Self-determination, Secession and International law

By Mujib Dada-Qadri

What astonishes me most about secession and self-determination as controversial topics is the fact that virtually all countries of the world have threats or agitations for secession; it doesn’t matter whether the country is economically prosperous or not. The fundamental reason why it remains one of the most controversial subjects in domestic and international laws. The case of Nigeria being a very peculiar one.

Article 1 of the International Covenant on Civil and Political Rights (ICCPR) and the International Covenant on Economic, Social and Cultural Rights 1966(ICESR) recognize right to “self-determination”. General Assembly resolutions of United Nations have acknowledged that “all people have the right to self-determination” but with a tricky exception stating that “any attempt aimed at the partial or total disruption of the national unity and the territorial integrity of a country is incompatible with the purposes and principles of the Charter of the United Nations”. Categorically, the general principle of self-determination affirms the right of a people to pursue their political, cultural and economic wishes without the interference or coercion of “outside states”. This principle was the most applicable to colonies seeking independence from imperialists/colonialists

It can be inferred that there is no universal consensus on secession and the only explicit consensus is on self-determination which Antonio Cassese argues that the two cannot be the same. In fact, the Vienna declaration of 1993 and friendly relations declaration of 1970 explicitly excludes unlimited right to secession despite recognition for self-determination. And in a situation, where international law conflicts with domestic law, the domestic law prevails in most states.

The first and most successful case of “unilateral secession” is the case of Bangladesh formerly East Pakistan. After successful separation of Pakistan from India in 1947, the Eastern part of Pakistan (Bengali) successfully seceded in 1971 unilaterally and was able to escape a lengthy civil war by smartly gaining support of 100 states in General Assembly. On the other hand, Security Council did not recognize the secession of Katanga from Republic of Congo and in fact declared unilateral secession illegal. Similarly, the UN and the then Organisation of African Unity categorically rejected the Biafran Independence in 1967.

It gets more complex and tricky when one studies the “balkanization” of old Soviet states like Ukraine, Slovakia, Estonia, Lithuania, Latvia, Belarus etc. Importantly, the further balkanization of these USSR states has added more complexities to the subject of secession under international law. In some quarters, the balkanization of old Soviet states has been categorized as “dissolution of federation” rather than secession.

The case of South Sudan seceding successfully from Sudan and Eritrea successfully seceding from Ethiopia are recent successful secessions in Africa but one will be more confused with the refusal of recognition for Somaliland, an independent part of Somalia which has been more stable and has virtually complied with “Montevideo state requirements”. The case of EU recognizing successfully seceding Republic of Ireland from UK but refusing Catalonia’s secession from Spain despite agitations for over 70 years. In Asia, Taiwan despite complying with Montevideo State Requirements have also not gained support of major member states and still rated as part of Chinese territory. Kashmir in India has been unsuccessful in seceding from India despite years of agitations. The complex case of Kurds in Iraq and Turkey is also very relevant.

The sanctity of state sovereignty is not only peculiar to Nigeria, it is a value that will be jealously protected by countries of the world.  Section 2(1) of 1999 constitution of Federal Republic of Nigeria states thus “Nigeria is one indivisible and indissoluble Sovereign State to be known by the name of the Federal Republic of Nigeria.” Section 37 of the Criminal Code provides for elements of what constitutes the offense of “treason”. This is to nullify opinions stating that Nigeria’s constitution is silent on “secession”. Similarly, the notable American case of Texas VS White also affirms the sanctity and indissolubility of American statehood coupled with 14th amendment of America’s constitution explicitly providing for nullification of lawmakers that might have aided or participated in insurrection against the state. Albeit, every elected president or governor in Nigeria is under fundamental obligation of upholding the sovereignty of Nigeria.

The absence of secession clause in the Nigerian constitution is not only peculiar to Nigeria as we have seen countries with such provisions and countries without such provisions. Reason why international law and some domestic laws have been tricky about secession is to avoid validation for state disruptions. Hence, the agitations for secession or self-determination in Nigeria have been largely built on emotions and less understanding of the dynamics. It is my opinion that Nigeria should learn from prosperous countries that have used economic advantages and political inclusion to strengthen statehood as this is the most progressive and strategic. However, agitations for secession in Nigeria will naturally not be accommodated and such agitations should be channeled to referendum and strategic alliance learning from the case of Quebec.

Source: The Nation (Nigeria)