Michael O Dedon
This is one of the controversial topics of customary international law even though the right is recognised by several international and regional human rights instruments including the African Charter on Human and Peoples Rights which most African states have ratified including Nigeria.
The concept of self-determination is closely allied with the United States President Woodrow Wilson, who first used the term publicly in 1918. He promoted the concept to mean that a nation—a group of people with similar political ambitions—can seek to create its own independent government or state. At the end of WWI, Wilson urged the principle of self-determination upon the remnants of the European Concert. The principle was purported to be the basis of the subsequent Versailles Peace Settlement of 1919. More pertinently, colonialism was brought to an end under the concept of self-determination of all peoples.
The principle of self-determination is prominently embodied in Article I of the Charter of the United Nations although not explicitly defined. Even though not defined, but by self-determination, it is understood to mean the right of a people to decide their own destiny in the international order. In particular, the principle allows a people to choose its own political status and to determine its own form of economic, cultural and social development. The debate has however raged whether the concept is a right or just a principle of international law and more fundamentally, whether the concept of self-determination encompass a right to secession. “Secession” designates the unilateral withdrawal from a state of part of its territory and population with the will to create a new state as opposed to “devolution” which is the process by which a new state is created from the part of the territory of another state with its consent.
At the core of this argument are two opposing principles of customary international law, viz: self-determination and uti poseidentis. Uti poseidentis requires the maintenance of the territorial status quo to preserve stability, order and traditional legal boundaries. Simply put, it means respecting the territorial integrity of states. Taken to its logical extreme self-determination threatens the sovereignty and territorial integrity of all nations with dissatisfied minorities. In fact, the main controversy surrounding the subject is the issue of whether the right of self-determination is available outside decolonisation. In other words, the right to secede is a clash of two jurisprudential titans, self-determination and territorial integrity.
Self-determination and territorial integrity are both fundamental norms in the contemporary international legal order. Self-determination has been designated as a norm of jus cogens and an obligation erga omnes but most states would probably rank territorial integrity higher in terms of hierarchical normativity. Secession brings these two principles into a collision course as any part of a territory or population that attempts to secede from an existing state in the exercise of the right to self-determination inevitably undermines the territorial integrity of that state. Clearly every attempt must be made to reconcile the two principles probably by placing qualifications on the absoluteness of each principle, and by interpreting each principle restrictively. But ultimately in every case of attempted secession one of these principles will prevail over the other. Consequently, in the final resort, the conflict between self-determination and territorial integrity must be resolved in the circumstances of each case to determine the success or failure of a purported secession.
To put it in a simple term, the right to self-determination which manifests in secession is not a walk in the park as most states will resist secession of its constituent part and there is no guarantee on which side the international community may pitch its tent. The question of the legality of secession is more nuanced. There is no rule of international law expressly permitting secession, but, on the other hand, there is rule of law expressly prohibiting secession. In the end, it boils down to international politics even if the secessionists succeed because they will still need to cross the other hurdle of “recognition” which is the principal legal instrument for the determination of statehood. If a state is not recognized by a sufficient number of other states then its statehood will remain a still birth. To satisfy the criteria for statehood one must possess legal personality which encompasses the criteria set forth in the Montevideo Convention viz:
(a) a permanent population;
(b) a defined territory;
(c) government; and
(d) capacity to enter into relations with the other states.
The case of the Kurdish people demonstrates the fact that the right to self-determination does not by itself translate to the right to an independent state. The Kurdish peoples’ right to self-determination have not been accorded recognition by other international actors thus they do not meet the criteria for statehood. Despite widespread human rights abuses against the Kurds, the United Nations has spent little, if any, time on their struggle for self-determination. Prior to the Gulf War, few even knew of their existence. It may be argued that as the Kurdish situation is not perceived as “colonial”, the United Nations and its member nations have ignored Kurdish appeals for protection and greater autonomy under the international law of self-determination.
Decolonisation in the immediate post-World War II era limited the application of the right to such a degree, that the right of self-determination could no longer be considered absolute in the face of a plethora of exceptions. In summary, weaknesses within international law have clouded the right of self-determination and hampered its consistent implementation. Whilst it is undisputable that in international law, one of the main vehicles by which groups have achieved statehood in the post-World War II era is self-determination and that international law recognises the right to self-determination, however, international law does not contain a positive law norm on secession.
It must however be borne in mind that the absence of consent by the central authorities against which the secession is directed is not fatal to a claim to self-determination. The requirement of consent is displaced when an entity entitled to exercise the right to self-determination has conducted a fair, free, and if possible, internationally supervised referendum, and when it has exhausted all reasonable paths toward negotiating the secession. Once negotiations have been exhausted, and a referendum has confirmed the popular desire for independence, the seceding entity enjoys elements of international personality derived from the right to self-determination. In particular, the former central authorities are no longer permitted to forcibly assert authority within the seceding entity. If the seceding entity achieves effective governmental and administrative control over its population and territory, it fulfils the criteria for statehood; although in the absence of diplomatic recognition, it may be unable to fully vindicate these fundamental rights. If the seceding entity is precluded by force from asserting control, and is subjected to threats or force from the former central authorities, the international community may react in two ways: either it may decide not to assist the central government in its attempt to assert authority; or, it may decide not to recognise the results of the use of force against the entity and thus be entitled to take collective measures, in accordance with the confines of the various chapters of the United Nations Charter, to restrain the central authorities from using force.
Allen Buchanan, author of seven books on self-determination and secession, supports territorial integrity as a moral and legal aspect of constitutional democracy. However, he also advances a “Remedial Rights Only Theory” where a group has “a general right to secede if and only if it has suffered certain injustices, for which secession is the appropriate remedy of last resort.” He also would recognize secession if the state grants, or the constitution includes, a right to secede.
The fears of nation states and superpowers of threats to stability raised by a universal right to self-determination must be remedied by the international system itself, in order to create certainty. It is from such certainty that the international system will have greater confidence in acknowledging a universal right to self-determination.
