The first observation about this provision is that it repeats almost the same wording of the above resolutions and makes again a reference to article 2(1) of the Charter. It is also clear that the provision deals with self-determination in a colonial context. In addition, the provision puts an obligation upon the member states to respect the right to self-determination in a way that is consistent with the UN Charter. Some scholars interpreted that to mean that the UN wanted to close the door to secessionist movements. Since the adoption of these provisions, the right to self-determination became a legal standard in the UN context.
These legal norms manifested themselves rightly in the African context. This is because firstly, at the time of drafting the UN Charter and the two resolutions; 1514 and 1541, most African nations were under colonization. Secondly, although the Charter of the Organization of the African Unity (OAU) of l963 primarily targeted at eradicating all forms of colonialism, at the same time, it recognized the colonial borders. Thirdly, after the decolonization process, several African peoples claimed the right to external self-determination. Examples are the cases of Biafra and Katangese people v Zaire, the case of Gunme People v Cameroon. The OAU response to all of these eases, was the same and constant; no right to external self-determination after the independence. Biafra’s attempt to secede from Nigeria was unsuccessful and received little support from the international community. The conflict was dealt with at a regional level by the OAU, which supported Nigeria’s claim to maintain its territorial integrity. The United Nations did not consider events in Nigeria but the Secretary-General, when questioned about Biafra’s right to self-determination, stated that it ‘never accepted… the principle of secession of a part of its Member States’. By upholding the territorial integrity of Nigeria, the international community was effectively denying a separate right to self-determination for an ethnic group within the State and affirming that the right to self-determination had to be exercised by the entire population of the State.
African leaders are skeptical about borders and any claim that questions it. Those against recognizing Somaliland claim that it sets a precedent for similar claims and therefore such recognition may trigger a Balkanization of the entire continent. OAU/AU has already recognized similar secessionist claims, which rebut the argument that Somaliland sets a precedent for the rest of Africa. By recognizing the Western Sahara and Eritrea as independent states and by lobbying and agreeing for the secession of South Sudan, the question of whether secession is acceptable in Africa is mute.
Confusion surrounds the legal principle of self-determination. This led to the mistaken belief that the principle was intended to be universally applicable. When groups in non-colonial States unsuccessfully invoked the right, the international community was accused of double standards and the existence of a legal right to self-determination was denied on the grounds of this perceived inconsistency. For them, peoples in independent States had already exercised the right to self-determination. By affirming the universality of the right, they were seeking to extend its application to peoples who had not yet exercised it.
2.5 Self-Determination in Eastern Europe
According to Helen Quane, an example of a successful self-determination occurred in the former Socialist Federal Republic of Yugoslavia. Yugoslavia rejected declarations of independence by four of its constituent republics and used force to prevent them weeding. The escalation in fighting and the widespread human rights violations led to involvement of the international community first at a regional level and then at an international level. The international community’s overriding objective was to broker a peaceful settlement of the conflict and this seems to have dictated its response to the declarations of independence. Initially, the international community favored a negotiated settlement which would maintain Yugoslavia’s territorial integrity. When this was not possible, it indicated its willingness to recognize the republics but only within the framework of an overall settlement. When this was unsuccessful, the European Community indicated its willingness to recognize the republics provided they satisfied the “Guidelines for the Recognition of New States in Eastern Europe and the former Soviet Union”. As previously noted, these Guidelines required a State seeking recognition to undertake a range of commitments designed to maintain peace and protect human rights. Once the republics gave the necessary undertakings they were recognized by the Community and subsequently by a large number of States.
The recognition of these new States might be interpreted as broadening the concept of people to include the population of the highest constituent units of federal States in the process of dissolution. The Arbitration Commission of the EC Conference on Yugoslavia expressed the opinion that Yugoslavia was in the process of dissolution and that its internal borders had become external borders. This implied that once Yugoslavia began to dissolve the republics automatically became States and their inhabitants had a right to self-determination by virtue of being organized as States.
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