RE-CONCEPTUALIZING THE RIGHT OF THE NIGER DELTA PEOPLES TO SELF-DETERMINATION AS INDIGENOUS PEOPLES AND NATIONAL MINORITIES IN INTERNATIONAL LAW: EXPLORING NEW HORIZONS AND RESEARCH POTENTIALS

I.          Introduction
Nigeria, with an estimated population of well over 140 million people,[1] is Africa’s most populous nation and the world’s largest collection of people of the black race.[2] There are over 250 ethnic groups in the country, who speak close to 400 languages.[3] However, there are clearly three ethnic majorities; the Hausa-Fulani, predominantly found in the northern part of the country, the Yorubas in the west and the Ibos in the East. The southern-most part of the country traditionally known as the Niger-Delta, is home to some of the country’s ethnic minorities, which include mainly the Ijaws, the Urhobos, Isokos, Ibibios, Itsekiris, Orons, Ukwanis, Ogonis, Effiks, Abribas, Andonis, and Ikwerres amongst other smaller minority groups.[4] The Niger-Delta itself comprise of a vast marsh land covering over 70,000  square kilometres of peculiar terrain located along the Atlantic coast of West Africa, between the Bights of Benin and Biafra in the Deltas of the Niger river, where it drains into the Atlantic Ocean.[5] The region is classified as the third largest wetlands in the world and the greatest extension of fresh water swamps in Africa. It has a panoramic mixture of wild life and ecology.[6] However, the Niger-Delta is not known for its rich bio-diversity as much as it is known for its large reservoir of crude oil and gas deposits, and its capacity to quench the global hunger for oil. Little is said or known about the deleterious effect which the crude business of crude oil has caused to the beautiful environment and rich bio-diversity of the region.[7]
Presently, Nigeria is listed as Africa’s second largest oil producer and the world’s sixth most important exporter of crude oil.[8] Most of this oil is found in small fields in the coastal areas of the Niger-Delta.[9] As a result, the entire Niger-Delta region (both onshore and offshore) is inundated with unmistakable signs of exploration and exploitation activities. The benefits of this oil production are huge for Nigeria, totally dominating the entire Nigerian economy.[10] However, the same thing cannot be said of the oil producing communities of the Niger-Delta; this region clearly epitomizes the phenomenon of the ‘curse of oil’.[11] Oil production in the region has had severe environment and human consequences for the indigenous peoples who inhabit the areas surrounding oil extraction. These indigenous minority communities receive little economic benefits from the extraction of the natural resources beneath their land. Development strategies focused at increasing foreign investment to boost exports in the oil industry have not resulted in overall development, especially in the Niger-Delta region; instead, the revenue gained has helped to benefit mainly foreign nations and Nigerian government elites more than native populations.[12] The only visible signs of oil operations that communities in the Niger-Delta live with, are pollution, degradation of the environment, destruction and waste of the natural resources, derogation of the values and culture of the indigenous people, and poverty.[13] The Federal Government of Nigeria and Multinational Oil Companies that operate in the region seem to act in concert with the aim of silencing the views of the people and denying their social conditions and state of underdevelopment. Agriculture, which used to be the mainstay of the Niger-Delta local economy and the people’s major means of livelihood, has been totally devastated by activities associated with oil extraction.[14] The people of the Niger-Delta believe that they have no substantial benefit to  show for their sacrifices despite being the ‘goose that laid the golden egg’ which translates to economic success that underpin  the unity of the Nigerian state.[15] The region is likened to the proverbial African axe that fetches the wood but sleeps in the cold.[16]

As a result of the deleterious activities of the oil companies in the Niger-Delta and the growing frustration of the indigenous peoples in the region to hold the Nigeria state and oil companies accountable for sustainable development in the area, including their inability to reasonably participate in the oil extractive industry on their land, beginning from the early 1990’s there has been mounting agitations from the people in patches of resistant  movements, sometimes organized at village or clan levels. These agitations have grown in strength, outlook and purpose over the past decade, which has now converged and taken the face of a more formidable militant guerrilla force.[17] Subsequent Nigerian governments have done little to alleviate the mounting agitations; rather, military incursions are used at every opportunity to bring down any uprising in a brutal manner. For examples, villages such as Ummuechem, Odi and Odioma were at different times practically razed down and people ranging from the high hundreds to the low thousands were killed and maimed by Nigerian military forces.[18]

After the hanging of Ken Saro-Wiwa in 1995[19] violence and militancy simply exploded, taking the next level. Militant groups operating in the Niger-Delta began to sabotage government and oil companies’ installation, kidnap and take oil expatriate workers hostage, extort oil companies, engage in illegal oil bunkering, and sometimes kill and maim their victims. At least, on two occasions, militants actually took responsibility for car bombs in regional cities, which killed few people, but symbolically marked the turning point in the conflict.[20] What is interesting is that the demands of the resistant forces and the various ethno-national groups fall short of absolute secession from Nigeria. These groups claim to invoke their right of self-determination as indigenous peoples[21] and ethnic/national minorities under international human rights regime for special protection of these category of people, to demand among other things, political and economic autonomy, convention of an autonomous sovereign national conference to re-negotiate the terms of national co-existence and unity, re-organization of the polity, resource control, repeal of obnoxious laws, development of minority ethnic languages and culture, and preservation of the region’s ecology and environment.[22] The Kaima Declaration for instance declared as follows:

All lands and natural resources (including mineral resources) within the Ijaw territory belong to the Ijaw communities and are the basis of our survival … we cease to recognise all undemocratic decrees that rob our people/communities of the right to ownership and control of our lives and resources, which were enacted without our participation and consent. These include the Land Use Decree and Petroleum Decree …”[23]



The conglomeration of ethno-nationality groups in the Niger-Delta has at various times attempted to present their case/claims as indigenous people to the government of Nigeria and the organs of the United Nations in order to rake up international sympathy and support for their cause.[24] Meanwhile, successive Nigerian and other foreign governments have continued to label and treat the Niger Delta militants are terrorists.[25] On the other hand, the militants consider themselves as liberation and resistant forces fighting for their right of self-determination as indigenous peoples, against the twin evil of eco-terrorism[26] and ecological war[27] perpetrated by the Nigerian government and Multinational Oil Companies against the Niger-Delta region and its indigenous inhabitants. They accuse successive governments of the Federal Republic of Nigeria of sundry offences, the topmost being the blundering of the natural resource beneath their land without any commensurate benefit to them, abuse of their common humanity and dampening desire for peaceful negotiation and constructive consultations with the people of the region.[28]

Until recently, the government of the Federal Republic of Nigeria insists that the activities of militants in the Niger-Delta constitute terrorism and that the militant groups are terrorist organizations who must be treated like any other common criminal. The current amnesty announced by the government however excludes all those who would lay down their weapons and collaborate with the government to address the numerous problems of the region. Still, despite this momentum, there is yet to be any comprehensive cessation of violence and hostilities between all the militants in the Niger-Delta and the Federal government of Nigeria.[29] A lasting truce is yet to be negotiated notwithstanding several past and present national and international efforts to achieve one.

This situation in Nigeria holds some real prospects in exploring several questions of international law. For instance, the situation could provoke an exploration into the relationship between the right of self-determination of peoples claiming that right as indigenous peoples and minorities in a post-colonial federal state (like Nigeria) and the concept of terrorism in international criminal law and how this interface with some aspects of international humanitarian law.  The purpose of this article is to streamline existing knowledge about the concepts of international law that have been raised in the scenario painted above, in order to illuminate the path of future researchers who may intend to delve deeper into the international law perspective of the Niger-Delta question. Thus, the paper does not focus on definitive results and conclusions in the interpretation of the concepts examined in relation to the Niger-Delta crisis; rather, attention is primarily given to preliminary research into the various concepts, with the view of identifying areas of future research prospects and provoking further scholarship within the subject area. That way, the methodology adopted in this paper is rare, but relevant in a scholarly environment for the purpose of engendering research. The paper is therefore arranged in four parts. The next section, part II examines the available works of scholars and experts on the concepts of self-determination and its interjacent with terrorism and aspects of international humanitarian law, and how these concepts may interface with the issues raised in the Niger-Delta conflict. Part III briefly states some proposed future hypotheses and prospective questions that may provoke further research. Part IV considers the relevance of prospective researches within the subject area, and finally, part V will contain brief conclusive remarks.

II.       Scholarly Context and Conceptual Framework



Few international human rights concepts have attracted such huge commentary and yet still remain largely an enigma as the concept of self-determination.[30] It has been variously examined from different perspectives. This paper proposes to discuss it from the viewpoint of rights accorded to two specially protected group species under international law. That is, indigenous peoples / populations and national / ethnic minorities. The paper hopes to re-visit the basic tenets of the concept especially when interpreted within the context of other aspects of international criminal, human rights and humanitarian law. A natural corollary of any discussion of the right of self-determination claimed by any of the above mentioned groups is the question of terrorism. This paper will dissect the numerous questions, which are raised as a result of the synchronization of these conceptual divides. The preliminary results from this exercise are then applied to the nuances and contradictions in the Niger-Delta brouhaha, giving room for further enquiry and research.

This part of the paper intends to establish the scholarly context and conceptual framework within which various research hypotheses / questions would be develop, for the purpose of future research. It also contains a brief literature review of current thinking of experts in the field. This part is relevant because it exposes the current scope and limitations of research already conducted by expert within the area of interest and caves a niche for the future research topics within the already established literature and scholarly works.



i).        Self Determination: Meaning, Contents and Beneficiaries



The concept of self-determination is probably one of the most problematic, elusive and vague concepts in international law.[31] Nevertheless, it has attained the status of erga omnes obligation in customary international law for the observance of all states.[32] It has been observed that the right to self-determination first appeared in positive international law in Article 1 and 55 of the United Nations Charter.[33] Cassese has however noted that the right was introduced as a norm of international relations as far back as during the First World War through separate contributions of the socialist leaders, Joseph Stalin and Vladimir Lenin[34] and the American President, Woodrow Wilson.[35]

Ever since it found its way into the United Nations’ Charter the concept has remained a recurrent decimal in numerous international instruments and is now central in the jurisprudence of international human rights law.[36] The avalanche of international legal instruments which have provided for the right have all proceeded under the premise that ‘all peoples have the right of self-determination by virtue of which they are entitled to freely preserve their economic social and cultural development’.[37] From this premise, writers and commentators have tried to mould a definition of the concept in order to better understand the right; though this vary considerably as wide as the list of authors. One eminent scholar summed it up as follows:-



The right of self-determination may be defined as the right of a people or a nation to determine freely by themselves without any outside pressure their political and legal status as a separate entity, preferably in the form of an independent state, the form of government of their choice, and the form of their economic, social and cultural system[38]



Another attempt recognizes five themes around which the claim of self-determination is advanced: human rights for the individual level; minority rights for the sub-national level; national independence for the national level; regional integration for the regional level; and a global central guidance system.[39]  Gunmunder Alfredsson however offers five possible meanings of the right of self-determination:

1.      The right of the people to determine its international status, including the right to independence, sometimes referred to as external self-determination;



2.      The right of a state population to determination the form of government and to participate in government, sometimes extended to include democratization or majority rule and sometimes called internal self-determination;



3.      The right of a state to territorial integrity and non-violation of its boundaries, and  to govern its internal affairs without external interference;



4.      The right of a minority within or even across state lines to be free from discrimination, but possibly the right to cultural, educational, social and economic autonomy for the preservation of group identities. Indigenous peoples may want to have the right to their land added to list of special rights;



5.      The right of a state, especially claimed by the developing countries, to cultural, social and economic development.



These varied definitions, and so many others leads credence to the argument that though the right of self-determination has been included in international legal instruments, the provision of this right in the instruments actually conveys little meaning in terms of the scope, content and beneficiaries of the rights created. This lack of clarity has indeed contributed to the reason why the concept has remained so problematic. The Québec study[40] for instance acknowledged the major problem associated with the concept of self-determination in one sentence as follow:



“central to the debate which we do not claim to resolve, on the scope of the principle of the right of self-determination, is the fact that though there is no doubt that all peoples have the right  to self determination there is no universally accepted definition of the word ‘peoples’ nor of the notion of self-determination”.[41]



The study, which focused on the international legality of Québec secession from Canada, dwelled extensively on two of the most contentious aspects of the right of self-determination; that is, what should be included in the right, or its contents, and who can access the contents of the right, or subjects of the right. Vyver, in his article wrote that for the concept of self-determination to be understood in international law, certain presuppositions must be constantly borne in mind.[42] He noted that the concept of self-determination has over the years acquired different shades of meaning, which must be clearly distinguished, and that the meaning to be ascribed to the concept at any particular instance must always be determined by the identity of the “people” who have a claim to that right.  The writer identified three phases in the development of the right of self-determination. In the first phase, the writer maintained that the concept was used to legitimize the disintegration of some of the powerful empires during the early part of the 20th century.[43] At this stage, secession of “peoples” from these empires was the focus of the concept and the right was vested in ethnic communities, nations or nationalities primarily defined by language or culture.[44] According to Vyver’s thesis, in the second phase of development of the right, it acquired a distinctly anti-colonial nuance in the post-World War II era. It is good to note that most writers and commentators dwell so much on this era, which was the defining moment of the United Nations’ approach to the concept, as the bedrock of the promotion of freedom from subjugation.[45] These writers have refused to move beyond the era of U.N approach to the concept. In this second phase, according to Nathaniel Berman, self-determination was a right of peoples that do not govern themselves, particularly, peoples dominated by geographically distant colonial powers.[46] Numerous U.N instruments repeatedly ascribed the right of self-determination exclusively to three kinds of peoples, i.e. peoples under colonial domination, peoples subject to alien occupation and peoples under racist regimes.[47]

The third phase of Vyver’s thesis, in his words “chronologically emerged somewhat later than the decolonization phase but cannot be separated from the latter in terms of time”.[48] The writer believes that self-determination in this phase is seen as a certain entitlement of segments of the population of independent, non-racist states. Though, the veracity of this claim may not be acceptable to all, this phase of Vyver’s thesis is fairly popular with contemporary experts and commentators. Antonio Cassese for instance, opined that the right to self-determination as enunciated in Article 1 of the International Covenant on Civil and Political Rights 1966 was not confined to non-independent people but also belong to national or ethnic groups constitutionally recognized as a component part of a multi-national state.[49] If this statement is true, then perhaps the people of the Niger-Delta region of Nigeria who are clearly national and ethnic minorities may after all be entitled to exercise their right of self-determination. The propriety or otherwise of the method which they choose to use to exercise that right is however a different consideration. Thus, any further research on the rights of the Niger-Delta people to self-determination must be premised on this third phase of the interpretation of the concept. Gaetano Arangio - Ruiz points out that the U.N Declaration on Principles of International Law Concerning Friendly Relations and Co-operation Among States in Accordance with the Charter of the United Nations of 1970[50] made the right of self-determination applicable to ‘all peoples’ irrespective of their political arrangement.[51] So also is the Helsinki Final Act of 1975,[52] which defines the right of self-determination of peoples as entitling “all people always…in full freedom, to determine,…without external interference, and to pursue as they wish, their political, economic, social and cultural development”.[53]

The term ‘peoples’ has been interpreted so widely that national/ethnic minorities[54] and indigenous peoples could easily be identified within this group, which is entitled to exercise the right of self-determination. In the Greco-Bulgarian Communities Case of 1930, the Permanent Court of International Justice gave the following definition of the “general traditional conception” of a community, which in contemporary usage would be called “a people”



the community is a group of persons living in a given country or locality, having a race, religion, language and traditions of their own and united by the identity of race religion, language and traditions in a sentiment of solidarity, with a view to preserving their traditions, maintaining their form of worship, ensuring the instruction and upbringing of their children in accordance with the spirit and tradition of their race, and rendering mutual assistance to each other[55]



The UNESCO experts[56] also discussed the characteristics of what may be termed a ‘people’. They however rejected the temptation to be drawn into the definition quagmire.



“inherent in a description (but not a definition) of a ‘people’… A group of individual human beings who enjoy some or all of the following common features

a)      a common historical tradition

b)                  racial or ethnic identity

c)                  cultural homogeneity

d)                 linguistic unity

e)                  religious or ideological affinity

f)                   territorial connection

g)                  common economic life



This description of “peoples” may be very useful when analyzing the features of the people of the Niger-Delta region of Nigeria in the process of determining whether they are entitled to the status of ‘peoples’ for the purpose of the right of self-determination. As regards the mode of exercising the right of self-determination which is otherwise also referred to as the content of the  right, the major controversy is whether a ‘people’ could rightly claim a right to secede in their exercise of the right of self-determination.

In the opinion of Hannum, since the act of secession conflicts with the territorial integrity of states, the U.N had chose to reconcile the conflict in the exercise of the right of self-determination by providing for the right of self-determination in only two instances. That is, the right of freedom for a colonial people or external self-determination, and the independence of a state’s population from foreign intervention or internal self-determination.[57] Neuberger, agrees with Hannum that drafters of the United Nations Charter never intended it to support a right of secession, and that U.N practice during decolonization in Africa supports this conclusion.[58] He also agrees that the content of the right of self-determination can be divided into internal and external aspects. However, he departs from Hannum by arguing that there is no inherent link between independence and self-determination. To him, external self-determination is true independence for a state, as for example, Nigeria’s independence from Britain in 1960, or an international recognition of ‘peoplehood’, for example East Timor.[59] He argues that internal self-determination can be autonomy or federalism for a distinct people within a state,[60] for example, a democratic state like Québec in Canada or non-democratic state like the Georgians in the former USSR, or even a conglomerate of democratic federating units within a democratic federal state like the federating states that make up the Niger-Delta region of Nigeria. Neuberger, further categorizes self-determination into ‘grand self-determination’, which to him entails true internationally recognized sovereignty and ‘small self-determination’, which deals with the internal structure and politics of the state.[61]

Vyver, denies any correlation between self-determination and the right of secession.[62] He asserts that a ‘peoples’ right to self-determination does not include a right to secede, not even in instances where the dominant group acts in breach of the peoples’ legitimate expectations.[63] Vyver, reasons that “international instruments which proclaim the right of self-determination almost invariably also provide for the inviolability of the territorial integrity of existing states and thus, self-determination must necessarily denote something less than secession”.[64] To him, self-determination of peoples is a matter of national independence in the case of peoples subject to colonial rule or foreign domination; participation in the political processes of a country in cases where the people concerned have been denied such participation on a discriminatory basis; and ‘sphere sovereignty’ of peoples, that uphold a strong (sectional) group identity within a political community.[65] Vyver’s argument may be summarized simply to mean that the modes of exercising the right of self-determination may vary according to the kind of people who claim the right, depending on the characteristics which they exhibit. Other authors who seem to agree with Vyver’s argument have decided to look elsewhere in the face of stiff opposition to secession as a mode implementing the right of self-determination. These writers have thus identified such concepts as ‘federalism’,[66]  ‘consociational democracy’,[67] ‘self-government’,[68] and ‘autonomy regimes’[69] as the true expression of the notion, meaning and content of self-determination.[70]

However, notwithstanding the widespread rejection by experts of secession as a corollary of the exercise of the right of self-determination, majority of literature on this subject tend to accept the existence of the right in exceptional circumstances. Many authors are of the opinion that there is a right of secession if the people concerned are discriminated against in such a way that their existence within the state could not be demanded any longer, or where the invocation of the right could hardly be evaded by any other means.[71] Even Vyver, at some point in his thesis seem to accept the inevitability of secession in certain circumstances. He states that in terms of the Declaration on Principles of International Law Concerning Friendly Relations and Co-operation among States in Accordance with the Charter of UN, secession (or the reconstruct of national frontiers) will indeed be lawful, provided the decision to secede be freely determined by a people.[72] He however opines that secession is only recognized in international law in two instances, that is: if a decision to secede is freely determined by a people, that is to say, by a cross-section of the entire population of the state to be divided (but not only the inhabitants of the region wishing to secede), and secondly, if following armed conflict national boundaries are re-drawn as part of the peace treaty.[73]



ii.        Self-Determination and the Rights of Indigenous Peoples



There is a large body of literature on the right of indigenous peoples to self-determination. However, the concept of indigenous peoples’ rights itself is fairly recent, emerging in the post-World War II era as a result of agitation from indigenous peoples of the Americas, Australia, New Zealand and other parts of the world.[74] The campaign for indigenous rights gained momentum in the 1960s and 1970s and it achieved tremendous results. Anaya and Williams, reports that not only did indigenous peoples’ right attain the front burner in international human right discourse, but also new standards concerning the rights of indigenous peoples have significantly influenced the works of several international human rights bodies and other international institutions like the World Bank, the Inter-American  Development Bank, the European Union, domestic legislations and policies, and judge-made law of states.[75]

Most writers on the right of indigenous peoples tend to associate the claims of this group of peoples to some sort of historical argument. The usual argument is the historical pre-existence of the people on the land prior to the formation of the modern state, and their eventual colonialization by the dominant group. Some of the literature concludes that in most cases, during the process of colonialism, the colonialists used strategies such as negotiation and persuasion in order to penetrate the strongholds, which resulted in the signing of agreements and treaties between the conquering powers and the indigenous peoples, most of which were hardly kept.[76] Sunders, termed this type of argument ‘historical-legal’ form of justifying indigenous peoples’ claim of rights.[77]

There is also a real problem of the definition of ‘peoples’ who may be qualified to be called indigenous. Most of the definitions however tend to emphasis the historical and pre-occupation characteristics of the people. Professor Kingsbury in his analysis of the various definitions of indigenous peoples drew extensively from the criteria and definitions provided by two different chairperson- Rapporteur of the U.N Working Group on Indigenous Populations, Mr. Jose Martinez Cobo[78] and Professor Erica Irene Daes.[79] He concludes by listing as “essential requirements” of an indigenous people, self-identification as a distinct ethnic group; historical experience of, or contingent vulnerability to severe disruption, dislocation or exploitation; long connection with the region; and, wish to retain a distinct identity. As ‘strong indicia’, he mentions non-dominance in the national (or regional) society (ordinarily required); close cultural affinity with a particular area of land or territories (ordinarily required), and historical continuity (especially by descent) with prior occupants of land in the region.[80] He also mentioned as ‘other indicia” socio-economic and socio-cultural differences from the ambient population; distinct objective characteristics such as language, race and material or spiritual culture; and, regarded as indigenous by the ambient population or treated as such in legal and administration arrangements.[81] These sets of indicia would make interesting criteria for the investigation of the indigenous status claimed by the people of the Niger-Delta region of Nigeria.

Wiessner, seems to identify what he calls the five basic claims of indigenous peoples: (a) traditional lands should be respected and restored, as a means of indigenous peoples physical, cultural and spiritual survival; (b) indigenous peoples should have the right to practice their traditions and celebrate their culture and spirituality with all its implications; (c) they should have access to welfare, health, educational and social services; (d) conquering nations should respect and honour their treaty promises; and (e) indigenous nations should have the right of self-determination.[82] Wiessner, observes with respect to these claims that “a consensus has emerged which has been translated with whatever imperfections, into widespread, virtually uniform state practice”.[83] He however cautioned that the real controversy is about the prospects and best proposals for enforcement of any catalogue of indigenous rights.[84]

Intrinsic in Wiessner’s poser, is the question of the mode of implementing the right self-determination of indigenous peoples. That indigenous peoples are entitled to demand and exercise the right of self-determination is no longer a matter of controversy.[85] However, how they should exercise that right is the problem. This controversy is caught between the so-called concepts of internal and external self-determination in the context of indigenous peoples, in terms of whether in the exercise of that right, indigenous peoples are entitled to the right of secession or whether they should only expect to enjoy internal reconstructing and autonomy. There are so many views that have been put toward by experts and commentators in resolution of this controversy,[86] including a provision in the Declaration on the Right of Indigenous Peoples.[87] However, Anaya’s thesis is the most interestingly outstanding and worthy of mentioning.[88] He defiled the common argument of most writers on this issue and instead suggests a re-conceptualization of the right of self-determination. He proposes that the right of self-determination entails two distinct aspects: the substantive and remedial forms. The substantive aspect in turn consists of “constitutive self-determination”, which according to him describes the formation of the governing  structure and the ‘minimum levels of participation’ of the people in that process,[89] and “ongoing self-determination” which describes the ‘governing order under which individuals and groups are able to make meaningful choices touching upon all spheres of life on a continuous basis’.[90] Anaya believes that these two aspects taken together account for the entire substance of self-determination: meaningful participation in the formation of a governing system, and meaningful participation in the on-going functioning of that system. However, according to him, where the substantive aspect fails, then the remedial prescription of self-determination is immediately evoked. This remedial aspect may involve a whole lot of possibilities ranging from reconstructing of the governmental order, autonomy or self-government and even succession, depending on the degree of violation of the substantive aspect.

Anaya’s thesis focuses on isolating cases and instances of violation of the substantive norm of self-determination and constructing a remedy that will best redress the violations’ constitutive and on-going elements.  It is therefore applicable to all categories of peoples, including indigenous peoples.  In his view, the remedies “need not entail the formation of new states” although secession “may be the appropriate remedial option in limited contexts where substantive self-determination for a particular group cannot otherwise be assured or where there is a net gain in the overall welfare of all concerned”.[91]

iii.      Indigenous Peoples’ Rights of Self-Determination versus Terrorism



The most problematic issue in the operational right of self-determination is the attempt to distinguish between a group of people involved in a legitimate struggle for their right of self-determination and terrorists. Experts and commentators have admitted that there is only a thin blue line that distinguishes the two concepts. Unfortunately, they also admit that states and governments against whom armed force is used in pursuit of the claim of self-determination usually consider those using force as terrorists.[92] The debate really, is whether those in who reside the right of self-determination could legitimately use armed force to realize that right against the backdrop of established principle and rules of international law against terrorism. The debate necessarily encapsulates the rights and status of national liberation movements in contemporary public international and humanitarian law. An analysis of the different shades of opinion of experts and commentators on this very important aspect of the interjacent between international human rights law, international criminal law and international humanitarian law, would be useful as conceptual framework in studying the contradictions that may have arisen in the Niger-Delta crisis, which constitute the fundamental problem that may be sought to be addressed in any prospective future research in the subject area.

It has been suggested that the controversy over the exact meaning, content and beneficiaries of the right of self-determination and the means and methods, which may be utilized to exercise or enforce that right, has been the major obstacle to the development of both a comprehensive definition and treaty on terrorism.[93] This has in turn detrimentally affected the status of ‘peoples’ struggling for their right of self-determination. The international community has really not helped matters in this regards because in the course of adopting treaties on aspects of international terrorism, it has often included specific language that reaffirms the right of self-determination and uphold the legitimacy of the struggle of National Liberation Movements.[94] Several General Assembly resolutions on the subject of terrorism have consistently reaffirmed the legitimacy of self-determination and the struggle for national liberation against colonial, racist and alien regimes, while condemning terrorism.[95] In addition, some of the regional instruments relating to the prevention and suppression of terrorism have made it clear that a prohibition of terrorist acts cannot prejudice the right of self-determination.[96] The application of these international instruments has been clarified by Cristescu[97] who has pointed out that what distinguishes ‘people’ having the right to self-determination from groups that do not, include generally, a history of independence or self-rule in an identifiable territory, a distinct culture and a will and capacity to regain self-governance.[98]

It is generally agreed that a necessary component of the right to self-determination is the right to its realization and the right to take steps to that end.[99] However, the precise scope of this right as a right to use armed force, to revolt, rebel or engage in war of national liberation is what has held the attention of writers. Notwithstanding the international instruments that seem to legitimize the struggle of some class of people for self-determination by using all appropriate means at their disposal, it is suggested that international law has never recognized an unlimited right to use armed force by any group.[100] In spite of this, some scholars insist that there is an automatic link between the right of self-determination and the use of force,[101] while others require the occupying power forcibly to deny self-determination before the right to use force ripens.[102] In either case, it has also been remonstrated that the application of both jus cogens and erga omnes obligation to the right of self-determination may justify the granting to those using force a higher status as combatants rather than terrorists in international humanitarian law.[103]

If and when a people fighting for their right of self-determination are classified as “combatants” which is highly contested and also depends on the circumstances, that fact still does not free them from fulfilling their obligations under humanitarian law not to engage in terrorist acts.[104] Kalliopi in her report believes that a group carrying out “military operations” in defence of the right of self-determination must act legally, otherwise it will be denied combatant status if the preponderance of its operations are acts of terrorism or that which violate international humanitarian law.[105] Other scholars have argued that in view of the lopsided nature of armed struggle between groups fighting for their right of self-determination and the state machinery (asymmetric conflicts), it will be in bad faith to label such groups, terrorists even if they engage in activities similar to terrorism.[106] This kind of open-ended blanket cheque is however cautioned by many scholars. One writer argues that actions and activities of such mentioned groups may be considered legitimate as long as certain strict requirements are fulfilled: incumbent authorities are unquestionably oppressive and do not leave any room for democratic change; the sole purpose of the ‘terrorist’ action is to achieve some degree of freedom; no innocent civilian is among the victims; and no inhumane or degrading treatment is meted out to the people attacked.[107]

In general, the extension of international humanitarian law to wars of self-determination in the Additional Protocols (1977) to the four Geneva Conventions of 1949, have provided an additional framework through which to assess many acts of politically based violence, and in particular, violent acts which otherwise might be characterized as acts of international terrorism. As noted by one expert, in view of Article 1, paragraph 4 of Additional Protocol I, some national liberation struggles can now be recognized theoretically as “internationalized” from the start, while in view of Article 96, paragraph 3 of the same Protocol, some indication of willingness of liberation groups to comply with the provisions of humanitarian law can further facilitate a differentiation between ‘terrorists’ and ‘freedom fighters’, thereby allowing a re-characterization of some alleged terrorists for purposes of prosecution.[108] The only problem with this proposition with respect to our area of interest is with the criteria for determining when violence reaches the point that humanitarian law governing civil wars applies. When a group engaged in armed violence claims to do so in defence of its right of self-determination, but fails to meet the criteria which will invoke the protection of humanitarian law, for instance if it fails the criteria of organized command, or carrying arms openly, or sustained and concerted military operations as opposed to “sporadic” acts of violence,[109] it risks the chance of been doomed as terrorists. Kalliopi in her Report suggests that notwithstanding the criteria, most states rarely review objectively the level of military violence when faced with armed resistance, to determine whether or not the fighting qualifies under the Additional protocol II. Instead, these states prefer to mischaracterize the situation as one of “terrorism and counter terrorism”.[110] She observes that there is a disturbing trend to label any group involved in a situation that might even be called” imperfect” or “defective” civil war as necessarily terrorists even though a particular group may rarely or never engage in what would be viewed as terrorist acts in armed conflict.[111] Her conclusion is that situations of violence not reaching the minimum criteria for non-international armed conflict must not necessarily be classified as terrorism. In such situations, actual acts of the groups involved should be objectively evaluated to determine whether the acts are considered legal military operations or terrorist acts. If a mix is found, then there should be a balancing of the activities, only when the preponderance of acts are terrorist acts should the group be considered terrorists.[112] Persons or groups not considered terrorists can still be held accountable under national criminal laws, as the situation does not invoke humanitarian law rights. But such fighters should not necessarily be tried using terrorism laws, nor should their supporters be considered as abettors.[113]

In concluding this conceptual framework, let me quote from a statement made in the “Geneva Declaration on Terrorism” issued at the end of the Conference of the International Progress Organization (IPO) in 1987:



we don’t want terrorism, but we must emphasize that the terrorism of nuclear weapons, criminal regimes, state atrocities, attacks with high-technology weapons on Third World peoples and the systematic violation of human rights are far, far worse. It is cruel extension of the scourge of terrorism to classify the struggle against terrorism as ‘terrorism’. We support these struggles and we call for clear political terminology together with the liberation of humanity.[114]



III.       Prospective Areas of Inquiry



Having fairly mentioned some of the gray areas of research in the above exposition, it is incumbent to consider the issues that may constitute the fulcrum of any future prospective research within the subject area. For instance, if the Niger-Delta situation is to be located within the context of the existing knowledge and literature on the international law concepts under review, a gasping vacuum in available research is immediately exposed as regards the following:-



a)      The role / influence of western colonialism in fortifying the phenomenon of internal colonialism in Africa and particularly Nigeria, and how this robs off on the demands for political and economic self-determination by minorities and indigenous peoples (especially in the Niger-Delta region); the means and methods of such demands and the eventual categorization of such agitations.



b)      How a ‘people’ or ‘nation’ indigenous to an area should lay claim to the right of self-determination in a post-colonial federal state like Nigeria, where they clearly constitute a national and ethnic minority.



c)      Whether the struggle of indigenous peoples and minorities for internal self-determination can be termed ‘terrorism’, when they did not consent to their participation in the federal state, in this case the federal government of Nigeria.



d)     Whether the international law exclusion of ‘national liberation fighters’ from the list of ‘terrorists’ may preclude the struggle of the people of the Niger-Delta for liberation from internal colonialism as a nation within a nation.



e)      Whether the people of the Niger-Delta as an entity may qualify to be called ‘peoples’ who are entitled to the right of self- determination within the framework of the concept of indigenous people and national minorities, in view of the diversity of the various peoples of the region?



f)       Whether there are any impediments militating against the rights of the Niger-Delta peoples to self-determination in the Nigerian polity.



g)      Whether the activities and actions of the federal government of Nigeria in the Niger-Delta region constitute state terrorism, eco-terrorism or ecological war against the people of the region.



h)      What the implication of the current effort of the Nigerian Government to address the Niger-Delta crisis by granting amnesty to the Niger-Delta militants is, in terms of appropriateness, political will and the legitimacy of the Niger-Delta struggle.



Conclusively, the major hypotheses that may be drawn from an examination of the subject area is whether the assertion of the right of self-determination by aggrieved indigenous peoples and minorities would exclude the crime of terrorism under contemporary customary and codified international law.

VI.     How Can Prospective Research in the Subject Area be Relevance?



            Any future research within the subject area of this article will achieve four clearly discernable contributions to the existing body of literature. This is because, though we cannot claim to have read all the relevant literature that directly or in some way remotely touch on the subject area, it is obvious from the bulk of literature available that the significance of any prospective research will lie in exploiting the shortcomings in the entire research so far conducted within the area of interest and then looking at the key concepts from a perspective which has not already been adequately and fully explored by scholars and researchers. Thus, the following may be considered as the prospective relevance of any future research within the subject matter of this article:-



a)      To revisit and re-appraise the theoretical connection and relationship between the concepts of terrorism and the international human rights of indigenous peoples and minorities which is rarely explored and highlighted in relevant literature. Most of the known research conducted on the concept of terrorism is generally focused on the types of terrorism, the actors, motives, methods and legal regime for prevention and enforcement of the crime of terrorism. The closest the literature so far known to this researcher has come to exploring the relationship between terrorism and the right of self-determination is generally in the investigation of the status and activities of national liberation movements. Little is known about the struggles of indigenous peoples and minorities. Any prospective successful research must therefore be designed to take advantage of this lacuna and explore this seemingly virgin field of research with the view of advancing new theories and helping to develop the subject area within the context of the Niger-Delta crises in Nigeria.



b)     It will reopen debate on critical aspects of studies that converge between issues in international criminal law, international human rights law and humanitarian law. This connection has so far been largely ignored by scholars.



c)      It will investigate the significant difference between the claims of peoples or nations in other parts of the world like the Americas, Australia and New Zealand and the claims of nations in Africa especially people in the Niger-Delta region of Nigeria to the status of indigenous people. This is in view of the observation that the colonial experience and subsequent contemporary experiences of the natives in these different regions is not the same. There was settler colonialism in all of the Americas, Australia and New Zealand while the same cannot be said of most parts of Africa, especially Nigeria where independence was attained and sovereignty / governance returned back to the natives who are ably represented in national politics of these countries. Any research in this area will contribute significantly to the study of indigenous peoples in Africa.



d)     By situating and seeking to understand the Niger-Delta conflict broadly within the context of international human rights regimes for the protection of the rights of indigenous peoples and minorities, international humanitarian law and international criminal law, any prospective research will ultimately proffer viable solutions to the conflict facing the region, the resolution of which will once again ensure the free flow of crude oil to ease the demand problems of the commodity in the world.



V.        Conclusion



            By way of conclusion, this paper has set out the blueprint for future research of the situation in the Niger-Delta region of Nigeria, within the framework of international human rights law and international criminal and humanitarian law. Though, the paper does not profess to make conclusions on the status of the Niger-Delta people and the militants in the region, as to answer the question of their qualification as indigenous peoples, national minorities, or liberation fighters, or even terrorists; however, the paper has fairly set the tune for numerous perspectives of examining the Niger-Delta issue, within the scheme of already established research in international law. Thus, it is the hope of this writer that the paper will succeed in stimulating the necessary research about a situation, which is though domestic, has the potential of spreading beyond the borders of Nigeria, not only in Africa, but also in the entire world, in terms of political and economic consequences.









* H. P. Faga, LL.B, LLM, B.L, (Ph.D Candidate) Lecturer, Department of international Law & Jurisprudence, Faculty of Law, Ebonyi State University, Abakaliki, Ebonyi State, E-mail: hemenfaga@gmail.com, h.faga@yahoo.com

[1] This figure was released by the National Populations Commission as the result of the 2006 national census in the country, see, NPC Releases 2006 Population Figures, Nigerian Village Square, on-line material available at http://www.nigeriavillagesquare.com/index.php?option=com_content&view=article&id=4708 (last visited 22/11/2009. The break down of the figure shows that the North West has a population of 35,786,944, the North Central - 20,266, 257, North East - 18,971.965, South West - 27,581,992, South East - 16,381,729, and South-South - 21,014, 655. See, Chidi Anyaeche, The 2006 Nigerian Census Figures, on-line material available at http://nigeriaworld.com/articles/2007/jan/112.html (last visited 22/11/2009)

[2] See, Akpobibibo Onduku, The Lingering Crisis in the Niger-Delta; Field Work Report, Peace, Conflict & Development: An Interdisciplinary Journal, June 2003, pp. 2-3, available at http://www.peacestudiesjournal.org.uk/dl/OilConflict.PDF. There are 36 federating units called states in Nigeria including a federal capital territory at the heart of the country, called Abuja, see generally, NIGERIA: COUNTRY PROFILE, web available at http://www.nationsonline.org/oneworld/nigeria.htm (last visted 22/11/2009)

[3] Akpobibibo Onduku, id, p.2

[4] It is estimated that the Niger-Delta region is home to more than 40 ethnicities, 250 dialects and 3000 communities. Together, all the communities comprise of one fourth of Nigeria’s population (approximately 35 million people). See generally, The International Crisis Group, “The Swamps of Insurgency: Nigeria’s Niger-Delta Unrest”, Africa Report, No. 115-3, August 2006. See also “Nigeria Petroleum Pollution in Ogoni Region”, TED Case Studies, No. 149, (unpublished work) para 2, available at http://www1.american.edu/TED/OGONI.HTM. See, Human Rights Watch, “The Price of Oil: Corporate Responsibility and Human Rights Violations in Nigeria’s Oil Producing Communities, 1999(hereinafter referred to as THE PRICE OF OIL).

[5] See, The Niger-Delta Development Commission (NDDC) Profile, 2001, available at www.nddconline.org. The whole Niger-Delta region is traversed and criss-crossed by a large number of rivers, rivulets, streams, canals and creeks. It is a vast flood plain built up by accumulation of centuries of silt washed down the Niger and Benue rivers and composed of four ecological zones, coastal barrier islands, mangroves, fresh water swamp forests and lowland rainforests. The mangrove forest of Nigeria is the third largest in the world and the largest in Africa; over 60 % of this mangrove is found in the Niger-Delta. The fresh water swamp forests of the Niger-Delta reach 11, 700 square kilometres and are the most extensive in West and Central Africa. The Niger-Delta region has the high biodiversity characteristic of extensive swamp and forest areas, with many unique species of plants and animals. See generally, THE PRICE OF OIL, id, (Chap. V). But for more information on the area and environment of the Niger-Delta, see, World Bank: Defining an Environmental Strategy for the Niger-Delta, (Washington DC: World Bank, May 1995); David Moffat and Olof Linden, “Perception and Reality: Assessing Priorities for Sustainable Development in the Niger River Delta”, Ambio ( A Journal of the Human Environment), vol. 24, No.7, 8, December 1995, (Stockholm Royal Swedish Academy of Sciences, 1995). See also H. P. Faga, “Taming the Tiger in the Niger-Delta: the Role of Law in the Niger-Delta Question: Whither”, Akungba Law Journal (Publication of Faculty of Law, Adekunle Ajasin University, Ondo State, Nigeria, vol. 1, No. 2, 2008, p. 299

[6] See Patterson Ogon, “ Land and Forest Resources Use in the Niger-Delta: Issues in Regulation and Sustainable Management”, available at http://globetrotter.berkeley.edu/GreenGovernance/papers/Ogon2006.pdf, p.6  

[7] Nnimmo Bassy, Oil Watching in South America: A Pollution Tour of Venezuela, Caracas, Peru & Ecuador, Environmental Rights Action, Nigeria, 1997 

[8] See, Akpobibibo Onduku, op. cit. note 2, p.3. see also THE PRICE OF OIL, op. cit. note 4, (Chap. III), ( gives the statistics of oil production in Nigeria, stating that most of Nigeria’s oil is exported to U.S and Western Europe and that Nigeria is the fifth largest supplier of crude to the U.S.), id

[9] Environmental Resources Managers Ltd: “Niger-Delta Environmental Survey, Final Report, Phase 1”, Vol. 1: Environmental and Socio-Economic Characteristics (Lagos: Niger-Delta Environmental Survey, September 1997), p.195, ( the report estimated that in 1997 there were 159 oil fields producing from 1, 481 wells on-shore in the Niger-Delta), id

[10] For instance, it is estimated that today crude oil exports make up 98% of Nigeria’s annual exports, over 80% of government’s annual revenue and 70% of budgetary expenditure, see, TED Case Studies, op. cit. note 4, para 16; Akpobibibo Onduku, Op. cit., note 2, p.3. Kaniye S. A. Ebeku traced the role of crude oil in the Nigerian economy from the 1970s and found that federal government’s revenue from oil rose from 17% in 1971 to 71% in 1973 and to 86% in 1975, and the pattern has remained the same since then, so that in the 1990s oil revenue accounted for over 90% of foreign exchange receipts and in 2000, 83.5% of the total gross revenue, see Kaniye Ebeku, Oil and the Niger-Delta People: The Injustice of the Land Use Act”, Journal of Energy, Petroleum and Mineral Law and Policy, University of Dundee, 2000

[11] See, H. P. Faga, Op. cit. note 5, p.305. See also, Samuel R. Schubert, “Revisiting the Oil Curse: Are Oil rich Nations Really Doomed to Autocracy and Inequality? Munich Personal RePEc Archive, MPRA Paper, No. 10109, August 2006(published in Oil & Gas Business, 2006), pp. 2-3

[12] TED Case Studies, Op.cit., note 4, para 2

[13] Patterson Ogon, Op.cit., note 6, p.7. A federal government official estimate of the level of poverty in the Niger-Delta is as high as 70% of the population who live in severe poverty defined in terms of disposable income, healthcare and educational attainment, safe water, shelter, and gainful employment, see id. See also the Niger-Delta Regional Development Master Plan, available at www.nddconline.org

[14] Farming and fishing activities used to account for 90% of all forms of activities in the area, and an estimated 50% - 68% of the active labour force in the Niger-Delta were involved in agricultural activities before the adverse effect of oil exploitation finally caught up with the region. For more details on the deleterious effects of oil extraction on the agricultural and social environment of the Niger-Delta, see Worgu Stanley Owabukeruyele, “Hydrocarbon Exploitation, Environmental Degradation and Poverty in the Niger-Delta Region of Nigeria”, (Paper presented at Lund University, LUMES Program, 2000. Available at www.lumes.lu.se/student99/stanleyw/econs-paper.PDF

[15] Akpobibibo Onduku, Op.cit, note 2, p.4

[16] Patterson Ogon, Loc.cit, note 6

[17] See, International Crisis Group: The Swamps of Insurgency, Op.cit, note 4, p.1. initially there were smaller ethno-nationalist resistant movements like the Ken Saro Wiwa’s Movement for the Survival of the Ogoni People (MOSOP), the Ijaw  Youth Council and the Federated Niger-Delta Izon Communities Movement (FNDIC), however larger forces comprising the entire Niger-Delta ethnic groups have begun to spring up, like the Alhaji Dokubo Asari’s Niger-Delta People’s Volunteer Force and the Movement for the Emancipation of the Niger-Delta (MEND), id, p.1 – 2                                                                                                                                                      

[18] See, swamps of Insurgency, id, pp. 6 – 7; THE PRICE OF OIL, Op.cit, note 4, (Chap. VIII); World Council of Churches (1996), “ Ogoni: The Struggle Continues, Geneva, WCC; Human Rights Watch, “ The Ogoni Crisis: A Case Study of Military Repression in South-Eastern Nigeria “, July 2005; Amnesty International, “ Ten Years On: Injustice and Violence Haunt the Oil Delta”, November, 2005                                                                                

[19] The Price of Oil, id; “Swamps of Insurgency” id, p.5; “TED Case Studies” Op.cit, note 4. The closing statement by Ken Saro Wiwo after his conviction and sentence by the military Tribunal became the rallying slogan of militant groups – “In my innocence of the false charges I face here, in my utter conviction, I call upon the Ogoni people, the people of the Niger-Delta, and the oppressed ethnic minorities of Nigeria to stand up now and fight fearlessly and peacefully for their rights. History is on their side. God is on their side, for the Holy Quran says in Sura 42, verse 41: ‘All those that fight when oppressed incur no guilt, but Allah shall punish the oppressor’, TED Case Studies, id.

[20] See “Swamps of Insurgency” Op.cit, note 4, pp.1-2, 29

[21] All the major ethnic groups in the Niger-Delta lay claim to nationhood as indigenous people who are entitled to self-determination. They support their claim with their history of pre-colonial independence and autonomy and the various treaties concluded by their Chiefs with the colonial masters, signifying partnership. See generally on-line information available at www.waado.org

[22] See demands of the various ethno-nationalities in the Niger-Delta to the Nigerian state represented in various documents, i.e. “The Ogoni Bill of Rights (1998)”, “The Kaima Declaration (1998)”, “The Oron Bill of Rights (1999)” and “The Communiqué of the First Urhobo Economic Summit (1998), available at www.waado.org

[23] Id

[24] See, United Nations Unrepresented Peoples Assembly, UNWGIP, UNDP, Dept. of Political Affairs. See also the planned Niger-Delta Summit scheduled to be held in the United States of American in 2008(which did not hold); see generally, The Guardian Newspaper, Tuesday, October 2007, vol. 25, No. 10,567, p.96, also available at www.ngrguardiannews.com

[25] See The Kaima Declaration, Op.cit, note 22

[26] See Patterson Ogon, Op.cit, note 6, p.1

[27] See, the full text of the last statement of Ken Saro Wiwa after his conviction, recorded in TED Case Studies, Op.cit, note 4.

[28] For the list and discussion of some of the offences perpetrated  against the people of the Niger-Delta by the Federal Republic of Nigeria, see particularly text of the declarations of the peoples of region encapsulated in the various bill of rights adopted at various times. See note 22, Op.cit

[29] See, “Rebel Group Warns of Renewed Attacks in ‘Oil War’”, France 24: International News, on-line material  available at http://www.france24.com/en/category/tags-auteurs/news-wires

[30] Hurst Hannum’s comment is apposite in this regard: “Perhaps no contemporary norm of international law has been so vigorously promoted or widely accepted as the right of all peoples to self-determination. Yet the meaning and content of that right remains as vague and imprecise as when they were enunciated by President Woodrow Wilson and others at Versailles”. See, Hurst Hannum, Autonomy, Sovereignty, and Self-Determination: The Accommodation of Conflicting Rights, University of Pennsylvania Press, 27, (1990), cited in Johan D. Van Der Vyver, “Self-Determination of the Peoples of Québec under International Law”, J. Transnational Law & Policy, vol. 10:1, 2000, p.12, (particularly fn.57)

[31] Ved P. Nanda, “Revisiting Self-determination as an International Law Concept: A Major Challenge in the Post-Cold War Era”, Paper presented at Conference of the American Branch of the International Law Association’s Law Week, in New York, November 9, 1996

[32] See, Siegfried Wiessner, “Rights and Status of Indigenous Peoples: A Global Comparative and International Legal Analysis”, Harvard Human Rights Journal, 12:1999, p. 116. See also the judgement in the case Concerning East Timor (Portugal v. Australia), 1995 I.C.J. 90, (The court viewed Portugal’s assertion that the right of peoples to self-determination, as evolved from the Charter and from United Nations practices has an erga omnes character, as irreproachable).

[33] See, Edre U. Olalia “The Status in International Law of National Liberation Movements and Their Use of  Armed Force”, submitted to the International Association of Peoples’  Lawyers, (IAPL), Annual Board Meeting, Belgium, November 26-28, 2004, p.8

[34] According to Antonio Cassese “The first forceful proponent of the concept (of self determination) at the international level was Lenin” Antonio Cassese, Self-Determination of Peoples: A Legal Reappraisal, 15 (1995). Earlier, in 1913 Joseph Stalin had written a detailed pamphlet on self-determination entitled, “Marxism and the National Question”; see id at p.14. But according to Cassese, Lenin’s, thesis on the socialist revolution and the right of nations to self determination published in 1916, contained the first compelling enunciation of the principle of self-determination of peoples, id, at p.15.

[35] See, Johan Der Vyver, Op.cit, note 30, p.14.

[36] See, U.N. Charter, arts. 1, 2, 55, 56 and  73; the International Covenant on Economic, Social and Cultural Rights 1966; the International Covenant on Civil and Political Rights 1966; the U.N. Declaration on Principles of International Law Concerning Friendly Relations and Co-operation Among States in Accordance with the Charter of the United Nations 1970; the Helsinki Final Act of 1975, (Final Act, CSCE, 14, I.L.M. 1292, 1975); and the U.N. Declaration on the Admissibility of Intervention into the Domestic Affairs of States and the Protection of Their Independence and Sovereignty (G.A. Res. 2131, U.N. GAOR, U.N. Doc. A/6014-1965)

[37] See generally, Common Article 1 of both the International Covenant on Economic, Social and Cultural Rights, and the International Covenant on Civil and Political Rights; Article VIII of the Helsinki Final Act

[38] F. Prztacznik, “The Basic Collective Human Rights to Self-Determination of  Peoples and Nations as a Prerequisite for Peace: its Philosophical Background and Political Application”, Revue de droit international, 69 (1991), p. 263

[39] A. N. Wachuku, Self-Determination and World Order, 1977, p.186. see generally, Otto Kimminich, infra, note 66, p.87

[40] The Quebec Study was prepared by a group of renowned international law scholars hired by the Belange-Compeau Commission to investigate the international standing of Québec should it successfully secede. The Report was entitled, “Territorial Integrity of Québec in the Event of the Attainment of Sovereignty”, see generally, Audrey Jane Roy, “Sovereignty and De-colonization: Realizing Indigenous Self-determination at the United Nations and in Canada”, M.A. dissertation. University of Victoria, Australia, 2001, p.25, 33

[41] Quebec study id, para. 3.04

[42] Johan Der Vyver, Op. cit, note 30, p.14

[43] See Antonio Cassese, International Law in a Divided World, 131-34 (1986); see also Rupert Emerson, Self-Determination, 65 Am. J. Int’l L. 459, 463 (1971)

[44] Johan Der Vyver, Op. cit, note 30, p.15; see also Nathaniel Berman, “Sovereignty in Abeyance: Self-Determination and International Law”, 7 Wis. Int’l L.J, 51, 87 (1988)

[45] See, Hurst Hannum, Autonomy, Sovereignty and Self-Determination: The Accommodation of Conflicting Rights 27 (1990). Benjamin Neuberger, National Self-Determination, 70; Jean Salmon, “Internal Aspects of the Right of Self-Determination: Towards a Democratic Legitimacy Principle” in Modern Law of Self-Determination, C. Tomuschat (ed.), Martinus Nijhoff publishers, 1993, pp. 253-267

[46] Nathaniel Berman, Op. cit, note 44, p. 54

[47] See Jean Salmon, Op. cit, note 45, p. 256

[48] Johan Der Vyver, Op. cit, note 30, p. 17

[49] Antonio Cassese “The Self-Determination of Peoples”, in The International Bill of Rights: The Covenant on Civil and Political Rights, 92, 96 (Louis Henkin, ed. 1981)

[50] G.A. Res. 2625 U.N. GAOR, 25 Sess., supp. No. 28, at 121, U.N. Doc. A/8028 (1970)

[51] Gaetano Arangio-Ruiz, The United Nations Declaration on Friendly Relations and the System of the Sources of International Law, 135-36, (1979)

[52] Conference on Security and Co-operation in Europe: Final Act, 14 I.L.M. 1291 (1975)

[53] Id, art. VIII. See also the Declaration on the Inadmissibility of Intervention into the Domestic Affairs of States and the Protection of Their Independence and Sovereignty, G.A. Res, 2131, U.N. GAOR, 20th Sess., supp. No. 14, at 11-12, U.N. Doc. A/6014 (1965)

[54] Section 2 (1) of the Draft European Convention for the Protection of Minorities, defines minorities as “a group which is smaller in number than the rest of the population of a state, whose members, who are nationals of that state, have ethnical, religious or linguistic features different from those of the rest of the population, and are guided by the will to safeguard their culture, tradition, religious or language”. See, Council of Europe’s Committee on Legal Affairs and Human Rights: Doc. AS/Jur (43)19, 31 October 1991

[55] Advisory Opinion No. 17, Greco-Bulgarian Communities 1930 PCIJ (ser. B) No. 30, at 21 (July 1930)

[56] International Meeting of Experts on Further Study of the Concept of the Rights of Peoples, convened by UNESCO, Paris 27-30 November 1989, SHS-89/CONF. 602/7, para. 23

[57] Hurst Hannum, Op. cit, note 45, pp. 15, 49

[58] Benjamin Neuberger, Op. cit, note 45, 70

[59] Id, 61

[60] Id, 6

[61] Id, 8

[62] See, Johan Der Vyver, Op. cit, note 30, p. 21

[63] Id, p.22

[64] Id, p. 24

[65] Id

[66] Otto Kimminich “A Federal Right of Self-Determination” in Christian Tomuschat (ed.), Modern Law of Self-Determination, Martinus Nijhoff Publishers, Netherlands, 1993, pp.83-100

[67] Patrick Thornberry, “The Democratic or Internal Aspects of Self-Determination with Some Remarks on Federalism”, in Christian Tomuschat, (ed), id, pp. 133-138. Asbjorn Eide, In Search of Constructive Alternatives to Secession”, Christian Tomuschat (ed.), id, pp. 165-176

[68] Allan Rosas, “Internal  Self-Determination”, in Christian Tomuschat (ed.), Id, pp. 225, 232-252

[69] Frederick Kirgis “The Degree of Self-Determination in the United Nations Era” Am. J. Int.l L.88, 1994, 304, at 306. Rosalyn Higgins, “Comments”, in Catherine Brolmann, R. Lefeber & M. Zieck (eds.) People and Minorities in International Law, 1993, p.25, at 30. Henry Steiner, “Ideals and Counter Ideals in the Struggle over Autonomy Regimes for Minorities”, 66 Notre Dame L. Rev. 1539, (1991) at 1547

[70] See also the Declaration on Principles of International Law Concerning Friendly Relations and Co-operation Among States in Accordance with the Charter of the UN, Op. cit, note 50, (which outlines some modes of implementing the right of self-determination by peoples), id.

[71] L. Hannikainen “Peremptory Norms (jus cogens) in International Law”, 1988, p. 374, cited in Dietrich Murswiek, “The Issue of a Right of Secession-Reconsidered”, in Christian Tomuschat (ed.), Op.cit, note 66, p. 26. see the comment of Cristescu –“the principle of equal rights and self-determination…does not grant an unlimited right of secession to populations living in the territory of an independent sovereign state … the right of secession unquestionably exists however in a special but very important case: that of peoples, territories and entities subjugated in violation of international law. In such cases the people have the right to regain their freedom and constitute themselves independent sovereign states”, see A. Cristescu, The Right to Self-Determination: Historical and Current Development on the Basis of United Nations Instruments, U.N. Doc. E/CN.4/sub.2/404/Rev. 1 -1981, para. 173

[72] Johan Der Vyver, Op. cit, note 30, p. 25 see also Ved P. Nanda, Op. cit, note 31, para III. The declaration provides under the heading – ‘the principle of equal right and self determination of people’ that “the establishment of a sovereign and independent state, the free association or integration with an independent state or the emergence into any other political status freely determined by a people constitute modes of implementing the right of self-determination by that people”. See the Declaration  on principles of International Law Concerning Friendly Relations and Co-operation Among States in Accordance with the Charter of the U.N, Op. cit, note 50

[73] Johan Der Vyver, id, p. 26

[74] The first serious attention given to indigenous peoples crystallized in the International Labour Organization’s Convention Concerning the Protecting and Integration of Indigenous Populations and Other Tribal and Semi-Tribal Populations in the Independent Countries, June 2, 1959, 107, I.L.O.1957. The I.L.O. later supplanted this earlier convention with another in 1991, the Convention Concerning Indigenous and Tribal Peoples in Independent Countries, Sept. 5, 1991, No. 169 I.L.O. 1989, recently, the U.N. General Assembly unanimously adopted the U.N Declaration on the Rights of Indigenous People on September 13, 2007. See Stefania  Errico, “The UN General Assembly adopts the Declaration on the Right of Indigenous People”. ASIL Insight, vol. 11, Issue 25, Oct. 2007. see generally, S. James Anaya & R.A. Williams, “The Protection of Indigenous Peoples’ Right Over Land and Natural Resources Under the Inter-American Human Rights System”, Harv. Hum. Rights Journal, vol. 14, 2001, pp. 33-35.

[75] S. James Anaya & R.A. Williams, id, p.34. See also, R.A. Williams Jr. “Sovereignty, Human Rights: Indian Self-Determination and the Modern Legal System”, 2 Rev. Const. Stud. 146 (1995)

[76] See, Siegfried Wiessner, “Rights and Status of Indigenous People: A Global Comparative and International Legal Analysis”, Harv. Hum. Rts J. vol.12, 1999, pp. 58-60, 95-96; Vine Deloria Jr. & Clifford M. Lytle, The Nations Within: The Past and Future of American Indian Sovereignty, (1984); Antonio Truyol Serra, “History of the Law of Nations, Regional Development: Latin America”, 7 Encyclopaedia of Public International Law, 231-32, ( Rudolf Bernhardt, ed., 1984); Glenn T. Morris, “In Support of the Right of Self-Determination for Indigenous Peoples Under International Law”, 29 German Y.B. Intl L. 277, 280-88 (1986); Greg C. Marks, “Indigenous Peoples in International Law: The Significance of Francisco de Victoria and Bartolome de Las Casas”, 13 Australian Y.B. int’l L, 1, (1992). See also John  F. Guilmartin  Jr., “The  Cutting Edge: An Analysis of the Spanish Invasion and Over-Throw of the Inca Empire” in Transatlantic Encounters: Europeans and Andeans in the Sixteenth Century, 40, 44 (Kenneth J. Andrien & Rolena Adorno eds., 1991); S. P. McSloy, “Because the Bible Tells Me So: Manifest Destiny and American Indians”, 9 St. Thomas L. Rev. 37, 38, (1996)

[77] Douglas Saunders, “Self-Determination and Indigenous Peoples”, in Christian Tomuschat, (ed), Op. cit, note 66, pp. 71-73

[78] Jose Martinez Cobo, Report of the Study of Discrimination Against Indigenous Populations, U.N. Doc.E/CN.4/sub.2/1986/7/Add.4, 1986, para. 379, and U.N. doc. E/CN.4.sub.2/L.566. Paras 34 & 45

[79] Erica-Irene Daes, Working Paper on “Concept, of Indigenous People”, U.N. Doc. E/CN.4/sub.2/AC.4/1996/2, (1996), para. 5

[80] Benedict Kingsbury, “Indigenous People in International Law: A Constructivist Approach to the Asian Controversy”, 92 Am. J. Int’l L. 414,417-18 (1998)

[81] Id,

[82] Siegfried Wiessner, Op. cit, note 76, pp. 98-99

[83] Id, p.110. See also Raidza Torres, “The Rights of Indigenous Populations: The Emerging International Norm, 16 Yale J. int’l L. 127, 158-64 (1991)

[84] Id

[85] See art. 3 and 4 of the U.N. Declaration on the Rights of Indigenous Peoples, Op. cit, note 74

[86] Academics such as Professor Thornberry, Professor Richard Falk, Professor Rosalyn Higgins and Professor Brownlie all tend to agree on two points in this context, they rule out any general right of secession of indigenous peoples. While recognizing such a right in particular circumstances, they each accept that regimes of autonomy or self-government are appropriate structural responses to the realities of continuing communities of indigenous people. See generally, Glenn T. Morris, Op. cit, note 76; Catherine J. Iorns,  “Indigenous Peoples and Self-Determination: Challenging State Sovereignty, 24, Case W. Res. J. Int’l L. 199 (1992); Robert Mc Corquodale, “The  Eritrean Question: The Conflict Between the Right of Self-Determination and the Interests of States (Book Review), 54 Cambridge L.J. 187 (1995); Thomas M. Franck, Fairness in International Law and institution, 163-65 (concluding that the international system does not recognize a general right of secession but it does not prohibit secession either); Lea Brilmayer, “Secession and Self-Determination: A Territorial Interpretation”, 16 Yale J. Int’l  L. 177 (1991); Lawrence S. Eastwood, Jr. “Secession: State Practice and International Law After the Dissolution of the Soviet Union and Yugoslavia”, 3 Duke J. Comp. & Int’l L. 299 (1993); Steven R. Ratner, “Drawing A Better Line: Uti possidetis and Borders of New States”, 90 Am. J. Int’l L. 590, (1996); Gudmundur Alfredsson, “The Right of Self-Determination and Indigenous People”, in Christian Tomuschat (ed.), Op. cit, note 66, pp. 41-48; Allen E. Buchanan, “Federalism, Secession and the Morality of Inclusion” 37 Ariz L. Rev. 53, 54 (1995); and Douglas Sanders,  “Self-Determination and Indigenous Peoples”, in Christian Tomuschat (ed.), Op. cit, note 66, pp. 79-81

[87] See art. 4 of the Declaration on the Right of Indigenous Peoples 2007, which states that “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”, id,

[88] S. James Anaya, “A contemporary Definition of the International Norm of Self-Determination”, Transnational Law and Contemporary Problems, 3 (1993) 133

[89] Id, pp. 145-150

[90] Id, pp. 151-157

[91] Id, p. 163

[92] See generally, Edre Olalia, Op. cit, note 33, p. 25; Kalliopi K. Koufa, “Terrorism and Human Rights”, Final Report of the Special Rapporteur to the U.N. Sub-Commission on the Promotion and Protection of Human Rights, 56 Sess. GE. 04-14677 (E) 160704, E/CN.4/Sub.2/2004/40, 25 July 2004, para. 27

[93] Kalliopi K. Koufa, id, para. 28

[94] National liberation movements have been defined to include “armed struggle of dissident movements representing a component people within a plural state …”, see, Edre Olalia, Op. cit, note 33, p.2 (the definition conveniently covers armed struggle by indigenous peoples and minorities for self-determination). On the issues of international treaties legitimizing armed struggle of national liberation movements for self-determination, see, W. D. Verwey”, The International Hostages Convention and National Liberation Movements”, Am. J. int’l L. vol. 75, No.1 (January 1981), pp.69-92

[95] See for instance, General Assembly Resolutions 3034 (XXVII), 32/147, 34/145, 36/109, 38/180, 40/61, 42/159,44/29, and 46/51. See also M. Halberstam, “The Evolution of the United Nations’ Position on Terrorism: From Exempting National Liberation Movements to Criminalizing Terrorism Wherever and by Whomever Committed”, Columbia  Journal of Transnational Law, vol. 41, no. 3 (2003), pp.573, 575-577

[96] See, for example, art. 2 (a) of the Arab Convention on the Suppression of Terrorism of 1998; art. 2 (a) of the Convention of the Organization of the Islamic Conference on Combating International Terrorism, adopted in 1999; and art. 3 of the OAU Convention on the Prevention and Combating of Terrorism, adopted in 1999

[97] See generally, the studies prepared for the  U.N. Sub-Commission on the Promoting and Protection of Human Rights, by A. Cristescu, “The Right to Self-Determination: Historical and Current Development on the Basis of United Nations Instrument”, E./CN.4 sub.2/404/Rev. 1

[98] Id

[99] Kalliopi. K. Koufa, Op. cit, note 92, para. 30

[100] See A. Cassese, Self-Determination of People: A Legal Reappraisal, Cambridge University Press 1995, pp. 2 et seq. According to the author, the notion of “Legal entitlement”, or “legal license, which is less than a “right” proper encapsulates the idea that wars for self-determination are surely taken into account by international law but not up-graded to the status of manifestation  of jus ad bellum proper. There however, seem to be agreement among writers that jus ad bellum exists in cases of people “forcibly” denied or deprived of their right to self-determination by the oppressive state (i.e. its refusal, backed up by armed force or even coercive measures short of military violence, to grant self-determination to the subjected peoples), or even in situation where a ruler or government sought to subject a people to despotism through various forms of political and economic oppression without any room or supposition for redress. See, Georges Abi-Saah, “Wars of National Liberation in the Geneva Conventions and Protocols”, (165 Recueit Des Cours, 363-436, 1979 iv), Hague, Nijhoff, 1981; M.R. Islam, “Use of Force in Self-Determination Claims”, Indian Journal of International Law, vol. 25, No.3-4 (July-December 1985), pp.436-437

[101] For example J. Frowein “Self-Determination as a Limit to Obligation Under International Law”, in Christian Tomuschat, (ed.) Op. cit, note 66, p.213

[102] For example, K. Doehring who states “only oppression of a very brutal kind, thus constituting a severe violation of human rights, could justify armed self-help”, (B. Simma (ed.), Self-Determination: The Charter of the United Nations – A  Commentary, Oxford University Press, 1995, p.70

[103] See, Kalliopi. K. Koufa, Op. cit, note 92, para 32

[104] See, H.P. Gasser, “Acts of Terror, Terrorism and International Humanitarian Law”, International Review of the Red Cross, vol. 84, No. 847 (Sept. 2002) p. 547. A. Cassese, “Terrorism and Human Rights”, American University Law Review, vol. 31 (1982), p.945

[105] Kalliop. K. Koufa, Op. cit, note 92, (see particularly fn. 65)

[106] See Georges Abi-Saah, Op. cit, note 100, p. 416 (stating that “in these conditions, liberation movements have no choice but to carry on a poor man’s war, by resorting to non-conventional or guerrilla warfare, which calls on Man’s ingenuity and cunning to beat the machine and compensate for material inferiority. It is a special kind of warfare which has its own characteristics and internal logic”), id, see also B. Ate, “Terrorism in the Context of Decolonization”, H. Kochler (ed.) Terrorism and National Liberation, (Frankfurt Am Main, peter Lang, 1988), pp.79-93 (referring to this kind of activities as ‘liberation terrorism’), id.

[107] Edre U. Olalia, Op. cit, note 33, p.29

[108] See Report of the International Law Association, Committee on International Terrorism, cited in E. Chadwick, Self-Determination, Terrorism and the International Humanitarian Law of Armed Conflict, (Martinus Nijhoff, the Hague/Boston/Condon, 1996), pp.15, et seq.

[109] See, Additional Protocol II, art. 1, para. 2

[110] Kalliopi K. Koufa, Op. cit, note 92, para 36

[111] Id, para. 37

[112] Id

[113] Id, see  also, G. Rona, “Interesting Times for International Humanitarian Law: Challenges From the War on Terror”, The Fletcher Forum of World Affairs, vol. 27, No. 2 (summer/fall 2003), p.60; M. Cherif  Bassiouni, Legal Control of International terrorism: A Policy–Oriented Assessment”, Harvard International Law Journal, vol. 43, No. 1 (Winter 2002), pp. 97 et seq.

[114] Geneva Declaration on Terrorism, 21:3:1987 cited and quoted in  Edre U. Olalia, Op. cit, note 33, p. 31
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