Table of Contents I Introduction……………………………………………………………………………………2 2 The Definition and Origin of the right to Self-determination of Peoples………………….......4 3 The Place of Self-determination in International Law………………………………………......7 3.1 The Twin Human Rights Covenants…………………………………………….................7 3.1.1. The International Covenant on Economic, Social and Cultural Rights………………...9 3.1.2. The International Covenant on Civil and Political Rights………………………….......9 3.2. The African Charter on Human and Peoples Rights……………………………………….9 3.3. The Arab Charter on Human Rights……………………………………………………...10 4. The Relationship between Self-determination and the Doctrine of Uti Possidetis……………11 5. Self-determination and the Question of the Minorities………………………………………..12 1
Transcript
Table of Contents
I Introduction……………………………………………………………………………………2
2 The Definition and Origin of the right to Self-determination of Peoples………………….......4
3 The Place of Self-determination in International Law………………………………………......7
3.1 The Twin Human Rights Covenants…………………………………………….................7
3.1.1. The International Covenant on Economic, Social and Cultural Rights………………...9
3.1.2. The International Covenant on Civil and Political Rights………………………….......9
3.2. The African Charter on Human and Peoples Rights……………………………………….9
3.3. The Arab Charter on Human Rights……………………………………………………...10
4. The Relationship between Self-determination and the Doctrine of Uti Possidetis……………11
5. Self-determination and the Question of the Minorities………………………………………..12
6. Self-determination and the Question of the Indigenous People…………………………….....14
7. Self-determination and the Use of Force……………………………………………………...18
8. The Resultant Forms of Self-determination of Self-determination…………………………...9.
9 The Role Self-determination Plays in Shaping the Geopolitics of the World………………....20
10. Conclusion……………………………………………………………………………….21
11. Bibliography…………………………………………………………………………………22
1
SELF-DETERMINATION OF STATES: PERMANENT STATEHOOD OR LOSS OF
IDENTITY? A DILEMMA CONFRONTING INTERNATIONAL LAW.
1. INTRODUCTION
Self-determination is one of the most contentious, subversive, tragic, controversial and
paradoxical ideas in the International community today. In fact no social or legal discourse on
state genesis and/or creation can be said to be complete without a mention on some aspects
relating to self- determination. The right to self-determination is premised on the assertion by
van Genugten.1
That peoples, including national minorities and the indigenous peoples depend on the
first instance on local prosperity and natural resources and trade in these to combat
absolute poverty
The right to self-determination is an overarching aspect and according to Dugard2 “features
prominently in contemporary international law and is a topic that belongs to any discussion of
human rights, territory and statehood” One reason why self-determination is such a subversive
topic is in the words of McCorquodale,3
Because it challenges some core principles of the international legal system it challenges
the sovereignty of states and their territorial integrity, it interferes in matters within the
domestic jurisdiction of states and it makes the application of treaties uncertain.
Cassese4 concurs with McCorquodale and states that “the idea of self-determination has set in
motion a restructuring and redefinition of the world’s community basic rules of the game” Self-
determination is concession to national pride and patriotism and identity at best and the pursuit
of sheer political expediency and opportunism at worst. The idea of self-determination is finally
1Willem van Genugten et al, The United Nations of the Future, Globalization with a human Face,68 2 John Dugard, International Law, A South African Perspective,1023 Robert McCorquodale, Self-determination in International Law, ix 4 Antonio Cassese, Self-determination of Peoples, 1
2
very tragic and is one of the causes of major conflicts in the world. This is confirmed by Kreijen5
when he states that “in 1994 alone, there were forty-seven armed conflicts in the world, all of
them intra-state and all linked with the question of self-determination of peoples”
It should as a point of departure be clearly stated that there are two forms of self-determination
of peoples, the internal form of self-determination as well as the external form of self-
determination. The internal form of self-determination is primarily concerned with the realization
of various socio-economic and political rights, it does not wholly deal with the question of
autonomy or independence in the true sense of the words, it concerns itself with granting
peoples the choice to make within the confines and boundaries of the concerned state and
includes the ability to participate meaningfully in the government and decision-making
structures without any form of being discriminated against on the basis of one’s religion, creed,
language, race and culture. Internal self-determination is related with the right to freely pursue
economic, social and cultural development as indicated above and the right to freely dispose of
the natural wealth and resources. These two sets of rights are reflected in Article 1 of the ICCPR
and the ICESCR mentioned below. On the other hand, the external form of self-determination,
relates to a people’s capacity to liberate itself usually from the bonds of a colonial or racist
rule(as was the case with almost all the African countries which were once colonized by some
European powers).The self-determination can mean a secession and the establishment of a new
sovereign and independent state, integration or even a free association like in a federation or an
association with another independent state or even any other political status freely determined by
the people concerned. The right to external self-determination has in the past been confined
within the parameters of colonial situations. In the history of international law no state has ever
acceded to the demands of external self-determination and the international community only
knows of the right of external self-determination as applicable to and in terms of freedom from
colonial rule. In short an external form of self-determination refers to full legal independence (in
5 Gerald Kreijen, State, Sovereignty and International Governance,349 3
the form of autonomy or self-government) or secession for the given people from the main
politico-legal state as Moeckli6 puts it succinctly,
A change in the international relationships between the peoples exercising their right of
self-determination and the original state/colonial power as well as with other states and
international actors.
This paper will attempt to explore and dissect primarily an external form of self-determination
in the context of International Law but( will deviate and look briefly into self-determination and
the question of minorities and the indigenous people) with special emphasis on its definition and
origin, its place in the international arena, its relationship with the doctrine of Uti Possidetis, its
relationship with the use of force, its end-products as well as the role it plays in shaping the
geopolitical landscape of the world. An attempt will also be made to limit and confine this
multifaceted discipline to its relevance in the domain of International Law to avoid what
Cassese7 aptly describes as “opening up of a veritable Pandora’s box”
2 DEFINITION AND ORIGIN OF THE RIGHT TO SELF-DETERMINATION OF
PEOPLES.
The right to self-determination of peoples cannot adequately and fairly be defined without first
delving into its targets. The primary target of self-determination is the people. It will be
convenient to avoid the semantics surrounding the term people and refer to people as any number
or group of individuals. The right to self-determination is therefore a group or a collective right
and not an individual right. This statement is supported by Levy8 who contends that “The idea of
self-determination refers to collectivities, rather than individuals not yet subjects of international
law but potential recipients of direct rights under the law.” Klabbers9 understands self-
determination to entail that” identifiable groups have a right to determine for themselves how
they wish to be politically organized” In its simple form, self-determination means the right of 6 Daniel Moeckli et al, International Human Rights Law,3427 Cassese,18 Werner Levy, Contemporary International Law,1859 Jan Klabbers, International Law,117
4
people of a particular place to choose the form of government they wish to have. The Free
Dictionary10 defines self-determination as “freedom of the people of a given area to determine
their own political status; independence”
Self-determination is as evasive as a shadow and very fraught with contradictions.
Klabbers11elaborates further and argues that “there are two major problems usually associated
with self-determination. The first is the identification of the ‘self ‘Who bears the right to self-
determination?” According to Klabbers, identity does not always imply sharing the same
language, ethnicity or history because if that was the case, the Americans and the Australians
would be one because they share the same English language and yet they are different (the same
difference) Many nations in West Africa like in Nigeria, Togo, Niger and Benin speak the same
Yoruba language and yet they are distinctively different. One cannot easily differentiate between
the Tutsi and the Hutu in Rwanda and Burundi and yet a black page in the history of the UN
happened in Rwanda in 1994 between these two groups because of their ‘similar differences’
The second problem according to Klabbers is that the main demand related to external self-
determination is usually succession .It is very difficult to reconcile the demand of succession
with the stability of existing states. These are two very extreme and polarized outcomes, the
realization of one results is the destruction or suppression of the other. In other words, the denial
or rejection of the demands of self-determination boosts and enhances stability and permanent
statehood. Equally, the denial to demands of self-determination confines its potential recipients
to perpetual subjugation and loss of identity which may result in feelings of resentments and
sows seeds of enmity which itself is a recipe for a civil war. Levy12 warns that,
The idea of self-determination is frightening to existing states, which usually do
everything possible to restrain this self-determination in method and substance as a
International law is very reluctant to break up existing states for fear of destabilizing the global
order. The paradoxically of the idea of self-determination of states is in the words of van
Genugten13 “the prohibition of states to oppress people and the prohibition of states to secede”
This is a conundrum of nearly unparalleled proportion. How do people realize their dream of
self-determination if their only option lies in secession? Robertson14 plunges the controversy
deeper when he asserts that “application of self-determination principle comes up against the
brick wall of state sovereignty”
Turning our attention to the origin of the idea of self-determination, Mullerson15 opines that “the
principle of the idea of self-determination of people is rightly considered to be a successor to the
political principle of nationality” Duursma16 gives an insight into the idea of self-determination.
He states that the fundamental philosophical thought behind the concept of self-determination
has historically been that every human being is entitled to control his own destiny, however this
line of thought was not always accepted in the past. Individuals were considered subjects of their
monarchs who ruled by divine right and thus decided upon their common fate. Self-
determination and the consent of the governed are principles espoused by Greek philosophers
like Aristotle and seventeenth and eighteenth century thinkers such as John Lock and Jean
Jacques Rousseau. According to Cassese17, the origin of the principle of self-determination can
be traced back to the American Declaration of Independence (1776) and the French Revolution
(1789) which marked the demise of the notion that the individual and peoples as subjects of the
king were objects to be transferred, alienated, ceded or protected in accordance with the interests
of the monarch. The core of the principle lies in the American and French insistence that the
government be responsible to the people. Modern idea of self-determination can be credited to a
number of leading statesmen, among them Lenin and President Woodrow Wilson. Both these
13 Van Genugten et al,6814 Geoffrey Robertson, Crimes against Humanity, The Struggle for Global Justice,20815 Rein Mullerson, International Law, Rights and Politics, 5816 Jorri Duursma, Self-determination, Statehood and International Relations of Micro-states, The Cases of Liechtenstein, San Marino, Andora and the Vatican City,1117 Cassese, 11
6
statesmen championed the idea of self-determination albeit from different perspectives. Boas18
mentions that “the notion of self-determination was actively pushed by President Wilson and
implicitly included in his speech known as ‘Wilson’s Fourteen Points” The Fourteen Points
ushered the notion that government must be based on the consent of the governed, for Wilson,
self-determination consisted of the right of peoples to freely choose their government. The idea
has since evolved into what we know as democracy
3 THE PLACE OF SELF-DETERMINATION IN INTERNATIONAL LAW.
Kreijen19 reminds us that “the International Court of Justice has explicitly recognized that the
right to self-determination of peoples has an erga omnes character and therefore a peremptory
norm of general International Law or jus cogens” The idea of self-determination is deeply
enshrined in International Law through a number of instruments. These are covenants and
charters which cover the idea of self-determination. This means that International Law
acknowledges and recognizes the principle of the right to self-determination of states. There are
mainly four instruments which deal with and contains the principle of self –determination. The
four instruments are: The Twin Human Rights Covenants, The International Covenant on the
Economic, Social and Cultural Rights (ICESCR) OF 1966, and the two regional instruments
namely The African Charter on Human and Peoples’ Rights of 1981 and the Arab Charter on
Human Rights of 2004.
3 1. The Twin Human Rights Covenants of 1966.
3.1.1The International Covenant on Civil and Political Rights (ICCPR) and the International
Covenant on Economic, Social and Cultural Rights (ICESCR)
Common Article 1
18 Gideon Boas, Public International Law , 195 19 Kreijen et al , 353
7
1. All peoples have the right to self-determination. By virtue of that right, they freely determine
their political status and freely pursue their economic, social and cultural development
2. All peoples may, for their own ends, freely dispose of their natural wealth and resources
without prejudice to any obligations arising out of International economic co-operation, based
upon the principle of mutual benefits and International Law. In no case may a people be deprived
of its own means of subsistence
3. The state Parties to the present covenant, including those having responsibility for
administration of non-self-governing and Trust Territories shall promote the realization of the
right to self-determination, and shall respect that right, in conformity with the provisions of the
charter of the United Nations
3.2 Article 15, International Covenant on Economic, Social and Cultural Rights (ICESCR)
1. The State Parties to the present covenant recognizes the right of everyone,
(a) To take part in cultural life
(b) To enjoy the benefits of scientific progress and its applications
(c) To benefit from the protection of the moral and material interests resulting from any
Scientific, literary or artistic production of which he is the author
2. The steps to be taken by the State Parties to the present covenant to achieve the full realization
of this right shall include those necessary for the conservation, the development and the diffusion
of science and culture
3. The State Parties to the present covenant undertake to respect the freedom indispensable for
the scientific research and creative activity
4. The State Parties to the present covenant recognize the benefits to be derived from the
encouragement and development of International contracts and co-operation in the scientific and
cultural fields
8
3.1.2Article 27, International Covenant on Civil and Political Rights (ICCPR)
In those states in which ethnic, religious or linguistic minorities exist, persons belonging to such
minorities shall not be denied the right, in community with other members of their group, to
enjoy their own culture, to profess and practice their own religion, or to use their own language.
Article 25, International Covenant on Economic, Social and Cultural Rights (ICCESCR)
Article 47, International Covenant on Economic, Social and Political Rights (ICCPR)
Nothing in the present covenant shall be interpreted as impairing the inherent right of all the
peoples to enjoy and utilize fully and freely their natural wealth and resources
The Universal Declaration on Human Rights also contains Article 21(3) which reads:
The will of the people shall be the basis of the authority of governments, this shall be expressed
in periodic and genuine elections which shall be by universal and equal suffrage and shall be
held by secret vote or by an equivalent free voting procedure.
3.3. The African Charter on Human and Peoples’ Rights
Article 20 of the Charter reads:
1. All peoples shall have the right to existence, they shall have the unquestionable and
unalienable right to self-determination, they shall freely determine their political status
and shall pursue their economic and social development according to the policy they have
freely chosen
2. Colonized and oppressed peoples shall have the right to free themselves from the bonds
of domination by resorting to any means recognized by the International Community
3. All peoples shall have the right to the assistance of the State Parties to the present charter
in their liberation struggle against foreign domination, be it political, economic or
cultural.
3.4. The Arab Charter on Human Rights
9
Part 1
Article 1
(a) All people have the right of self-determination and control over their natural wealth and
resources and accordingly, have the right to freely determine the form of their political
structure and to freely pursue their economic, social and cultural development
(b) Racism, Zionism, Occupation and foreign domination pose a challenge to human dignity
and constitute a fundamental obstacle to the realization of the basic rights of peoples.
There is a need to condemn and endeavor to eliminate all such practices
Although some provisions relate directly and more specifically to an internal form of self-
determination mentioned elsewhere in this paper, they are nevertheless interwoven and
cannot be separated from those relating directly to the topic under discussion.
Given the length and space in which the idea of self-determination is deeply enshrined in the
main charter and the two regional instruments, it boggles the mind as to how the UN charter
can contradict itself and arrive at a conclusion that is viewed as undermining and
compromising the sovereign integrity of states, that is the support for the right to self-
determination.
Article 2(4) of the UN Charter reads:
All members shall refrain in their internal relations from the threat or use of force against the
territorial integrity or political independence of any state, or in any other manner inconsistent
with the purposes of the United Nations.
Now, Article 1(2) on the Purposes of the United Nations declares:
To develop friendly relations among nations based on respect for the principle of equal rights
and self-determination of peoples, and to take other appropriate measures to strengthen
universal peace.
10
This in my opinion constitute what I term ‘constructive ambiguity’ History has shown that
secession as an end-product of self-determination can never be realized with relative ease ,it
can never be offered on a silver platter and very rarely has secession been realized through
relative peace. This argument is corroborated by Cassese’’20 when he laments that
The rules of international law are particularly ambiguous and do not provide clear
indications as to the resolution of the crucial conflict between self-determination and the
territorial integrity of states.
Maybe this argument should best be left to the statesmen and international law-makers.
4. THE RELATIONSHIP BETWEEN SELF-DETERMINATION AND THE DOCTRINE
OF UTI POSSIDETIS
Since the idea of self-determination has a subversive character and a potential to deliver
statehood to the erstwhile oppressed people and subsequently disrupt the fabric of the
existing natural and otherwise borders, it is critical to juxtapose it with other important
doctrines applicable in International Law. One such doctrine is Uti Possidetis. Uti Possidetis
is a Latin phrase which loosely translated means ‘as you possess’ The issue of Uti Possidetis
as Dixon21 clearly puts it “encompasses the idea that the frontiers of newly independent states
are to follow the frontiers of the old colonial territories from which they emerged.”
The doctrine is used primarily to reduce border disputes that may erupt following the creation
or independence of states from their former parent (main) state. Though rigid in principle, it
calls on all stakeholders to respect the former boundaries and strictly rejects any unilateral
change of these boundaries unless by mutual agreement of concerned parties. The doctrine
has been used effectively to adjudicate upon a number of landmark border cases. Higgins22
adds her voice to the debate and asserts that “the principle of Uti Possidetis carefully 20 Cassese, 206 21 Martin Dixon, International Law, 172 22 Rosalyn Higgins, Problems and Processes, International Law and how we use it, 112
11
balances the references to self-determination with the importance of national unity and
territorial integrity”
Now, the question is, given the significance of the right to self-determination and its
recognition by the UN sets of instruments, and by extension, the United Nations as a whole
and equally the importance of the doctrine of Uti Possidetis and its relevance and subsequent
application by the UN competent tribunals, which of the two should take precedence over
another especially in a situation where peoples seeking to realize their dream of self-
determination find themselves spread across or straddling the boundaries of two states? A
food for thought for International Law practitioners!
5. SELF-DETERMINATION AND THE QUESTION OF MINORITIES.
The rationale for including this sub-topic here is because as indicated above self-
determination is a collective right and not an individual right. Minorities are collectivities and
as such deserve mention even though their rights can be realized and catered for in the
internal form of self-determination.
International law has for decades battled to come up with a satisfactory and convincing
definition of what minorities represents. This is confirmed by Malanczuk23 when he declares
that “the question of what constitutes a ‘minority’ in terms of international law has remained
a vexed one to which as yet, no completely satisfactory answer has been found” The UN
Sub-Commission on the Prevention of Discrimination and Protection of Minorities defines
the minorities as: a group numerically inferior to the rest of the population of a state, in a
non-dominant position whose members-being nationals of the state- possess ethnic, religious
or linguistic characteristics differing from those of the rest of the population and show, if
only implicitly a sense of solidarity, directed towards preserving their culture, traditions,
religion or language. In fact, there is no legal definition of what a ‘people’ is. The danger of
23 Peter Malanczuk, Modern Introduction to International Law, 10512
defining a minority in terms of its composition and a ‘people’ in terms of numbers will be too
misleading if not to open a can of worms. McCorquodale24 shares this opinion and states that
“one of the problems was to work out an acceptable definition of who constitute a minority”
Article 27 of the International Covenant on the Civil and Political Rights( ICCPR) needs to
be revisited. It states that: In those states in which ethnic, religious or linguistic minorities
exist, persons belonging to such minorities shall not be denied the right, in community with
other members of their group, to enjoy their own culture, to profess and practice their own
religion or to use their own language. The phrase clearly emphasizes the need for the
minorities not to be separated, discriminated or excluded upon, or to be swallowed by a
dominant majority, but to be accepted as a unique part of a larger entity and thus to be given
the respect and recognition that they deserve. Mullerson25 adds
It would not be correct to say, as it is sometimes asserted, that there is no right of self-
determination for minorities, it would be more accurate to say that they can exercise the
right of self-determination together with the rest of the population of a given state, as
part of this population
Given this analysis and the fact that it is more complex to find a yardstick to divide
ethnicities into peoples, minorities, tribes and nations, it is safe to say that minorities
constitute a part of peoples who have a distinctive ethnic, religious or linguistic
characteristics. The type of self-determination that the minorities may be able to realize is
that which addresses their cultural, religious and linguistic uniqueness. When Article 27 is
studied more closely, one realizes that it is biased towards individuals within a group who are
individually holders of rights. It also does not envisage political, economic or social
autonomy. Cultural, religious and linguistic rights tend to address the identity and not the
political independence of an individual. This shows that the intention of the drafters of the
covenant was to encourage unity in diversity. If one were to juxtapose minorities with an
external form of self-determination, one would be trying to create a chain of events too
24 McCorquodale, 29125 Mullerson, 73
13
untenable and which an attempt thereof would result in an unprecedented fragmentation of
states into millions of states, the situation which is not ideal for either state integrity or
human survival because it would trigger a number of armed conflicts. Cassese26 corroborates
“it was feared that granting minorities a legal right to self-determination would create havoc
in sovereign states” The self-determination referred to here by Cassese is the external form of
self-determination. Higgins27 puts it more empathetically
The evolving norms on self-determination- contained –undeniably and consistently- an
anxious refrain whereby self-determination is to be harnessed to, and not to the enemy
of, territorial integrity.
The next question one needs to ask is, are the indigenous people classified as minorities? The
answer to this complex question lies in delving deeper and investigating who the indigenous
people are.
6. SELF-DETERMINATION AND THE QUESTION OF THE INDIGENOUS PEOPLE
The red man has always retreated before the advancing white man, as the mist of the
mountains runs before the morning sun. But the ashes of our fathers are sacred. Their graves
are holy ground, and so these hills, these trees, this portion of the earth is consecrated to us.
We know that the white man does not understand our ways. One portion of the land to him is
the same as the next, for he is the stranger who comes in the night and takes from the land
whatever he needs. The earth is not his brother but his enemy, and when he has conquered it,
he moves on. He leaves his father’s graves behind, and he does not care. He kidnaps the earth
from his children. He does not care. His fathers’ graves and his children’s birthright are
forgotten. He treats his mother, the earth, and his brother, the sky, as things to be bought,
plundered, sold like sheep or bright beads.
26 Cassese ,6227 Higgins, 121
14
I do not know. Our ways are different from your ways. The sight of your cities pains the eyes
of the red man. But perhaps it is because the red man is a savage and does not understand28
These were the words of Chief Sea’lth (Seattle) of the Suquamish nation spoken more than
three centuries ago. The Suquamish are an indigenous community of what is known
collectively as the American Indians previously known as the Red Indians. The extract
presents a vivid account of who the indigenous people are and what they stand for in relation
to a ‘civilized’ man
The indigenous people are scattered across the globe from the great forests of the Amazon in
Latin America to the cold regions of Siberia in Northern Russia. Statistics show that there are
approximately more than 370 million indigenous people in the world, belonging to 5,000
different groups, in 90 countries worldwide29 as indicated, these people range from the
Amazon, the tribal peoples of India and from the Inuit in Canada and Greenland to the
Aborigines of Australia. Africa has a huge number of these people with Kenya topping the
list. A number of names are used interchangeably to refer to these members of the human
race, the tribal people, First people, and the natives.
In Africa, there are the Khoi and the San in Southern Africa, the Ogoni in Nigeria, the
Maasai, Samburu and the Endorois in Kenya and other countries in Central and East Africa
and the Amazigh in North Africa. The Aborigines are found in Australia, the Maori in New
Zealand, the American Indians in the Americas and a variety of Eskimos in Canada, Alaska,
Greenland and Siberia
For decades the International Community also battled to arrive at an on- the –spot definition
of what these indigenous people are. Malanczuk30 agrees when he opines that “the
definitional obstacles are in principle of the same nature as in the case of the minorities” The
UN however coined a detailed but questionable definition of the. Indigenous people:
Indigenous communities, peoples and nations are those which having a historical continuity
with pre-invasion and pre-colonial societies that developed on their territories, consider
themselves distinct from other sectors of societies now prevailing in these territories, or parts
of them. They form at present non-dominant status of society and are determined to preserve,
develop and transmit to future generation their ancestral territories, and their ethnic identity,
as the basis of their continued existence as peoples in accordance with their own cultural
patterns, social institutions and legal status… On an individual basis, an indigenous person is
one who belongs to these indigenous populations through self-identification as indigenous
(group consciousness) and is recognized and accepted by these populations as one of its
members (acceptance by the group).
The definition of this group of people contains the words “they form at present non-
dominant sectors of society…” These words bear the same meaning with those found in the
definition of minorities given in the last paragraph. “in a non-dominant position”
This means that the indigenous people and the minorities share one thing in common and
hence are usually grouped and discussed together. They are not dominant in the groups
where they live or find themselves. The word ‘dominant’ here may convey two meanings, the
first is that which concern the numerical superiority, meaning that these groups do not
possess numbers to match with those of other groups within which they find themselves.
Their numbers are less as compared to those of other groups. This first meaning applies more
and is relevant to the minorities. The second meaning of dominant has more to do with
control or power. Both the minorities and the indigenous people do not have power over the
other groups within which they live.
Does this then imply that the indigenous peoples should be categorized as minorities and
therefore like the minorities only deserving of an internal form of self-determination?
A closer look at the definition of the indigenous people will show that these people should
not be categorized with the minorities.
16
Similar to the minorities, the indigenous people have their own language and culture or
religion. However, there are basically three things which set the indigenous people apart
from the minorities. The first is their unique relationship with their territory and its natural
resources. The survival and dignity of these people depends to a large extent on the territory
and its gifts of mother-nature, the natural resources. According to them, the territory is both
sacred and sacrosanct and forms an ‘umbilical cord’ with them. The second is their unique
way of life. The indigenous people prefer to lead their own secluded lives and any attempt at
integration or assimilation into the mainstream ‘modern way of life’ will in their opinion
trigger the process towards their extinction. The third and the most important is that the
indigenous people as their other name suggests, First People, were in almost all the cases, the
first occupants or inhabitants of the territories where they live or have lived (depending on
whether they moved voluntarily as pastoralists and/or gatherers or were forcibly evicted) The
fact that they were the first inhabitants gives them the legal status to legally claim the
territory they live or once lived. The landmark, Endorois case in Kenya is a good example
where the indigenous people, the Endorois won a case against the Kenyan government after
they were illegally and forcibly evicted from their territory to make way for the natural game
reserve around Lake Bogoria.
This therefore means that the indigenous people, despite some similarities with the minorities
are deserving of both the internal and the external form of self-determination. A major
headache is the fact that the indigenous people are not or do not recognize national borders
and many of them are spread across or straddle the borders of two or more states. However
what is pleasing is that in most cases, the indigenous people normally do not aspire for
secession or independence but usually prefer some form of autonomy concerning their
cultural, economic and political rights within the borders of existing states. They usually use
the right to internal self-determination to realize their desire to exist freely and to fully
develop as distinct communities. They prefer living according to their own values and
beliefs. Two articles in the UN Declaration on the Rights of the Indigenous People serve to
17
illustrate that indeed the indigenous have the right to both the internal and the external form
of self-determination
Article 3
Indigenous peoples and the individuals have the right to self-determination. By virtue of that
right they freely determine their political status and freely pursue their economic, social and
cultural development.
Article 4
Indigenous peoples, in exercising their right to self-determination have the right to autonomy
or self-government in matters relating to their internal and local affairs, as well as ways and
means for financing their autonomous functions.
7. SELF-DETERMINATION AND THE USE OF FORCE.
Dixon 31opines that “armed force has traditionally played a central role in international
relations” It may sometimes happen that a parent or main state resort to the use of force to
crack down and suppress sentiments of self-determination echoed by a particular group of
people within the state. Alternatively, these ‘oppressed’ people may use force to realize their
cherished dream of self-determination. Article 2(4) of the UN Charter forbids the use of force
or threat by states for purposes of denying self-determination to a colonial or foreign people
or a racial group. The article also forbids any other forcible action aimed at suppressing the
desire for self-determination including state-sponsored and institutionalized violence namely
all those, mechanisms, measures and any devise destined to prevent peoples or racial groups
from exercising their right to self-determination. The Charter is however non-committal as to
whether it is justifiable and legitimate for a third party (state) to use force to assist the
‘oppressed’ people to achieve self-determination. The Charter according to Dixon32 “only
31 Dixon,32132 Dixon ,339
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states that such people have the right to self-determination and to receive unspecified
assistance” The unspecified assistance is open to a number of interpretations. The Charter has
however been interpreted as allowing liberation movements to use force to achieve the
objectives of self-determination. The difficulty with liberation movements is which criterion
to use to determine their legitimacy for not all liberation movements are legitimate and thus
carrying out the mandate to translate the concerns of their people. Some so called liberation
movements are just a group of ‘armed power mongers’ who could not convince the electorate
at the ballot boxes and have resorted to illegitimate armed struggle. Colonialism and
Apartheid led to the formation of liberation movements, in Southern Africa and elsewhere.
These liberation movements emerged to fight for the liberation of the oppressed people. In
Rhodesia, now Zimbabwe, the Zimbabwean African National Union (ZANU P.F) led by
Robert Gabriel Mugabe and the Zimbabwean African Peoples Union (ZAPU) led by Joshua
Nkomo were at the forefront of the liberation of Zimbabwean people. In South Africa,
Africa’s oldest liberation movement, the African National Congress (The ANC) led by Chief
Albert Luthuli, Oliver Reginald Tambo and later Nelson Mandela and Thabo Mbeki and its
splinter group, the Pan Africanist Congress, led by Robert Sobukwe and others and the
Azanian Peoples Organization (AZAPO) deserve mention, in South West Africa, now
Namibia, the South West Africa People Organization, (SWAPO) led by Sam Nujoma, was
involved in the liberation struggle for the emancipation of the Namibian people. Elsewhere in
the Middle-East, the Palestinian Liberation Organization (PLO) led by Yasser Arafat, is still
fighting for the total liberation of Palestine from the Israeli bondage. The Charter however,
indicates that the use of force by the genuine liberation movements should be the last resort
when all other peaceful methods have been exhausted because the Charter strongly advocates
for the peaceful settlements of disputes.
8. THE RESULTANT FORMS OF SELF-DETERMINATION
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Mullerson33 declares that,
The developments in the former USSR and Eastern Europe unfolded to a great extent
under the banners of the right to self-determination and gave an additional impetus to
similar processes in other parts of the world.
There are a number of end-products associated with the successful attainments of self-
determination. One such product is what Crawford34 terms “the dissolution of the predecessor
state “as was the case with the former Yugoslavia and the USSR. Another product is the
unification of two states into one state. The unification of North and South Korea, as well as
the historic breakdown of the Berlin Wall which culminated in the unification of East and
West Germany are cases in point. There is also a secession which is the most common, and
inevitably the most dramatic and tragic of all. The secession of Belgium from the
Netherlands, Bangladesh from Pakistan, Eritrea from Ethiopia and most recently South
Sudan from Sudan may serve as examples. Today there are a lot of ‘states’ that are involved
in bitter struggles to ‘ surgically remove’ themselves from other states all fueled by a desire
of external self-determination The ‘states’ of Biafra, Kashmir, Kosovo, Chechnya and
Kurdistan deserve mention.
9. THE ROLE SELF-DETERMINATION PLAYS IN SHAPING THE GEOPOLITICS OF
THE WORLD.
Crawford35 opines that as a point of departure, “self-determination is, at the most basic level,
a principle concerned with the right to be a state” One wonders what the political world map
would like today if there was no idea of self-determination. It is not by accident that many
states have emerged as a result of the desire for self-determination. The world today is more
divided into smaller units, the antithesis of the powerful and united empires that existed
33 Mullerson ,5834 James Crawford , The Creation of States in International Law ,37535 Crawford ,107
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before in the human history. When the United Nations came into being after the rubble of the
Second World War, it was made up of a few states but today this family of nations boasts a
membership of no less than 193 states. Indications are that this number will increase in the
near future if the ‘states’ mentioned in the preceding paragraphs and others still in the
pipelines succeed in realizing their dreams of self-determination. Commenting on the role of
self-determination in shaping the geopolitics of the modern world, one social commentator
lamented that “there are more divorces than marriages” She was trying to draw an analogy
between dissolutions and secessions of states (divorces) and unifications of states
(marriages). The million euro question is, will the world order be save and better with a few
united-states or with many smaller states?
10. CONCLUSION
For the International Community to live in peace and harmony while creating prosperity for
posterity, it has to consciously attend to the controversies and paradoxes surrounding self-
determination and its relationship with state sovereignty. It is an undisputable fact that self-
determination forms an integral part of International Law. The idea of self-determination
evokes mixed feelings to a spectrum of the human race and has at times been used as a
weapon to unleash untold terror in other parts of the world. The world has witnessed
tragedies of genocides and mass killings by groups who were for or against the idea of self-
determination. The relationship between self-determination and state sovereignty is laden
with frictions and tensions and as Raic36admits “the right to self-determination can have a
tense relationship with the principle of state sovereignty”. In my opinion, the idea of self-
determination requires a new, fresh and vigorous approach and a decree of circumspection as
Higgins37 concludes,
36 David Raic ,Statehood and the Law of Self-determination, 237 Higgins, 128
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The role of the international lawyer remains constant-to eschew current fashion when it
is intellectually unsound to provide the analysis that shows how properly understood,
this important principle of international law can serve common values.
For the destiny of self-determination is intricately and inevitably ‘tapestrically interwoven’
with statehood.
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BIBLIOGRAPHY
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2. International Law Instruments
2.1. The Twin Human Rights Covenants of 1966
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2.1.1. The International Covenant on Civil and Political Rights (ICCPR)
2.1.2. The International Covenant on Economic, Social and Cultural Rights (ICESCR)
2.2. The African Charter on Human and Peoples Rights
2.3. The Arab Charter on Human Rights
2.4. The Universal Declaration on Human Rights
2.5. The UN Sub-Commission on the Prevention of Discrimination and Protection of Minorities
2.6. The UN Declaration on the Rights of the Indigenous People.
