LEGAL IDEAS FORUM

Right to Self-Determination and Right to Secession under International Law: A Review of the Ambivalence of the Constitutional Clause of Indivisibility of Nigeria and Right to Secede under International Law.

It is not in dispute that the Constitution of the Federal Republic of Nigeria, 1999 (as amended)(Hereinafter referred to CFRN or simply the Constitution) frowns at the indivisibility of the Country. Section 2(1) provided as follows: “Nigeria is one indivisible and indissoluble, sovereign State to be known by the name of the Federal Republic of Nigeria.” United Nations Charter appears to lend credence to this provision. Article 2, paragraph 4, provides that:
“All Members shall refrain in their international 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.”


Mazi Nnamdi Kanu founded the Indigenous People of Biafra. His goal is to gain a sovereign state for the Southeast and a greater part of South-south on the strength of state sponsored marginalization and emasculation of the socio-economic and political right of the Igbo nation in Nigeria. Major strength of his agitation appears to be anchored legally on self-determination. Article xx (1) of the African Charter on Human and People’s Rights provided as follows: “All People shall have the right to existence. They shall have unquestionable and inalienable 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. “African Charter was domesticated as a local legislation in 1983 now referred to under Nigerian Law as African Charter on Human and People’s Rights (Enforcement and Ratification) Act 2 1983 now contained in Cap 10 Laws of the Federation, 1990.The Supreme Court of Nigeria in Gani Fawehinmi v Abacha [2000] 4 SCNJ 401 also validate the said Charter as a deemed Act of the National Assembly. One core issue we now distill for determination is whether agitation for self-determination can crystalize to right to secession.


It is clear that the contemporary agitation for sovereign state of Biafra by IPOB is technically a project of the Igbo Nation. The UN General Assembly adopted a Declaration on the Rights of Persons belonging to National or Ethnic, Religious and Linguistic Minorities in December 1992.Article 1 provides that States:


“Shall protect the existence and the national or ethnic, cultural, religious and linguistic identity of minorities within their respective territories and shall adopt appropriate legislative and other measures to achieve these ends.’’ See M N Shaw, International Law. Cambridge: Cambridge University Press, 2008 @ page 297)”


It follows that a State has a responsibility to protect any nation stationed within its jurisdiction locally and internationally. The protection is such that nationals of such nation at both collective level and individual level are entitled to invoke such right(s) from their protecting states to live up to this onerous task owed to them by the concerned state. According to Prof. Malcom N Shaw, QC:
“The link between State and the Individual for international Law purpose has historically been the concept of nationality. This was and remains crucial, particularly in the spheres of jurisdiction and the international protection of the individual by the State. It is often noted that the claim of an individual against a foreign state for example, becomes subsumed under that of his national state. Each State has the capacity to determine who are to be it national and to be recognized by other states in so far as it is consistent with international law, although in order for other states to accept this nationality there has to be genuine connection between the state and the individual in question. (See M N Shaw, International Law. Cambridge: Cambridge University Press, 2008 @ page 258)”


It appears the Igbo nationals under the umbrella of IPOB has lost this protection legally and politically from the Nigerian State. Apart from the fact that IPOB has been pronounced a terrorist group inconsistent with international definition of terrorism a competent Court in Nigeria has gone further to embellish the pronouncement by declaring it a terrorist organization now subject of appeal. The Federal Government is not pretentious about the self-concocted fact that every average Igbo man is a card carrying member of IPOB and such should be treated naturally as a Terrorist. President Buhari in his remark to Igbos as a dot nation in the cycle was quoted as saying:
“IPOB is just like a dot in a circle. Even if they want to exit, they will have no access anywhere. And they are spread all over the Country, having business and property, I don’t think IPOB knows what they are talking about. In any case, we say we will to talk to them in the language they understand. We’ll organize the police and military to pursue them.”


It however appears collective right like right to self-determination ought to be fought on collective pedestal. The principle of self-determination, therefore, applies beyond the colonial context within the territorial frame work of independent states. It cannot be utilized as a legal tool for dismantling of sovereign state (M .N Shaw,Supra @ page 291).Whereas this view of Prof. Shaw seems to lend credence to the fact that territorial integrity of a sovereign state cannot be fettered by mare espousing of the right to self-determination the international Court of Justice in its advisory judgment delivered on Kosovo secession from Serbia in july 2010 holds a different view. According to the international Court of Justice{ Accordance with International Law of the Unilateral Declaration of Independence in Respect of Kosovo (Request for Advisory Opinion), General List No. 141, International Court of Justice (ICJ), 22 July 2010, available at: https://www.refworld.org/cases,ICJ,4c5151002.html [accessed 20 June 2021]}@ page30:

“During the eighteenth, nineteenth and early twentieth centuries, there were numerous instances of declarations of independence, often strenuously opposed by the State from which independence was being declared. Sometimes a declaration resulted in the creation of a new State, – 30 – at others it did not. In no case, however, does the practice of States as a whole suggest that the act of promulgating the declaration was regarded as contrary to international law. On the contrary, State practice during this period points clearly to the conclusion that international law contained no prohibition of declarations of independence. During the second half of the twentieth century, the international law of self-determination developed in such a way as to create a right to independence for the peoples of non-self-governing territories and peoples subject to alien subjugation, domination and exploitation (cf. Legal Consequences for States of the Continued Presence of South Africa in Namibia (South West Africa) notwithstanding Security Council Resolution 276 (1970), Advisory Opinion, I.C.J. Reports 1971, pp. 31-32, paras. 52-53; East Timor (Portugal v. Australia), Judgment, I.C.J. Reports 1995, p. 102, para. 29; Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, Advisory Opinion, I.C.J. Reports 2004 (I), pp. 171-172, para. 88). A great many new States have come into existence as a result of the exercise of this right. There were, however, also instances of declarations of independence outside this context. The practice of States in these latter cases does not point to the emergence in international law of a new rule prohibiting the making of a declaration of independence in such cases.’’


It follows that exercise of right to self-determination is inseparable from secession as the outcome of the exercise of this right often gives rise to secession.
According to the international Court of Justice{ Accordance with International Law of the Unilateral Declaration of Independence in Respect of Kosovo (Request for Advisory Opinion), General List No. 141, International Court of Justice (ICJ), 22 July 2010, available at: https://www.refworld.org/cases,ICJ,4c5151002.html [accessed 20 June 2021]}@ page30-31:


“Several participants in the proceedings before the Court have contended that a prohibition of unilateral declarations of independence is implicit in the principle of territorial integrity. The Court recalls that the principle of territorial integrity is an important part of the international legal order and is enshrined in the Charter of the United Nations, in particular in Article 2, paragraph 4, which provides that: “All Members shall refrain in their international 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.” In General Assembly resolution 2625 (XXV), entitled “Declaration on Principles of International Law concerning Friendly Relations and Co-operation among States in Accordance with the Charter of the United Nations”, which reflects customary international law (Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. United States of America), Merits, Judgment, I.C.J. Reports 1986, pp. 101-103, paras. 191-193), the General Assembly reiterated “the principle that States shall refrain in their international relations from the threat or use of force against the territorial integrity or political independence of any State”. This resolution then enumerated various obligations incumbent upon States to refrain from violating the territorial integrity of other sovereign States. In the same vein, the Final Act of the Helsinki Conference on Security and Co-operation in Europe of 1 August 1975 (the Helsinki Conference) stipulated that “the participatinog States will respect the territorial integrity of each of the participating States” (Art. IV). Thus, the scope of the principle of territorial integrity is confined to the sphere of relations between States.


From the above, it seems very clear that protection of territorial integrity of a sovereign state deals more with relations among states and not on the pedestal of the pursuit of the right to self-determination. We find ourselves in considerable agreement with the findings of the ICJ that for the purpose of self-determination the outcome of secession is inevitable. Since, most times the essence of the secession is to revolt against the unprotecting state the seceding people have found themselves. According to: Prof. Malcom N Shaw, QC


‘’The link between State and the Individual for international Law purpose has historically been the concept of nationality. This was and remains crucial, particularly in the spheres of jurisdiction and the international protection of the individual by the State. It is often noted that the claim of an individual by the state. It is often noted that the claim of an individual against a foreign state for example, becomes subsumed under that that of his national state. Each State has the capacity to determine who are to be it national and to be recognized by other states in so far as it is consistent with international law, although in order for other states to accept this nationality there has to be genuine connection between the state and the individual in question. (See M N Shaw, International Law. Cambridge: Cambridge University Press, 2008 @ page 258)’’ Naturally, it follows that where a particular tribe found themselves addressed as terrorist for exercising their lawful right to self-determination, their legal entitlement to be entitled to such protection that should naturally be accorded to them by the said state is also lost. In such circumstance their agitation for self-determination would expectedly crystalize to secession.


About the Author

Chike Henry Izuegbu Esq. is a Solicitor and Advocate of the Supreme Court of Nigeria. He graduated Second Class Honors (Upper Division) in Law and Political Science respectively. He holds the Commendation of Nigerian International Model United Nations as the Rapporteur for Economic and Social Council (ECOSOC) for the 2011 Convection year. As a Student Delegate he had an audience with the Swiss Government.He is presently a research consultant and a Law Practitioner with B.S Nwankwo SAN & Co. No 1 Owerri Road Nnewi. Comments on this article can be reached to him through this medium:[email protected] through 07036758285


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