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Advances in Politics and Economics 
ISSN 2576-1382 (Print) ISSN 2576-1390 (Online) 

Vol. 5, No. 3, 2022 
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43 
 

Original Paper 

Mapping the Landscape of the Inherent Right to 

Self-Determination of Peoples within Sovereign States 

Emeka C. Adibe1 & Obinne Obiefuna1* 
1 University of Nigeria, Faculty of Law, Enugu Campus, Nigeria 
* Obinne Obiefuna, University of Nigeria, Faculty of Law, Enugu Campus. Nigeria 

 

Received: May 28, 2022         Accepted: June 18, 2022        Online Published: June 25, 2022 

doi:10.22158/ape.v5n3p43            URL: http://dx.doi.org/10.22158/ape.v5n3p43 
 

Abstract 

This essay explores the vexing question of the right to self-determination with particular reference to 

developments under both general international law and African regional law. It recognises the tension 

between the right to self-determination and the territorial integrity of states while arguing that the right 

to self-determination for peoples within sovereign independent states fits into emerging normative 

developments in international law practice and politics in Africa and beyond. These normative 

developments are a pointer that state-centric principles of territorial integrity are not inviolable. 

Meanwhile, they are also indices for identifying the limits of uti possidetis vis-à-vis the fundamental 

right of self-determination. 

Keywords 

self-determination, social contract, rights, sovereignty, international law, decolonization 

 

1. Introduction 

Given the importance accorded to the inviolability of colonial borders in international relations, the 

process of self-determination and the scholarship arising there from has consistently raised questions 

on discourse about the practice of self-determination under general international law and, significantly 

African regional law. The thrust of this paper is to critically review these issues by exploring 

fundamentally the philosophical foundations of self-determination as an inherent right for peoples 

within sovereign independent states based on the principles of the social contract. The study also 

examines the ways in which any assertion of the right to self-determination may be permissible in the 

face of international law indecisiveness and the extant African regional principle of “uti possidetis”. 

Under this principle, African states have committed themselves to respect and upholding the colonial 

borders inherited upon independence. Using the success story of the exercise of self-determination of 



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Bangladesh, Kosovo, and South Sudan as a test case, this paper identifies a few conditions under which 

the exercise of self-determination may take place under extant international and African law and 

practice. 

The research principally employs a qualitative approach with insight into the philosophical foundations 

of the doctrine of self-determination as well as its parameters under international law. In order to echo 

the emergent problems associated with the current application of the subject, critical insight and 

analysis into some recent antecedents of the exercise of self-determination were imperative hence the 

need for change in paradigm and remapping the boundaries for the exercise of the right to 

self-determination for peoples within sovereign independent states. 

 

2. Social Contract, Sovereign States, and the Right to Self-Determination 

The idea that people have an inherent right to decide their own matters and thus have a right to 

self-determination is of antiquity and has probably existed since the dawn of mankind. Social and 

political philosophers dating from the cradle of political engineering in Greek city-states made direct and 

indirect references to the importance of people taking charge of their affairs and organise themselves the 

way they deem fit and bringing about their happiness and fulfillment. People are motivated to engage in 

an activity in order to satisfy a person’s core values or interests and then bring about their happiness 

and fulfilment. Aristotle claims that the final goal of every person’s action is happiness. A 

self-determination struggle is an expression of people’s inner beliefs and convictions relating to their 

quest for ideals of liberty, equality, and justice in human society. 

The concept of self-determination is therefore intimately connected to such ideals as liberty and 

equality with irresistible appeal in the modern world. It speaks to the emancipation of the individual 

from any shackles of subjugation; liberation from drawbacks inherited from the past, determined by 

colonial frontiers. Self-determination appears to favour a culture of change in which socio-cultural 

stamps are continuously re-evaluated and re-appraised according to terms of contemporary narratives 

and drives. 

It is arguable that its philosophical underpinnings could be linked to the development of Greek 

city-states founded on principles of democracy, freedom, and state autonomy and incidentally deeply 

rooted in Judaeo-Christian religious values and principles. However, one can also associate this concept 

with ideasof individualism and liberalism which gained remarkable currency within modern political 

thoughts. Greek thought and Roman wisdom gave much credibility to natural law. Therein, certain 

rights were considered universal to all human beings and this paradigm came to be associated with 

liberal political theories in the latter part of the Middle Ages. Among the early Greek thinkers, the state 

was more important than any member of the community. Greek thought recognized that the individual 

could not enjoy a number of benefits like the security of life and property unless he identifies with the 

community. As a result of the centrality of the state in the advancement of the individual, theories of 

government began to emerge which attempted to interrogate the absolute loyalty of individuals to the 



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state. Laws for the organization of state also became a popular feature in the society and individuals are 

expected to obey the laws of the state so to prevent anarchy. Upon imprisonment and condemnation to 

death by the state, Socrates refused to escape from prison, a condemnation which he believed to be 

wholly unjust. This is eloquently illustrative of this unquestionable loyalty to the laws of the state. For 

Socrates, “the state, despite its mistakes, was to him a mother who had given him life and had made 

him what he was” (S E Frost, Basic Teachings of the Great Philosophers, Revised Ed, Anchor Books, 

New York, 1989, p. 181). 

In his political discourse, Plato was convinced that the starting point for the inquiry about the best 

political order is the fact of social diversity and conflicting interests, which involve the danger of civil 

strife. He, therefore, argued that Justice is the foundation of good political order, and as such is in 

everyone’s interest. (Plato: Political Philosophy, in Internet Encyclopaedia of Philosophy, 

<https://iep.utm.edu/platopol/>). He further opines that “Justice is not to the exclusive advantage of any 

of the city’s factions, but is concerned with the common good of the whole political community, and is 

to the advantage of everyone. It provides the city with a sense of unity, and thus, is a basic condition for 

its health.” (Plato, Political Philosophy). In one of his major works, The Republics, he categorically 

states that “Injustice causes civil war, hatred, and fighting, while justice brings friendship and a sense 

of common purpose.” (The Republic, 351d, quoted in Plato: Political Philosophy, in Internet 

Encyclopaedia of Philosophy, <https://iep.utm.edu/platopol/>). In both the Republic and the Laws, 

Plato asserts not only that factionalism and civil war are the greatest dangers to the city, more 

dangerous even than a war against external enemies, but also that peace obtained by the victory of one 

part and the destruction of its rivals is not to be preferred to social peace obtained through the 

friendship and cooperation of all the city’s parts. (Republic 462a-b, Laws 628a-b quoted in Plato: 

Political Philosophy, in Internet Encyclopaedia of Philosophy, <https://iep.utm.edu/platopol/>accessed 

16/11/21) 

In his advocacy for the best political order, Plato proposes a system that advances social peace in the 

community and promotes cooperation and friendship among different social groups, each benefiting 

from and each adding to the common good. In this political system, citizens have a voice in the affairs 

of the government since their common good is at stake. As a result of these ideals, in his last dialogue, 

the Laws Plato suggests a “traditional polity: a mixed or composite constitution that reconciles different 

partisan interests and includes aristocratic, oligarchic, and democratic elements.” (Plato: Political 

Philosophy, in Internet Encyclopaedia of Philosophy, <https://iep.utm.edu/platopol/> accessed 

16/11/21). Herein, one confronts the cradle of the right of self-determination speaking directly to the 

contemporary fact that injustice in the polity is at the root of the quest for self-determination of peoples 

within sovereign independent states.  

Aristotle argues alongside his master Plato, that man is by nature a social animal and as such can 

realise his real self only in a society and among his kind. The end of social evolution starting with a 

family organisation is the city-state (Greek) and the city-state should be organised and conducted so 



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that it enables each member to become good and live a happy life. The state loses its lustre and 

becomes evil if it fails to realise its purpose for the members. The citizens of a political community are 

partners, and as with any other partnership they pursue a common good. (Aristotle: Politics, In Internet 

Encyclopaedia of Philosophy <https://iep.utm.edu/aris-pol/> accessed 16/11/21)In this light, the laws 

and the constitution of the state must be tailored to the nature and needs of the members of that 

particular group, taking cognisance also of the inequalities and peculiarities of the people within the 

state. Hence in the understanding of Aristotle, “a good constitution must recognise these inequalities 

and confer rights accordingly…” (Frosts, Basic Teachings of the Great Philosophers, p. 183). 

Aristotle argues that people are fundamentally different and this difference within the city allows for 

specialization and greater self-sufficiency (Aristotle: Politics in Internet Encyclopedia of Philosophy). 

In his book, The Politics, Book II, he writes that, in such cities where persons are free and equal, “all 

cannot rule at the same time, but each rule for a year or according to some other arrangement or period 

of time. In this way, then, it results that all rule…” (The Politics, 1261 a 30). This alternation of rule 

where persons are free and equal speaks to the cradle of the doctrine of self-determination where the 

state stays preserved by reciprocal equality of persons and groups reflecting active involvement and 

participation in the decisions that affect their happiness and good life which is the telos of life. 

The popular view during the renaissance period was that human beings are endowed with eternal and 

inalienable rights. Many of the philosophers of this era argued that certain rights pertain to individuals 

as human beings, chief among these rights are the right to life, liberty, and property. Some of these 

thinkers include John Locke, Jean Jacques Rousseau, and John Rawls. These philosophers turned their 

attention to social organisation and began to theorise about its origins in order to suggest the best form 

of social or political organisation. 

John Locke as an outstanding social liberal thinker laid the foundation for a number of liberal political 

themes that were manifest thereafter in many modern constitutions. The overriding thought is that 

human beings have certain natural rights which are rooted in their very nature but sometimes these 

natural rights may be limited by the positive law of the state and these laws result from man’s choice to 

live and surrender his freedom to the authority of the state or the sovereign. The state is therefore 

founded upon a contract that the people make with their ruler. Locke’s political ideas may be summed 

up as follows: “Men naturally move towards social living. In society, men set up law, an impartial 

judge, and one executive power in order to attend to common interests. This structure is established by 

a social contract agreed upon by the members of the group” (Frost, p. 196). Locke’s attempt was to 

provide a political space that restrains the state from considerable interference with the affairs of its 

members including their economic life. Except where the security of the state is compromised, no 

interference is legitimate. Locke’s ideas echo considerably in the west in the later Middle Ages and 

became literally a flashpoint for the revolutionary agitations that swept the West specifically in North 

America and some parts of Europe epitomised by the English, American, and events of French 

revolutions. It thus gave impetus to the eventual declaration of the rights of man in the Americas and 



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universal acceptance of human rights on the international scene and its recognition in the United 

Nations instruments. 

In the United Nations Universal Declaration of Humans rights of 1948, we observe boisterous support 

for the advancement of human rights. The underlining thrust of these rights is a notion of liberty that 

acts as a shield against the abuse and misuse of political power. As the content of human rights 

continues to be broadly defined at the various stages of modern history, the evolving perceptions of 

society came close to expanding rights not just for individuals but for communities and peoples. For 

Locke, the state must accommodate not only individual interests expressed in the rights language but 

also community aspirations which also border on the exercise of their liberty, right of equality, and 

justice which if not guaranteed provide a platform for irredentism and revolt against the state sovereign 

structure. In his word, “That which begins and actually constitutes any political society, is nothing but 

the consent of any number of freemen capable of a majority to unite and incorporate into such a society 

and that only could give the beginning to any lawful government in the world.” (John Locke, Two 

Treatise of Government (ed. Peter Laslett), (Cambridge University Press, 1960, p. 333) 

Mutual consent is at the base of any viable social contract within sovereign states. Mutual consent is 

anchored on an aspiration that the values of justice and equality must be respected for all, especially for 

peoples and minorities with less bargaining power within that social contract in the sovereign state. By 

extension, self-determination is an issue of inclusion and having a voice on the issues that affect people 

in the community. The sole purpose of government in any social contract is the maintenance of justice 

and equality. This idea is very vocal among such social contract philosophers like Rousseau and John 

Rawls who contend that marginalization is a puncture on the social contract as it defaces equality and 

justice. 

Jean Jacques Rousseau extended Locke’s idea of democracy and argued that natural society is based 

on a social contract by which the freedom of the individual is surrendered to self-imposed laws which 

are the result of the general will. The government tailors itself to the general will and the people reserve 

the right to recall their government and establish another in its place either through elections as in 

democratic systems or through other legitimate channels. Under the Social Contract, each person 

enjoys the protection of the common sovereignty predicated on the general will which is the source of 

law, and each person subjecting itself to that law being at the same time the individual’s will. Rousseau 

argues ‘that in order for the general will to be truly general it must come from all and apply to all. (Jean 

Jacques Rousseau, Stanford Encyclopaedia of Philosophy, 

<https://plato.stanford.edu/entries/rousseau/> accessed 8 July 2019). Laws emanating from the general 

will should therefore secure the common interest impartially and should not be burdensome and 

unnecessarily intrusive. At the same time, it must be general in application and universal in scope. In 

this sense, laws must accommodate a wide diversity of lifestyles, cultural differences, and social 

inequalities. To this extent, Rousseau subscribes to the doctrine of self-determination struggles without 

using such nomenclature in so far as the general will represents the aspect of the individual will without 



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more, and where the putative general sovereignty fails to achieve its objective, peoples and person may 

subscribe to another form of authority that fulfils their aspirations. 

John Rawls, another social contract theorist, in his doctrine of Justice as Fairness argues in favour of 

the doctrine of self-determination following his emphasis on a well-ordered society. He postulates that 

in a well-ordered society, the ‘public conception of justice provides a mutually recognized point of 

view from which citizens can adjudicate their claims of political right on their political institutions or 

against one another. (John Rawls, Justice as Fairness, A Restatement (ed. Erin Kelly), (2001, The 

Belknap Press of Harvard University Press, p. 9) 

The role of the principles of justice is to specify the fair terms of social cooperation within the political 

entity. These norms specify the basic rights and duties prescribed by recognised political and social 

institutions. These institutions regulate the allocation of benefits arising from social cooperation and 

equally apportion the burdens as the case may be. In a democratic society, citizens are regarded as 

equal and free, hence justice within such political space must specify fair terms of cooperation between 

the groups be it, tribal groups, ethnic nationalities, or minorities so contemplated. Any constitutional 

democratic regime must therefore seek to respond to the overarching objective which is to adopt the 

most acceptable idea of justice that “specify fair terms of cooperation between equal citizens; terms 

which are in themselves rational, reasonable and sustainable from one generation to the next” (John 

Rawls, p. 8) John Rawls underscores the importance of a synergy between formal and substantial 

justice for any social cooperation whatsoever. Formal justice speaks to an aspect of the rule of law that 

supports and secures legitimate expectations. (John Rawls, p. 51) It equally ensures that laws be 

executed within the given structured framework which may of itself be unjust. For instance, there 

seems to be nothing wrong with a court of law ruling in favor of discrimination in a society that allows 

arbitrary forms of discrimination using slave trade laws as in the days of the slave trade in the United 

States. This is to say that sometimes formal justice sanctions unjust arrangements and the beneficiaries 

of such arrangements for the most part will be reluctant or are not likely to let anything unsettle their 

interests on the strength that it is the rule of law. Substantive justice speaks to political justice and is 

connected with ‘the desire or at least the willingness to recognise the rights and liberties of others and 

to share fairly in the benefits and burdens of social cooperation (John Rawls, p. 52). Rawls believes that 

in any genuine social contract, the strength of the claims of formal justice, of obedience to the system; 

clearly depends upon the substantive justice of institutions and the possibilities of their reform. Such 

claim must defer essentially to the two principles of justice, the first of which “ensures equal basic 

liberties compatible with a scheme of liberties for others while the second principle guarantees social, 

economic and inequalities arranged to everyone’s advantage and attached to positions and offices that 

are open to all.” (John Rawls, p. 53) In any social contract true to its name, by extension, Rawls insists 

that these principles must govern the assignment of rights and duties, and regulate the distribution of 

social and economic advantages within the social cooperation at the group level and for individual 

members within the cooperation. Injustice in Rawlsian thought is simply inequalities that are not to the 



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benefit of all. Possibilities for reform of the social contract are both necessary and inevitable where the 

operation of the two principles of justice are not only maximised but transparently absent.  

 

3. Review of the International Legal Regime on the Right to Self-Determination 

The growing consciousness of the ethno religious identities within sovereign states especially in some 

parts of Europe and many parts of Africa has made the right to self-determination a recurrent subject in 

international law. The right to self-determination is as important as it is contentious in modern 

international law. It has served as a powerful slogan and a vital justification for the independence of many 

peoples, most significantly the independence of colonial peoples. In fact, the colonial context is what 

readily comes to mind when the right to self-determination is brought up and it is the colonial aspect of 

this right that is uncontested. Understood in the context of decolonization, the right to self-determination 

in contemporary international law poses no problems. It is ludicrous to question the legitimacy of the 

right to self-determination in the context of decolonization.  

Although the reach and breadth of the right of self-determination have remained a very controversial 

subject matter in public international law, no one has doubted that it consists of many elements beyond its 

de-colonization contextual application. Burak Cop and Dogan Eymirlioglu reaffirm this point in the 

opening statement of their article thus: “Self-determination which is a controversial issue in public 

international law has many characteristics formulated on different legal platforms.” (Burak Cop & Dogan 

Eymirlioglu, The Right of Self Determination in International Law: Towards the 40th Anniversary of the 

adoption of ICCPR and ICESCR, (2005) Perceptions, Winter, p. 116). Self-determination as a legal 

principle denotes the legal right of people to decide their own destiny in the international order. This right 

has been understood as a core principle of customary international law and is also enshrined and 

protected under a number of international legal instruments such as the United Nations Charter and the 

International Covenant on Civil and Political Rights as rights of all peoples. The right to 

self-determination is the right to develop a society in the way that a particular people see fit which may or 

may not be synonymous with the right to claim of those people to claim independence or to secede 

though it may not be entirely excluded. 

Woodrow Wilson, one of the first statesmen to articulate the right of self-determination realizes the grave 

consequences of his earlier statement on self-determination and had to attempt a reconstruction of that 

statement. He had earlier stated in his message to Russia that “No people must be forced under 

sovereignty under which it does not wish to live.” He later explained that “…all peoples should have the 

government they desire, but the reality of implementing this idea is that states and the international 

system based on statehood would break down with hundreds of groups claiming independence.” 

(Frederic Kirgis Jr, The Degrees of Self-Determination in the United Nations Era, (1994) 88 American 

Journal of International Law (AJIL), p. 304). The signal of the United Nations regarding the reach and 

application of self-determination appears to be unclear and has been interpreted with varying degrees of 

emphasis. 



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The UN Charter introduces the principle of self-determination as a principle of international law and 

makes it mandatory for parties to accord self-determination to their peoples. This is derived from the 

provision of Article 1(2) and Article 55 of the Charter. The mention of self-determination in the Charter 

as should be pointed out is within the context of developing friendly relations among nations and in 

conjunction with the principle of equal rights of peoples. Another UN document, titled “Declaration on 

the Granting of Independence to Colonial Countries and Peoples”, adopted by the UN General Assembly 

in 1960, mention is made of the right of self-determination and independence of colonial territories and 

peoples. Peoples, here, admit groups beyond states and includes non-self-governing territories whose 

people desire to freely determine their political status and pursue their economic, social and cultural 

development as a right. (Declaration on the Granting of Independence to Colonial Countries and Peoples 

(General Assembly Resolution 1514 (XV), 14th December 1960). This was a bold statement regarding the 

reach of self-determination at a time when decolonization was on the rise and new nation-states that 

today are members of the United Nations were being conceived upon independence. An important 

flashpoint of this Declaration is that it recognizes self-determination as a right and brings it within the 

purview of three important aspects of an organized society, namely social, economic, and political 

development. While it may be argued that the thrust of this resolution is in regard to the 

self-determination of colonial territories and their right to self-government making subjugation and any 

state’s title to territory based on colonial status illegal, other aspects of the resolution must not take the 

backbench. Such aspect is the reference to the right of all peoples to self-determination. It is however 

uncertain whether peoples could as well be equated with territories in the context of that resolution. The 

resolution perhaps suggests that there could be self-governing territories in which its peoples could be 

entitled to of right to self-determination where the need to determine the social, economic, and political 

development has been undermined. 

The International Covenant on Civil and Political Rights (ICCPR) and International Covenant on 

Economic, Social, and Cultural Rights (ICESCR) appear very explicit in their expression of the right to 

self-determination. Article 1 of both covenants provides exactly the same words 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” (ICCPR & ICESCR, UN GA Res. 220, 

1966, Art. 1). By the inclusion of the right of self-determination in these landmark instruments, the right 

of self-determination has gone beyond a mere political principle and has reached a threshold to be 

regarded as a legal right in international law that is binding on state parties craving for unequivocal 

advancement. 

Again, international law lends its weight further to the importance of self-determination in the 1970 

Declaration on Principles of International Law Concerning Friendly Relations and Cooperation among 

States. (UNGA Resolution 2625). In its introductory part, the declaration provides as follows: “Every 

state has the duty to refrain from any forcible action which deprives peoples … of their right to 

self-determination, freedom, and independence.” (Declaration on Principles of International Law 



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Concerning Friendly Relations and Cooperation among States, Annex to Res. 2625 (XXV) UNGAR. 

1970) 

While elaborating on this, it maintains that all peoples have the right freely to determine without external 

interference, their political status and pursues their economic, social and cultural development and every 

state has a duty to respect this right in accordance with the provisions of the Charter in its promotion of 

equal rights. Herein, it reaffirms the right of self-determination and equates the violation of the principle 

with the violation of fundamental human rights (Roya M. Hanna, Right to Self Determination in 

Re-Secession of Quebec, (1999) 23 Maryland Journal of International Law 213, p. 227). 

It suggests therefore that self-determination of a people may be advocated where equal rights are not 

guaranteed in a political setup. This declaration appears to clearly extend the right or the principle of 

self-determination beyond the colonial context as it seemingly suggests that sovereign and independent 

states could be established. In addition, it provides for the emergence of the state into any other political 

status freely determined by a people as a mode of implementing the right of self-determination by that 

people. Although this declaration was adopted without any negative votes in the General Assembly, its 

weakness as a binding instrument in international law cannot be overlooked since Declarations of the 

General Assembly are non-binding. At best, it may constitute opinion juris sufficient for the 

establishment of a customary rule of international law. 

At the regional level, there exists in European Union (EU) a proposal for the European Convention for 

the Protection of Minorities, code-named Helsinki Final Act of 1975. The Helsinki Final Act seems to 

broaden the right of self-determination to include a right to secede when it states that, “all states by virtue 

of equal rights and self-determination of peoples, all peoples always have the right, in full freedom, to 

determine… their internal and external political status.” (Final Act of the Conference on Security and 

Co-operation in Europe, 14, ILM. 1292 (1975) (Helsinki Final Act) Part VIII). 

 It is in this context, that international law contemplates two aspects of self-determination, namely: 

internal and external self-determination. To this end, a noted Encyclopedia defines these terms as 

follows: 

Internal self-determination is the right of the people of a state to govern themselves without outside 

interference. External self-determination is the right of people to determine their own political status and 

to be free of alien domination, including the formation of their own independent state (Hurst Hannum, 

The Legal Aspects of Self –Determination, The Princeton Encyclopaedia of Self Determination, 

<https://pesd.princeton.edu> accessed 10/04/2019). 

However, these two aspects of self-determination can be construed as not being inconsistent with the 

territorial integrity and national unity of states. By implication, under international law, the exercise of 

the right of self-determination either internally or externally does not necessarily empower or provide an 

automatic right to “peoples” to unilaterally secede from their parent-sovereign state, especially in a 

non-colonial context. While admitting that self-determination could be exercised internally within the 

framework of sovereign states still preserving the territorial integrity of the state, the court in Re 



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Secession of Quebec (Reference re Secession of Quebec, [1998] 2 S.C.R 217), observes that the 

territorial integrity of those states may be infringed upon to give peoples within that state, the right to 

secede as a mode of exercising their right to self-determination, but not unilaterally that is, without the 

consent of that state. 

The Vienna Declaration records a significant milestone in the development of the right of 

self-determination. The Declaration categorically considers the denial of the right of self-determination 

as a violation of human rights and therefore advocates for the effective realization of this right. The 

Declaration was adopted by the World Conference on Human Rights in 1993 and recognizes the right of 

a people to take any legitimate action which is in compliance with the United Nations Charter to realize 

their right of self-determination, especially where states do not conduct themselves with the principles of 

equal rights and self-determination of peoples within their territory (Vienna Declaration and Programme 

of Action (Adopted by the World Conference on Human Rights in Vienna on 25 June 1993, 

<www.ohchr.org/enprofesssionalinterest/pages/vienna.aspx>). 

On the African front, “The African Charter on Human and Peoples Rights” (The Banjul Charter) adopted 

in 1981, recognizes groups as subjects of self-determination beyond the colonial context. Article 20, 

recognizes two categories of people with a right to self-determination, namely: colonized people and 

oppressed people. Art 20(1) precisely stipulates that “colonized people 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.” (African Charter of Human and People Rights (ACHPR), 

<www.achpr.org/intruments/acphr/>) However, one may argue against the backdrop of the practice 

amongst African states that self-determination does not endorse secession as there is a vehement 

disavowal to allow ethnic groups in colonial determined territories to break away as part of the exercise 

of their right of self-determination. This aversion for secession speaks to the intent of the Banjul Charter 

which is to eradicate all forms of colonization from Africa. In view of the fact that African states adopted 

the principle of Uti Possidetis Juris (inviolability of colonial frontiers), as an essential part of its regional 

law in the 1964 Cairo declaration, they invariably consented to respect the colonial frontiers and 

inadvertently factored that into their interpretation of the principle or right of self-determination of 

peoples.  

Uti Possidetis Juris (UPJ) is a principle of customary international law that serves to preserve the 

boundaries of colonies emerging as states. Originally applied to establish the boundaries of decolonized 

territories in Latin America, UPJ has become a rule of wider application, notably in Africa. The policy 

behind the principle was explained by ICJ in the Frontier Dispute case (Burkina Faso/Mali Case), ICJ 

explains as follows: UPJ is a general principle which is logically connected with the phenomenon of 

obtaining independence wherever it occurs. Its obvious purpose is to prevent the independence and 

stability of new states being endangered by fratricidal struggles provoked by the challenging of frontiers 

following the withdrawal of the administering power. Its purpose at the time of achievement of 

independence by the former Spanish colonies of America was to scotch any designs which 



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non-American colonising power might have on regions which had been assigned by the former 

metropolitan state to one division or another, but which were still inhabited or explored. (Burkina 

Faso/Mali case, ICJ, 22 Dec.1986, par 20) 

The acceptance of the Uti Possidetis Juris principle by African states as a benchmark for 

self-determination is unfortunate and ill-advised. The reason is that the circumstances that gave rise to 

the principle in the first place did not contemplate the African type of formation of colonial territories. 

The colonial territorial boundaries were fabricated in an arbitrary way; dysfunctional as they were for the 

people for whom they were meant to identify. Those established borders were hoisted on the African 

peoples for the benefit of the colonial masters and have remained critical factors for the recurrent conflict, 

unrest, civil wars, and instability in the many African States. This paper offers that the right of 

self-determination should be pro-actively reinterpreted in the light of current events and conflicts in 

Africa so as to reflect the African situation. Again, this study opines also that upon the exhaustion of all 

peaceful methods for internal/ political self-determination, secession (external self-determination) 

becomes an inherent fragment for the exercise of that right of self-determination both within and beyond 

the accepted colonial territorial framework. 

In the East Timor case, (East Timor (Portugal v Australia) [1995] ICJ Rep. 90, para 29), the ICJ 

recognised that the right of self-determination was one of the essential principles of contemporary 

international law, generating as it were obligation erga omnes, that is obligations that states have towards 

the international community as a whole. By that recognition, it requires all states to work for the 

realization of the right not only for the people under their control but also under the control of other states. 

Notwithstanding this significant milestone in the development of the right of self-determination 

recognizing both the internal and external forms of self-determination, it still remains difficult for the 

international body to speak with one voice as to what constitutes self-determination, especially for 

sovereign independent states in non-colonized situations. The reluctance of the United Nations to 

legitimize moves for self-determination by way of secession in Europe and parts of Africa except in some 

selected situations appears to support the position that self-determination and secession rights are 

mutually exclusive and negate each other.  

Again, the use of the term “people” as against “state” in connection with the right of exercise of 

self-determination has been subjected to conflicting interpretations. However, in many documents 

relating to the right of self-determination, the juxtaposition of these terms at various times is indicative 

that the reference to people does not necessarily mean the entirety of the population. It is wrong to restrict 

the meaning of the term people to just the indivisible population of the sovereign state. The term ‘people’ 

in the context of the quest for self-determination demands a proper and unequivocal construction. While 

it may be flawless to maintain that people referring to a particular group along borders of former colonies 

are eligible subjects for the exercise of right self-determination, the claim of other rather homogenous 

populations or groups within a sovereign state may not go unchallenged. The problem with extending 

this designation of people to ethnic groups and minorities within a sovereign state in the context of 



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self-determination is that it may give rise to unintended consequences for several sovereign states with 

multi-ethnic constituencies. The principle of sovereignty of state along Uti possidetis lines appears to be 

the greatest setback for the construction of the term people’ to include ethnic groups and minorities as 

subjects for the exercise of the right of self-determination. In negotiating the tension between this 

principle and the recognized right of self-determination, the preferred approach of the international 

community and indeed of African states has been to give precedence to preserving colonial borders even 

in the face of challenging human security threats. 

Be that as it may, it is not in doubt that a people may also include only a portion of the population within 

a sovereign state. In this connection, a number of traits have been listed by United Nations Educational, 

Scientific and Cultural Organisation (UNESCO) to define the concept of people namely: a common 

historical tradition, a common racial and ethnic identity, cultural homogeneity, linguistic unity, common 

religion or ideological affinity, territorial connectedness, and common economic life (UNESCO, “Final 

Report and Recommendation of an International Meeting of Experts on the Further Study of the Concept 

of Rights of People,” SNS-89/CONF.602/7 (1990). 

A people’s right to the exercise of their right to self-determination to the point of secession was expressed 

in the case Re- Secession of Québec (Reference re Secession of Quebec (1998) 2 SCR 217 at 54) where 

the Court held that “the international law right of self-determination only generates at best, a right to 

external self-determination in situations of former colonies where a people is oppressed… or where a 

definable group is denied meaningful access to government to pursue their political, economic and social 

and cultural development...the people in question are entitled to external self-determination because they 

have been denied the ability to exert internally their right of self-determination.” 

 

4. Recent Precedents of the Exercise of Right to Self-Determination of Peoples  

1) East Pakistan or Bangladesh: Before Bangladesh got her severance from Pakistan in 1971, the only 

recognizable right of self-determination by the international community was against the colonial powers. 

The overarching thinking was that when a defined group of people within an already existing sovereign 

state makes any claim to their right of self-determination against that State, it would run against the 

concept of “sate-integrity” and may unlikely gain support from the international community. The demand 

for the right of self-determination of the people of East Pakistan grew steady through various oppressions, 

discriminatory practices, and tortures between 1947 to 1971. However, the genocide of the 25th March 

1971 was the last straw that cemented the right of self-determination of the people. After the failure of 

various kinds of peaceful protest, deliberation, and compromise, the people of East Pakistan were forced 

to declare independence. There is no vestige of doubt that the sympathetic attitude, associated with the 

assurance of some powerful members of the international community created a congenial atmosphere in 

favor of the right of self-determination of the people of East Pakistan. 

2) Ethnic Albanians of Kosovo: The dissolution of the Socialist Republic of Yugoslavia (SFRY) in 

1992 following the Yugoslav wars gave birth to six republics viz: Bosnia and Herzegovina, Croatia, 



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Macedonia, Montenegro, Slovenia, Serbia with two autonomous provinces within Serbia namely Kosovo 

and Vojvodina. Kosovo was an autonomous province within the Republic of Serbia made up of ethnic 

Albanians with a Serb minority. Kosovo’s special autonomy was ended by President Slobodan Milosovic 

in 1989. In the 1990s, the Kosovo Albanians sought restored autonomy or independence for Kosovo 

which was met with military actions resulting in widespread atrocities. After failed negotiations to 

resolve the status of Kosovo, NATO intervened bringing the UN security council through resolution 1244 

to authorize the UN’s administration of Kosovo. Upon failure of efforts at peaceful resolution of the crisis, 

the Parliament of Kosovo declared Kosovo to be an independent and sovereign state in 2008 which has 

become the status quo to date with the support and eventual recognition from the international 

community and major states like France, Germany, UK, and other EU members. Given the international 

law bias against secession as well as the fact that secession is not absolutely prohibited by international 

law, the case of Kosovo presents a set of facts that meets the threshold for external self-determination by 

way of secession namely: an ethnic group with the historically defined territory; suffered human rights 

abuse and atrocities of its people that was only stopped by UN humanitarian intervention; exhausted all 

negotiations; leading to a deadlock before the declaration of the severance from the parent state. 

Kosovo’s case is a pointer to the fact that international law admits of and subscribes to the legality of 

secession as a form of self-determination of peoples within sovereign states under certain circumstances. 

3) Southern Sudan: 9th July 2011, would forever be a historic day for South Sudan and indeed for the 

African subregion when you put in perspective that on that day, South Sudan declared her independence 

amid the importance that is accorded to the inviolability of colonial borders in African international 

relations. South Sudan’s assertion of its right to self-determination has shaped African regional law 

vis-à-vis self-determination and the principle of UTIPossidentis, the principle under which African states 

have committed themselves to respect and upholding the colonial borders inherited at independence 

notwithstanding the problems created internally by such borders. Southern Sudan with its indigenous and 

Christian-dominated culture has been embroiled in a lot of unrest with the Arab/Islam-dominated 

northern Sudan since their independence in 1956. The people of southern Sudan even in the year leading 

to independence made demands for safeguards against northern domination that resulted in the politically 

marginalized and underdeveloped south. The end of the first Sudanese civil war in 1972 gave birth to the 

signing of the Addis Ababa agreement which guaranteed southern Sudan regional self-government status 

within the Republic of Sudan and this got included in their 1973 constitution. In 1983, the Addis Ababa 

agreement was abrogated by the regime at the time and there ensued ‘systematic discrimination practices, 

denial of equal rights, and the imposition of sharia law on all Sudan. (SA Dersso “International law and 

the self-determination of South Sudan” Institute for Security Studies paper, Feb 2012, No. 231). Another 

civil war began which saw millions of southern Sudanese dead, coupled with the millions who were 

rendered refugees as a result of the wanton destruction of the region’s physical infrastructure. In the light 

of these repeated violations of democratic values together with unrelenting political and cultural 

oppression, Africa’s Inter-Governmental Authority for Development (IGAD) realized that a declaration 



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accepting the south’s claim to self-determination must be negotiated. This Declaration of the principle 

was signed in 1994. Furthering such development, a Comprehensive Peace Agreement (CPA) was 

negotiated and accepted in 2005 and this brought to an end the Sudanese two decades of civil war. The 

CPA was meant to address the root cause of the conflict, create a democratic basis for sustainable peace 

with timelines for self-determination of the South, the foundation upon which the CPA was built.  

Further repeated violations of the agreement fuelled armed struggle against establishments in Sudan 

leading to the referendum in which entire Southern Sudan voted overwhelmingly to separate from the 

rest of the country in January 2011 and the eventual declaration of independence in July 2011 with wide 

recognition from African Union (AU) countries and the rest of world. In all, the history of the evolution 

of South Sudan as an independent state opines Dersso, “represents a case of self-determination through 

independence that came about as a result of serious human rights violation and denial of the right to 

participate in the public affairs and running of the country on an equal basis.” (Dersso, 2012). 

 

5. Conclusion 

This study has established that the quest for self-determination is a right ostensibly underscored in any 

social contract. Such right maybe pursued by a people for the purposes of determining what sort of 

political alliances best advance their well-being and integral development. In the past, this right has 

been interpreted to mean exclusively the right of colonized peoples to seek their independence. In 

contemporary times, its import has been expanded in practice and expediency to include the right of a 

people or homogenous groups within a state for political inclusion and participation in matters that 

impact their wellbeing within that state, in the absence of which a referendum will be sought to 

determine their political future as an independent entity.  

The international legal framework and scholarship reviewed in this essay have shown that 

self-determination in contemporary international law should not be understood only with respect to the 

colonial territorial framework which respects only colonial borders as they existed at the moment of 

decolonization. It does extend to peoples within sovereign independent states seeking to exercise their 

right of self-determination internally (political self-determination) or externally (secession). In the case 

of external self-determination, in spite of the efforts of the opposition to any extension of that framework 

by the United Nations for reasons of causing partial or total damage to the national unity or territorial 

integrity of a member state, scholars and courts have given vent to the view that self-determination of 

people within established territories in the form of secession is neither overtly permitted nor prohibited 

under international law. Rightly then:  

Although, United Nations and its members’ states do not support a claim for unilateral secession, in the 

light of the development which took place after the examples of Kosovo and East Timor, and the decision 

of the Canadian Supreme Court regarding the claim for Quebec’s secession; it is possible to indicate that 

some exceptional conditions may allow the acceptance of a claim to secede. These exceptional 

circumstances are; the materialization of secession within the post-colonial context and the realization of 



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secession against undemocratic, authoritarian regimes violating human rights. (P Nanda, 

“Self-Determination and Secession under International Law”, (2000-2001) Denver Journal of 

International Law and Polity, p. 305) 

Allen Buchanan argues similarly that the right to secede should be utilized and consequently legitimized 

as a last resort for serious injustices and under a limited set of special conditions which includes 

persistent and serious violations of individual human rights and past unrepressed unjust seizure of 

territory. (SeeA Buchanan, “Self-Determination, Revolution, and Intervention,” (2016) University of 

Chicago Journals, Vol. 126, Issue 2, 447, p. 473). 

In the light of these developments, it is now a welcome state practice though not universally accepted that 

under certain criteria that a “people” could obtain international support for its claim to self-determination 

in a non-colonial context. 

Self-determination of a people, therefore, means the right to have a voice in the political and economic 

development of people or at best political freedom from the sovereign entity in order to forge a new 

political and economic future for the emergent state. This played out in the emergence of South Sudan, 

Kosovo, and Bangladesh and many more are in the pipeline waiting for actualization among which is 

the self-determination of the south-eastern region of Nigeria predominantly of people of the Igbo ethnic 

group of Nigeria. The agitation for self-determination by Igbo activists and groups in Nigeria notably 

IPOB/MASSOB both at home and in the diaspora has reached crescendo points and unless stakeholders 

engage constructively for a new Nigeria, it may be another Kosovo or Southern Sudan waiting to 

happen. 

Finally, we cannot negate the fact that till today, the ground details of the exercise of the right of 

self-determination are not free from unresolved conundrum. There is no unanimity among states as to 

the standard criteria for evoking this doctrine, especially in a non-colonial context. Nevertheless, the 

concrete application of this doctrine is complicated on account of the impact of the “Great Powers 

Rule” ingrained in the global community’s governance structure. Public international law in most cases 

is driven by the political posture and shift of powerful countries; hence it gets partisan and propelled in 

the interest of those countries. Unless the approval of big powers is explicit, oppressed people’s dreams 

and exercise of such rights as self-determination may not be achieved. 

 

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Cases: 

Burkina Faso/Mali case, ICJ, 22 Dec.1986, par 20 

East Timor (Portugal v Australia) [1995] ICJ Rep.90, para 29 

Reference re Secession of Quebec (1998) 2 SCR 217 at 54 

 

 


