Uti Possidetis and Nigerian Fulani Herders’ Claim of Terra Nullius: The Truth about the Untruths

By Bola A. Akinterinwa

There is an emerging debate on the principle of uti possidetis on the social media platform of the Nigerian Society of International Law, which is quite interesting in light of Nigeria’s current insecurity imbroglio. Uti possidetis is a major catalytic agent of Nigeria’s insecurity from the perspective of the herders-farmers dispute and Federal Government’s policy support for open grazing on the basis of Fulani herders’ claims of terra nullius.

On 13 May, 2021 Akin Awodeyi-Akinsehinwa analysed the implications of uti possidetis following its ratification as law by the International Court of Justice (ICJ) in the context of Nigeria. As observed by him, whoever emerges the winner in any given conflict is the owner of the conquered territory. He gave the examples of British defeat of Argentina in Falklands and British ownership of the Gibraltar. He also argued that uti possidetis juris supersedes the rule of Effective Occupation and by extension, one’s independence ‘as a country is only as good as being able to effectively defend your territorial boundaries.’

More important, Awodeyi-Akinsehinwa recalled when Biafra announced its secession from Nigeria in 1967 and was recognised by some countries. He suggested that ‘had Biafra succeeded in defending its territory effectively, it would have remained an independent State,’ but Biafra was a conquered territory and Biafra, by application of uti possidetis, is the property of the conqueror. As he put it, ‘no amount of preaching or conjuring the laws of United Nations is valid unless the status quo changes… In effect therefore, it is only Nigeria that can change the status of Biafra no matter how loud you shout.’

Professor G. A. Olagunju disagreed with Awodeyi-Akinsehinwa’s interpretation, arguing that uti possidetis is more about drawing the boundaries of emerging nations in a way to avoid a situation of terra nullius or ‘no man’s territory.’ While wondering ‘how anybody can wake up from the wrong side of his bed, and refer now to any part of Nigeria as no man’s land there for grab,’ he also agreed with Awodeyi-Akinsehinwa’s conclusion that ‘in the same way that armed robbers use force to dispossess their victims of their property, you can have what the Fulanis are trying to achieve in southern Nigeria. Your conclusion is therefore absolutely right: be ready to fight to possess your land.’

Perhaps More significantly, Professor Akin Oyebode reminded that ‘uti possidetis juris is very much antiquated having been superseded by the principle of self-determination under contemporary international law. He cannot be more correct. However, uti possidetis principle or uti possidetis juris and self-determination are not the same in design and operationally, even though they may still be considered as two sides of the same coin. Uti possidetis is an instrument of maintenance of colonial borders by newly established states by seeking to prevent disputes of territorial illimitata or renegotiating international borders that existed under colonial rule. Let us explicate the nexus between uti possidetis and terra nullius in the context of Nigeria’s national insecurity and agitations for self-determination.

Uti Possidetis, Terra Nullius, and Self-determination

Uti possidetis was the principle adopted by African leaders as a foundational effort to prevent geo-political instability in Africa, following the general accession of their countries into national and international sovereignty in the 1960s. The principle was first adopted in 1810 by the former colonies of Spain when they acceded into national sovereignty. The objective was to avoid unnecessary territorial disputes that might arise and nip them in the bud well in advance. The long term objective was to ensure regional political stability. It should be recalled that most of colonial boundaries, by then, were imperially established and therefore, subject to disputation on the attainment of independence. It was in an attempt to prevent likely disputations that prompted the adoption of the principle, which has now become one of the legal delimitating procedures for international boundaries.

Conceptually, the principle requires the maintenance and sustenance of inherited colonial boundaries as international boundaries. And true, in Africa, many international boundaries are not natural. There are also tribal disputes. Consequently, Uti Possidetis imposes an obligation: as you possess now, so should you continue to possess, or as territorially inherited at the time of independence, so should it continue to be (vide Nguyen Quoc Dinh, Droit International Public (Paris: L.G.D.J. 1975, pp. 371-372; Charles Rousseau, Droit International Public (Paris: Dalloz, 1976, p.164). By so doing, political stability at home and international peace and security abroad is expected to be well-maintained.

As we noted above, uti possidetis is essentially a means of international boundary delimitation while the rule of self-determination is for political emancipation, in other words, uti possidetis is for territorial boundary, while self-determination is for people. Nonetheless, Professor Oyebode cannot but still be correct from the perspective that there is no way self-determination will lead to national sovereignty without a well-delineated international boundary following it, and in which case the principle of uti possidetis can still be raised.

Put interrogatively in the context of the quest for a Sovereign State of Biafra, or agitation for an Oduduwa Republic, will their current internal frontiers become the new international frontiers of the new State? Will there be a review of the frontiers? Is it possible for the Yoruba ethnic group in the Republic of Benin to be convinced and be part of the Oduduwa Republic, especially that there had been calls in the past by some Beninese leaders for amalgamation of Benin Republic with Nigeria? Will that engender redrawing of boundary with Benin Republic?

Terra Nullius variously referred to as uncultivated land or unclaimed wilderness, simply means that there is no free land or nobody’s land, and that every land is titled. There was the time there were cases of terrae nullius in international relations: Bir Tawil, a landlocked territory of about 2,060 km2 located between Egypt and Sudan and created by discrepancy in the drawing of borders between the two countries in 1899 and 1902. There was also the case of some parts of the Antarctica to which many countries lay claims, but to which the signatories to the 1959 Antarctica Treaty agreed not to make claims.

But essentially, the logical justification for the existence of terra nullius, for instance, in the case of the Guano Islands Act of 18 August 1856, was that islands could be located anywhere, but they must not be occupied or within the jurisdiction of any government. Another argument was that First Nations had never owned any land and that any claims by them could always be ignored. This is why, in the case of Canada, most of the British Columbia has remained non-ceded land. Land has always been owned by the occupying people.

Consequently, in the context of Nigeria, there can be no validity in the claim, either collectively or severally, that Nigeria is owned by the Fulani or by any individual person, or by any constitutive ethnic group in Nigeria, as purportedly being claimed by the Fulani herders in Nigeria. All self-determinists must have titled territory before qualifying to becoming a sovereign state in international law and relations. It is simply because the Fulani herders wrongly believe that there is terra nullius that other owners of titled land have vehemently opposed them, especially within the context of Nigeria’s 1976 Land Use Act.

As regards self-determination, its manifestations are quite diversified. The outcome of any agitation for self-determination is generally divorce or separation, but the mania of the divorce can vary: peaceful negotiation, inquiry by plebiscite, belligerent declaration, etc. The purpose of the principle of self-determination was initially to prevent the suppression of the right of colonially-dependent people to live the way they choose to live. It was for political emancipation. As Professor Oyebode rightly recalled, self-determination has been elevated from being a principle to that of a peremptory norm of international law, implying that the application of the principle has now gone beyond its initial colonial connotation. Thus, when discussing the principle and the norm in the context of agitation for secession in Nigeria, the agitation, the right of self-determination cannot but be legitimate and tenable.

It is useful to also note, in this regard, that the enforcement of the principle of self-determination can be a resultant from negotiation, belligerence or imposition, as there is war that is prepared for and a war that is imposed and unprepared for. The straining of political connections with the United Kingdom by 13 American colonies in 1776 was necessarily belligerent and forceful in origin. It should be recalled that the colonists did not want to be independent or separated from the UK. The colonists, considering that they did not have the same rights as citizens residing in the UK, that they could not also vote on matters, particularly on taxes affecting them, and because the UK did not accept their suggestion that there should be no taxation without representation, they opposed British taxation measures and declared their independence on 4 July, 1776. In fact, this was the genesis of the 1775-1783 American Revolutionary War in which the Americans in the thirteen Colonies defeated the British in the American Revolutionary War.

Again, the separation of Belgium from the United Kingdom of the Netherlands on 4th October, 1830 and its recognition in 1831 as a separate nation is explained by many factors: the Catholics were against the interference of the protestant king on clerical matters; before the revolutionary and Napoleonic Wars, Belgium was part of the Austrian Netherlands, but was annexed by France under the 1795 Peace of Basel Agreement. France eventually handed it over to Netherlands. Even in the period of contemporary international relations beginning from the time of Franco-Prussian war in 1870-1871, force has also been used to project self-determination in various senses. This does not mean that there were no cases of peaceful methods, such as in adoption of plebiscites as a method of inquiry and negotiated settlement. More often than not, the approach has been the adoption of the Von Clausewitz doctrine of if you want peace or self-autonomy, prepare for war. In 1905, Norway was separated from Denmark even though they were united in 1814 as a result of the Napoleonic wars. Norway also separated from Sweden on September 23, 1905, but peacefully. And true enough again, 1944 witnessed the separation of Iceland from Denmark and in 1947, the repartition of the British India Dominion into India and Pakistan from which Bangladesh was carved out in 1971.

Additionally, Yugoslavia was established following World War I when Croat, Slovenian, and Bosnian territories, were united with the Serbian Kingdom. Yugoslavia collapsed under Nazi occupation during World War II because of the establishment of an independent Nazi-allied Croat, but which was later re-united. In the same vein and for various reasons, including democratisation fever following the post-Cold War II Era, Slovenia declared its sovereignty in 1990, Croatia followed in the month of May, while the Yugoslav Republic of Bosnia-Herzegovina also declared its own sovereignty on thereafter. It was the turn of Czechoslovakia on January 1, 1993 to split into the Czech Republic and Slovakia, a split that is internationally referred to as the ‘Velvet Revolution,’ due to its peaceful and negotiated nature.

Here in Africa, if the PMB administration cannot easily learn lessons from the foregoing international experiences, that there is no fast rule about Nigerian unification and possible disengagement, if the PMB administration sees the international experiences as far away or distant in time, sight must not be lost of the separation of Eritrea from Ethiopia in Africa in 1991. The Eritrean War of Independence began on 1st September, 1961 and lasted until 24 May, 1991. It should be recalled that Eritrea was made a British protectorate following the defeat of the Italians by the Allies in 1941. The protectorate lasted until 1951. This clearly suggests that struggles for self-determination cannot simply be a wishful thinking. It can take the format of an armed struggle that lasts for decades, if not for centuries, as it is the case with the Catalonians in Spain, who have been fighting for independence since over three hundred years. There is also the case of Sudan in Africa. South Sudan separated from Sudan on the basis of a 2005 comprehensive agreement that put an end to the then Africa’s longest-running civil war. These empirical cases are a manifestation of the truths in international relations, but their perceptions in the context of PMB’s governance of Nigeria show untruths in various dimensions.

Truths about Untruths

Grosso modo, the import of the foregoing is to underscore the reality of how the principle of self-determination is manifested in international relations before and after its codification in international law. It is also to emphasize that the dream of PMB, according to which Nigeria is indissoluble and indivisible, can only exist on constitutional paper. Such a dream does not empirically reflect the situational reality on the ground in international practice.

Explained differently, PMB’s policy, his attitudinal disposition and understanding of the issues involved are, at best, a manifestation of poverty of ideas and political governance. The truth is that agitations for separate identity in Nigeria have a legitimate backing in international law. As provided in Article 3 of the United Nations Declaration on the Rights of Indigenous Peoples Charter clearly stipulates that ‘indigenous 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.’

And without any scintilla of doubt, self-determination has two typological aspects: internal and external. In the words of Agnieszka Szpak of the Faculty of Political Sciences and International Studies of the Nicolaus Copernicus University in Torun, ‘the former means the right of a nation/people to realize its rights, interests, aspirations and sovereignty within the existing State, whereas the latter refers to the right to create a separate State (secession). Internal aspect of self-determination does not raise controversies, but the external one is very controversial and, as a rule, does not engage peoples without the consent of the existing State.’

One fundamental question raised on the basis of the distinction between internal and external self-determination is that the line of distinction is, at best, very thin. If we admit that a people has the right to realize its interests, its aspirations, its sovereignty, the question of secession should not therefore, and cannot therefore, be an issue, because secession is simply an instrument for the attainment of the aspiration. In other words, self-determination is strategic in ultimate objective, while secession is tactical in manifestation. The right to secession is necessarily a resultant from the right to aspirations.

Consequently, any forceful repression of agitations for self-determination, in whichever sense it is considered, cannot but be illegal, and therefore has the potential to raise the international responsibility of the Government of Nigeria in different ways. The International Criminal Court would surely look for cases of war crimes and crimes against humanity, if not for crimes of possible genocide. In fact, the proponents of the Principle of International Responsibility to Protect cannot but be expected to show interest.

Another major untruth that largely explains why Nigeria is seriously engrossed by armed insurgency and armed banditry is the erroneous belief espoused in the country’s 1999 Constitution as amended that Nigeria is indissoluble and indivisible. This belief is nothing more than a political wish that does not learn from the experiential knowledge from international history. In other words, the PMB is unnecessarily wrapped up in the glory of his Nigerian civil war experience to the extent that he is currently building an imaginary Nigeria that is indivisible and indissoluble in his mind. The truth is that Nigeria can be dissolved and can be divided regardless of the modus operandi.

The untruth of an indivisible and indivisible Nigeria is not informed by existing international experiences. What can truly determine divisibility or indivisibility, dissolubility or indissolubility, is the political will of a given people to accept to be divided or united and to be associated in a union. In the very manner people are free to or not to join professional associations in Nigeria, so are people similarly free to belong to the Nigerian nation-state, even if the 1999 Constitution as amended were not to have been fraudulently presented as a people’s constitution.

It is useful to also remind of the meaning of Nigeria’s policy of non-alignment. Many scholars and observers often wrongly interpret the policy to imply not aligning with any of the Cold War blocs. It is wrong because the policy truly accepts to align, but the decision to align must be a resultant from Nigeria’s sovereign freedom of decision to align with whichever side. In this regard, it is Nigeria’s national interest that determines on which side to align. This freedom of decision to decide is one of the pillars on which the principle of self-determination is predicated in its two aspects.

Additionally, self-determination is first a geo-political principle, then a human right, and currently a norm. As a geo-political principle, it enables a dependent people to acquire its own international boundaries on attainment of sovereignty. As a human right, it is enjoyed by peoples of all kinds the world over without discrimination. It is not simply considered as an individual or even minority right, but as a right for all indigenous people. And true enough, self-determination as a norm, in all its senses, is well-defined in many international conventions, such as in the African Charter on Human and People’s Rights (ACHPR), International Covenant on Civil and Political Rights (ICCPR), and also in the International Covenant on Economic, Social, and Cultural Rights (ICESCR).

And most importantly, it is absurdly untrue, and therefore untenable, to consider or see the whole of Nigeria as an estate of the descendants of Uthman Dan Fodio, which by implication, falls under the rule of uti possidetis. Nigeria was never a dependent territory under Fulani colonisation right from the time of amalgamation in 1914. Consequently, there cannot be any colonial inheritance of Nigerian territory on the basis of uti possidetis. In the same vein, the notion of terra nullius cannot also apply, as the whole of Nigeria was not conquered. The territory of Nigeria, as it is today, had always been effectively occupied even before the advent of the jihadists. If there were no people and territory, against who was the 1804 jihad? What is noteworthy, and therefore relevant, as at today is the consideration of self-determination as a norm that cannot be derogated by anyone. This means that PMB must not only always know his onions, but must also always learn how to thread softly and make haste slowly in dealing with the agitations for self-determination in Nigeria. There is no way he can fight truth with untruths and still expect to win. PMB cannot fight a universalist norm successfully without international condemnations and bruises.

Source: This Day