According to UN Charter Article 1 The purposes of the UN are:
‘2. To develop friendly relations among nations based on respect for the principle of equal rights and self-determination of peoples, and to take other appropriate measures to strengthen universal peace.’
Explanation from the respective Committee when the final draft of UN Charter Article 1(2) was adopted:
‘The Committee understands that the principle of equal rights of peoples and that of self-determination are two complementary parts of one standard of conduct; that the respect of that principle is a basis for the development of friendly relations and is one of the measures to strengthen universal peace...’
The UK delegation to the UNSC 1981-84 session insisted that the ‘right’ enunciated at Paragraph 1 of the Draft Resolution of the day belonged to people, not to States, and that according to the Declaration on Principles of International Law, all States had the duty to respect this right and to promote the realisation of the principle of equal rights and self-determination. The role envisaged for the state thus was passive, and confined to that of barometer/facilitator.
The right to self-determination, that is, the ability or power to make decision for one’s self, was unqualified by law, but people seeking it might opt for a version of it that suited their particular circumstances or desire. The choice was that of the people, not that of the state; that is, what the people freely determined. The people, not the state made that decision. The expression was what the people desired it to be. The right to self-determination enshrined in UN Charter Article 1(2) was anti-paternalistic. UNGA Resolution 2625 provides as follows:
‘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.’
The aforementioned seemingly simple and straightforward interpretation of the International Law of Self-determination (as per the Literal Rule of Interpretation) did not seem to appeal to international jurists and commentators who were insistent on making a mountain out of a mole hill, and make complex what in reality was simple. The Quebec Secession Case is case in point. It was decided by the Canadian Supreme Court, but the court was not an international court. The court had no competence in international law. Nevertheless, because its judgment was often quoted, it was instructive to us to examine the court’s analysis of the relevant International Law of Self-determination.
The law as stated in UNGA Resolution 2625 had only one ‘self-determination’ in it, but provided examples of ‘modes’ or ‘versions’ of it. The Canadian Supreme Court in a major error, misinterpreted these ‘versions’ as examples of ‘circumstances’ that might lead to the self-determination. The court said:
‘[T]he international law right to self-determination only generates, at best, a right to external self-determination in situations of former colonies; where a people is oppressed, as for example under foreign military occupation; or where a definable group is denied meaningful access to government to pursue their political, economic, social and cultural development. In all three situations, the people in question are entitled to a right to external self-determination because they have been denied the ability to exert internally the right to self-determination’.
In the International Law of Self-determination, the only ‘circumstance’ of the self-determination is when the people determined that they wanted it. The ‘right’ to self-determination was the ‘entitlement in law’ to decide it for one’s self. The law itself did not demand any explanation from the Claimant, but an explanation may be politic to foster worldwide acceptance.
At the UNSC 1981-84 session, which considered the provisions of Article 1(2) of the UN Charter, for example,
‘[it was argued that] in Cyprus, there was not just one nation, but two peoples and that the 1960 Constitution, which had created a bicommunal Republic of Cyprus, had meant that the right of self-determination was exercised jointly by the two communities, which had thus been recognized as the co-founders of the Republic. The Turkish community of Cyprus was, therefore, not an ethnic minority but an organized political community whose right to self- determination was manifested by the reclamation of the Turkish Republic of Northern Cyprus.
It was further contended that in a country like Cyprus, where no nation had existed as such and where the State had come into being through the mutually agreed partnership of the two national communities irrespective of the population ratios, it was axiomatic that both national communities possessed the right to self-determination…the proclamation of independence by the Turkish community was, therefore, not a secession but a phenomenon that must be understood as part of the very concept of the Cyprus entity whose sole purpose was to enable joining the Greek community on an equal footing in the bicommunal, bizonal and federal framework...’
The Cyprus argument similarly applied to Nigeria:
1. Nigeria was not a country until Britain created it on 1 January 1914 out of not just one nation, but many.
2. Independence for Nigeria was negotiated and agreed with Britain by 3 ethnic nations – Hausa, Ibo and Yoruba – which then became co-founders and co-owners of Nigeria.
3. The co-owning nations were prior to independence exclusive owners of their own respective territories – Northern, Eastern and Western Nigeria.
4. The co-owning nations were self-governing at independence on 1 October 1960, with their own separate and distinctive Legislature and Judiciary.
5. It thus was axiomatic that each co-owning nation (that is, the people there of) separately possessed the right to self-determination.
6. The desire by one or other co-owning nation to leave Nigeria therefore was not secession but a phenomenon to be understood in the context of the Nigeria entity.