Hannatu Musawa
1. “All peoples have the right to self-determination…”
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 on the
principle of mutual benefit, 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, shall promote the
realization of self-determination, and shall respect that right, in
conformity with the provisions of the Charter of the United Nations.
[Art 1, ICCPR/ICESCR, Art 1(2), UN Charter; Art 20(1), ACHPR; Art 2, AL]
As clearly evidenced in the provisions of the United Nations Charter,
international law has always held the right to self-determination at a
high standing because its recognition is vital for the effective
guarantee and observance of individual human rights and for the
promotion and strengthening of those rights. However, even with the
importance attached to this right, in the wake of decolonization, the
right to self-determination stands as one of the most debateable aspects
of modern international human rights law we have today.
A couple of weeks ago when MOSOP President and Spokesman, Dr. Goodluck
Diigbo, declared political autonomy from Nigeria, he affirmed his groups
intention to enforce the United Nations Declaration on Rights of
Indigenous Peoples. In light of the fact that Dr Diigbo expressly relied
on the UN Convention to assert his groups’ third generation right and
since it’s now high season in Nigeria for every interest to claim such
right, it is important to examine the position of International legal
principles and set precedents established in regards to this right.
Based on the International legal provision that the Ogoni people seek to
rely on, would their quest for political autonomy from Nigeria succeed
under Art 1(2) of the United Nations Charter as well as in both of the
International Covenants that the right appears in?
The accepted view of self-determination is that it is a right
exercised primarily by people living under colonial regimes, which could
be exercised once and once only to remove the colonial regime in
question. Essentially it was taken as referring to the right of a group
of people, normally of one distinct territory, to decide collectively
the manner in which they wish to be ruled or governed. However, even
though the right to self-determination for all peoples is an apparently
inalienable human right, it must be noted that it is not necessarily an
absolute right. Most notably, its application to peoples living under
non-colonial domination is not so apparent.
As a starting point, it must be established that the right to
self-determination is a group right, but one of its main problem lies
with its beneficiaries; who are the people to whom the rights ascribe?
Due to the fact that the right is only exercisable by ‘peoples’, the law
has to be satisfied that those who seek it meet the threshold of
‘peoples’ under international set principles. The meaning to be
attributed to the concept of ‘peoples’ for the rights of people in
international law in this regard includes, groups who enjoy a common
historical tradition, racial or ethnic identity, cultural homogeneity,
linguistic unity, religious or ideological affinity, territorial
connection or common economic life. The group as a whole must have the
will to be identified as a people or the consciousness of being a
people. In view of this definition, it is presumed that the Ogoni people
who seek political autonomy from Nigeria do satisfy the definition of
‘peoples’ for the purpose of securing their indigenous rights under the
United Nations Convention.
Conversely, in respect of self-determination of ‘peoples’, two other
vital aspects have to be distinguished; the internal and external aspect
of self-determination. The right has an internal aspect, that is to
say, the rights of all peoples to pursue freely their economic, social
and cultural development without outside interference. In that respect,
there exists a link with the right of every citizen to take part in the
conduct of public affairs at any level, as referred to in Article 5 of
the International Convention on the Elimination of All Forms of Racial
Discrimination. In consequence, governments are to represent the whole
population without distinction as to race, colour, descent or national
or ethnic origin. On the other hand, the external aspect of
self-determination implies that, all peoples have the right to determine
freely their political status and their place in the international
community based upon the principle of equal rights and exemplified by
the liberation of peoples from colonialism and by the prohibition to
subject peoples to alien subjugation, domination and exploitation.
Within the backdrop of establishing the internal and external aspect
of self-determination follows the issue of territorial integrity. The
main bone of contention for any group or peoples within a defined
national boundary that wish to declare their right to self-determination
is the fact that international law has developed within a framework of
respect for the territorial integrity of a state. Cohabiting with the
United Nations’ encouragement of self-determination is its very strict
practice of respect for the territorial integrity of a State, a policy
deeply against partial or total interference with the territorial
integrity of a State. Territorial integrity and respect therefore is
enshrined in the Charter of the United Nations, Art 2. The General
Assembly, in Declaration 1514 on the Granting of Independence to
Colonial Countries and Peoples in 1960 even went as far as purporting to
exclude the exercise of self-determination by discernible groups: ‘Any
attempt aimed at the partial or total disruption of the national unity
and the territorial integrity of a country is incompatible with the
purpose and principles of the Charter of the United Nations.’
In a leading Canadian case with similar facts to the declaration of
the Bakassi and Ogoni people, the court was very clear on the position
of United Nations Charter in regards the right to self-determination of
indigenous people within a defined state. On the question of whether
international law principles recognize Quebecers right to
self-determination which could legally effect the unilateral secession
of Quebec from Canada, the court concluded that; ‘Canada is a sovereign
and independent State conducting itself in compliance with the principle
of equal rights and self-determination of peoples, thus the Quebecers
had no right to secede’. In the judgement, the Supreme Court had
recognized the right of a people to self-determination and acknowledged
that much of the Quebec population satisfied the criteria for
determining the definition of a ‘people.’ However, the court then
distinguished between internal and external self-determination; the
former being the accepted political development of a State and the
latter could only be invoked unilaterally in extreme situations. The
Quebecers were accorded internal self-determination insofar as their
linguistic rights are recognised; they have a fair representation in
national legislative, executive and judicial bodies and their culture is
not threatened. The court received many submissions on behalf of other
indigenous Canadians who also argued for their own territory and
autonomy. But this point was not even addressed by the court because no
application of the principle of self-determination was found as
justified vis-à-vis Quebec and therefore no other indigenous group or
tribe could invoke that right.
But even with these set principles, there are instances where
international law applies a different criterion in cases it considers
extreme. The scope of an extreme situation justifying external
self-determination was addressed in the opinion of the African
Commission of Human Rights in Katangese Peoples’ Congress V Zaire. It
was suggested that where a State denies a group participation in the
Government process and violates their fundamental rights, the
territorial integrity of the State may not be such a paramount
consideration.
Furthermore, other instances where support for the extension of the
principle of Self-determination to indigenous populations may be
inferred have been recorded. One such example was from the powerful
separate opinion laid down in the Western Sahara Case. The judge opined
that; “It hardly seems necessary to make more explicit the cardinal
restraints which the legal right of self-determination imposes… It is
for the people to determine the destiny of the territory and not the
territory the destiny of the people.” But even such a strong obiter is
not without ambiguity. It could be inferred from this that the ‘people’
must be of a whole territory and hence the judgement conforms to the
territorial view of the United Nations. On the other hand, the use of
the term territory could be taken to mean that the land could be part of
an existing State. This still causes some problems for
self-determination out with the colonial framework where questions of
succession arise.
While unilateral secession is not specifically prohibited, it is
clear that international law does not specifically grant component parts
of sovereign states the legal right to secede unilaterally from their
parent state. Self-determination is clearly acceptable for divesting
States of colonial powers but the problems arise when groups not in solo
occupation of a given defined State territory choose to exercise
self-determination. Although the policy of self-determination has had
some notable successes in the post-colonialist era; for example in
Czechoslovakia where the population voted to separate and become two
States, the Czech Republic and Slovakia, international law tends to lean
towards territorial integrity in a clash with claims for ethnic,
cultural and religious self-determination.
As earlier stated, the right to self-determination as a group right
applies to the people of a State wholly and not severally. The Bakasi
and Ogoni people are the nationals of Nigeria as a whole. And even
though Nigeria is a decolonized State that lacks cultural and ethnic
homogeneity, the whole people of the territory achieved independence
through the communal exercise of self-determination.
So, based on the set precedence of the International legal provision
that the Ogoni people seek to rely on, would their quest for political
autonomy from Nigeria succeed under the United Nations Charter? Given
the fact that it would be difficult to argue that the Ogoni or Bakassi
people meet the threshold of a colonial people or an oppressed people or
that they have been denied meaningful access to government to pursue
their political, economic, cultural and social development, especially
since the current president of the nation is a South-South indigene,
their quest for self-determination under the United Nations Charter
would be unlikely to succeed. International law would expect any such
agitation for self-determination to be sought within the framework of
Nigeria.
Therefore, as Dr. Goodluck Diigbo declares political autonomy from
Nigeria in order to enforce the United Nations’ Declaration on Rights of
Indigenous Peoples, he must keep in mind that in challenging the
traditional anti-secessionist United Nations’ stand, the present United
Nations’ practice dictates that only classic colonies, those Third-World
nations under European domination can exercise the right to
self-determination. In light of this, rather than relying on
international law and the UN Convention to enforce the Ogoni people’s
right to self-determination, an internal decision making framework, such
as a Constitutional Convention, National Conference or Constituency
Assemble may be a more informed, advisable and sensible way for Dr.
Goodluck Diigbo to present his argument for breaking away from Nigeria.
