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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,
). 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, ). 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, 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, 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 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,
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,
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,
).
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),
) 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