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Political Self Determination Within the Context of the African Charter on Human and Peoples' Rights

Published online by Cambridge University Press:  28 July 2009

Michael K. Addo
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Extract

In 1981, after nearly three years of drafting and deliberations, the Assembly of Heads of States and Governments of the Organisation of African Unity (O.A.U.) at its 18th Session adopted a regional human rights instrument— The African Charter on Human and Peoples' Rights. Recent documentation indicate that an adequate number of ratifications have been received to bring the Charter into force. There has so far however not been any test of its provisions. Nevertheless this article will be devoted to a legal examination and in other ways to a speculative analysis of an aspect of one of the human and/or peoples' rights sought to be guaranteed in the Charter—the right to political self determination. This of course means that the very narrow scope of this paper will hardly touch on the economic aspects of self determination, which is also provided for in the Charter.

Type
Research Article
Information
Journal of African Law , Volume 32 , Issue 2 , Autumn 1988 , pp. 182 - 193
Copyright
Copyright © School of Oriental and African Studies 1988

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References

1 For a detailed background and historical information see Gittleman, R., “The African Charter on Human and Peoples’ Rights-A Legal Analysis”, (1982) 22:4 Virginia Journal of International Law 667Google Scholar

For text of Charter see reprint in (1982) 21 International Legal Materials 58. For further analysis of Charter see Umozurike, U. O., “The African Charter on Human and Peoples' Rights", (1983) 77 American Journal of International Law 902CrossRefGoogle Scholar.

2 See (1986) 1:4 Interights Bulletin 1 See also (1986) 1 Rights and Humanity.

3 Articles 19, 20, and 21 of the African Charter.

4 The Atlantic Charter,—Joint declaration by the President of the United States and the Prime Minister of the United Kingdom, 08 1941Google Scholar. For text, see Bevans, C. I., Treaties and other International Agreements of the United States of America 1776–1949 Vol. 3 1931–1945, 1969 686–687Google Scholar. For further analysis see Pomerance, M., Self-Determination in Law and Practice, The Hague 1982Google Scholar and also Surenda, A. Rigo, The Evolution of the Right To Self-Determination, Leiden, 1973Google Scholar.

5 See Cassese, “Political Self Determination—Old Concepts and New Developments” in Cassese, A. (Editor), U.N. Law/Fundamental Rights: Two Topics in International Law, 1979Google Scholar. See also Lauterpacht, H.International Law and Human Rights, London, 1968 esp. chapter 9Google Scholar. Also editorial comment by Hudson, M. O., “Integrity of International Instruments” (1948) 42 American Journal of International Law 105–108CrossRefGoogle Scholar.

6 The International Covenants on Economic, Social and Cultural Rights and The International Covenant on Civil and Political Rights adopted and opened for signature by Resolution, G. A. 2200 A (XXI) of 16 12, 1966Google Scholar. Text in Human Rights-A Compilation of International Instruments, U.N. New York 1983, 3Google Scholar.

7 See inter alia The United Nations Declaration on the granting of Independence to Colonial Countries and Peoples; G.A. Resolution 1514 (XV), and 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 G.A. Resolution 2625 (XXV). Texts in Brownlie, I., Basic Documents in International Law, Oxford, 1981Google Scholar.

8 D.Johnson, C.—“Toward Self Determination-A Reappraisal as Reflected in the Declaration on Friendly Relations” (1973) 3 Georgia Journal of International and Comparative Law, 149Google Scholar.

9 Sinha, S. Prakash, “Is Self Determination Passe?” (1973) 12 Columbia Journal of Transnational Law, 260–271Google Scholar.

10 The right to self determination is provided for in the Final Act of the Conference on Security and Co-operation in Europe (Helsinki Accord 1975). Text reprinted in (1975) 14 International Legal Materials 1292, 1295Google Scholar. It is of course an arrangement that was not intended to be a binding treaty. For an interpretation of that provision see Cassese, A. “The Helsinki Declaration and Self Determination” in Buergenthal, (editor) Human Rights, International Law and the Helsinki Accord, 1978Google Scholar.

11 African Charter.

12 See Report of O.A.U. Secretary-General on Draft African Charter on Human and Peoples' Rights. O.A.U. Doc. C.M. /1149, para 13Google Scholar.

13 R. Gittleman, op. cit.

14 Ibid. p. 680.

15 Ibid. n. 67.

16 Ibid. p. 680.

17 Ibid. n. 68.

18 Ibid, nn 14 and 15 read together.

19 Ibid. p. 679–680.

20 A good analogy may be drawn from the O.A.U. Convention Relating to Certain Aspects of Refugees in Africa of 1967 Text in Brownlie, I. (editor) Basic Documents on African Affairs, Oxford, 1971Google Scholar, in which the O.A.U. sought not to merely repeat the definition of refugees in the Statute of the U.N.H.C.R., but to extend it to cover situations not directly covered by the Statute and to guarantee for instance a positive right to asylum.

21 The obvious exception in this direction is Morocco in relation to the Saharaoui people. Even in that case there is little ambiguity about the right of the Saharaoui people to self determination. Morocco of all countries admits that the Saharaoui people have that right, the only dispute remaining is the style of implementation, cf M. Akekurst A Modem Introduction to International Law, London, 1982, 253Google Scholar. See also, “The Advisory Opinion on Western Sahara” I.C.J. Reports, 1975, 12, where in paragraph 162 the court opined that Morocco's claim to the territory was unfoundedGoogle Scholar.

22 See Article 31 of the Vienna Convention on the Laws of Treatise (1969) text in Human Rights in International Law-Basic Texts Council of Europe, 1979, 121Google Scholar.

23 Expressio unis est exclusio alteris rule of statutory interpretation.

24 Cassese, A., “The Self Determination of Peoples” in Henkin, Louis (editor) The International Bill of Rights: The Covenant on CM and Political Rights, New York, 1981Google Scholar.

25 See U.N. Doc. A/C.3/SR 644 para. 10.

26 See U.N. Doc. A/C.3/SR 362 para. 11.

27 The U.K. spoke of some of the peoples of the Soviet Union, claiming that although they constituted autonomous Republics of that state, the central authority did not recognise their rights to self determination, c.f. U.N. Docs. A/C.3/SR 311 para. 42; and A/C.3/SR 312 para 14–15.

28 The Indian delegate said that “although there were good reasons to make special reference to the peoples of the non-self-governing territories, it must be recognised that the field of application of the principle of self determination was wider than that”, c.f. U.N. Doc. A/C.3/SR 399 para. 4.

29 See U.N. Doc. A/C.3/SR 649 para. 9.

30 See U.N. Doc. A/C.3/SR 372 para. 2–7.

31 See U.N. Doc. A/C.3/SR 366 para. 55–60.

32 The delegates of Byelorussia and the Soviet Union denied the allegations of the U.K. (n. 25 above) and asserted that the Republics of the Soviet Union enjoyed self determination in fact. A/C.3/SR 311 paras. 38–39. They did not claim however that the right of self determination did not apply to those Republics because they were part of a sovereign state.

33 See n 32 above

34 U.N. Doc. A/C.3/SR 588 paras. 14–15.

35 Ibid. para. 16.

36 General Assembly Resolution 2625 (XXV) 10 1970, op. citGoogle Scholar.

37 Sinha, S. P., op. cit., p. 272Google Scholar. See also Nayer, M. G. Kaladhasan, “Self Determination Beyond the Colonial Context”, (1975) 10 Texas International Law Journal, 337Google Scholar.

38 See inter alia Declaration on the Establishment of a New International Economic Order, Resolution, G.A. 3201 (S–VI), Text in (1974) 13 International Legal Materials, 715Google Scholar. and the Charter of Economic Rights and Duties of States, G.A. Resolution 3281 (XXIX), 29 U.N.G.A.O.R. Supp. 31 at 50, Doc. A/9631 (1975).

39 Cassese, A., “The Helsinki Declaration and Self Determination” in Buergenthal, Thomas (editor) Human Rights, International Law and The Helsinki Accord, 1978, 86; et seqGoogle Scholar.

40 See n. 21 above for opinio a contrario.

41 See Charter of the O.A.U., and more specifically, Ndiaye, B., “The Place of Human Rights in the Charter of the Organisation of African Unity” in Vasak, Karel, (General Editor) International Dimensions of Human Rights Westport, 601Google Scholar.

See also, The Organisation's resolutions on Aparteid, in I. Brownlie, Basic Documents on African Affairs op. cit. and among others The U.N. Convention on the Suppression of the Crime of Aparteid Adopted and open for signature and ratification by Resolution, G.A. 3068 (XXVIII) of 11 1973, and U.N. Resolution 1514 (XV) op. cit and G.A. Resolution 2625 (XXV) op. citGoogle Scholar.

42 Articles 47–51 of the African Charter.

43 Articles 55–59 of Charter.

44 See Awolowo, O., Path to Nigerian Freedom, London, 1947, 47–48Google Scholar. Similarly a British Colonial Governor (Hugh Clifford) characterised the Nigerians as a “collection of self-contained and mutually independent native States, separated from one another by vast distances, by differences of history and traditions and religions, racial, tribal, political and social barriers”–quoted in Awolowo.

45 A.H.G. Resolution 16(1) 1964 and the O.A.U. Resolution on Border Disputes in I. Brownlie ed. op. cit.

46 See Editorial Notes on “The Logic of Secession” (1980) 89 Yale Law Journal at 819Google Scholar.

47 Ibid, at p. 820–824.

48 See U.N. Chronicle Vol. 7 of 02 1970 at p. 40Google Scholar.

49 See 26 U.N.G.A.O.R. Supp. 1A; U.N. Doc. A/840 1/Addl. para. 148.

50 See O.A.U. A.H.G. Resolution 51 (IV) on the Situation in Nigeria (09 1967) which inter alia stated thatGoogle Scholar;

The Assembly of Heads of States and Governments

Reiterating their condemnation of secession in any member states,

Concerned at the tragic and serious situation in Nigeria,

Recognising that the situation is an internal affair, the solution of which is primarily the responsibility of Nigerians themselves,

Reposing their trust and confidence in the Federal Government of Nigeria.

51 A. Cristescu, Special Rapporteur of the Sub-Commission on the Prevention of Discrimination and Protection of Minorities The Right to Self Determination–Historical and Current Development on the Basis of United Nations Instruments. (United Nations: New York 1981). Doc.E/CN.4/sub. 2/404/Rev. 1 para. 173Google Scholar.

52 Article 19(c) of the Vienna Convention on the Law of Treaties (1969) op. cit., which provides that,

A State may when signing, ratifying, accepting, approving or acceding to a treaty, formulate a reservation unless:

c. in cases not falling under sub-paragraphs a. and b., the reservation is incompatible with the object and purpose of the treaty.