Redefining the Concept of Self-determination in International Jurisprudence: A Review of the Legal Status of Indigenous People of Biafra

ABSTRACT

The political and legal concept of right to self determination remains one of the most fluid and controversial principles of international law. Several questions regarding the concept remain unsettled. For instance, who is entitled to enjoy the right to self determination? What are the modalities for enforcing the right? Can the use of force be applied to achieve the right? Is the right only applicable to colonial territories? Has the UN been consistent in the application of the principles to countries that have gained political independence in recent years? The above puzzle and more shall be examined in this paper with a view to establishing whether the indigenous people of Biafra is entitled to the enjoyment of this right.  Accordingly, the purpose of this paper is to x-ray the right to self-determination in its entirety, analyze the classes or categories of people entitled to the right, the mode of implementation of the right, the practice of the UN regarding the concept and to show that the right of the indigenous people of Biafra to enjoy the right is long over due. A universal framework for the enforcement of the right is also proposed. Doctrinal research methodology was applied to justify the conclusion of the writer. Reliance was placed on primary and secondary materials. International legal instruments on the subject matter were considered as primary sources. Articles in journals, text books and internet sources were consulted as secondary materials. Case laws were also assessed to validate the conclusion of the writer.

Keywords: Right, Self-determination, International Jurisprudence, Indigenous People of Biafra,   

Introduction

The principle of self-determination is an age long political concept. It acquired a legal status under the 1945 UN Charter. Till date, the principle is still enveloped in juridical controversy. This stems from the fact that it is usually a herculean task to identify the following:

  1. What categories of people are entitled to the enjoyment of the right?
  2. What is the yard stick for enforcing the right?
  3. Is the right exclusively reserved for colonial territories?

There is no coherent body of international legal rules on the general principles of law that governs the implementation of the right to self-determination. The UN Charter merely guarantees equal right and self-determination of people without defining the meaning and nature of the right.[1]

The barbaric activities of the colonial overlords in colonial territories sparked off global attention and interest to the right to self-determination. Thus, in 1960 the UN adopted the declaration on the granting of independence to colonial territories and peoples. The declaration states as follows:

The subjection of peoples to alien subjugation, domination and exploitation constitutes a denial of fundamental human rights and is contrary to the character of the United Nations and is an impediment to the promotion of World Peace and Cooperation.

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.

The foregoing second paragraph was copiously re-enacted in Article 1 of both the International Covenant on Civil and Political Rights (ICCPR) and the International Covenant on Economic Social and Cultural Rights (ICESCR), all of 1966. The right to self-determination continued to receive International endorsement since 1966. Accordingly, in Western Sahara case,[2] the ICJ upheld the right as an integral legal principle recognized under international law. The Atlantic Charter[3] also declared support for the right to self-determination in its eight point agenda without offering the legal criteria for determining which groups may legitimately claim the right to self-determination.[4]

On 14 December 1960, the United Nations General Assembly adopted a resolution[5] titled Declaration on the Granting of Independence to colonial countries and peoples. The resolution provided for the granting of independence to colonial countries and peoples and provided an inevitable legal connection between self-determination and its goal of decolonization. It postulated new international law based on the right of freedom and also for economic self-determination. Article 5 of the resolution states: Immediate steps shall be taken in Trust and Non-self-governing territories, or all other territories which have not yet attained independence, to transfer all powers to the peoples of those territories, without any conditions or reservations, in accordance with their freely expressed will and desire, without any distinction as to race, creed or colour, in order to enable them to enjoy complete independence and freedom.[6]

On 15 December 1960, the United Nations General Assembly adopted another resolution[7] titled Principles Which Should Guide Members in determining whether or nor an obligation exists to transmit the information called for under Article 73(e) of the United Nations Charter. Article 3 of the resolution states:

i). Inadequacy of political, economic, social or educational preparedness should never serve as a pretext, for delaying independence. To monitor the implementation of resolution 1514 in 1961 the General Assembly created the special committee referred to popularly as the Special Committee on decolonization.[8] To ensure complete compliance with the principle of self-determination in the General Assembly Resolution 1541 (XV), 12 principle of the Annex defining free association with an independent state, integration into an independent state, or independence as the three legitimates options of full self-government[9] compliance with the principle of self-determination.[10]

The International Law Commission Draft Article on State responsibility of 2001 provides that the violation of the right to self-determination constitutes an international crime.[11]

What Categories of People are Entitled to Claim the Right to Self- Determination under International Law?

The legal concept of self-determination gathered momentum during the era of fight against colonial rule, when the people who were deprived of their right to determine their economic, social and cultural development could be identified without difficulty.

However, the pendulum began to shift from the 1970s when the right was claimed by some groups of people desirous of political independence within an existing state or states. This has triggered off legal controversy which remains unsettled till date. The International Covenant on Civil and Political Rights provides that “in those states in which ethnic, religious or linguistic minorities exist, persons belonging to such minorities shall not be denied the right in the community with the other members of their groups to enjoy their own culture, to profess and practice their own religion, or to use their own language.[12]

The foregoing provision can hardly be said to have laid down the guideline for acquisition and enjoyment of the right to self-determination. At best, the provision is aimed at protecting the right of minorities within an existing state, a measure which came to the front boner after the World War I.[13]

The question of asserting the right in a non-colonial situation was first considered in 1991 by the Badinter Arbitration Committee established by the European Union. This committee was set up to determine several questions of law emanating from the defunct Republic of Yugoslavia. Prominent among such legal issues was whether the Serbs living in Bosnia and Croatia had the right to self-determination. The committee after a perusal of International law on the subject matter drew the following four conclusions, namely:

The right to self-determination must not involve change to existing frontiers at the time of independence, except where the states concerned agree otherwise;

Where there are two or more groups within a state constituting one or more ethnic, religious or language communities, they have the right to the recognition of their identity under international law;

Article I of the 1966 covenants establishes that the principle of the right of self-determination serves to safeguard human rights. By virtue of that right, every individual may choose to belong to whatever ethnic, religious or language community he or she wishes.

The Serbian population in Croatia and Bosnia is entitled to the rights accorded minorities and such rights must be protected by the governments of Croatia and Bosnia. This verdict is perhaps the first time an international tribunal was approached for interpretation as to whether a particular group has a right of self-determination and the purport and the implication of such right and it is therefore very germane.

Paragraph 2 of the Vienna declaration of 1995[14] reiterates the right of all peoples to self-determination but goes ahead to provide that.

“This shall not be construed as authorizing or encouraging any action which would dismember or impair, totally or in part, the territorial integrity or political unity of sovereign and independent states conducting themselves in compliance with the principle of equal rights and self-determination of the people and thus possessed of a government representing the whole people belonging to the territory without distinction of any kind”.

A combined interpretation of the Badinter Arbitration ruling and paragraph 2 of the Vienna declaration aforesaid would appear that the right to self-determination can only be asserted by a group of people under colonial vestiges, such right cannot be claimed by a group of people living within an independent sovereign state.

But this represents only a narrow interpretation of the law, evidenced by events in recent years. To limit the right to only a group under colonial subjugation is no longer tenable. Many independent sovereign states have emerged from an already existing state and were all recognized by the United Nation as new members of the UN. A classical example here is the independence of the South Sudan from Sudan on 9th July 2011. South Sudan was admitted by the UN on 14th July 2011[15] not withstanding that its independence has impaired the territorial integrity of Sudan.

The writer’s view is that the right to self-determination can be claimed by:

  • A group of people under colonial rule
  • A group of people within an independent sovereign state where the state    concerned so permits
  • A group of people under a racist government and
  • A group of people within an independent sovereign state where the affairs of the state is not conducted in compliance with the principles of equal rights and self-determination of people and the government does not represent the interests of the agitating group.

The above general principle or guideline can be deduced from a number of international legal principles, namely:

Paragraph “A” of the Badinter Arbitration ruling which acknowledges that the right exists where the sovereign state so agree.

The General Assembly Resolution 3103 of 1973 and Article 1(4) of the Geneva protocol I, all of which recognizes the right to self-determination of people under a racist government and acknowledges a liberation struggle in such a situation as an international armed conflict.

The second limb of paragraph 2 of the 1993 Vienna Declaration presupposes that a group of people within an independent sovereign state could assert the right if the government of the states does not observe the principle of equal right and self-determination of the people and does not represent the interest of the whole people.

To hold otherwise would enthrone authoritarian regime and encourage racism.

The Practice of United Nations and States in the Implementation Of Right To Self-Determination

The practice adopted by the UN in the implementation of the right to self-determination in non-colonial territories has been fluid and inconsistent.

The state of Bangladesh was formerly an integral part of East Pakistan. Following the result of an election conducted in 1970, Awami League, a political party committed to achieving autonomous status for the region won an overwhelming majority seats in the Pakistani government. The Pakistan authority reacted swiftly to the result by promulgating marital law over East Pakistan.

East Pakistan declared its intention to secede from Pakistan. In March 1971, the Pakistani Army invaded Dacca, the Capital of East Pakistan. Heavy fighting ensued and several persons were killed and maimed while over 10 million refugees crossed into India.

In December 1971, Indian troops stormed Pakistan and within 12 days of fierce battle the Pakistan army surrendered and the new state of Bangladesh was declared and recognized. Bangladesh was admitted to the UN in 1974 by the General Assembly Resolution 3203 XXIX.[16]

Recently, South Sudan gained independence from Sudan in 2011 after many years of civil war and the UN admitted it on the 14th July 2011, even though it broke away from Sudan, an independent sovereign state.

Furthermore, Eritrea gained independence from Ethiopia in 1993 and this was recognized by the UN on the 26th May 1993.[17]

The Eritrean War for Independence (1 September 1961 – 29 May 1991) was a conflict fought between the Ethiopian government and Eritrean separatists, both before and during the Ethiopian Civil War. The war started when Eritrea’s autonomy within Ethiopia, where troops were already stationed, was unilaterally revoked.

Eritrea had become part of Ethiopia after World War II, when both territories were liberated from Italian occupation. Ethiopia claimed that Eritrea was part of Ethiopia. Ethiopian’s wishes were fulfilled after a United Nations General Assembly federated Eritrea to Ethiopia as a province as early as 1950.[18] Following the Marxist-Leninist coup in Ethiopia in 1974 which toppled its ancient monarchy, the Ethiopians enjoyed Soviet Union support until the end of the 1980s, when glasnost and perestroika started to effect Moscow’s foreign policies, resulting in a withdrawal of help.

The war went on for 30 years until 1991 when the Eritrean People’s Liberation Front (EPLF) defeated the Ethiopian forces in Eritrea, and TPLF with the help of EPLF and took control of Ethiopia. In April 1993, in a referendum supported by Ethiopia, the Eritrean people voted almost unanimously in favor of independence. Formal international recognition of an independent and sovereign Eritrea followed later the same year. The two main rebel groups, the Eritrean Liberation Front (ELF) and the Eritrean People’s Liberation Front (EPLF) fought two Eritrean Civil Wars during the war of liberation.

In the case of Guinea-Bissau, former colony of Portugal, the international community held the view that because of the defacto control of much of the territory by PAIGC, the National Liberation Movement and in accordance with the principles of self-determination, Guinea-Bissau would be recognized as an independent state, in spite of the fact that Portugal was still attempting to exercise effective control over the territory.

A disturbing and inexplicable situation arose in respect of Palestine. The independence of Palestine was proclaimed on November 15, 1988 by the Palestine National Council in Algiers, Algeria.

Notwithstanding that the right of the Palestinian people to self-determination attracted massive recognition from the Arab League, and although the Palestinian Liberation Organization (PLO) could demonstrate widespread allegiance throughout the West Bank and Gaza, the UN is still reluctant to recognize Palestine as an independent state. In December 2014, the UN Security Council rejected a resolution affirming the independence and statehood Palestine and withdrawal of Israel from the West Bank and Gaza within a period of three years.[19] The above scenario reveals the flexibility and inconsistency of the UN practice in the implementation of the right to self-determination in the realm of international law.

Is the Indigenous People of the Defunct Republic Of Biafra Eligible to Enforce this Right?

It is the view of the writer that the indigenous People of the Defunct Republic of Biafra should be accorded the full right to self-determination and independence status under international law. This opinion is justified on the following grounds;

The indigenous People of Biafra are under Colonial Rule and Arrangement.

The Biafran people were existing as an independent separate entity until 1914 when Lord Lugard, the colonial governor amalgamated the Northern and Southern regions and named it Nigeria. This situation is similar to that of Eritrea, which was merged with Ethiopia, but later gained independence in 1991.

The Biafran people fought a Civil War from 1967-1970 against a racist regime which killed over 2 million Biafran people resident in the Northern part of the country. The brutal force used by the Nigerian army against the defenseless, harmless Biafran civilians attracted massive worldwide condemnation.

The Popular Support of Biafran Liberation Movement

What is more, the Biafran Liberation Movement under the command of Dim Chukwuemeka Odumegwu Ojukwu enjoyed popular support of the people. The Biafran situation is equally synonymous with the situation in South Sudan, Eritrea and Bangladesh all of which have exercised their right to self-determination.

In December 2014, the indigenous people of Biafra was admitted into the Economic, Social and Cultural Council of the Africa Union in Addis Ababa, Ethiopia. It is hoped that the other international organizations, particularly the United Nations should follow suit to enforce the right to self-determination of the indigenous people of Biafra.

It is the humble submission of the writer that the yardsticks applied previously by the UN in granting independence to other entities cited above have been satisfied by the IPOB, justifying recognition of their right to self-determination by the international community.

Can Force be used to Achieve the Right to Self-determination?

The use of force to achieve self-determination and in support of national liberation movement has received popular acceptance in international law in recent years. Accordingly, the application of force to quell or suppress the right to self-determination and national liberation movement is viewed as unlawful; as such action contravenes customary international law and the Charter of the UN.

The UN Declaration on the Principles of International Law provides thus; “every state has the duty to refrain from any forcible action which deprives peoples of their right to self-determination and freedom and independence.” It is submitted that the use of force to enforce the right to self-determination can be excused on the ground of self defence under Customary International Law.

Conclusion

The precise nature, meaning and extent of the enforcement of the right to self-determination remain unsettled under international law. The existing rules are scanty and ambiguous. The category of people who may enjoy the right remains elusive under international law. The yardstick for enforcing the right is mysterious.

The United Nations has been very inconsistent in applying the rule even in some similar circumstances like the examples of the South Sudan, Eritrea, Bangladesh and Guinea-Bissau etc.

The Indigenous People of Biafra are eminently qualified to be accorded the right to self-determination by the international community.

A United Nations convention that will articulate detailed rules for the implementation of the right is hereby recommended.

The examples of South Sudan, Eritrea, Bangladesh have shown that the right to self-determination can be enforced by people who previously belong to a sovereign state.

The right to self-determination can be claimed by:

A group of people under colonial rule

A group of people within an independent sovereign state where the state concerned so permits

A group of people under a racist government and

A group of people within an independent sovereign state where the affairs of the state is not conducted in compliance with the principles of equal rights and self-determination of people and the government does not represent the interest of the agitating group.

About the Author

Ituma Chibueze Calistus LLB (Enugu), BL (Kano), LLM (Wuhan, China), Ph.D (Chongqing, China) is a Lecturer, College of Law, Afe Babalola University, Ado-Ekiti, Ekiti State, Nigeria.

References

[1] UN Charter, 1945 Art. 2.

[2] (1975) ICJ Rep. P. 12.

[3] This was signed on 14 August 1941, by Frankline D. Roosevelt, President of the United States of America, and Winston Churchill, Prime Minister of the United Kingdom.

[4] Betty Miller Unterberger, Self-determination, Encyclopedia of American Foreign Policy, 2002.

[5] UNGA Res 1514 (XV).

[6] Trust and Non-self-governing territories listed by the United Nations General Assembly” Un.org.

[7] UNGA Res.  1541 (XV).

[8] Ibid 1654 (XVI).

[9]Ibid 15th Session – resolution 1541 (XV) (page: 509-510).

[10] Ibid 1514.

 12 International Law Commission Draft Article on State Responsibility 2001 Art. 19 (3).

[12] ICCPR 1966 Art. 2.

[13]  Hillier, T., ‘Principle of Public International Law’ (Cavendish Publishing Limited, 1999) P. 298.

[14] UN World Conference on Human Right s held in Vienna, Austria in 1993.

[15] Dr. Dozie Ikedife, Biafran Nation Adopted into the African Union – Invited to AU Meeting, available at <www.un.org/app/newmember > accessed on 18 October, 2019.

[16]< www.worldlii.org/int/other> accessed on 19 October 2019.

[17] UNGA Res.  828 of 1993.

[18] http://daccess-dds.

[19] < www.theguardian.com> and <www.un.org/press/en/2014/sc11722dochtm > accessed on 10 September, 2019.

Author: ABUAD Law Review

The ABUAD Law Review (ALR), is a Journal published by the Afe Babalola University Law Students’ Society. It aim is to contribute to law and policy reform, not just in Nigeria, but the world at large by fostering rapid dissemination of preliminary research results by students, legal practitioners, teaching and research scholars.

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