corsican regions, Scotland, Wales, Tibet, Slovakia .. Quebec and in various “homelands” of Canada, Australia, New Zealand and the United States.”30 Also agreeing that developments in the areas of human rights have had far reaching consequences on the scope and status of self-determination, Rosaline Higgins declares that selfdetermination is a contemporary, non-secessionist right of peoples within an independent State. A bridge has been built from self determination as a process of decolonising to self determination as a human right, a right of peoples. In the two 1966 Covenants on Human Rights, the right of selfdetermination is presented as a free standing precept, no longer confined to colonization. Higgins believes that the Committee on Human Rights established under the covenants, played a key role in this evolutionary process. The Committee addressed the matter in virtually every single examination of a State upon the report that it is required to submit periodically. In this regard, “the committee took a robust view about continued application of self-determination to post-colonial situations.31” While making a case for a universally applicable doctrine of self-determination based on human rights, Christian Tomuschat stresses the fact that the emergence of international human rights law and its consolidation amounts to a general recognition that states are no longer the sole subjects of international law and that the main objective and raison d’etre of a State is to provide a service to their citizens. If they fail in a fundamental way to meet their essential responsibilities; they begin to lose their legitimacy and thus their very existence can be called into question. This situation is not one which can easily occur. The conditions that call for such a development are very grave and include failure to protect the life and physical integrity of citizens and a State machinery being turned into an apparatus of terror which persecutes specific groups of the population. In that case, such groups cannot be held to be bound to remain under the jurisdiction of that State32. In his seminal article on democracy and the legitimacy of governments entitled “The Emerging Right of democratic Governance”33, Franck traced the emergence of a universal right of selfdetermination historically and identified three phases of its development, first after the first world war, applicable to the territories of the defeated European Powers, Germany and Turkey, then after the Second World War, and the establishment of the U.N.O, it became applicable to all colonies and trust territories, and the third phase, when it became a right applicable to everyone as a consequence of the provisions of the universal Declaration of Human Rights (1948) and the two 1966 United Nations International Covenants. The covenants, according to Franck, clearly intend to make the right of selfdetermination applicable to the citizens of all nations, entitling them to determine their collective political status through democratic means. “It also, at least for now, stopped being a principle of exclusion (Secession) and become one of inclusions; the right to participate. The right now entitles people in all States to free, fair and open participation in the democratic process of governance freely chosen by each State. When such participation is denied, when a people that, “is geographically separate and is distinct ethnically and/or culturally,” has been placed “in a position or status of suburdination” perhaps a secession option may re-emerge as an international entitlement.”34 The pre-occupation of Writers with secession and self-determination is of course quite understandable. After all, the earlier stages of the doctrine involved the political and legal separation (“secession”) of the colony from the colonial power. It is therefore quite understandable when Writers discuss modern self-determination in the context of the right of secession. But it should be stressed that self determination encompasses secession. Indeed, the latter must be seen as the last option. Selfdetermination entails, the right to participate in deciding, the structure of the state, the type of
30 31 32 33 34
Thomas F.; “Post Modern Tribalism and the right of succession” op. cit.,, 15. Ibid., 31. “Self-Determination in a Post-Colonial World,” in Modern Law of Self-Determination (1993) op. cit,., 9. African Journal of International Law (1992), Vol. 46, 58-59. Ibid. at p. 59.
European Journal of Social Sciences – Volume 6, Number 4 (2008) government and the persons to be entrusted with political power in a state. It also entails, the civil and political rights like the rights of association, to form political opinions, free expression including freedom of the press, liberty of the person and so on. It includes the right of respect for one’s religion and recognition and autonomy for distinct and different groups occupying different parts of the territory of a State. Thus, the issues of federation and confederation, form part and parcel of the concept of self-determination35. It would be difficult to deny such rights to peoples in independent States, even minorities. The question of secession therefore, cannot be seen or considered in isolation. The question must surely be the circumstances in which a denial of fundamental rights reaches a level when the very survival of a group is at stake or when the degree of inhuman and degrading treatment of such a group reaches an intolerable degree. Will such a group not have a right to self-determination outside the oppressive State? Thus, the issue cannot be whether self-determination exists in the post colonial international law; it does. The question is the criteria for its application to different situations. The point being made above has been graphically illustrated by Klabbers and Lefeber in their paper on Africa and the conflicting concepts of Uti Possidetis and self-determination. In the first place, they asked “What remains of the right of internal self-determination if a people pursues reasonable demands for constitutional reforms in vain? In particular, it must be examined whether the right to internal selfdetermination, in such a situation converts into a right to external self-determination? Next, the Writers examine State practice in order to determine whether the preservation of the territorial status quo is never overridden by a right of self-determination. After a very careful analysis of secessions and attempted secessions and the reaction of the international community, they conclude that, albeit grudgingly, the international community has accepted secessionist claims in the appropriate cases thus: “There is considerable doctrinal support for legal entitlement to external selfdetermination, if a people have been deprived of its right of internal self-determination, in particular, if this is accompanied by serious human rights violations. For a right to external self-determination to arise, the violation of the right to internal selfdetermination must be serious and persistent, and it must not have been possible to enforce the right by judicial means.”36 The above principle is then applied to the analysis of the legal basis of some previous situations as follows:1. Bangladesh: Secession took place after persistent political and economic oppression which culminated in a military crackdown. 2. Yugoslavia: The disintegration of Yugoslavia was the result of a persistent refusal on the part of Serbia to cooperate in a constructive manner in changes in the economic and political structure of Yugoslavia which had become inevitable at the end of the cold war. 3. Syria: Syria seceded from the United Arab Republic because of the concentration of power in Egypt and the creation of an atmosphere of terror under the cloak of union and socialism. In conclusion the two Writers state that it could be maintained that a legitimate secessionist claim exists if a period of domination has led to a dead-end situation which has resulted or is likely to result in a Military crack down.”37 In support of the above submissions one can cite the recent and numerous cases in which the right to self-determination has been exercised by peoples in independent States. These include: Zaire, Congo, Liberia, Uganda, Eritrea, Angola, Mozambique etc. in Africa. The disintegration of the U.S.S.R. into 14 different States, in 1991, the revolutionary changes from oppressive one party dictatorship in Eastern European States, to multi-party democracies, the splitting of Yugoslavia into many States, the peaceful division, of Czechoslovakia into Czech and Slovakia and the case of
Klabbers, J. and Lefeber, R.; “Africa: Lost Between Uti Possidetis and Self-determination” in C. Brolmann et al., Peoples and Materials in International Law (1993) Martinus Nijhoff Publishers, 43-44. Ibid., 46, 47-49. Ibid., 49.
European Journal of Social Sciences – Volume 6, Number 4(2008) Cambodia, Nicaragua and Haiti. All these cannot be regarded as individual, isolated events, but part of a norm creating consensus of the right to democracy, human rights and the rule of law and as part of universal right of self-determination. The very fact that the U.N.O. not only condemned the overthrow of the democratically elected Government of Haiti as illegal, but went on to authorize the Military invasion of Haiti to expel the Military dictators and to restore President Aristide, is of great legal significance in international law. It shows the ever growing potency, vitality and versatility of the doctrine of self-determination. It has moved far beyond the narrow question of decolonisation and emerged as a major principle of international freedom and welfare of all peoples. The Helsinki Accord 1975, and the subsequent OSCE instruments like: (i) The Copenhagen meeting of the OSCE on the Human Dimension (1990) (ii) The Charter of Paris (1991); and (iii) The Moscow Declaration (1991); all confirm the dynamism of internal self-determination. It is also significant that a European State seeking to join the European Union will have to fulfil the minimum conditions which give expression to self-determination of its peoples. These are that the applicant States must be plural democracies; they must regularly hold free elections by secret ballot; they must respect the rule of law; and they must have signed the European Convention on Human Rights and Fundamental Freedoms38.
Implications for African States
From the above discussion, it would appear that the Independent States of Africa are as subject to the doctrine of self-determination now, as they were as colonial territories. The Cairo declaration on the sanctity of colonial boundaries has only a prima facie legal and political effect. In other words, in the absence of any overriding factors, the colonial boundaries are valid and inviolable. However, should any of the conditions for the exercise of external self-determination as described above, arise, then of course, the Cairo declaration will be overridden and such a right of self-determination will prevail. The Cairo Declaration cannot condemn any peoples to perpetual slavery, and oppression. This view is buttressed by Article 20 of the African Charter of Human and Peoples’ Rights which provides as follows: “(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 people shall have the right to the assistance of the States’ parties …. In their Liberation Struggle against foreign domination, be it political, economic or cultural.” As a Writer has correctly observed, whilst Article 20(2) is specifically directed to “colonized or oppressed peoples, the other two paragraphs of Article 20, i.e. 20 (1) and 20 (3) are directed and are applicable to all peoples39. The distinction is clearly deliberate, for Article 29(2) grants colonized or oppressed peoples the more expansive right of resorting to armed conflict to effect their right of selfdetermination. 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 selfdetermination could not have been intended to be limited to colonial territories. In any case, even the terms ‘colonised’ and ‘oppressed’ are used disjunctively in Article 20(2), with the resulting effect that
See Letter from the Netherlands Minister of Foreign Affairs to the Advisory Committee on Human Rights and Foreign Policy (June 1990) quoted in Franck’s “Emerging Right to Democratic Governance”, African Journal of International Law (1992), 76-77. Angela, M. L.: “The Southern Sudan: A Compelling Case for Secession” in No. 2 Columbia Journal (1994), Vol. 32, 430.
European Journal of Social Sciences – Volume 6, Number 4 (2008) peoples who are not under colonial rule, but are oppressed, have a right of self-determination under the African Charter. The ease with which Eritrea was recognized by the International Community is only explained on the basis of such an overriding right. Southern Sudan represents a classic case for the exercise of the right. The overwhelming military might of the Sudanese Government has so far prevailed, but this is likely to give way eventually to a new State of Southern Sudan. Regarding Somalia, what emerges from the above discussion is that Somalia was not entitled to claim the areas of Kenya and Ethiopia which constituted the basis of hostilities in the area. Mere ethnic relationship is insufficient. We must also consider the condition of the Somali populations in Ethiopia and Kenya. There is no evidence that they had been discriminated against or oppressed in any particular way. The basis for their exercise of external self-determination was simply not there. Regarding Western Sahara, the opposite was the case. Its peoples had emerged from colonialism without first being allowed to exercise their right of self-determination. Rather, there was an illegitimate attempt, to permanently deprive them of this right by carving up the territory and dividing it between Morocco and Mauritania. It was therefore clear that only a fairly conducted referendum or plebiscite as the U.N. and O.A.U. Planned to hold would be consistent with right of selfdetermination of the peoples of Western Sahara. Happily, both of the major contenders, namely, Morocco and Polisario had accepted the idea of a plebscite in principle. The world was then left with the problem of establishing the modalities for a plebiscite that would reflect the true wishes of the people of Western Sahara. Other events which have confirmed and buttressed the continued application of the principle in post-independence Africa, were those that occurred in Liberia, sierra Leone, Angola and Mozambique, Zaire, Uganda, Sudan, Cameroon Togo, Nigeria etc. In Liberia, Sudan and Togo, we saw a demonstration of the continued enlargement of the principle of self-determination, coupled with the right to democratic governance, permitting a coalition of organised neighbouring States to intervene forcefully in the affairs of a sovereign independent States, to restore the right of self-determination, democracy and the rule of law. The same applied to Sierra Leone, where the military Junta succumbed to the pressure of the international community that the exercise by the people of Sierra Leone of their democratic right of self-determination must have to be respected. The Bakassi Peninsula Case40 between Cameroon and Nigeria also typifies the extent to which the right to self determination can be exercised to affect relations between sovereign nations even in grave circumstances which prompted the intervention of the International Court of Justice. The World Court had given judgement in year 2002 against Nigeria ordering a sizeable portion of the Bakassi Peninsula known to be very rich in oil and aquatic lives to be surrendered by Nigeria to Cameroon. In a bid to forestall a possible outbreak of war between the two nations, a mixed Cameroon-Nigeria Boundary Commission was established to work out amicable modalities to enforce the judgement of the ICJ. Even though Nigeria Government had agreed in principle, to surrender the portion of the Peninsular purportedly being occupied by Nigerians to Cameroon, the people of Nigerians who believe that they had been occupying the area from time immemorial now insist vehemently that since they have the right to self-determination, no government or court of law can uproot them from their historical domain by ceding their territory to another nation. They are also averring that as free citizens, they have their fundamental right to determine for themselves where they intend to live. Particularly as Nigerians, they argued that it could not be tenable in law or reason to change their nationality at the expense of the exercise of their right to self-determination41. Doing this, according to the Bakassi indigenes, will create ugly situations now being experienced between Israel and Palestine as well as similar crises in Sudan and East Timor.
The Bakassi Peninsula Case: Cameroon v. Nigeria, (Equitoria Guinea Intervening) ICJ judgment of October 10, 2002. See The Punch (Nigeria), Wed. Feb. 25, 2004, 1, 2 & 7 – firstname.lastname@example.org
European Journal of Social Sciences – Volume 6, Number 4(2008)
In Nigeria, people are yet to enjoy a proper exercise of the right to self-determination. But the fact that it will come in the fullness of time is incontestable. I do not refer merely to free and fair elections, but to the more fundamental question of the structure and character of the Federation. The people must have to meet at a Sovereign National Conference as they did in 1951 to determine the type of units that are to constitute the Federation or Federations of Nigeria, and the powers each group is prepared to surrender to a central government. Nigerians had already enjoyed the implementation of the external aspect of self-determination when on October 1st, 1960, flag independence was granted to them. They became theoretically free from external colonialism. Since then, the people have ironically been subjected to internal colonialism. The struggle for the right of internal self-determination over certain fundamental issues like resource control, discrimination, political marginalisation, ethnic segregation, oppression etc. must continue to be fought aggressively so that Nigeria will eventually emerge as a nation of free and independent peoples. In order to respectfully uphold the rights of all peoples within a state, governments are called upon to adhere to and implement fully, the international human rights instruments and in particular, the International Convention on the Elimination of All Forms of Racial Discrimination. Concern must also be given to the protection of individual rights without discrimination on racial, ethnic, tribal, religious or other grounds42. In accordance with article 2 of the International Covenant on the Elimination of All Forms of Racial Discrimination and other relevant international documents, governments should be sensitive towards the rights of persons of ethnic groups, particularly their right to lead lives of dignity and to preserve their identities under various constitutional frameworks. One of the recently established controversial principles in the subject of self-determination is that peoples of a sovereign independent nation can exercise their right of self-determination43 in grave circumstances where they feel that their survival is at stake or when the degree of inhuman and degrading treatment on them has reached an intolerable degree. The exercise of such a right can be manifested in various forms like secession, open revolution or serious civil disobedience. In the case of Nigeria for instance, people of the oil producing areas of Nigeria particularly in the Niger Delta, have indicated their desire to assert their right of self determination with respect to the issue of resource control and revenue allocation. They have been maintaining that governments over the years, have shown little or no concern for their demands for proper protection of their environmental and equitable allocation of sufficient revenue to their areas from where the greater percentage of crude oil which is the mainstay of Nigerian economy is being produced. It may be very difficult to adduce justifiable reason either, under international or municipal law for blaming such a group of people if they decide to assert their right of self determination through any legitimate means no matter its unpleasant consequences on the territorial integrity of the entire nation. Hence, it is recommended that the National Political Reform Conference inaugurated in April, 2005 in Nigeria, should critically examine the issues of resource control, revenue allocation and other fundamental national issues being considered by different ethnic groups as inimical to their right of self determination. As for the African nations in general, no doubt, there are some countries of the continent like Sierra-Leone, Zimbabwe, Uganda, Somalia, Sudan, Nigeria, Liberia, Togo, Congo, etc. where there are still pronounced cases of peoples fighting for their right of self-determination whether external or internal. It should however be appreciated that the external aspect of the right of self-determination in Africa is no longer accorded serious attention since most of the countries in the continent had gotten their political independence from their various colonial masters. Nevertheless, almost all the ‘developing’ nations of Africa still have to intensify their struggle for their socio-economic
See the recommendations of the United Nations Committee on the Elimination of Racial Discrimination in March, 1996 as recorded in International Human Rights Text and Materials (2001) op. cit,, 76-78. See again, Article 20(2) & (3) of the African Charter of Human and Peoples’ Rights.
European Journal of Social Sciences – Volume 6, Number 4 (2008) independence from those foreign powers which are in the habit of oppressing them through fiscal policies like the World Bank and International Monetary Fund’s terms and conditionalities. Now that the Organisation of African Unity (OAU) is renamed the African Union (AU) with a more comprehensive structure, daring objectives and political philosophy; its activities must be focused on resolving all socio-legal and political problems of self-determination confronting the peoples of the continent. By now, the continent should be viable enough to boast of countries consisting of peoples whose socio-economic, cultural and political modes of development are less inhibited by various problems arising from unlawful violation of peoples’ fundamental rights especially, the right of self-determination.
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