ARTICLES

The right of indigenous peoples to self-determination versus secession: One coin, two faces?

Ernest Duga Titanji

Barrister-at-law and lecturer of law, University of Yaoundé II, Cameroon

SUMMARY

The UN Declaration on the Rights of Indigenous Peoples of 13 September 2007 revisits the notion of 'self-determination' which has been the subject of great debate in international law over several decades and which still presents a quandary to international lawyers. As the representatives of indigenous peoples mentioned in a letter to the Working Group on Indigenous Populations in 1993, 'the right of self-determination is the heart and soul of the declaration'. Was the insertion of the right to self-determination in the Declaration intended to be understood in a broader sense as granting the right to indigenous peoples who fulfil certain conditions in the Declaration, to secede? In other words, is the right to 'self-determination', as contained in the Declaration, akin to a right to secession or is it akin to the right to 'self-determination' as contained in the United Nations Charter and in common article 1 of the two international Covenants? The notion of self-determination brings with it several issues for resolution. One such issue is the precise nature of self-determination in international law: Is it determinate or does it evolve over time? Can it be used for purposes of secession where the sovereign state does not guarantee such rights to indigenous people; or can it be used as justification for the secession of indigenous peoples where their right of self-determination within the state has been violated? It is argued in this article that the notion of 'self-determination' as used in the Declaration must be distinguished from 'self-determination' as used in the other international instruments, as a mere declaration cannot modify a norm of international law contained in international conventions and covenants. Since the Declaration does not provide sanctions for non-compliance, the author further argues that, where states do not conform, the sanction may well be the same as that for self-determination in general, amounting to what is much feared by states: the possible dismemberment of a state entity along indigenous lines. To arrive at this, the author analyses the notion of 'self-determination', on the one hand, and the ensuing development into the notion of the right to 'secession', on the other, before concluding that indigenous peoples who do not enjoy their indigenous rights within the state under the scope of internal self-determination, may exercise their right to external self-determination, and in the course of exercising their right to external self-determination, they may make claims to their right of 'secession'.

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* LLM (London), DEA Maitrise (Yaoundé); dugatitanji@dugalaw.com. I thank the Yale World Fellows Program for the opportunity to use the multiple facilities available at Yale University to carry out this research, especially the facilities available at the Yale Law School, including the Sterling Law Library. My thanks go to Professor Matthew Palmer for allowing me to sit in his course on Comparative Indigenous Peoples' Rights during my tenure at Yale and for reading through the draft and for his valuable suggestions. I am also grateful to Vivek Krishnamurthy, final year JD student, for his time in reading through the paper and for his comments on the initial draft. All errors are of course mine.
1 The adoption was by a vote of 143 for, four against and 11 abstentions. The United States of America, New Zealand, Australia and Canada voted against the Declaration.
2 UN Resolution A/RES/61/295 of 13 September 2007.
3 Cited in S Pritchard 'Working group on Indigenous Populations: Mandate, standard-setting and future perspectives' in S Pritchard (ed) Indigenous peoples, the United Nations and human rights (1998) 46.         [ Links ]
4 Pritchard (n 3 above) 3.
5 The 1945 Charter.
6 Art 1 of the International Covenant on Civil and Political Rights (General Assembly Resolution 2200A (XXI) of 16 December 1966) (CCPR) and art 1 of the International Covenant on Economic, Social and Cultural Rights (General Assembly Resolution 2200A (XXI) of 16 December 1966) (CESCR): '1. All peoples have the right of self-determination. By virtue of that right they freely determine their political status and freely pursue their economic, social and cultural development. 2. All peoples may, for their own ends, freely dispose of their natural wealth and resources without prejudice to any obligations arising out of international economic co-operation, based upon the principle of mutual benefit, and international law. In no case may a people be deprived of its own means of subsistence. 3. The States Parties to the present Covenant, including those having responsibility for the administration of Non-Self-Governing and Trust Territories, shall promote the realisation of the right of self-determination, and shall respect that right, in conformity with the provisions of the Charter of the United Nations.'
7 The initial draft reads: '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.'
8 Art 1(2) of the Charter of the United Nations.
9 CCPR and CESCR.
10 Convention on the Rights of the Child (CRC).
11 Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW).
12 Some authors, such as Jeremy Waldron (Indigeneity? First peoples and last occupancy (2003)), prefer the use of the word 'indigeneity', while others, such as Patrick Thornberry (Indigenous peoples and human rights (2002)) prefer the word 'indigenousness'.
13Lubicon Lake Band v Canada, Communication No 167/1984, views adopted on 26 March 1990.
14 Amnesty International Index IOR 40/038/2006 (Public) News Service No 282 of 1 November 2006.
15 As above.
16 It was used during the League of Nations era to justify the creation of nation states in Europe; it was used for the purpose of decolonisation under the UN, and has been used after the decolonisation era for different purposes, including secession.
17 (1993-1994) 34:1 Virginia Journal of International Law 2.
18 C Drew 'The East Timor story: International law on trial' (2001) 12 European Journal of International Law 653.         [ Links ]
19 L Brilmayer 'Secession and self-determination: A territorial interpretation' (1991) 16 Yale journal of International Law 177.         [ Links ]
20 Report of the International Committee of Jurists Entrusted by the Council of the League of Nations with the Task of Giving an Advisory Opinion upon the Legal Aspects of the Aalands Question, Official Journal of the League of Nations (1920) Supplement No 3 5.
21 The Aaland Islands Question 27, League of Nations Doc B7.21/68/106 (1921) (English version) (report submitted to the Council of the League of Nations by the Commission of Rapporteurs).
22 Woodrow Wilson 'War aims of Germany and Austria', Address of the President of the United States of America, delivered at a joint session of the two houses of Congress on 11 February 1918, para 5 http://wwl2.dataformat.com/Document.aspx?doc=30724 (accessed 15 January 2009).
23 Brilmayer (n 19 above).
24 Brilmayer (n 19 above) 16.
25 'The right to self-determination: Implementation of United Nations Resolutions. A study prepared by Hector Gros Espiell, Special Rapporteur of the Sub-Commission on Prevention of Discrimination and Protection of Minorities' (E/CN4/Sub2/405/ Rev1) 1980.
26 Aurelia Critescu (Special Rapporteur of the Sub-Commission on Prevention of Discrimination and Protection of Minorities) 1981 'The right to self-determination: Historical and current developments on the basis of United Nations instruments' UN Document E/CN.4/Sub2/404/Rev1.
27 A principle of international law that states that newly-formed states should have the same borders that they had before their independence.
28 JC Anene The international boundaries of Nigeria 1885-1960 (1970),         [ Links ] cited by M Mutua in 'Why redraw the map of Africa: A moral and legal inquiry' (1994-1995) 16 Michigan Journal of International Law 1113.         [ Links ] Little wonder, therefore, that several boundary disputes have occurred between Cameroon and Nigeria concerning the boundary in question, which culminated in the International Court of Justice ruling on the issue in October 2002 (Land and Maritime Boundary between Cameroon and Nigeria (Cameroon v Nigeria: Equatorial Guinea intervening).
29 CW Hobley in his book Etnology of the A-Kamba and other East Africa tribes (1910) 43-48 tells how the 'Akamba,         [ Links ] Kikuyu and the mAsai, three groups which fought each other from time to time, were all bunched into the new state of Kenya', cited in Mutua (n 28 above).
30 Mutua (n 28 above) 1125-1126.
31 Eritrea, Biafra, Katanga, Southern Cameroons, and such.
32 JS Ward 'The Mi'kmaq and the right to self-determination' (2004) 1 Celánen: A journal of indigenous governance 1 http://web.uvic.ca/igov/research/journal/articles_ward_p.htm (accessed 10 April 2009).         [ Links ]
33 Ward (n 32 above) para 32.
34 W Ofuatey-Kodjoe The principle of self-determination in international law (1997) 129-147.         [ Links ]
35 AA Mazrui Towards a pax Africana: A study of ideology and ambition (1967),         [ Links ] cited in OS Kamanu 'Secession and self-determination: An OAU dilemma' (1974) 12 Journal of Modern African Studies 356.         [ Links ]
36 H Hannum 'Rethinking self-determination' (1993-1994) 34:1 Virginia Journal of International Law 35.         [ Links ]
37 RA Friedlander 'Proposed criteria for testing the validity of self-determination as it applies to dissatisfied minorities' (1997) 25 Chitty's Law Journal 335 336.         [ Links ]
38 L Buchheit Secession: The legitimacy of self-determination (1978).         [ Links ]
39 Buchheit (n 38 above) 222 para 2.
40 MG Kohen 'Creation d'Etats en droit international contemporain' (2002) 6 Bancaja Euromediterranean Courses of International Law 573.         [ Links ]
41 This article of the Helsinki Final Act also carries the popular caveat on the limitation of the right to secession. It states that the right has to be exercised 'in conformity with the purposes and principles of the Charter of the United Nations and with the relevant norms of international law, including those relating to territorial integrity of states'.
42 Adopted on 27 June 1981 http://www.achpr.org/english/_info/charter_en.html (accessed 21 January 2009).
43 H Hannum Autonomy, sovereignty and self-determination: The accommodation of conflicting rights (1990) 46-47         [ Links ]
44 UN Resolution A/RES/61/295 of 13 September 2007.
45 'All peoples have the right of self-determination. By virtue of that right they freely determine their political status and freely pursue their economic, social and cultural development.'
46 A Working Group on Indigenous Populations was formed at the level of the UN that monitored the negotiations and in fact drafted the article on self-determination without which they thought the whole exercise would have been futile.
47 USUN Press Release of 13 September 2007: Explanation of vote by Robert Hagen, US Advisor on the Declaration on the Rights of Indigenous Peoples, to the UN General Assembly.
48 Explanation of vote by Hon Robert Hill, Ambassador and Permanent Representative of Australia to the UN, 13 September 2007.
49 Explanation of vote by New Zealand Permanent Representative to the UN, HE Ms Rosemary Banks, 13 September 2007.
50 1840.
51 Statement by Ambassador John McNee, Permanent Representative of Canada to the UN, regarding the UN Declaration on Indigenous Peoples' Rights of 13 September 2007.
52Aide Memoire of 9 November 2006.
53 This is the subject of discussion of the next section.
54 n 46 above.
55 A Buchanan 'Theories of secession' (1997) 26 Philosophy and Public Affairs 35.         [ Links ]
56 Stanford encyclopedia of philosophy.
57 Buchanan (n 55 above) 38.
58 A Buchanan 'Self-determination, secession and the rule of international law' in D Copp (ed) International law and morality in the theory of secession (1998).         [ Links ]
59 n 56 above.
60 Art 22 of the Covenant of the League of Nations.
61 MG Kohen (ed) Secession: International law perspectives (2006) 5.         [ Links ]
62 '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.'
63 General Assembly Resolution 2625 (XXV) of 24 October 1970.
64 General Assembly Resolution 1514 (XV) of 14 December 1960.
65 In Roman mythology, Janus (or Ianus) was the two-faced god of gates, doors, doorways, beginnings and endings.
66 Vienna Convention on Succession of States in respect of Treaties, 23 August 1978.
67 Art 6.
68 C Tomuschat 'Secession and self-determination' in Kohen (n 61 above) 23-45.
69 A Buchanan Self determination and the right to secede (2001).         [ Links ]
70 The Basque secessionists in Spain, Biafra in Nigeria, Katanga in Congo.
71The Mikmaq Tribal Society v Canada, Communication No 78/1980 (30 September 1980), UN Doc Supp No 40 (A/39/40) 200 (1984).
⁷² P McHugh 'New dawn to cold light: Courts and common law Aboriginal rights' in R Bigwood (ed) Public interest litigation: New Zealand experience in international perspective (2006) 25-68.         [ Links ]
73 The Coulder case in Canada; the Martinez case by the US Supreme Court; the Mauri Council case in New Zealand; and the Mabo case in Australia.
74 Hannum (n 36 above).
75 Reference re Secession of Quebec [1998] 2 SCR 217, in the matter of sec 53 of the Supreme Court Act, RSC, 1985, c S-26.
76 Katangese Peoples' Congress v Zaire (2000) AHRLR 72 (ACHPR 1995).
77 n 75 above, 85 para 155.
78 Para 6.
79 AA Mazrui 'The African state as a political refugee: Institutional collapse and human displacement' (1995) 7 International Journal of Refugee Law 23.         [ Links ]