The right to self-determination has assumed a widespread contest between the “sovereign” and “peoples”. This contest basically revolves around the quest for the acquisition of territories by the “peoples” and the desire to hold unto the territory by the sovereign. The question therefore arises as to whether international law is determined to bring two doctrines into a collision course.
Is sovereignty at war with the right of self-determination. How has the international law instruments been able to regulate the contest vis a vis the enabling instruments on the subject. On the other hand, can it be realistically affirmed that all sovereign nations has fixed boundaries already determined without recourse to legal contests over boundary adjustments. Is it a primary requirement for peoples seeking to exercise their right to self-determination to precisely articulate the boundary limits under international law. By Article 1 of the Montevideo Convention on the Rights and Duties of States; the state as a person under international law should possess the following qualifications; that is; a permanent population; a defined territory; government; the capacity to enter into relations with other states as well as diplomatic recognition.
These qualifications are the attributes of statehood under customary international law. Practice however shows that meeting these stated criteria is neither necessary nor sufficient for an entity to become a state. Indeed a state does not emerge automatically; independence would need to be an entitlement under international law. Outside of colonialism, this is completely different. In the process of decolonization, the only territorial relationship to be altered was that with the metropolitan power. Achieving independence did not come at the expense of another sovereign’s states territory or that of an adjacent colony. Outside of colonialism, the right of self-determination needs to be squared with the principle of territorial integrity. The sovereign with the monopoly to use violence can contest the right of the self-determination seeking entity to acquire territory from the mother state. The experience of the Catalan “peoples” and the sovereign state of Spain in October 2017 is a classic example in this direction. In reaction to the present state of affairs, Spain on 29 October, 2017, imposed a direct rule on that region. A close look at some national constitutions would be relevant in this regard.
Section 2 (1) of the Constitution of the Federal Republic of Nigeria 1999 as Amended provides; “Nigeria is one indivisible and indissoluble sovereign state to be known by the name of the Federal Republic of Nigeria”. From the foregoing, it is unthinkable to contemplate that the Government of Nigeria will be ever willing to lease, rent or allow any portion of her territory to any person, group of persons or any foreign aggressor or illegal occupation by terrorists. On the other hand, Article 39 of the Ethiopian Constitution provides;
“Every nation, nationality and people in Ethiopia has an unconditional right to self-determination, including the right of secession, provided;
a. The demand must be approved by two-thirds majority of the members of the Legislative Council’
b. The Federal Government will organize a referendum within 3 years on the receipt of the request for secession.
c. There must be a majority vote from the referendum.
d. There shall be a transfer of power to the council or people concerned, and;
e. The division of assets in a manner prescribed by law”.
The Ethiopian constitution recognized the right of self-determination and it cannot therefore be an issue for the Ethiopian Federation to consent to allowing any part of its territory from being taken over if the people have duly followed the prescriptions stated in Article 39. However, some legal scholars have criticized Article 39 as creating an unworkable form of central government by making it too easy for the country to break apart. These scholars further assumed that the inclusion of Article 39 in the 1994 Constitution came about as a compromise between the central government and the regional representatives. Under this assumption, the central government reluctantly included Article 39 in the Constitution in order to appease regional calls for self-determination rights by minority populations who were inspired by Eritrea’s secession in 1993. The central government needed to include Article 39 in order to garner support for Ethiopia’s regional governments and preserve the country’s national integrity. However, a recent development has demonstrated that these assumptions are probably incorrect. The new theory on the incorporation of Article 39 has all the hallmarks of a grand conspiracy theory which implicates the highest levels of the Ethiopian Government. It involves a far reaching plan with long term goals. It involves the use of violence and under handed politics in order to perpetuate fraud on the Ethiopian people. The theory holds the view that Article 39 is intended to loot Ethiopia of its resources for the development of the Tigray Region whose people occupy key government institutions and thereafter secede from Ethiopia.
The preponderance of whichever theory is right will be determined by a latter research in this area. However, it goes to show how the political class can manipulate the people in given instances to suit particular purposes. It is my assumption that every nation, nationality or people in a given territory cannot be conferred with the automatic right of self-determination given that it simply creates a license for anarchy and confusion in a given polity.
To address the question whether or not territorial requirements is a legal consideration in self-determination seeking entities, there is the need to critically examine the South Sudanese model. From the legal analysis, the requirement of statehood stated in the Montevideo Convention on the Rights and Duties of States is not a condition precedent to self-determination. The territory of South Sudan cannot be said to have had a compositely defined territory prior to independence. Notwithstanding, South Sudan declared independence on 9 July, 2011. International recognition followed promptly on 14 July, 2011 when South Sudan became a member of the United Nations. There is no controversy arising from the independence of South Sudan. Controversy however arises in relation to the new international delimitation. The agreed border between Sudan and South Sudan in principle follows the former colonial boundary in existence on 1 January, 1956 when Sudan gained independence. The Republic of Sudan announced that it recognized the Republic of South Sudan as an independent state in accordance with the existing borders of 1 January, 1956. This formed the basis of recognition by the Republic of Sudan.
Interestingly, South Sudan invokes an exception to the 1956 boundary. Article 1(2), Part 1 of the Provincial Constitution of South Sudan provides: “The territory of the Republic of South Sudan comprises lands and air space that constituted the three former Southern Provinces of Bahr el Ghazel, Equatorial and Upper Nile in their boundaries as they stood on 1 January, 1956 and the Abyei Area, the territory of the nine Ngok Dinka Chiefdoms transferred from Bahr el Ghazel province to Kordofan province in 1905 as defined by the Abyei Arbitration Tribunal Award of July 2009.
As outlined in the constitutional provision, in 1905 the Abyei Area was transferred from a Southern to a Northern Province. Abyei protocol, which is included in the Comprehensive Peace Agreement, also defined the disputed territory as the area of the nine Ngok Dinka Chiefdoms transferred to Kordofan in 1905. Since the boundaries of the disputed area were unclear, the Abyei protocol established the Abyei Boundary Commission in order to define and demarcate the area geographically.
The Abyei protocol further contained a separate referendum to determine the areas future status, either within the northern or southern part. It further specified the 1 January 1956 line between North and South will be inviolate, except as contained in the agreements reached in the referendum. The 1956 line was not adopted in its full context. The Abyei protocol acknowledged the Abyei Area exception to the 1956 line and the final delimitation was to be determined by popular consultation. A separate referendum on the legal status of the Abyei Area never took place. This was due to disagreement between North and South on determining the population eligible to take part in the vote. Accordingly, the Abyei Area boundary was to be determined by an independent commission, while its legal status of the disputed area was to be determined by the expression of the will of the people in a referendum.
International law does not preclude rearrangement of boundaries when new states are created. It is possible that the border arrangement would become a part of the political process, possible, but not necessarily leading to consensual secession. If the leaders of the Independent Peoples of Biafra (IPOB), the Movement for the Actualization of the Sovereign State of Biafra (MASSOB), or the Movement for the Emancipation of Niger Delta (MEND) were to be presented with the choice of becoming independent by the Nigerian Government within narrower borders, or not becoming independent at all, becoming independent within narrower borders could have been an appealing choice. But unfortunately, such practice has not yet developed under international law.
In the case of South Sudan, the re-established 1956 boundary has a colonial pedigree. However, the colonial uti possidentis line could apply automatically only if North and South Sudan became two separate states on 1 January 1956. This was not the case, and the emergence of South Sudan as an independent state is not a matter of decolonization as relayed above. It is rather, a situation of a consensual emergence of a new state outside the colonial context. Practice of state creation shows that new international borders are drawn along the most recent international boundary arrangement. The relevance of the 1956 boundary is therefore not in its colonial pedigree. It is relevant because, it was adopted by the internal legal regime of 2005. Since the 2005 boundary is the latest international boundary regime, the 1956 boundary is legally relevant only to the extent to which it was adopted in 2005.
The latest international boundary arrangement in 2005 did not fully adopt the 1956 line. It acknowledged the Abyei Area exception, albeit not by determining its legal status but rather by creating a mechanism for its determination by popular consultation. The consultation never took place. The Abyei Boundary Commission and the Arbitral Tribunal were asked to determine the Abyei Area geographically, they were not asked to determine its legal status. As a consequence, the area is now determined geographically but with the referendum still outstanding, its legal status remains in dispute. Also in dispute are the South Kordofan, Blue Nile, Upper Nile, White Nile and Unity States. Other disputed areas are Heglig, Kafia, Jau, Bahrel and Jodha. Arising from tensions in these disputed regions, the Republic of Sudan and South Sudan agreed in principle on 31 October, 2017 to demarcate the borders by moving away their troops 20 kilometers backwards from the border line.
The proceeding analysis has shown that territorial boundaries need not be fixed or precisely determined by a people in their exercise of the right to self-determination. The South Sudanese model has clearly shown that boundary adjustments can legally continue even after the grant of independence. This is further amplified in the case of Cameroon vs Nigeria (2002) ICJ Reports 55.Here Cameroon in March 1994 contested ownership of the Bakassi Peninsula at the International Court of Justice(ICJ) against Nigeria. The judgment was delivered on 10 October, 2002.The ICJ held that, sovereignty over the Bakassi Peninsula lies with Cameroon and that the boundary is delimited by the Anglo –German agreement of 11 March, 1913.The court noted that the land boundary dispute falls within an historical framework including partition by European powers in the 19th and 20th centuries, League of Nations Mandates,UN Trusteeships and the independence of the two countries. It is interesting to note that this judgment came 42 years after Nigeria gained independence from Britain. Practice has shown that, the sovereign, with the monopoly of violence is skeptical in relinquishing any part of its territory despite the universal recognition of the right to self-determination recognized by the international community. This right has been replicated in the African Charter on Human and Peoples Rights and domesticated in Nigeria by virtue of the African Charter on Human and Peoples Rights (Rectification and Enforcement) CAP A9 Laws of the Federation of Nigeria 2004.
Afk Adasu Ph.D (Law) BL