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Table of Contents

Introduction2

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 Possidetis11
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. Bibliography22

SELF-DETERMINATION OF STATES: PERMANENT STATEHOOD OR LOSS OF


IDENTITY? A DILEMMA CONFRONTING INTERNATIONAL LAW.
1

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 selfdetermination. 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 selfdetermination has set in motion a restructuring and redefinition of the
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,102


3 Robert McCorquodale, Self-determination in International Law, ix
4 Antonio Cassese, Self-determination of Peoples, 1
2

worlds 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 very tragic and is one of the causes of major
conflicts in the world. This is confirmed by Kreijen 5 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 selfdetermination is primarily concerned with the realization of various socioeconomic 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 ones 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 selfdetermination, relates to a peoples 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
5 Gerald Kreijen, State, Sovereignty and International Governance,349
3

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 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 Cassese 7 aptly
describes as opening up of a veritable Pandoras box
2

DEFINITION AND ORIGIN OF THE RIGHT TO SELF-DETERMINATION OF

PEOPLES.
6 Daniel Moeckli et al, International Human Rights Law,342
7 Cassese,1
4

The right to self-determination of peoples cannot adequately and fairly be


defined without first delving into its targets. The primary target of selfdetermination 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 Levy 8 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. Klabbers 9 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 people of a particular place to choose the form of
government

they wish

to

have. The

Free

Dictionary 10

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
8 Werner Levy, Contemporary International Law,185
9 Jan Klabbers, International Law,117
10 Free Dictionary (2015) (http://www.thefreedictionary.com)
11 Klabbers,118
5

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 selfdetermination 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 matter of self-preservation.
International law is very reluctant to break up existing states for fear of
destabilizing the global order. The paradoxically of the idea of selfdetermination of states is in the words of van Genugten 13 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? Robertson 14

12 Levy,118
13 Van Genugten et al,68
14 Geoffrey Robertson, Crimes against Humanity, The Struggle for Global Justice,208
6

plunges the controversy deeper when he asserts that application of selfdetermination 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. Selfdetermination 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 statesmen championed the idea of

15 Rein Mullerson, International Law, Rights and Politics, 58


16 Jorri Duursma, Self-determination, Statehood and International Relations of Micro-states,
The Cases of

Liechtenstein, San Marino, Andora and the Vatican City,11

17 Cassese, 11
7

self-determination albeit from different perspectives. Boas 18 mentions that


the notion of self-determination was actively pushed by President Wilson
and implicitly included in his speech known as Wilsons 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)
18 Gideon Boas, Public International Law , 195
19 Kreijen et al , 353
8

Common Article 1
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
9

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
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:
10

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
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
11

at a conclusion that is viewed as undermining and compromising the


sovereign integrity of states, that is the support for the right to selfdetermination.
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.
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 Cassese20 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


20 Cassese, 206
12

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

Dixon 21

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 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 selfdetermination 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
21 Martin Dixon, International Law, 172
22 Rosalyn Higgins, Problems and Processes, International Law and how we use it, 112
13

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 selfdetermination.
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 SubCommission 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 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. McCorquodale 24 shares this
23 Peter Malanczuk, Modern Introduction to International Law, 105
24 McCorquodale, 291
14

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
25 Mullerson, 73
15

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 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
26 Cassese ,62
27 Higgins, 121
16

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
fathers graves behind, and he does not care. He kidnaps the earth from
his children. He does not care. His fathers graves and his childrens
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.
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 Sealth (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
28 McCorquodale ,301
29 www.Cultural.Survival 2015
17

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 onthe spot definition of what these indigenous people are. Malanczuk 30
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 selfidentification as indigenous (group consciousness) and is recognized and
accepted by these populations as one of its members (acceptance by the
group).

30 Malanczuk,106
18

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.
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
19

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 illustrate that indeed the indigenous have the
right to both the internal and the external form of self-determination
Article 3
20

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

31

opines 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 selfdetermination 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 selfdetermination. 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

31 Dixon,321
21

to Dixon32 only states that such people have the right to selfdetermination 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,
Africas 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
32 Dixon ,339
22

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


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 Crawford 34
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 selfdetermination The states of Biafra, Kashmir, Kosovo, Chechnya and
Kurdistan deserve mention.
33 Mullerson ,58
34 James Crawford , The Creation of States in International Law ,375
23

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 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 unitedstates 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
35 Crawford ,107
24

controversies and paradoxes surrounding self-determination and its


relationship with state sovereignty. It is an undisputable fact that selfdetermination forms an integral part of International Law. The idea of selfdetermination 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 selfdetermination. The relationship between self-determination and state
sovereignty is laden with frictions and tensions and as Raic 36admits 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

new,

fresh

and

vigorous

approach

and

decree

of

circumspection as Higgins37 concludes,


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.

36 David Raic ,Statehood and the Law of Self-determination, 2


37 Higgins, 128
25

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2. International Law Instruments


2.1. The Twin Human Rights Covenants of 1966
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.

27

3. Internet Sources
3.1. Free Dictionary (2015) (http:www.thefreedictionary.com)
3.2. www.Cultural.Survival 2015

28