Public Lecture on Self-Determination
Public Lecture on Self-Determination
By Emeka Umeagbalasi
Topic: Nonviolent Self-Determination & Policing Of Public Assemblies In Nigeria Understanding Legal Roles Of The Agitators & The Policing Agencies Other Than The Military Text of a Public Lecture delivered today, 13th September 2017 by Emeka Umeagbalasi (Criminologist & Graduate of Security Studies; and Master of Science in Peace & Conflict Studies); Board Chair of Int’l Society for Civil Liberties & the Rule of Law (Intersociety) at the 18th Anniversary of the Movement for Actualization of the Sovereign State of Biafra (MASSOB), held at the Rojeny Stadium, Oba, Anambra State, Nigeria Self determination, globally, has three core foundational formations or origins:
(1) the process by which a country under colonialism seeks to determine its own statehood and form its own government; (2) a situation whereby group of persons exercise their inalienable rights to existence, ethnic identity and social, economic and political wellbeing without external subjugation; and (3) the right of members of a race or substantially homogenous ethnic nationality living in a defined territory to seek to be freed from the clutches of territorial, economic, religious, ethnic values and political strangulations and allied oppressive policies and actions masterminded or perceived to have been masterminded by a mother political territory and its operators.
The Principles & Purposes of the United Nations are clearly spelt out in the Charter of the world body as: saving future generations from war, reaffirming human rights and establishing equal rights for all persons; in addition to promoting justice, freedom, and social progress for the peoples of all of its member States. Regionally and internationally, the right of people to self-determination is a cardinal principle in modern international law (commonly regarded as a jus cogens rule), binding, as such, on the United Nations as authoritative interpretation of the Charter’s norms.
Self-determination principle of the UN states that people, based on respect for the principle of equal rights and fair equality of opportunity, have the right to freely choose their sovereignty and international political status with no interference.
The UN jus cogens rule is binding on all its member-States including Nigeria. By Jus Cogens Rule of the United Nations, it is that body of peremptory principles or norms from which no derogation is permitted; those norms recognized by the international community as a whole as being fundamental to the maintenance of an international legal order.
They include elementary rules that concern the safeguarding of peace and notably those that prohibit recourse to force or the threat of force. Norms of humanitarian nature are included. They include prohibitions against genocide, slavery, racial discrimination and other forms of heinous crimes or crimes against humanity; forcing a country to be engulfed by “complex humanitarian emergencies”. Jus cogens rules may, therefore, operate to invalidate a treaty or agreement between states to the extent of the inconsistency with anysuch principles or norms.
The concept of political self-determination was first expressed in the
1860s, and spread rapidly thereafter. By extension the term self determination has come to mean the free choice of one’s own acts without external compulsion. One of the earliest advocates of self-determination was Woodrow Wilson, who had in his famous self-determination speech on 11th February 1918, following the announcement of his famous Fourteen Point program for the formation of the League of Nations; said: National aspirations must be respected; people may now be dominated and governed only by their own consent.
Self determination is not a mere phrase; it is an imperative principle
of action. . . . ”
Further, self-determination had been famously defined by several international law scholars and one of the striking definitions was that made by Karen Parker; an international humanitarian law expert during the presentation to first int’l conference on the Right to Self-Determination at the United Nations Conference in Geneva in August 2000. Karen Parker had in her presentation: Understanding Self-Determination: the Basics; extensively or elaborately defined same as follows:
“The right to self-determination, a fundamental principle of human rights law, (1) is an individual and collective right to “freely determine . . . political status and [to] freely pursue . . .
economic, social and cultural development. (2) The principle of self-determination is generally linked to the de-colonization process that took place after the promulgation of the United Nations Charter of 1945. (3) Of course, the obligation to respect the principle of
self-determination is a prominent feature of the Charter, appearing, inter alia, in both Preamble to the Charter and in Article 1.
The International Court of Justice refers to the right to self-determination as a right held by people rather than a right held by governments alone. (4) The two important United Nations studies on the right to self-determination set out factors of a people that give
rise to possession of right to self-determination: a history of independence or self-rule in an identifiable territory, a distinct culture, and a will and capability to regain self-governance.(5)
The right to self-determination is indisputably a norm of jus cogens. (6) Jus cogens norms are the highest rules of international law and they must be strictly obeyed at all times. Both the International Court of Justice and the Inter-American Commission on Human Rights of the Organization of American States have ruled on cases in a way that supports the view that the principle of self-determination also has the legal status of erga omnes.(7) The term “erga omnes” means “flowing to all.” Accordingly, erga omnes obligations of a State are
owed to the international community as a whole: when a principle achieves the status of erga omnes the rest of the international community is under a mandatory duty to respect it in all circumstances in their relations with each other”.
By Article 1 of the Part 1 of the Int’l or UN Covenant on Civil & Political Rights of 1976 (ICCPR), the right of all peoples to self-determination, including the right to “freely determine their political status”, pursue their economic, social and cultural goals, and manage and dispose of their own resources is unambiguously provided. It further recognizes a negative right of a people not to be deprived of its means of subsistence, and imposes an obligation on those parties still responsible for non-self governing and trust territories (colonies) to encourage and respect their self-determination. The Federation of Nigeria ratified the ICCPR treaty on 29th October 1993 after it came into force on 23rd March 1976. By Articles 1 and 2-5 in Parts 1 and 2 of the Int’l Covenant on Economic, Social and Cultural Rights (ICESCR) of 1st January 1976, the right of all peoples to self-determination, including the right to “freely determine their political status”, pursue their economic, social and cultural goals, and manage and dispose of their own resources is also importantly provided. It further recognizes a negative right of a people not to be deprived of its means of subsistence, and imposes an obligation on those parties still responsible for non-self governing and trust territories (colonies) to encourage and respect their self-determination.
The ICESCR’s Articles 2–5 establish the principle of “progressive realization ” – see the treaty on Wikipedia. It also requires the rights be recognized “without discrimination of any kind as to race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status”. The rights can only be limited by law, in a manner compatible with the nature of the rights, and only for the purpose of “promoting the general welfare in a democratic society (instituted and determined by the people)”. The Federation of Nigeria ratified the ICESCR on 29th July 1976 after it was opened for ratification on 1st January 1976.
The African Charter on Human & Peoples Rights of 1981 (ACHPR) otherwise called the Banjul Charter also uniquely recognizes collective or group rights, or peoples’ rights and third-generation human rights. As such the Charter recognises group rights to a degree not matched by the European or Inter-American regional human rights instruments. The Charter awards the family protection by the State
(Article 18), while “peoples” have the right to equality (Article 19),
the right to self-determination (Article 20), to freely dispose of their wealth and natural resources (Article 21), the right to development (Article 22), the right to peace and security (Article 23) and “a generally satisfactory environment” (Article 24) are also elaborately provided.
The Federation or Federal Republic of Nigeria not only ratified the ACHPR on 22nd June 1983, but also legislatively and presidentially domesticated it later in same 1983. The ACHPR is presently cited in Nigeria as the African Charter on Human and Peoples Rights
(Ratification and Enforcement Act, Cap A9), Laws of the Federation of
Nigeria 2004. Apart from ratification and domestication of the ACHPR by the Federal Republic of Nigeria, the Supreme Court of Nigeria also made the ACHPR municipally operable and enforceable. This is by virtue of the ApexCourt’s landmark decision in Gen Sani Abacha & Ors v. Chief Gani