BIAFRAN SELF-DETERMIANTION AND RADIO BIAFRA (2)

It will be an uphill task convincing the world that the agitation for secession is justified, argues Nonso Robert Attoh

The resuscitated agitation for a sovereign state of Biafra has taken a new dimension with the setting up of Radio Biafra and many other internet fora carrying on the struggle for the break-up of the Federal Republic of Nigeria. Unlike other initiatives directed towards achieving the same objective, the current attempt seems to have achieved greater notoriety and succeeded in galvanising certain segments of the Igbo community who feel victimised and alienated by the current arrangements in Nigeria into a renewed hope and zeal for the secession of Biafra from Nigeria.

We will in this piece give a brief account of the international law rules on self-determination applicable to this situation, especially on the subject of secession. We however quickly point out that oftentimes questions of international law cannot be divorced from international politics and the behaviour of states on any question like self-determination may depend on their perceived state interest.

Agitators for Biafra claim that they have a right of self-determination as indigenous peoples guaranteed by the United Nation Declaration on the rights of indigenous people.

They also assert that Biafra has a right to revert to the pre-1914 ethnic arrangements that existed in the territory currently called Nigeria and that Nigeria is an artificial entity created by the British for their own selfish interest. And that they should not be forced to co-habit with other groups in Nigeria who they claim hate and persecute them.

We will provide the response to these two assertions below.

Firstly, International human rights law recognises the right of people to self-determination in articles 1 of both the International Covenant on Civil and Political Rights and the International Covenant on Economic, Social and Cultural Rights, article 20 of the African Charter on Human and People’s Rights and a host of other regional human rights instruments and Resolutions and Declarations of the United Nations. For indigenous peoples this right is contained in article 3-5 of the Declaration on the Rights of Indigenous Peoples.

Self-determination refers to the legal right of peoples to decide their own destiny in the international order, that is, the right to determine for themselves how and by whom they wish to be governed. International law distinguishes between internal and external self-determination and stipulates the various situations in which either of these rights is applicable.

Internal self-determination is a right available to minority groups within a state for their protection. This right imposes an obligation on the state to give the minority groups the ability to speak their language, effectively participate in the political affairs of the country and to practice their culture in a meaningful way. This is the variety of selfdetermination available to people living within a validly constituted state which is not under colonial rule or subject to alien or foreign domination and subjugation.

External self-determination or secession is the effort of a group or section of a state to withdraw itself from the political and constitutional authority of that state, with a view to achieving statehood for a new territorial unit on the international plane. States do not view secession favourably, even though the International Court of Justice in a recent decision (Accordance with International Law of the Unilateral Declaration of Independence in Respect of Kosovo) held that there is no international law rule against declarations of independence.

In international law, the right to secession or external self-determination belongs to those under colonial rule, and alien or foreign domination and occupation. A third category of people entitled to self-determination could also be deduced from the Saving Clause of the 1970 Declaration on Friendly relations, namely, those whose government is not composed of the entire peoples living on its territory and who could not exercise their right to self-determination within the parent state, because the state seriously violates their rights.

In the Canadian case of Re Secession of Quebec, the Supreme Court of Canada held that “a right to external self-determination (which in this case particularly takes the form of the assertion of a right to unilateral secession) arises only in the MOST EXTREME CASES, and even then under carefully defined circumstances”.

It is in the light of this legal position that the Declaration on the Rights of Indigenous Peoples while recognsing the right of indigenous peoples to self-determination was explicit in showing that it was a right to internal self-determination, not secession. It reads in articles 4 and 5

“Indigenous peoples, in exercising their right to self-determination, have the right to autonomy or self-government in matters relating to their internal and local affairs, as well as ways and means for financing their autonomous functions. Indigenous peoples have the right to maintain and strengthen their distinct political, legal, economic, social and cultural institutions, while retaining their right to participate fully, if they so choose, in the political, economic, social and cultural life of the State”.

It finally put this beyond doubt in article 46 where it provides that “Nothing in this Declaration may be interpreted as implying for any State, people, group or person any right to engage in any activity or to perform any act contrary to the Charter of the United Nations or construed as authorising or encouraging any action which would dismember or impair, totally or in part, the territorial integrity or political unity of sovereign and independent States.”

Therefore arguing from the perspective of indigenous people’s rights to self-determination, Biafrans can only successfully agitate for internal self-determination within the Nigerian nation and are not permitted to engage in any action that would dismember or impair, totally or in part, the territorial integrity or political unity of Nigeria.

If we also look at it from the general right of peoples to self-determination, even though the Igbo nation will definitely qualify as a ‘people’, since they do not fall into the category of people under colonial rule or alien domination and occupation, they must need proof that they belong to the third category of people that may under the ‘remedial rights only’ theory to be entitled to secession.

They therefore must demonstrate credibly that Nigeria seriously violates the human rights of the Igbos and makes it impossible for the Igbos to exercise their right of internal self-determination and that there are no other effective remedies under municipal or international law apart from secession. In the light of the fact that the Igbo’s are represented in the federal government and are also given a right to govern themselves, it may be a really uphill task convincing the world that the agitation for secession is justified in international law.

Secondly, the argument that African states are artificial lumping together of diverse ethnic groups and that state borders were arbitrarily drawn up by the colonial masters without paying heed to the wishes of the peoples being lumped together and therefore calling for a redrawing of the map of Africa to dismantle multi-ethnic states reflects what jurisprudence considers as the conflict between the ‘is’ and the ‘ought’, which we will not bother with in this brief exposition.

However, the current position of African regional law is couched in a concept referred to as “uti possidetis” which demands that colonial borders should be left undisturbed.