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A Critical Appraisal of the Right to Self Determination Under International Law */**

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A Critical Appraisal of the Right to Self Determination Under International Law */** NAUJILJ 12 (1) 2021 A CRITICAL APPRAISAL OF THE RIGHT TO SELF DETERMINATION UNDER INTERNATIONAL LAW */** Abstract International law recognizes the rights of people to self- determination as well as the rights of States to territorial integrity and territorial sovereignty. This situation created uncertainty on whether or not self-determination permits ethnic groups in existing States to break away from their parent State, at least where doing so is the only means of maintaining peace. This study therefore, using qualitative research method, critically examined whether ethnic groups in existing States can exercise self-determination to form a new State from their parent State in view of States’ rights to /territorial integrity and sovereignty under international law. It was discovered that international law does not only uphold the right to self-determination of people but it has widened beyond decolonization and is still evolving amidst challenges. International law has made provisions for ethnic groups in existing States who can exercise self-determination by forming a new state under international law in certain strict circumstances. Keywords: Self-Determination, Territorial Integrity, Territorial Sovereignty 1. Introduction Right to self-determination has been used for different purposes at different times. During decolonization, former colonial territories used it as a central strategy for seeking independence.1 Since the end of colonialism, some ethnic groups in existing States have constantly relied on it for the advancement of their statehood agitations from their parent State. This is probably because those ethnic groups usually assume that right to self-determination gives rise to secession.2 The past year has been heralded by self-determination agitations of some ethnic groups like the Igbo ethnic group of Nigeria. States, however, challenge attempts to use right to self-determination for statehood agitations. This has led to pounding debates on the nature of right to self-determination. In particular, this has elicited questions on whether international law permits ethnic groups in existing States to exercise right to self- determination. States usually stress that right to self-determination is an affront to their right to Territorial Integrity. This is because States desire to control and protect their territory since it is the essence of their statehood.3Although international law asserts that peoples have right to self-determination: to determine their socio-political and cultural affairs, however, it has * SOMTO DAVID OJUKWU; LLM, LL.B, B.L; Lecturer, Department of International Law and Jurisprudence, Faculty of Law, Nnamdi Azikiwe University, Awka, Anambra State, Nigeria. Email: [email protected]. * Osita Dominic Okoli; LLB,B.L 1A B Lorca, ‘Petitioning the International: A "Pre-History" of Self-determination’ (2014) 25 (2) European Journal of International Law 497. 2 Z A Velasco, ‘Self-determination and Secession: Human Rights-Based Conflict Resolution’ [2014] International Community Law Review 75, 75 3 P Malanczuk, Akerhurst’s Modern Introduction to International Law 7th edn (London: Routledge 1997) 164 127 | P a g e OJUKWU: A Critical Appraisal of the Right to Self Determination under International Law been argued that using right to self-determination as a basis for creating new States whenever demanded by peoples (especially by ethnic groups in existing State) may lead to the creation of unviable States.4 Another challenge is that international law highly esteems political stability, territorial sovereignty and territorial integrity of States as important values.5The crux of this paper is to examine the position of right to self-determination under International Law. In view of exfoliating the niceties of this paper, this paper will particularly examine the development of Right to Self-determination under International Law. It will also examine its meaning, nature as well as recognition under International Law. Again, this paper will make it more scrutable the varieties of right to self-determination under International Law as well as its legal scope. 2. The Development of Right to Self-determination in International Law Self-determination developed in the 18th and 19th centuries as a natural corollary of evolving nationalism.6 It was propounded by the French revolution and was intended to replace the old State-oriented approach which prevailed in international relationships.7 At that time, international dealings hardly recognise the interests of the people in a territory. It primarily protected the interests of the ruling elites.8 Subsequently, self-determination developed and advocated for the consent of the people.9 Moreover, the disintegration/defeat of the Austro-Hungarian and Ottoman empires during the first world war also aided the development of self-determination. With their disintegration, there arose a need to partition their territories for a new sovereign to govern them.10 Because of this, self-determination played a great role in the re-division of those territories and Europe by the victorious powers.11 Then, however, self-determination was considered only for “nations” which were within the territory of the defeated empires; it was never thought to apply to oversee colonies.12President Wilson of the USA was very prominent in its development during the creation of independent States out of the remnants of the Austro- Hungarian and Ottoman empires.13 He was prominent in enunciating the principle that peoples and provinces must not be bartered about from sovereignty to sovereignty like chattels or pawns in a game.14 Again, he was prominent in enunciating that territorial questions should be settled ‘in the interests of the populations concerned.’15 4 A Cassese, International Law (2nd edn, Oxford University Press 2005) 63 5 Ibid; Accordance with International Law of the Unilateral Declaration of Independence in Respect of Kosovo (Advisory Opinion) [2010] ICJ 437 p38 para 80. <http://www.icj- cij.org/docket/files/141/15987.pdf> accessed 24 March 2020 6 H Hannum, Autonomy, Sovereignty, and Self-Determination: The Accommodation of Conflicting Rights (2nd edn, University of Pennsylvania Press 1990) 27 7 Cassese (n 4) 60 8 ibid 9 ibid 10 Hannum (n 6) 27 11 Ibid, pgs 27 -28 12 Ibid 13Ibid 28; Daniel Thurer and Thomas Burri, ‘Self-Determination’ [2008] <http://opil.ouplaw.com/view/10.1093/law:epil/9780199231690/law-9780199231690-e873> accessed 30 March 2020 14 Hannum (n 6) 28 15 ibid 128 | P a g e NAUJILJ 12 (1) 2021 Furthermore, self-determination assumed a greater degree of importance after the 2nd World War as pressure grew to grant independence to people subjected to colonial rule.16 Thus, the UN declared in its Articles 1 and 55 of the United Nations Charter, 1945 (UNC) and by a United Nations General Assembly’s Resolution (UNGAR) on the Right of People and Nations to Self-Determination 1952,17 that member States should uphold the principle of self- determination of all peoples and nations. Moreover, self-determination quickly evolved from a principle to a right especially after the 1960 UN Declaration on the Granting of Independence to Colonial Peoples.18 This is because States were imposed a duty to promote the realization of self-determination of peoples and not to use forcible action which deprives people from elaborating/expressing their right to self- determination.19 The objective then, however, appears to be to stress self-determination from colonial rule but not to fertilize post-independence secessionist movements in existing States.20 Since then self-determination denotes the right of people to decolonization.21 Self- determination was not intended to be relied on by ethnic groups seeking to form new States from existing/parent States. At the end of colonial rule, secessionist movements became rampant. Groups involved in such movements probably threatened the continuous evolution of self-determination by claiming that it is a right available to all peoples and nations. Most of those secessionist movements comprise of ethnic groups: The Kurds in Turkey, Iraq, Syria, Iran and Armenia; the Igbos and other ethnic groups in the old Eastern Region of Nigeria (“Biafrans”) etc. To them, self- determination is the international law principle justifying secession and the ideology underpinning the birth of new states.22 Because of this, self-determination was and is still considered as an anathema to the notions of states’ territorial integrity and territorial sovereignty.23 In response, parent States rejected such movements. They view secessionist movements as unpardonable attacks on their right to territorial integrity and Sovereignty. Also, they usually insist that managing such movements is within their domestic affairs; thus, the international community should not interfere. Specifically, States generally insist that right to self- determination should be contained as not to permit the dismemberment of their territories, especially by their ethnic groups. 16 J O’Brien, International Law (1st edn, Cavendish Publishing Ltd 2001) 163 17 GAR 637 A (VII) 18 E M Whinney, ‘Declaration on the Granting of Independence to Colonial Countries and Peoples’ [2008] United Nations Audio-visual Library of International Law 1, 3. <http://legal.un.org/avl/pdf/ha/dicc/dicc_e.pdf> accessed 15th May 2020; Declaration on the Granting of Independence to Colonial Countries and Peoples, UNGA Res 1514 (XV) (14 Dec 1960) (adopted by 89 votes to none; 9 abstentions) 19 Declaration on Principles of International
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