NON-RIGHT TO SELF DETERMINATION
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 realisation 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 group’s 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 group’s 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 article 1(2) of the United Nations Charter as well as 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 problems 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 on the principle of equal rights as 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, Article 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 with regards to 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 outside 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 Assembly may be a more informed, advisable and sensible way for Dr. Goodluck Diigbo to present his argument for breaking away from Nigeria.