I. BACKGROUND OF PROPOSED RESEARCH
Nigeria is Africans most populous nation
and the world’s largest collection of people of the black race. The 2006
national census conducted in the country estimates the population of the
country to be well over 140 million people consisting of about 250 ethnic
groups, who speak close to 400 languages. There are clearly three ethic
majorities, the Hausa-Fulani, who are 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. 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.
The
region is classified as the third largest wetlands in the world and the
greatest extension of fresh water swamps in Africa and a pan organic mixture of
wild life and ecology. Today 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. Presently, Nigeria is listed as Africa’s second largest oil producer
and the world’s sixth most important exporter of crude oil. Most of this oil is
found in small fields in the coastal areas of the Niger-Delta. 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. However, the same thing can not be said of the oil producing
communities of the Niger-Delta. This region clearly epitomizes the phenomenon
of the curse of oil. 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 revenue gained has helped to
benefit mainly foreign nations and Nigerian government elites more than native
populations. The only visible signs of oil operations that communities in the
Niger-Delta live with are the pollution, degradation of the environment,
destruction and waste of the natural resources, derogation of the values and
culture of the people, and poverty. The federal government of Nigeria and
multinational oil companies that operate on 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 development. 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. 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. The region is liken to the proverbial African are that fetches the wood
but sleeps in the cold. 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 of their inability to hold the Nigerian state and oil
companies accountable for sustainable
development in the area and their reasonable participation 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 over the past decade have grown in strength,
outlook and purpose and are beginning to converge into more formidable militant
guerrilla forces. Subsequent Nigerian governments have done little to alleviate
the mounting agitations, rather,
military incursion are used operating any uprising in a brutal manner for
examples, villages such as Ummuechem, Odi and Odioma were at different times
practically razed down are people ranging form the high hundred to the low
thousand were kicked and maimed by Nigerian military.
After the hanging of Ken Saro- Wiwa in 1995
violence are military simply exploded taking the next level. Militant groups
operating in the Niger-Delta began to sabotage government and oil companies
installation, kidnap are take expatriates working in the oil industry hostages
extort oil companies, engage in illegal oil bunkering sometimes kill and maim
their victims. At least on two occasions on militants actually took
responsibility for car-bombs in regional cities which killed symbolically
marked the turning point in the conflict. What is interesting is that the
demand 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 and ethnic-national minorities under
international human rights region for special protection of these category of
people to demand among other things, political and economic autonomy,
convention off an autonomous sovereign national conference to re-negotiate the
terms of national co-existence and unity re-organization of the polity,
resource control repeat of obnoxious laws, development of minority ethnic
languages and culture and preservation of regions ecology environment. The
Kaima declaration for instance states 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 …
The conglomeration of ethno-nationality
groups in the Niger-Delta have at various times attempted to present their
case/claims as indigenous people to the government or Nigeria and the organs of
the united Nation in order to rally/rake various international sympathy and
support their cause. Meanwhile successive Nigerian and other foreign government
have contained to label and treat Niger Delta militants are terrorist. 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 common evil of the Nigeria government and multinational oil companies eco-terrorism
and ecological war perpetrated against the Niger-Delta region and its
indigenous inhabitants.
II. STATEMENT OF THE PROBLEM
The government of Nigeria is locked in a small-scale
guerrilla war with militants in the Niger-Delta region of the country, an area
where 95% of Nations annual revenue is derived and which supplies at least 5% of
the world’s energy needs. The war is threatening to explode into full blown
civil war, which would affect other constituent elements of the polity, the
West African sub-region and international peace and security. The militants
have called themselves liberation and resistant forces who are fighting to
realize their right of self-determination which have been denied of them, and
have blamed 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 for them, abuse of their common
humanity and dampening desire for peaceful negotiation and constructive
consultations with the people of the region. They claim to be acting in their
collective interest to reflect and enforce their right of self –determination
as indigenous peoples and ethnic and national minorities. The government of the
Federal Republic of Nigeria on the other hand insists that the activities of
militants constitute terrorism and that the militants groups are terrorist
organizations who must be treated like any other common criminal. There seem to
be no respite in the Niger-Delta / federal government crisis. A truce is yet to
be negotiated notwithstanding several national and international efforts to
achieve one. The situation in the Niger-Delta raises the perennial question of
how to categorize the injurious activities of a group of persons who claim to
be fighting for their right of self-determination in international law, albeit
as indigenous peoples and ethnic / national minorities.
III. RESEARCH QUESTIONS/ OBJECTIVES OF
PROPOSED STUDY
Following identification of the problem
which the researcher has observed, several research questions are formulated as
the fulcrum of the proposed research collectively to view of the diversity of
the various peoples of the Niger-Delta region, can to qualify to called “peoples”
a) Do the people of the Niger-Delta constitute
‘people’ who are entitled to the right of self- determination within the
framework of the concept of indigenous people are national minorities?
b) Can the people of the Niger-Delta be termed
indigenous peoples or even minorities do they satisfy the criteria for being
considered as such?
c) How should the people of the Niger-Delta
exercise their right to self determination, they entitled to use violence or armed
forces?
d) Considering the situation of the people of
the Niger-Delta, what mode and means of self-determination are they entitled to
claim and how could they achieve it?
e) Can the militants in the Niger-Delta be
labelled terrorists in view of their motivations if so do their activities
among to domestic and international terrorism?
f) Can a people fighting for their right of
self –determination to labelled terrorists by the people or group who deny them
that right?
g) Would all the militant giving in the Niger-Delta
be considered an liberation establish fighter? What are the motivations of
groups? Are they criminal element among the militants.
h) How have political considerations played a
role in the Niger-Delta crises. How does it affect the political will of Nigerian
government to peacefully address the crisis?
i) Are there any impediments militating against the right of the Niger-Delta peoples
to self-determination in the Nigerian policy. Are the Niger-Delta people
colonized internally
j) Is the government of Nigeria the
continuation of the colonial master evoking colonial policies and creating
colonial experience in the Niger-Delta?
k) What are the rights of indigenous peoples and minorities which the
Niger-Delta people claim they are being denied? Are they justified in their
demands against the federal government of Nigeria?
l) Is the government of the federal republic
of Nigeria an extension of the colonial master who has continued with colonial
policies and reinforce the colonial experience in the Niger-Delta a successor
state of the colonial Nigerian state.
m) Does the activities and actions of the
federal government of Nigeria in the Niger-Delta region constitute state
terrorism?
n) Does the activities of the Nigerian
government are multinational oil companies in the Niger-Delta constitute
eco-terrorism .
o) Do the multinational oil companies
operating in the Niger-Delta region of Nigeria fulfil their social
responsibility are obligation to the
people of the region.
p) What are the best wings of tackling the
Niger-Delta crisis? Should they involve international regional and domestic
efforts.
IV. PURPOSE OF THE STUDY
The purpose of the proposal research is to
assess the claims are activities of the peoples of the Niger-Delta region of
Nigeria and those of the government federal republic of Nigeria in the light of
the inter junction between international human rights law (right of indigenous
peoples minorities self –determination) and international criminal law
terrorism)and humanitarian law (states of the militants). The research will
also test the hypotheni that the assertion of the right of self-determination
by aggrieved indigenous peoples and minorities would preclude the crime of
terrorism under customary and contemporary treaty and international law.
V. SCHOLARLY CONTEXT AND CONCEPTUAL
FRAMEWORK
Few international human rights concepts
have attracted such huge commentary and yet still remained largely an enigma as
the concept of self-determination. This proposed PhD research topic hopes to
re-visit the basic tenets of the concept especially when interpreted within the
context of other aspects of international criminal and human rights law. Thus,
the research proposes to discuss the concept of self-determination from the
view point of rights accorded to two specially protected group species under
international and ethnic minorities. A natural corollary of any discussion of
the right of self-determination exercised by these groups of persons is the
question of terrorism. The research thus proposes to dissect the numerous
question which are raised as a result of the synchronization of these
conceptual divides. The Niger-Delta region of Nigeria is chosen as a national
case study to test the hypotheses drawn from the theoretical and conceptual
analysis.
This part of the proposal intends to
establish the similarly context and conceptual framework within which the
research questions would be develop and answered. It also contains a brief
literature review of the relevant literature and current thinking of experts in
the field. This portion is relevant because it will expose the current scope
and limitation of research already conducted by expert within the area of
interest and also cave a niche for the present research topic 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. Nevertheless it has attained the status of erga omnes obligation in
customary international law for the observance of all states. 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. 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 and
the American president, Woodrow Wilson. 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. The available of international legal
instruments which have provided for the right have all proceeded under the
premises 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.
The Euphoria that had greeted the inclusion
of the right of self-determination in international legal instruments had
hardly died down when it become clear that the enabling provisions in these
instruments actually convey little meaning in terms of the scope, content and
beneficiaries of the right created. This lack of clarity has indeed contributed
to the reason why the concept has remained so problematic.
The quebee study 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”.
The study which focused on the
international legality of Quebec 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 on its contents and who can access the contents of the
rights 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. 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 attributed to
the concept at any particular instance must always determined by the identity
of the “people”
Who have a claim to that right. The writer identified three phrases in the development of the right of self-determination. In the first phrase the writer maintained that the concept was used as a principle to legitimize the disintegration of some of the powerful empires during the early part of the 20th century. 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. In the second phase of development of the right according to Vyver’s thesis, 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 concept bedrock of the principle of self-determination. These writers have refused to move beyond the era of UN 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 people’s dominated by geographically distant colonial powers.
Who have a claim to that right. The writer identified three phrases in the development of the right of self-determination. In the first phrase the writer maintained that the concept was used as a principle to legitimize the disintegration of some of the powerful empires during the early part of the 20th century. 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. In the second phase of development of the right according to Vyver’s thesis, 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 concept bedrock of the principle of self-determination. These writers have refused to move beyond the era of UN 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 people’s dominated by geographically distant colonial powers.
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.
The third phase of Vyvers thesis of the
development of the right of self-determination, in his words “chronologically
emerged some what later than the decolonization phase but cannot be separated
from the latter in terms of time. 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 Vyvers 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 multinational state. If this statement is fine, 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 thing. Gaetans
Arangio- Raiz pointed out that the UN declaration on principles of
international law concerning friendly
and relations and co-operation among states in accordance with the charter of
the United Nations of 1970 made the right of
self-determination applicable to “all peoples” irrespective of their
political arrangement. So also is the Helsinki Final Act of 1975, which defined
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.
The term ‘peoples’ has been interpreted so
widely that national ethnic minorities 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 concept” 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”.
The UNESCO expert also discussed the
characteristics of what may be termed a ‘people’. They however rejected the
temptation to be drawn in the definition imbroglio of the term.
“Inherent in 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 identify
c) cultural homogeneity
d) linguistic unity
e) religious or ideological affinity
f) territorial connection
g) common economic life
This description of “people”
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 ‘people’ 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 art of secession conflicts with the territorial integrity of states,
the UN 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 tight 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. Neuberger agrees with Hannum that
drafters of the United Nations charter never intended it to support a right of
secession and that UN practice during decolonization in Africa supports this
conclusion. He also agrees that the content of the right of self-determination
can be divided into internal and external aspects. However, he departs from
Hannam 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 independence from Britain in 1960, or an
international recognition of people hood, for example East Timor. He argues
that internal self-determination can be autonomy or federalism for a distinct
people within a state, for example, a democratic state like Quebec 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 categorize 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.
Vyver devise any correlation
between self-determination and the right of session. 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. Vyver reasons that all 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. 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 denied such participation on a discriminatory basis, and sphere
sovereignty of peoples that uphold a strong (sectional) group identity within a
political community. Vyvers 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 Vyers argument have decided to
look elsewhere in the absence of a right of secession so as to give expression
to the content of the right of self-determination. These writers have thus
identified such concepts as ‘federalism’, ‘consociational democracy’, ‘self-government’,
and ‘autonomy regimes’ as the true expression of the notion, meaning and
content of self-determination.
Notwithstanding the rejection
of the right of secession by some experts and commentators as a mode of
implementing the right of self-determination, majority of the 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 other
means. Even Vyver at some point in his thesis seem to have accepted the
inevitability of secession in certain circumstances. He stated 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 restricting of national frontiers) will indeed be lawful,
provided the decision to secede is freely determined by a people. 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 whishing to secede, and secondly, if
following armed conflict national boundaries are re-drawn as part of the peace
treaty.
ii. Self-Determination And The Right Of
Indigenous
There is a large body of
literature on the right 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 America, Australia, New Zealand and other parts of the world.
The campaign for indigenous rights gained momentum in 1960’s and 1970’s an did
achieved tremendous results. Anaga and Williams reported that not only did
indigenous peoples right attend the front banner in international human right
discourse, but also new stand 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.
Most writes on the right of
indigenous people tend to associate the claims of this group peoples to some
sort of historical arrangement. The usual argument is the historical
pre-existence of the people on the land
prior to the formation of the modern state and their conventional colonialism
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, resulted in
the signing of agreements and treaties between the conquering powers and the indigenous peoples
most of which were hardly kept. Sunders termed this type of argument ‘lists
rical-legal’ form of justifying in indigenous peoples claim of rights.
There is also a real problem of
the definition of people who may be qualified to be called indigenous. Most of
the definitions however ten to emphasis the historical and pre-occupation
characteristics of the people. Professor Kingsbury in his analysis of the
various definitions provided by two different chairperson- Rapporteur of the UN
working group on indigenous populations, Mr. Jose Martinez Cob and professor
Erica Irene daes. 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 serene 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
community (especially by descent) with prior occupants of land in the region.
He also mentioned as ‘other indicia” socio-economic and socio-cultural
differences from the ambient population, district objective characteristics
such as language, race and material or spiritual culture regarded as indigenous
by the ambient population or treated as such in legal and administration
arrangement. This sets of indicia would make any interesting for the
investigation of the indigenous states claimed by the people of the Niger-Delta
region of Nigeria whose claims this improved .
Wiessner seems to have
identified what he called 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 have the right
of self-determination . wiessner observes with respect to these claims that “ consensus has emerged which has
been translated with whatever imperfections, into widespread, virtually uniform
state practice. He however cautioned that the real controversy is about the
prospects and best proposals for enforcement of any catalogue indigenous right.
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 demanded exercise
the right of self-determination is no longer a matter of controversy. But 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
should only expect to enjoy internal restricting and autonomy? There are so
many views that have been put toward by experts and commentators in resolution
of this controversy, including a provision in the Declaration the right of
indigenous peoples. However Anaya’s thesis is the most interestingly
outstanding and worthy mentioning. He defined the common argument of most
writers on this issue and instant suggested a reconceptualization 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 and outgoing
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. Anaya believes that these two aspects taken
together account on 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 redial prescription of self-determination is immediately evoked.
This remedial aspect mat involve a whole lot of possibilities ranging from
restricting 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
isolation of substantive norm of self-determination and construction 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 indigenous peoples,
rights of.
iii. 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 between the two concepts.
Unfortunately they also admitted that states and governments against whom armed
force is used in the claim of the right of self-determination almost always
considers these using force as terrorists. The debate really, is whether those
in whom reside the right of self-determination could legitimately use armed
force to realize that right against the backdrop of established principle 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 interjunction
between international human rights law, international criminal law and
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 to be addressed in this proposed research.
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. This has in turn
detrimentally affected the status of ‘people’ struggling for their right of
self-determination. The international community has really not helped matters
in this regards because in the course of promulgating 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. 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 requires, while condemning terrorism. Also some of the
regional instruments relating to the prevention and suppression of terrorism
have made it clear that the prohibition of terrorist acts cannot prejudice the
right of self-determination. The application of these international instruments
have been clarified by cristescu where he 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 identitable terrorism,
a distinct culture and a will and capacity to regain self-governance.
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. 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, 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 had
never recognized an unlimited right to use armed force. Nonetheless, some scholars
insist that there is automatic link between the right of self-determination and
the use of force, while others require the occupying power forcibly to deny
self-determination before the right to use force ripens. In either case, it has
also been held that the application of both jus cogens and erga omnes to the
right of self-determination may justify the granting to those using force a
higher status as combatants in humanitarian law.
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. Kalliopi in her report believes that a group carrying
out “military operations” in defense 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 humanitarian law.
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 asymmetrical conflicts-it will be in bad faith to label such
groups terrorists even if they engage in activities similar to terrorism. This
kind of open blanket chaque 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; on degrading treatment is meted out to the people attacked.
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 1
some national liberation struggles can now be recognized theoretically as
“internationalized” form the start, while in view of Article96, 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
recharacterization of some alleged terrorists for purposes of prosecution. The
only problem with this proposition with respect to our area of interest in this
proposal 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 the 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 opening sustained and concerted military operations as opposed to
“sporadic” acts of violence, it risks the chance of been doomed as terrorists.
Kalliopi in her report suggested 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 this states to mischaracterize the situation as
one of “terrorism and counter terrorism. She observes that there a disturbing
trend to label, any group involved in a situation that might even be called”
imperfect” or “defective” civil war as necessarily terrorist even though a particular group may
rarely or never engage in what would be viewed as terrorist acts in armed
conflict. 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 terrorist. Persons or groups not
considered terrorist can still be held accountable under national criminal laws
as the situation does not invoke humanitarian law regions. But such fighters
should not necessarily be tried using terrorism laws, nor should their
supporters be considered as abettors.
Let me conclude this review of
relevant literature and conceptual framework with a quote from a statement made
in the Geneva Declaration on Terrorism
issued at the end of 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.
VI. SIGNIFICANCE AND REFERENCE OF PROPOSED RESEARCH
In choosing this proposed
doctoral topic I had in mind three clearly discernable reasons which became obvious after I had gone through
the bulk of literature concerning the concept of self-determination, the right
of indigenous peoples and minorities to self-determination and the relationship
between the concept of terrorism and peoples (i.e group) efforts at
implementing or exercising their right of self-determination. I cannot however
claim to have read all the relevant literature that directly or in some way
remotely touch on the subject area which is the concern of the proposed research.
Nonetheless, the significance of the research topic he in exploiting the short
coming of the entire research so far conducted within the area of interest and
then looking at the key concepts from a perspective which has not been
adequately and fully explored by scholars and researchers. Thus, the following
are the significance and relevance of the proposed research topic:
a) To revisit and re-appraise the theoretical
connection and relationship between the concepts of terrorism and the
international human rights of indigenous people
and minorities which is rarely explored and highlight 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. I have
observed that 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. The proposed research topic is
before designed to take advantage of this lacuna and explore this seemingly
virgin field of research with review of advancing new theories and helping to
develop the subject area within the context of the Niger-Delta crises in
Nigeria. This crisis not only threatens the Nigeria, the west African
sub-region, but also the world economy and therefore should be the concern of
all.
b) The research reopen debates 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) The study 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 as Australia and New Zealand while the some cannot be
said of most parts of Africa, especially Nigeria, where independence was
attained and sovereignty and governance returned back to the natives who are
able represented in national politics of these countries. Perhaps there is need
to re-visit the definition and nature of the concept of indigenous peoples. The
relevance of the proposed research is to contribute significantly to the study
of indigenous people in Africa.
d) By situating and seeding 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. The proposed
research hopes at the end to be able to 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.