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The right of succession in international law : a new theory of legitimacy Simpson, Gerry J. 1989

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THE RIGHT OF SECESSION IN INTERNATIONAL LAW: A NEW THEORY OF LEGITIMACY By GERRY J.SIMPSON LLB, Aberdeen University, Scotland, 1986 Dip.Legal Practice, Aberdeen University.1987 A THESIS SUBMITTED IN PARTIAL FULFILLMENT OF THE REQUIREMENTS FOR THE DEGREE OF MASTER OF LAWS i n THE FACULTY OF GRADUATE STUDIES (Faculty of Law) We accept t h i s thesis as conforming to the required standard THE UNIVERSITY OF BRITISH COLUMBIA February 1989 (&) Gerry Simpson, 1989 In presenting this thesis in partial fulfilment of the requirements for an advanced degree at the University of British Columbia, I agree that the Library shall make it freely available for reference and study. I further agree that permission for extensive copying of this thesis for scholarly purposes may be granted by the head of my department or by his or her representatives. It is understood that copying or publication of this thesis for financial gain shall not be allowed without my written permission. Department The University of British Columbia Vancouver, Canada DE-6 (2/88) ABSTRACT This thesis develops a l e g a l theory of secession based on int e r n a t i o n a l law and an o r i g i n a l index of v a l i d i t y . Secession i s the process by which a t e r r i t o r i a l l y d i s c r e t e e n t i t y within a state achieves independence from that state. In t h i s thesis a code of l e g a l i t y i s devised which l e g i t i m i z e s secession i n c e r t a i n cases without advocating the breakdown of world order. The r i g h t of secession envisaged derives i t s force not from p o l i t i c a l concepts such as democracy, l i b e r a l i s m or socialism, but from the r i g h t i n inte r n a t i o n a l law to s e l f -determination. To t h i s end, an h i s t o r i c a l introduction i s offered which traces the h i s t o r i c a l roots of the r i g h t to self-determination and i t s e a r l i e s t connection with secession. This study i l l u s t r a t e s how the transformation of self-determination from p o l i t i c a l p r i n c i p l e to l e g a l r i g h t i n the era of the United Nations and decolonization led to a r e s t r i c t i v e i n t e r p r e t a t i o n of the concept. This i n t e r p r e t a t i o n , i t i s argued, has neglected the l i n k between self-determination, human ri g h t s and the r i g h t to secede. i i i S e l f - d e t e r m i n a t i o n h a s c o n s e q u e n t l y b e e n d r a i n e d o f s i g n i f i c a n c e a t t h e v e r y m o m e n t w h e n i t s h o u l d b e i n t h e v a n g u a r d o f t h e q u e s t f o r a w o r l d o r d e r b a s e d o n r e s p e c t f o r h u m a n r i g h t s . T h i s s t u d y , t h e r e f o r e , h a s s e v e r a l p u r p o s e s . F i r s t , a b a s i s i n i n t e r n a t i o n a l l a w f o r a r i g h t o f s e c e s s i o n i s s o u g h t b y a n a l y z i n g t h e p r o v i s i o n s o f s e v e r a l U n i t e d N a t i o n s D e c l a r a t i o n s o n s e l f - d e t e r m i n a t i o n . S e c o n d , t h e h u m a n i t a r i a n p o t e n t i a l o f t h e r i g h t o f s e c e s s i o n i s r e a l i z e d b y r e n e w i n g t h e l i n k b e t w e e n h u m a n r i g h t s a n d s e l f - d e t e r m i n a t i o n i n a n o v e l t h e o r y o f l e g i t i m a c y . T h i r d , a n i n d e x o f v a l i d i t y i s o u t l i n e d b y w h i c h t h e l e g i t i m a c y o f a p a r t i c u l a r s e c e s s i o n c a n b e a s c e r t a i n e d u s i n g c r i t e r i a w h i c h t a k e i n t o a c c o u n t p o l i t i c a l , e c o n o m i c a n d m o r a l a s w e l l a s l e g a l f a c t o r s . T h i s i n d e x i s r e f e r r e d t o t h r o u g h o u t t h e p a p e r i n f i v e c a s e s t u d i e s w h i c h i l l u s t r a t e t h e v a r y i n g p r a c t i c a l c o n s e q u e n c e s o f a p p l y i n g t h i s t h e o r y o f l e g i t i m a c y . I n t h i s w a y , a t h e o r y o f s e c e s s i o n i s p r o p o s e d w h i c h s u b s c r i b e s t o t h e r u l e s o f i n t e r n a t i o n a l l a w a n d t h e r e a l i t i e s o f t h e i n t e r n a t i o n a l p o l i t i c a l s y s t e m w h i l e p r o v i d i n g a c o n c e p t u a l f o u n d a t i o n f o r a h u m a n e w o r l d o r d e r . TABLE OF CONTENTS i . T i t l e . i i . Abstract i v . Table of Contents v i i . Acknowledgements Structure 1 CHAPTER ONE: INTRODUCTION 4 CHAPTER TWO: HISTORICAL RESUME 12 A. Introduction 14 B. Legal Scholars 20 C. Woodrow Wilson 22 D. Communism 25 E. The Right of Secession 29 F. Conclusion 3 0 CHAPTER TWO: A NOTE: THE AALAND ISLANDS 32 CHAPTER THREE: SELF-DETERMINATION:THE UNITED NATIONS.40 A. Introduction 42 B. Self-Determination and Decolonization..... 45 C. The United Nations and the Right of Secession 71 CHAPTER FOUR:ERITREA:THE NEW COLONIALISM & SECESSION.81 i . Abstract 83 A. Introduction: Neo-Colonialism and Secession 84 B. E r i t r e a n History and Self-Determination ...87 C. Colonization 93 D. The United Nations and the Autonomy Compromise....97 E. Human Rights and the Right to secede 104 F. United Nations Law and the Er i t r e a n Claim. .109 G. The Index of V a l i d i t y 112 H. Conclusion .119 CHAPTER FIVE: BANGLADESH: A HUMANITARIAN BASIS 120 i . Abstract 123 A. Introduction 124 B. The Sources of Bangladesh's Quest for Secession...125 C. Success, Self-Determination and Secession 131 D. The Index of V a l i d i t y . . 150 CHAPTER SIX:BIAFRA:SECESSION&THE AUTONOMY COMPROMISE.160 i . Abstract 163 A. Introduction 164 B. Colonialism to Secession 165 C. The Right to Secede 169 D. United Nations Law and the Biafran Claim 173 E. The Index of V a l i d i t y 177 CHAPTER SEVEN: SCOTLAND AND QUEBEC 188 i . Abstract 190 A. Introduction 192 B. Scotland 195 C. Quebec 207 v i CHAPTER EIGHT: A NEW STANDARD OF LEGITIMACY 217 A. A New Standard of Legitimacy 219 B. The Index of V a l i d i t y 232 I. Essential. Conditions. 233 I I . C r i t i c a l Variables 245 C. Conclusion........ 258 Bibliography 259 Acknowl edcf ement s This study was completed under the supervision of Professor Maurice Copithorne (UBC) whose comments throughout were greatly appreciated. Professor Douglas Sanders read a f i n a l d r a f t and made several h e l p f u l comments. Without the f i n a n c i a l a i d of the Law Foundation of B r i t i s h Columbia and a bequest from the C.B. Davidson Fund at Aberdeen University, I would have been unable to make t h i s study at UBC, i n the be a u t i f u l c i t y of Vancouver. I am therefore g r a t e f u l for t h e i r generous support. Professor John Rankin of the University of Aberdeen was the i n s p i r a t i o n behind my Masters Studies. Jo-Anne Dillabough cast a very c r i t i c a l eye over t h i s study and deserves thanks for the long hours spent deciphering the grammatical v i s s i c i t u d e s of the early d r a f t s . Structure 1 This work i s divided into eight main parts. Part One i s an Introduction i n which I sketch the purpose of the study and b r i e f l y describe a t h e o r e t i c a l basis for the r i g h t to i secede. In Part Two I provide an H i s t o r i c a l Resume of the provenance of the p r i n c i p l e of self-determination and the journey i t had taken up to 1939. The period from 1945 to the present i s looked at i n Part Three, Self-Determination i n  the Acre of the United Nations; Decolonization and Secession. This section w i l l delineate the basis for asserting a r i g h t to secession i n international law. Part Four describes the ongoing attempt to secede by the Er i t r e a n people i n northern Ethiopia. This part, Secession and the New Colonialism, furnishes an argument for the renewal of the r i g h t to secede i n cases of neo-colonialism and a l i e n oppression. The elemental nature of human ri g h t s i n the struggle f o r s e l f -determination i s addressed i n Part Five, A Humanitarian  Basis f o r Secession, which assesses the successful secession of Bangladesh from the res t of Pakistan i n 1971. Biafra's f a i l e d attempt to secede from Nigeria i s the subject of Part Six, Secession and the Autonomy Compromise. This section i l l u s t r a t e s how r i g i d the standards are for a legitimate r i g h t of secession under the index of v a l i d i t y . Secession i n  Western Democracies i s the t i t l e of Part Seven and i t s purpose i s to show how the r i g h t of secession has only l i m i t e d meaning within a democratic state. Quebec and Scotland are reviewed i n t h i s context. In the f i n a l part e n t i t l e d The Index Of V a l i d i t y : A Theoretical Conclusion, I p o s i t my theory of legitimacy with the intention of regulating the exercise of the r i g h t of secession. A short concluding section completes the study. CHAPTER I INTRODUCTION 4 In recent decades international lawyers and academics have attempted to a r t i c u l a t e p r i n c i p l e s which might provide the foundation f o r a humane world order. Often these constructs are ei t h e r overambitious or impenetrably complex. The following study modestly proposes that an imaginative a r t i c u l a t i o n of the, already e x i s t i n g , p r i n c i p l e of s e l f -determination w i l l mark the f i r s t step towards a reorganization of the state system on the basis of a concern for human di g n i t y and human r i g h t s . The academic and p o l i t i c a l communities have concentrated t h e i r attention on the interdependence of states within the international system. This preoccupation i s p a r t l y j u s t i f i e d by the increasing trend i n recent years towards internationalism i n the world, as evidenced the creation of many supranational and regional organizations. The economic integration of western Europe (European Economic Community) and the many economic and p o l i t i c a l a l l i a n c e s being forged world-wide are i n d i c a t i v e of t h i s movement towards regionlism. However, undermining t h i s integrative process i s a tendency i n the opposite d i r e c t i o n exemplified by the p r o l i f e r a t i o n of organizations attempting to shape the world i n an e n t i r e l y d i f f e r e n t way. Primary among these groups are secessionist movements dedicated to the dismemberment of nation-states. Nationalism, once a potent force for 5 integration i s now j u s t as frequently d i s i n t e g r a t i v e . This urge to fragment threatens a large number of states and i s not exclusive to any one geographic area, p o l i t i c a l system or economic model. Secession, the p o l i t i c a l manifestation of t h i s urge, i s the subject of t h i s study. To date the phenomenon of secession has not met with an adequate response from the international community nor has i t s c e n t r a l i t y been s u f f i c i e n t l y recognized by international lawyers and p o l i t i c a l t h e o r i s t s . In the l i g h t of t h i s what i s required i s a l e g a l theory of secession which incorporates an awareness of p o l i t i c a l r e a l i t i e s . The purpose of t h i s study i s to develop a l i m i t e d r i g h t of secession, derived from the r i g h t i n i n t e r n a t i o n a l law to self-determination, that i s congruent with a v i s i o n fo r a humane world order. The act of secession involves the separation of a d i s c r e t e t e r r i t o r i a l unit from an established state and the creation of a new state. As such i t offends fundamental norms of i n t e r n a t i o n a l law and basic p r i n c i p l e s of p o l i t i c a l organization. In t h i s paper i t i s argued that there i s a presumption against secession which can only be rebutted by a s e r i e s of factors the presence of which stamp the secession as legitimate. This legitimacy w i l l be calculated using, what I have termed, the index of v a l i d i t y . The index w i l l allow international lawyers and p o l i t i c i a n s to judge the legitimacy of an act of secession by examining the 6 es s e n t i a l preconditions for v a l i d i t y and weighing a number of c r i t i c a l v ariables i n the analysis of the secession. In t h i s study a r i g h t of secession i s i n f e r r e d from the United Nations law of self-determination 1, p a r t i c u l a r l y from the most recent a r t i c u l a t i o n of that law; The 1970 Declaration on the P r i n c i p l e s of International Law Concerning Friendly Relations and Cooperation Among States i n Accordance with the Charter of the United Nations 2. In t h i s Declaration the presumption i n favour of t e r r i t o r i a l i n t e g r i t y i s defeated by a f a i l u r e to secure human ri g h t s and the r i g h t to self-determination of "peoples". Among i t s other aims, the index of v a l i d i t y i s intended to give c l a r i t y as to what t h i s f a i l u r e e n t a i l s . The index of v a l i d i t y i s the f l e s h on the bones of the p r i n c i p l e of s e l f -determination and the 1970 Declaration. The r i g h t of secession i s conceived as a l o g i c a l extension of the r i g h t to self-determination and as a l e g a l remedy f o r abuses directed against a t e r r i t o r i a l l y - d i s c r e t e minority within a state. I t i s important to recognize that t h i s paper w i l l deal s p e c i f i c a l l y with a p a r t i c u l a r mode of self-determination, Secession has been described as "maximalist s e l f -determination". See Neuberger,B. National S e l f - Determination i n Post-Colonial A f r i c a , Boulder,Colo: Lynne Reinner Inc., 1986.p70 See G.A. Resolution. 2625, 24 October, 1970. 7 secession, and that only the issue of p o t e n t i a l legitimacy w i l l be examined. The question of why or when secessions occur i s no doubt an i n t e r e s t i n g one. However attempts to answer t h i s question remain i n the province of the p o l i t i c a l s c i e n t i s t 3 . Answers to these questions are useful because they explain why secession i s u n l i k e l y to be a receding occurence. P o l i t i c a l s c i e n t i s t s 4 have shown that some i d e n t i f i a b l y modern trends have contributed to the number of secessionist movements currently i n existence. Most s u r p r i s i n g l y they have i l l u s t r a t e d how increased interdependence and p o l i t i c a l development can a c t u a l l y foster separatism. The re-emergence of e t h n i c i t y i n multi-national states and increased c u l t u r a l d i f f e r e n t i a t i o n are a response to the threat of c u l t u r a l and p o l i t i c a l homogenization i n the modern state. Secessionist groups may e i t h e r f e e l threatened by attempts to assimilate i t 5 (e.g.Quebec) or take on a sense of deprivation r e l a t i v e to the groups with which they have closer contact (e.g.Bangladesh). J See Wood.J. Secession: A Comparative A n a l y t i c a l Framework. Canadian Journal of P o l i t i c a l Science XIV:1, March, 1981. See also Connor, W. The P o l i t i c s of Ethnonationalism, Journal of International A f f a i r s , XXVII (1973),p 1-21 4 See Wood,J. Secession.supra. 5 See Suzuki,E. Self-Determination and World Public Order: Community Responses to T e r r i t o r i a l Separation, V.A. Journal I n t ' l Law Vol 16:4, "The process of separation i s triggered by a growing discrepancy between value-expectations and value r e a l i z a t i o n " p831 8 Secession i s but one aspect of self-determination and only t h i s p a r t i c u l a r outcome of self-determination i s relevant to t h i s study. Other aspects of these problems not discussed i n the following pages are: (1) The "secession" of states from in t e r n a t i o n a l treaty organizations. The Hungarian and Czech threats to withdraw from the Warsaw Pact i n 1956 and 1968 respectively were not threats to secede as secession i s defined i n the following paper. What distinguishes these cases i s that i n these cases the t e r r i t o r i a l i n t e g r i t y of a state was not at issue. (2) Self-determination as u n i f i c a t i o n , e.g. the r i g h t to self-determination intermittently proclaimed by the Korean and German people. (3) Self-determination for t e r r i t o r i a l l y d i f f u s e minorities within States, e.g. the black Americans i n the United States or the Catholic minority i n Northern Ireland. (4) Self-determination through revolution or coup. Attempts to overthrow the government without changing the external boundaries i s not secession even though the character of the State might become q u a l i t a t i v e l y d i f f e r e n t . 9 (5) V o l u n t a r i l y transacted secession, e.g. Singapore. The legitimacy of these i s unquestionable since they are uncontested. (6) Self-determination as p o l i t i c a l weapon e.g. Vietnam. Self-determination has minimal l e g a l content i n these cases. Most often i t i s used as a slogan to support a m i l i t a r y campaign. In the case of Vietnam, American intervention was putatively i n support of the South Vietnamese people's r i g h t to self-determination. In contrast North Vietnamese action was c a r r i e d out on behalf of s e l f -determination f o r the whole of the Vietnamese people. (7) A claim to the l e g a l i d e n t i t y of the state i s not a secession nor i s an attempt by central government to cede or abdicate r e s p o n s i b i l i t y even i f i t s p r a c t i c a l e f f e c t might be s i m i l a r . Beran describes t h i s as an "expulsion 6". (8) Apartheid i n South A f r i c a i s s u i g e n e r i s 7 i n the sense that denial of the r i g h t to self-determination through p o l i t i c a l p a r t i c i p a t i o n i s formalized by the law. Similar de facto forms of r a c i a l discrimination can be found i n B o l i v i a and Guatemala where the majority Indian populations are See Beran,H. A L i b e r a l Theory of Secession , P o l i t i c a l Studies, 1984 XXXII, p21 See White,R. Self-Determination: Time for a Reassessment. Netherlands International Law Review 28, 1987, pl56. 10 unrepresented i n government and i n s t i t u t i o n a l l y oppressed. However, as Emerson states, "the demand fo r self-determination there has no necessary implication of support f o r s e l f -determination elsewhere and c e r t a i n l y not f o r what seems l i k e l y to be the next major incarnation i n the clamor of peoples trapped i n p l u r a l i s t i c states i n which they have no dominant share to take charge of t h e i r own d e s t i n i e s " 8 . These are aspects of i n t e r n a l self-determination rather than claims to secede. The solution to these problems l i e s i n universal p o l i t i c a l p a r t i c i p a t i o n not the reorganizing of state boundaries. A l f r e d Cobban stated once that, "the h i s t o r y of self-determination i s a h i s t o r y of the making of nations and the breaking of s t a t e s " 9 . This study adopts the breaking of states as i t s focus. I t favours attempts to harness the urge to secede, subject i t to l e g a l l i m i t s and give i t the capacity to advance the cause of human ri g h t s for oppressed peoples trapped i n national t e r r i t o r i e s within states. F i n a l l y , t h i s study i s an attempt to l e g i t i m i z e the realignment of the in t e r n a t i o n a l state-system i n a manner more congruent with i n t e r n a t i o n a l law and the promotion of human r i g h t s . 8 See Emerson,R. Self-Determination, AJIL, 65, 1971, p275. 9 See A.Cobban, The Nation-State and National S e l f -Determination .London, 1945, p6. , 11 I C H A P T E R T W O H I S T O R I C A L R E S U M E : T H E P H I L O S O P H I C A L F O U N D A T I O N S O F S E L F -D E T E R M I N A T I O N . OUTLINE A. INTRODUCTION  B. LEGAL SCHOLARS  C. WOODROW WILSON AND SELF-DETERMINATION.. D. COMMUNISM AND SELF-DETERMINATION  E. THE RIGHT OF SECESSION. F.CONCLUSION 14 A.INTRODUCTION. Self-determination, i n i t s crudest form, has existed for as long as human beings have possessed consciousness and the i n s t i n c t to form s o c i a l compacts and even the e a r l i e s t communities fought for the r i g h t to organize and control t h e i r own s o c i e t i e s . Even i n these early times there was an innate unwillingness i n s o a c i a l groups to submit to a l i e n domination. Indeed, many of the major wars throughout h i s t o r y have been c o n f l i c t s over the r i g h t to exercise s e l f -determination though i t was not u n t i l the i n t e l l e c t u a l enlightenment that these issues were comprehended as such. Self-determination, as we now understand i t , l i e s i n the fusion of external self-determination, "the r i g h t of people to choose the sovereignty under which they w i l l l i v e " 1 and i n t e r n a l self-determination, whose more recent philosophical heritage i s the subject of the following section. Self-determination became a f u l l y - f l e d g e d p r i n c i p l e with the advent of nationalism and democracy i n Europe. These two concepts provided the i d e o l o g i c a l underpinnings. For t h i s reason self-determination i s most often traced back to the French Revolution when popular sovereignty usurped the See Woodrow Wilson, Address to the League to Enforce Peace, May 27, 1916 quoted i n Wells, B., UN Decisions on  Self-Determination, University Microfilms, Inc, Ann Arbor, Michigan: 1963, p22. 15 divine r i g h t of kings as the decisive governing p r i n c i p l e i n the organization of the nation-state. The formative steps i n the c r y s t a l l i z a t i o n of the idea of popular sovereignty were taken by the Greeks and Romans. Discoveries made i n the s c i e n t i f i c f i e l d by the Greeks stimulated more sophisticated insights into p o l i t i c a l organization. The most innovative of these was the invention of the algebraic variable which aroused p a r a l l e l speculation into the p o s s i b i l i t y that men could be treated as formal equals. The Romans simply incorporated these ideas into a wider domain, thereby heralding the s h i f t from status to contract i n the l e g a l sphere and replacing i n s t i t u t i o n a l s t r a t i f i c a t i o n with formal equality i n society at l a r g e 2 . The legacy of these two t r a d i t i o n s served to undermine the i r r a t i o n a l basis f o r the divine r i g h t of kings by p o s i t i n g r a t i o n a l i t y as the organizing p r i n c i p l e i n the a f f a i r s of men. The c o l l e c t i v e amnesia of the Dark Ages interrupted the progress of democracy 3 but as European c i v i l i z a t i o n was reborn so, too, were the ideals of the c l a s s i c a l epochs. The developments which led to the establishment of the p r i n c i p l e of self-determination occurred at three, mutually-supportive l e v e l s - the p o l i t i c a l , the l e g a l and the p h i l o s o p h i c a l . With the unfortunate exception of slavery. This was i n part due to the influence of C h r i s t i a n i t y and Islairu The Crusades for example were a negation of s e l f -determination. I r r a t i o n a l myth rather than r a t i o n a l man was the organizing force behind society. 16 Many of the g r e a t names of European thought were i n v o l v e d a t t h i s l a s t l e v e l . The t h i n k e r s o f the Enlightenment a b j u r e d the r e l i g i o u s standards so dominant i n the Dark Ages which were d e d i c a t e d t o the s u p p r e s s i o n o f the i n d i v i d u a l 4 . The r e - a s s e r t i o n o f the i n d i v i d u a l 1 s c e n t r a l p o s i t i o n i n s o c i e t y began w i t h Hobbes and Locke and was p l a c e d i n a l a r g e r p o l i t i c a l c o n t e x t by Rousseau i n h i s t h e o r y o f the s o c i a l c o n t r a c t . Both Hobbes and Locke were concerned e i t h e r w i t h man's freedom from government i n the form o f a Lockean sequence o f r i g h t s 5 or from h i m s e l f through the p r o t e c t i o n of the benevolent d i c t a t o r - the L e v i a t h a n 6 . Rousseau < took the p r o c e s s a st e p f u r t h e r i n ad v o c a t i n g i n d i v i d u a l i z a t i o n as, f i r s t , l i b e r a t i o n , then community. I n d i v i d u a l s were t o rea c h s e l f - r e a l i z a t i o n by f r e e i n g themselves from s u b j e c t i o n t o the w i l l o f another. Having accomplished t h i s , the i n d i v i d u a l w i l l c o u l d c o n t r i b u t e t o the General W i l l o f s o c i e t y as a whole. Government by s o c i a l c o n t r a c t c o u l d then be ensured. What Rousseau d e s c r i b e d was t h e move from i n d i v i d u a l s e l f - d e t e r m i n a t i o n t o c o l l e c t i v e s e l f -d e t e r m i n a t i o n . There i s no t r a n s f e r o f s o v e r e i g n t y , as t h e r e See Cameron, D, N a t i o n a l i s m . S e l f - d e t e r m i n a t i o n and the  Quebec Question. Canada: Macmillan, 1974, p36. See Locke v, J , Two T r e a t i s e s o f C i v i l Government. London: Dent, I960., See Hobbes,T., L e v i a t h a n . B a l t i m o r e : Penguin, 1968. 17 i s w i t h H o b b e s a n d L o c k e . R a t h e r t h e r e e x i s t s a n o n g o i n g s o v e r e i g n t y o f t h e p e o p l e 7 . T h o u g h t h e r e i s a c l e a r , i f u n s p e c i f i e d , l i n k b e t w e e n t h e " p h i l o s o p h e s " a n d t h e p e o p l e i n t h e g e r m i n a t i o n o f t h e F r e n c h R e v o l u t i o n , i t s e a r l i e r A m e r i c a n c o u n t e r p a r t l a c k e d t h e same p h i l o s o p h i c a l s t i m u l u s . The War o f I n d e p e n d e n c e was b a s e d l e s s o n s e l f - d e t e r m i n a t i o n t h a n i t was o n a common g r i e v a n c e f e l t b y t h e t h i r t e e n d i s p a r a t e s t a t e s o v e r B r i t i s h r u l e 8 . J e f f e r s o n d r e w m o s t l y on L o c k e a n d was more i n t e r e s t e d i n i n d i v i d u a l l i b e r t y t h a n c o m m u n i t y s e l f -d e t e r m i n a t i o n . The A m e r i c a n s h a d , a s t h e i r p r i m a r y g o a l , t h e d i s p l a c e m e n t o f t h e B r i t i s h a u t h o r i t i e s . O n l y a f t e r t h i s o c c u r r e d d i d J e f f e r s o n i a n i d e a l s o f d i g n i t y a n d i n d i v i d u a l i t y t a k e r o o t . E x t e r n a l s e l f - d e t e r m i n a t i o n h a d c l e a r p r e c e d e n c e o v e r a n y t h o u g h t s o f i n t e r n a l d e m o c r a c y a t t h i s e a r l y s t a g e . N e u b e r g e r makes t h e p o i n t t h a t i f s e l f - d e t e r m i n a t i o n c r e a t e d t h e U n i t e d S t a t e s t h e n F r a n c e , i n t h e l a t e r r e v o l u t i o n , c r e a t e d s e l f - d e t e r m i n a t i o n 9 . H e r e , t h e r e was a g r o u p w i t h i n a n a l r e a d y s e l f - g o v e r n i n g 1 0 c o u n t r y a t t e m p t i n g t o i m p o s e a d e m o c r a t i c r e v o l u t i o n a r y s t r u c t u r e w h e r e t h e r e 7 S e e R o u s s e a u , J . J , The S o c i a l C o n t r a c t , L o n d o n , P e n g u i n B o o k s p 6 l 8 S e e C ameron, D, N a t i o n a l i s m , S e l f - d e t e r m i n a t i o n a n d t h e Q uebec Q u e s t i o n , s u p r a , p 2 6 . 9 S e e N e u b e r g e r , B, N a t i o n a l S e l f - D e t e r m i n a t i o n i n P o s t -C o l o n i a l A f r i c a , s u p r a , p l 3 1 0 S e e Cobban,A, H i s t o r i a n s a n d t h e C a u s e s o f t h e F r e n c h R e v o l u t i o n , L o n d o n : R o u t l e d g e a n d K e g a n , 19 5 8 , p8 18 had o r i g i n a l l y been monarchy. The French were attracted to self-determination, both f o r themselves, and i n i t i a l l y , others. The p r i n c i p l e s of popular sovereignty, democracy and equality a l l contributed to the revolution and the p r i n c i p l e of self-determination cannot be understood without reference to them. However, i t was a fourth element, nationalism, which le d to the recantation by the French of t h e i r commitment to self-determination for other nations. As communities coalesced to become nations and these newly-developed nations began to yearn f o r independence, nationalism became a potent force for change i n Europe. Yet the r e l a t i o n s h i p between nationalism and self-determination has been a paradoxical one. Nationalism has frequently been instrumental i n creating the s e l f i n self-determination. On the other hand, nationalism has also been the single greatest force i n opposition to self-determination since the 17th century. This occured i n France when the ideals of the French Revolution were quickly corrupted by Napoleonic imperial nationalism whose expansionist tendencies were i n no way conducive to independence for other European nations. Post-revolutionary France remained, f o r a short time, committed to self-determination which became the governing p r i n c i p l e i n cases of cession and annexation. The p l e b i s c i t e s i n Avignon and Venaisson (1791) and Savoy and Nice (1792), though imperfect i n execution, bear witness to t h i s commitment1 . However, with the p u b l i c a t i o n of the Cambon Report i n 1792 1 2 i t soon became c l e a r that democratic idealism could no longer hold sway i n French foreign p o l i c y and that same year saw the annexation of Belgium by a p l e b i s c i t e f o r which only Belgians i n sympathy with the revolution were enfranchised. Self-determination, described by Bos as a "cry of the French R e v o l u t i o n " 1 3 , was reduced to a whimper i n the face of Napoleonic hegemony. S i m i l a r l y , Prussian and German nationalism from Herder to H i t l e r was intent on acquiring self-determination f o r a l l German peoples but had l i t t l e respect for those nations whose aspirations ran against the grain of German nationalism. H i t l e r ' s aggressive quest f o r lebensraum represents the ultimate refinement of what Ofuatey-Kodjoe c a l l s "national determinism" 1 4. I t resulted i n the p r i n c i p l e ' s p o l i t i c a l and t h e o r e t i c a l r e j e c t i o n i n the l a t t e r h a l f of the 20th century. The progress of other forms of self-determination depended very much on the e x i s t i n g p o l i t i c a l environment. Self-determination tended to f l o u r i s h during revolutionary c r i s e s and the post-war dismantling of empires but was 1 1 See Wambaugh,S, A Monograph on Plebescites, With a  C o l l e c t i o n of O f f i c i a l Documents, New York: Oxford University Press, 1920, p33-45. 1 2 Ibid,p47. 1 3 See Bos,M, Self-Determination by the Grace of History, Netherlands Law Review, v o l 15, (1968), p362. 1 4 See Ofuatey-Kodjoe,W, The P r i n c i p l e of Self-Determination i n International Law, New York: Nellen, 1977, pll,29-33. 20 n e g l e c t e d w h i l e t h e s e e m p i r e s w e r e b e i n g f o r m e d o r w h e n e v e r E u r o p e e n t e r e d a r a r e p e r i o d o f q u i e s c e n c e . T h e F r e n c h e x p e r i e n c e w a s m i r r o r e d i n t h a t o f t h e t w o o t h e r g r e a t r e v o l u t i o n a r y p o w e r s o f t h e m o d e r n a g e ; t h e U S A a n d U S S R . T h e U S , h a v i n g a c h i e v e d i n d e p e n d e n c e , f o u n d t h a t a n i n f l e x i b l e p u r s u a n c e o f J e f f e r s o n i a n i d e a l s w a s s t r a t e g i c a l l y u n t e n a b l e i n i t s d e a l i n g s w i t h W e s t e r n h e m i s p h e r e n e i g h b o u r s , a n d w i t h t h e s e c e s s i o n i n t h e S o u t h . T h e U S S R w a s n o d i f f e r e n t . T h e c o n s o l i d a t i o n o f a R u s s i a n r e v o l u t i o n , i n s p i r e d p a r t l y b y s e l f - d e t e r m i n a t i o n , c o u l d n o t b e s u c c e s s f u l l y c o m p l e t e d w i t h o u t a m o d i f i c a t i o n o f t h e p r i n c i p l e w h i c h b r o u g h t i t i n t o e x i s t e n c e . T h e s e r e a l i t i e s d i c t a t e d t h a t p r i o r t o t h e F i r s t W o r l d W a r , s e l f - d e t e r m i n a t i o n c o u l d m o r e r e a d i l y b e d e s c r i b e d a s a s t r a t e g y t h a n a p r i n c i p l e , c a p a b l e , l i k e a l l s t r a t e g i e s o f b e i n g d i s c a r d e d s h o u l d i t f a i l t o f u r t h e r t h e v i t a l i n t e r e s t s o f t h e m a j o r p o w e r s . B . L E G A L S C H O L A R S L e g a l s c h o l a r s h i p c o n f i r m s t h e a b o v e c o n c l u s i o n w i t h i t s r e l u c t a n c e t o a s c r i b e a n y j u r i s p r u d e n t i a l s i g n i f i c a n c e t o t h e p r i n c i p l e u n t i l a f t e r 1 9 4 5 . Y e t t h e d e v e l o p m e n t o f i n t e r n a t i o n a l l a w c o u l d n o t c o n t i n u e o b l i v i o u s t o t h e p o l i t i c a l a n d p h i l o s o p h i c a l c h a n g e s i n t h e s t a t u s o f s e l f -21 determination. S h i f t s i n the p o l i t i c a l basis f o r sovereignty were r e f l e c t e d i n appropriate l e g a l responses. Even as early as the seventeenth century Grotius registered a cautious revocation of the e x i s t i n g p r i n c i p l e s of conquest and cession without consent: "In the a l i e n a t i o n of a part of the sovereignty, i t i s also required that the part which i s to be alienated consent to the a c t " 1 5 . A century previous to that, Erasamus 1 6 had f i r s t asserted the proposition that authority over men could only be exercised with the consent of the people. These writers were pr i m a r i l y concerned with the influence to be attr i b u t e d to the residents involved i n an int e r n a t i o n a l contractual bargain. They d i d not contemplate the p o s s i b i l i t y of a p r i n c i p l e of self-determination governing in t e r n a t i o n a l law and r e l a t i o n s i n general. Even when self-determination entered the l e g a l lexicon at the turn of the century, lawyers and scholars remained s c e p t i c a l as to i t s importance or usefulness. H a l l was perhaps the most scathing, warning that, "the phrase i s one of dangerous vagueness as encouraging inordinate n a t i o n a l i s t claims, and i t s a p p l i c a t i o n , i n ignoring economic conditions has led to some disastrous r e s u l t s " 1 7 . See Grotius,H., De Jure de B e l l i et Pacis (Trans, W.Whelwell), Cambridge:CUP, 1853, BK I, p342-3. Quoted i n Wells,B. UN Decisions on Self-Determination. supra, p8. See H a l l , A Treatise on International Law, 8th ed., ed. A. Pearce Higgins, Oxford: Clarendon Press, 1924, p54 22 V e r j i z i l believes that self-determination had only l i m i t e d relevance i n the "organization of p l e b i s c i t e s i n border areas which had a disputed national c h a r a c t e r " 1 8 while Stowell was a r a r i t y among h i s contemporaries i n regarding the subject as worthy of any comment at a l l . His major i n t e r e s t was i n the r i g h t of intervention i n c i v i l wars and i n t h i s connection he made the point that sovereignty, "belongs...not to the government which has been recognized as acting f o r the community but to the ind i v i d u a l s of which the state i s composed" 1 9. According to Stowell, the r i g h t of self-determination was coterminous with the r i g h t of revolution. Notwithstanding Stowell, i t i s perhaps the sil e n c e of the major writers on international law that speaks most eloquently of the status of the p r i n c i p l e of s e l f -determination at t h i s time. I t had c l e a r l y not found favour i n i n t e r n a t i o n a l jurisprudence i n the West. The early-20th century renascence of the p r i n c i p l e was due to the support i t garnered from two very d i f f e r e n t i d e o l o g i c a l sources. These were the l i b e r a l internationalism of Woodrow Wilson and the new Marxist-Leninist ideology emanating from the Soviet Union. See V e r j i z i l , J . International Law i n H i s t o r i c a l  Perspective, v o l 1, Leiden: Sitjhoff,1968, p321 See Stowell, International Law: a restatement of  P r i n c i p l e s i n conformity with actual p r a c t i c e . New York: Holt & Son, 1931, p96. 23 C.WOODROW WILSON AND SELF-DETERMINATION Woodrow Wilson i s often credited as the father of s e l f -determination. However, i n h i s l a t e r l i f e he was to rue the haste with which he had sponsored t h i s troublesome creature. From the loam of high p r i n c i p l e s and good intentions came an unruly weed which spread r a p i d l y through the post-war world. Like so many i n i t i a l l y attracted to the p o s i t i v e note sounded by the p r i n c i p l e , Wilson was forced to concede that an assortment of p r a c t i c a l and conceptual problems denied i t u n i v e r s a l i z a b i l i t y . Wilson's d e f i n i t i o n s of self-determination were derived from a p e c u l i a r l y American perspective. The p r i n c i p l e was, for him, the natural successor to a host of other l i b e r a l totems i n Western democratic thought. He championed s e l f -determination as a democratic p r i n c i p l e because of h i s firm b e l i e f that democratic states were les s warlike than t h e i r a u t h oritarian counterparts. Self-determination was to be the t h e o r e t i c a l t o o l with which he would help construct a l a s t i n g post-war peace. Wilson took the US into the war with the intention of making the world safe f o r democracy, proclaiming i n 1918, "what we demand i n the war...is that the world be made...safe for every peace-loving nation which, l i k e our own, wishes to l i v e i t s own l i f e , determine i t s own i n s t i t u t i o n s , be assured of 24 j u s t i c e and f a i r dealings, by other peoples of the world as against force and s e l f i s h a g g r e s s i o n " 2 0. Unfortunately Wilson's self-determination was a worthy, i f t h e o r e t i c a l l y flawed, p r i n c i p l e which disintegrated when exposed to the Manichean European p o l i t i c a l environment 2 1. Even Robert Lansing, Wilson' Secretary of State, warned that the phrase was, "loaded with dynamite" 2 2, i f taken to i t s l o g i c a l conclusions. Wilson never intended such a conclusion. What began as "democratic i d e a l i s m " 2 3 or "democratic a l t r u i s m " 2 4 eventually became simply conditional self-determination. Wilson's p o s i t i o n was at best ambiguous. As a Southern Democrat he, "had the r i g h t of secession i n hi s bones" 2 5 but he was conspicuous i n h i s f a i l u r e to support secession from e x i s t i n g states. P r i n c i p l e 10 of h i s famous Fourteen P r i n c i p l e s states, See The Public Papers of Woodrow Wilson, War and Peace I. 14 Points Speech, J o i n t Session of Two Houses of Congress, Jan 19th, 1918, pl73 See Pomerance,M. Self-Determination i n Law and Practice, supra, pl-3. See Wells,B. UN Decisions on Self-Determination, supra,p45 See Cameron, D. Nationalism. Self-Determination and the  Quebec Question, supra, p87. See Cobban,A. The Nation-State and National S e l f - Determination . supra,pl3-22 See Notter,H, The Origins of the Foreign Po l i c y of  Woodrow Wilson. Baltimore: John Hopkins Press, 1937, p69. 25 "the peoples of Austro-Hungary...should be accorded the freest opportunity of autonomous development" 2 6. Yet Wilson was at pains to remind h i s fellow statesmen that he could not contemplate the destruction of the Austro-Hungarian empire. Anomalies l i k e t h i s abound. Indeed i t could be argued that Wilson's conception of s e l f -determination was morally flawed, as well as p r a c t i c a l l y f a l l i b l e . His ideas about c o l o n i a l peoples were regressive. He quoted Burke's p a t e r n a l i s t i c and outdated axiom that, "the general character and s i t u a t i o n of a people must determine what sort of government i s f i t t e d for them" 2 7 and hi s own P r i n c i p l e 6 harks back to t i t l e by conquest, saying that the adjustment of c o l o n i a l claims was to be based on, "the s t r i c t observance of the p r i n c i p l e that i n determining a l l such questions of sovereignty the i n t e r e s t s of the population concerned must have equal weight with the equitable claims of the government whose t i t l e i s to be determined" 2 8. Wilson eventually became weary of self-determination when i t was apparent that h i s version was unworkable. Eventually he even condoned the US intervention i n Mexico on the specious grounds that the human cost of s e l f -determination was too great. Wilson's various reverses i n Europe and the f a i l u r e of the League of Nations to include See Public Papers of Woodrow Wilson, supra pl79. See Notter, H. The Origins of the Foreign P o l i c y of  Woodrow Wilson, supra, p69. See Public Papers, supra,pl78. 2 6 the p r i n c i p l e i n i t s covenant le d him to exclude the ri g h t of self-determination from a l l but, "the t e r r i t o r i e s of the defeated empires". Wilson's lame ret r e a t from s e l f -determination as a universal p r i n c i p l e i s perhaps a vi n d i c a t i o n of h i s contemporary, Woolsey's b e l i e f that "the l i t t l e p r i n c i p l e must y i e l d to the bi g i n t e r e s t " 2 9 . D.COMMUNISM AND SELF-DETERMINATION The Bolshevik Revolution provided self-determination with a new and vigorous source of support. Marx i n i t i a l l y favoured internationalism. He intended communism to transcend national boundaries and attitudes. Nationalism, and by implication, self-determination, could only retard the spread of communism by hampering the progress of internationalism. Lenin and S t a l i n developed a more r e a l i s t i c theory of self-determination by which nationalism could be used to make piecemeal attacks on the c a p i t a l i s t system. Both wrote major pieces e x t o l l i n g s e l f -d etermination 3 0. However, while t h e i r enthusiasm appeared 2 9 See Woolsey,T.S. Self-Determination, AJIL, v o l 13, (1919), p304. 3 0 See S t a l i n , J , Marxism and the Colonial Question. New York: International Publishers and Lenin,I.V, The Right  of Nations to Self-Determination, New York: International Publishers, 1951. 2 7 unconditional, i t soon became apparent that the s o c i a l i s t conception of self-determination came with Lenin's caveat that, "the r i g h t to self-determination cannot and must not serve as an obstacle to the exercise by the working-class of i t s r i g h t to d i c t a t o r s h i p " 3 1 . S t a l i n confirmed t h i s with h i s l i m i t e d d e f i n i t i o n , promising to, "...give f u l l support to the p r i n c i p l e of s e l f -determination where i t i s directed at against feudal, c a p i t a l i s t and i m p e r i a l i s t states". In other cases, self-determination was, according to S t a l i n , a mere f i c t i o n 3 2 . Self-determination was not an end i n i t s e l f but a means by which the ultimate triumph of communism could be secured. Closer analysis reveals that communism, l i k e nationalism, cannot accommodate a f u l l -blooded self-determination. The " s e l f " i n question can only be that defined by Marxist-Leninist teachings ( i . e . a p r o l e t a r i a t i n a state of f u l l h i s t o r i c a l consciousness) . A l l other selves are denied the r i g h t . The Communists were responsible f o r developing a t h e o r e t i c a l framework for self-determination and then i n s t i t u t i o n a l i z i n g that framework as a system of autonomy within a multi-national state. The Soviet Union continues to serve as an i l l u s t r a t i o n of the s i g n i f i c a n c e of these ideas 3 1 See Lenin, I.V. The Right of Nations to s e l f - Determination. supra. 3 2 See Cobban,A. The Nation-State and National S e l f - Determination , supra,pl05.. 28 even i f , i n practice, the autonomy of i n d i v i d u a l republics i s l i m i t e d . Ultimately, the Communists, l i k e Wilson, were forced to abandon self-determination, as we understand i t , because they r e a l i z e d f u l l self-determination f o r any of the s o c i a l i s t republics would threaten Central Russian access to raw materials and expose i t s peripheries to the threat of foreign intervention. E.THE RIGHT OF SECESSION Unlike the p r i n c i p l e of self-determination, the r i g h t of secession never found acceptance eith e r among statesmen or p o l i t i c a l philosophers. Most often ignored as an inconvenient o f f s p r i n g from i t s parent p r i n c i p l e , i t was also derided as dangerous and impractical. P o l i t i c i a n s and writers who have supported the p r i n c i p l e of s e l f -determination occasionally found i t necessary to include a c r i t i q u e of secession. Others assumed that the two were mutually exclusive. Grotius i s the f i r s t to speak of a r i g h t of secession ("ius r e s i s t e n d i ac s e s s i o n i s " 3 3 ) , though he only recognized See Grotius,H. De Jure de B e l l i et Pacis, supra, V . l , pl39. the r i g h t i n extreme circumstances, favouring instead the maintenance of c i v i l society at any cost. He states, " i f , i n fact, the r i g h t of resistance should remain without r e s t r a i n t , there w i l l no longer be a state, but only a non-social horde" 3 4. Much l a t e r Rousseau a l l i e d himself with the small state, and by implication secession, when states become so large that the General W i l l i s incapable of being c r e a t e d 3 5 . Most writers at t h i s time favoured the nation-state. Lincoln's assessment that secession was "the essence of anarchy" was accepted by most observers. Even by the l a t e nineteenth century, when the French . were arguing that the doctrine of self-determination had been established as a natural r i g h t , German writers continued to oppose i t , saying the p r i n c i p l e was, "wrong i n theory and value l e s s i n practice, [since] i t contradicted the organic nature of the state and would permit secession" . This fear of secession eventually drove French writers such as Despagnet 3 7, L i t z 3 8 and Bo n f i l s to r e j e c t the p r i n c i p l e of self-determination i n toto. 3 4 Ibid. 3 5 See Rousseau J. J , The So c i a l Contract, supra. 3 6 See Wambaugh,S. Plebescites, supra,p22. 3 7 See Wells,B. UN Decisions on Self-Determination. supra,pl8. 3 8 Ibid,pl7. 30 The general f e e l i n g was that to recognize a r i g h t to secede was to i n v i t e i n t ernational anarchy. Nevertheless secessions d i d occur and were recognized as v a l i d l y c o n s t i t u t i n g new states by the international community. I f one i s to detect a c e r t a i n pattern i t i s that the success (Poland i n the 1770's, Ireland and Norway 3 9 i n the early 20th century) and the f a i l u r e (the American c i v i l war and the attempted secession by Hungary i n 1848) of secession can be attributed, not to the acceptance or non-acceptance of the r i g h t , but rather to a combination of p o l i t i c a l factors including the p o l i t i c a l w i l l and m i l i t a r y capacity of the parent state to prevent the secession, the sense of i d e n t i t y present i n the seceding e n t i t y and the inte r n a t i o n a l s i t u a t i o n . Woodrow Wilson was conscious of these factors and h i s advocacy of the r i g h t of self-determination d i d not include approval of the r i g h t to secede. His concern was with i n t e r n a l self-determination (the establishment of free, democratic i n s t i t u t i o n s i n e x i s t i n g states) rather than the ri g h t of n a t i o n a l i t i e s within a state to separate. Only the Soviets gave the r i g h t of secession c o n s t i t u t i o n a l meaning. Devised by S t a l i n and included i n the 1936 Constitution, i t , i n fact, amounted to nothing more than a t h e o r e t i c a l r i g h t incapable of p r a c t i c a l exercise. See Wambaugh,S, Plebescites, supra,p24. F.CONCLUSION Self-determination had l i t t l e p r a c t i c a l a p p l i c a t i o n i n t h i s period despite i t s i d e o l o g i c a l s i g n i f i c a n c e . I t had gained a precarious foothold i n international law but had to await another major war to claim a central r o l e i n the regulation of state organization. The r i g h t of secession remained a p o l i t i c a l pariah standing i n opposition to the le g a l and p o l i t i c a l trends of the time which pointed, not to separation and fragmentation, but rather to the strengthening of state sovereignty and the preservation of empire. 32 CHAPTER II : A NOTE: THE AALAND ISLANDS DISPUTE ( 33 Abstract The Aaland Islands are situated at the Gulf of Bothnia. They l i e at a distance of about 50 kilometres form Sweden and 70 kilometers from Finland. U n t i l 1809 the islands were part of Sweden. In that year they were conquered by Russia. The Treaty of Paris i n 1856 led to t h e i r d e m i l i t a r i z a t i o n . In 1917. The Aaland islands were incorporated into Finland when that country gained independence i n 1917. However the islanders expressed a strong desire i n a p l e b i s c i t e that they be reunited with Sweden. Finland refused to recognize the p l e b i s c i t e and the matter was brought to the Council of the League of Nations by the islanders and by Sweden. 34 Much of the l e g a l jousting of the l a t e 20th-century i s prefigured i n the Aaland Islands case where, fo r the f i r s t time, self-determination was the subject of international inquiry. The somewhat tortuous p o l i t i c a l h i s t o r y of the islands made t h i s case a d i f f i c u l t one to resolve and i n e v i t a b l y p o l i t i c a l forces played a larger r o l e i n the outcome than the s t i l l - n a s c e n t p r i n c i p l e of s e l f -determination. Despite i t s recent h i g h - p r o f i l e , s e l f -determination was to be consumed i n the f i r e s of t e r r i t o r i a l i n t e g r i t y and s t r a t e g i c bargaining. The f i n a l decision was paraded as v i c t o r y for objective in t e r n a t i o n a l legalism but the accompanying p o l i t i c a l i n t r i g u e s 1 documented i n the o f f i c i a l records of the time revealed t h i s o b j e c t i v i t y as a facade. The case rested on the primacy to be attached to the uncontested desire on the part of the Aaland Islanders to break from Finland and form a union with Sweden. However the matter was complicated by a number of geo-strategic, economic and even moral considerations which combined to marginalize the question of self-determination. Here i s not 1 See Barros, J, The Aaland Islands Question: I t s Settlement  by the League of Nations, New Haven and London: Yale University Press, 1968. 35 the place f o r eithe r a summary of the h i s t o r y of the Aaland Islands or a r e c a p i t u l a t i o n of the l e g a l and p o l i t i c a l machinations of the League of Nations i n the case i t s e l f . 2 Instead, we can ask, what was the nature of the p r i n c i p l e of self-determination or secession invoked by the Commission of J u r i s t s under the auspices of the League of Nations Council ? Commenting on the case afterwards,Charles Noble Gregory summarizes the decision as, 11 the l i m i t a t i o n of the r i g h t of free self-determination, a t o x i c p r i n c i p l e . 1 , 3 His description i s accurate but h i s a c i d i t y i s both unwarranted and revealing. By the time of t h i s decision the Wilson-inspired euphoria surrounding self-determination had subsided and even Wilson himself was unwilling to be rec r u i t e d to the side of the islanders following h i s apostasy over self-determination i n the Southern Tyrol when he was forced to f l a t l y r e j e c t an app l i c a t i o n of the p r i n c i p l e . Only the p o l i t i c a l l y naive could f a i l to see the necessity of l i m i t i n g the r i g h t of self-determination. The International Commission of J u r i s t s ' advisory report s e r i o u s l y circumscribed the possible implementation of the r i g h t of self-determination but came close to advocating a l i m i t e d r i g h t of secession i n i t s obiter dictum See Barros, J . The Aaland Islands Case, supra. See also, Walters,J. History of the League. pl03-105. See Gregory,C.N. The Neutralization of the Aaland Islands, AMJ I n t ' l L. v o l XVII, 1923, p76. The Commission concluded that self-determination becomes an issue of international concern only when there i s no, " d e f i n i t i v e established p o l i t i c a l s i t u a t i o n , depending exclu s i v e l y upon the t e r r i t o r i a l sovereignty of the state II 4 The case of the Aaland Islands f e l l into t h i s category because Finland, 11 had not yet acquired the character of a d e f i n i t i v e l y constituted state 1 , 5 However even i n such a case self-determination, while i t was to be regarded as an important p r i n c i p l e , could not, according to the Commission, be the sole governing one since there were myriad other considerations to be taken into account, the most important being the i n t e r e s t s of peace 6. The Commission voiced a c l e a r preference for the establishment of l i m i t e d autonomy7 for the islands over outright separation from Finland. This was i n keeping with the post-war trend towards t h i s form of compensation for minorities whose aspirations could not be f u l l y accommodated by a reconstruction of Europe based on self-determination. 4 See O f f i c i a l Journal. League of Nations, Special Supplement No 3, October, 1920, pl4. 5 Ibid, pl4. 6 See Barros,J. The Aaland Islands Question, supra, p304. 7 The Aaland Islands were further protected from the threat of a s s i m i l a t i o n from the mainland by a p o l i c y of land ownership which made i t d i f f i c u l t y f o r Finns to buy land on the islands. 37 The most i n t e r e s t i n g part of the judgement, for our purposes, concerned the r i g h t of secession. The Commission reserved judgement on whether i t would recognize such a r i g h t i n cases where there was, 11 a manifest and continued abuse of sovereign power to the detriment of a section of the population of a s t a t e . " 8 For the f i r s t time a question of self-determination was linked to human r i g h t s . U n t i l then self-determination had been associated with a v a r i e t y of concepts such as democracy, nationalism and popular sovereignty. This r i g h t of secession, t e n t a t i v e l y envisaged by the Commission, appears to have no philosophical heritage and i s markedly absent from the various Wilsonian derivations of s e l f -determination. Few writers have seen f i t to remark on t h i s innovation and i t receded from view u n t i l i t was revived by the p i v o t a l 1970 Declaration on P r i n c i p l e s of International Law9. Aside from t h i s remarkable, i f inchoate, linkage the Aaland Islands Case raises a number of t h e o r e t i c a l and p r a c t i c a l problems for the p r i n c i p l e of self-determination. The question of the character of the self-determining unit i s barely raised. Was self-determination f o r the Aaland Islands a negation of self-determination f o r Finland as a whole ? Should the whole of the Swedish speaking population See O f f i c i a l Journal, supra,p5. See General Assembly Resolution 2625, Oct. 24, 1970.supra. 38 of Finland be included i n the process ? Finland further argued that the Aalanders were incapable of s e l f -determination since they had been the object of a Swedish propaganda campaign which had invalidated the consensus behind the secession from Finland. A l l these curious matters were of l i t t l e moment next to the part played by the Aaland Islands i n the larger p o l i t i c a l context. Indeed the Commission's stated task was to f i n d , " an acceptable compromise based on considerations of commonsense and p o l i t i c a l expediency" . P o l i t i c a l expediency dictated that the status quo be maintained, contrary to the wishes of the Aalanders. Perhaps the decisive factor was the s t r a t e g i c s i g n i f i c a n c e of Finland's geographical p o s i t i o n . The Western powers were eager to curry favour with the Finns, seeing Finland as a cordon s a n i t a i r e or buffer zone between Northern Europe and the Soviet Union. Nevertheless, i t would be wrong to perceive only a sheen of b i g power cynicism covering the a f f a i r . S e l f -determination was given serious consideration by the Council and the Great Powers. Secession was denied the islanders but an autonomy compromise p a r t i a l l y s a t i s f i e d the demands of both Finnish and Aaland nationalism. The case decision represents a c l e a r t h e o r e t i c a l advance on the Wilsonian See O f f i c i a l Journal. No 1, August, 1920, p5. 39 doctrine i f only because both the l i m i t s and the p o s s i b i l i t i e s of the r i g h t of secession were adumbrated. CHAPTER III SELFDETERMINATION IN THE AGE OF THE UNITED NATIONS;  DECOLONIZATION AND SECESSION. 41 OUTLINE A. INTRODUCTION B. SELF-DETERMINATION AND DECOLONIZATION (i) Competing interpretations of self-determination.... ( i i ) The United Nations Charter ( i i i ) Customary international law (iv) The International Covenants on Human Rights (v) Decolonization and Self-Determination (vi) A new phase: The 1970 Declaration on P r i n c i p l e s of International Law (v i i ) Summary of United nations Practice C. THE UNITED NATIONS AND THE RIGHT OF SECESSION. (i) The United Nations Charter ( i i ) The International Covenants ( i i i ) The 1960 Declaration on the Granting of Independence (iv) The 1970 Declaration on P r i n c i p l e s of International law (v) Conclusion A. INTRODUCTION The post-war years witnessed the elevation of s e l f -determination from an occasionally-adhered to p o l i t i c a l concept 1 to the crown jewel i n the i n t e r n a t i o n a l l e g a l panoply 2. This was exemplified by i t s i n c l u s i o n i n the United Nations Charter 3 as one of the organizations major purposes. Despite t h i s , precise d e f i n i t i o n of the p r i n c i p l e continued to escape the grasp of lawyers, p o l i t i c i a n s and i n t e r n a t i o n a l bureaucrats a l i k e . Attempts to d e l i m i t the doctrine were models of obfuscation. Eventually anything beyond i t s vague restatement as an imperative f o r action was decried as c o l o n i a l obstructionism or academic indulgence by those states i n the majority, who sought to define i t according to how i t might best serve t h e i r i n t e r e s t s . Paradoxically, as the p r i n c i p l e grew i n s i g n i f i c a n c e , the number of opportunities for a p p l i c a t i o n reduced. Its The Wilsonian doctrine of self-determination was e s s e n t i a l l y a p o l i t i c a l one. I t was rejected i n the major l e g a l case concerned with the problem at the time (Aaland Islands) and found no place i n the Covenant of the League of Nations. I t s p o l i t i c a l a p p l i c a t i o n was sometimes haphazard, depending as much on the given exigencies than any devotion to consistency. See Chapter 2.i n f r a . The p r i n c i p l e of self-determination was raised i n the United nations General Assembly and i n committee more often than any other p r i n c i p l e . See Ofuatey-Kodjoe.W, The P r i n c i p l e Of Self-Determination i n International  Law, supra,p2. See United Nations Charter A r t i c l e s 1(2) and 55. 43 subsequent transformation from p o l i t i c a l p r i n c i p l e to l e g a l r i g h t was accompanied by a r e s t r i c t i o n i n i t s revolutionary and humanitarian p o t e n t i a l . These developments had two p r i n c i p l e sources. At one l e v e l , there was a s e l f - s e r v i n g desire on the part of states to exclude the r i g h t of secession from the p r i n c i p l e of self-determination. Secession was thought to have enormous disr u p t i v e p o t e n t i a l i n the new post-colonial states. This meant the e v o l u t i o n 4 of self-determination was attended by an abhorrence of i t s natural o f f s p r i n g , secession. The l e g a l and p o l i t i c a l gymnastics t h i s , p o s i t i o n necessitated f i n a l l y resolved into an espousal of double-standards on the part of statesmen and countless examples of i l l - c o n c e a l e d legerdemain i n l e g a l and academic c i r c l e s . The other source of the development lay i n the simultaneous drive to associate self-determination with decolonization. While self-determination was always recognized as a f r u i t f u l avenue through which the independence of the colonies might be achieved, i t soon came to be i d e n t i f i e d exclusively with the process of decolonization. Such an i d e n t i f i c a t i o n had several purposes. F i r s t i t had the merit of being morally laudable. Second, i t r e f l e c t e d h i s t o r i c a l i n e v i t a b i l i t y . T h i r d , i t served another useful purpose for the majority of United Nations member states because by making decolonization the only legitimate 4 See Rigo Sureda, A. The Evolution of the Right of S e l f - determination: A Study of United Nations Practice. Leiden: S i t j h o f f , 1973. 44 goal of self-determination i t drew attention away from the p r i n c i p l e of secession. So while self-determination continued to evade d e f i n i t i o n at a t h e o r e t i c a l l e v e l i t was not, as many commentators have argued 5,incapable of i n s p i r i n g consistent p r a c t i c a l a p p l i c a t i o n . The p r i n c i p l e of self-determination found a niche i n the process of decolonization but t h i s had the double-edged e f f e c t 6 of both securing i t s primacy while decolonization was at i t s apogee and threatening i t with obsolescence as the process reached completion. At present, with only the v e s t i g i a l p e c u l i a r i t i e s 7 of colonialism and c e r t a i n s p e c i a l cases remaining 8, self-determination, as conceived by the UN, has been passively adopted as a p r i n c i p l e without a purpose ; a r i g h t bereft of any p o t e n t i a l r e c i p i e n t s . I t requires r e a c t i v a t i o n and reassessment. Only by renewing i t s umbilical connection with secession can such a renascence be achieved. This chapter w i l l investigate the UN's r o l e i n the developments I have j u s t described and w i l l conclude with an argument f o r the re-integration of self-determination and See Pomerance.M, Self-Determination i n Law and  Practice, supra, and Neuberger,B, National S e l f - Determination i n Post-colonial A f r i c a , supra. See Emerson,R. Self-Determination, AJIL. v o l 65, 1971, p459-75. See e.g. G i b r a l t a r , Hong Kong, St Helena. See e.g. South A f r i c a , Namibia and Palestine. 45 secession based on a reformist rendering of the present l e g a l p o s i t i o n . B. SELF-DETERMINATION AND DECOLONIZATION As we have seen, Wilsonian self-determination was a p e c u l i a r l y European concept not only r e f l e c t i n g the values of the Western democratic t r a d i t i o n but also remaining European i n i t s a p p l i c a t i o n . This continental parochialism was to be outmoded i n the heady days following the Second World War. The UN was symbolic of, i f not a rampant Utopianism, then c e r t a i n l y a sanguine universalism. But i f Wilson's self-determination was transformed into a global p r i n c i p l e i t was also denuded of many of i t s complexities. The debates that took place over Wilson's theories, most notably during the Aaland Islands dispute 9, and the new ins i g h t s these afforded were l o s t i n the s w i r l of internationalism that greeted the end of the war. Toynbee's warning that, " self-determination i s merely the statement of the problem not the solution of i t " 1 0 , went unheeded. The problem was to be stated with alarming frequency i n the future usually i n conjunction with a confidence that i t was a comprehensive solution. 9 See Aaland Islands Chapter II i n f r a . 1 0 See Toynbee,A.J. Self-Determination. The Quarterly Review, 484, 1925, p317-338. 46 (i) Competing Interpretations of Self-determination. The advocates of self-determination came from three d i f f e r e n t t r a d i t i o n s , the Afro-Asian, Western and Soviet concepts of international law, and i t was i n the interplay between these t r a d i t i o n s that most of the controversy of the second h a l f of the twentieth century was aroused. Afro-Asian self-determination was seminal among these t r a d i t i o n s and i t was t h i s form that distinguished post-war from pre-war self-determination. Manifesting i t s e l f at f i r s t as an i l l - d e f i n e d yearning f o r freedom or independence, i t eventually prevailed as the i n s p i r a t i o n for the 11 new UN law of s e l f - d e t e r m i n a t i o n " 1 1 . World War Two had the e f f e c t of revealing as a myth the supposed i n v u l n e r a b i l i t y of the Western imperial powers. That t h i s myth had been exposed by the defeated Japanese mattered l i t t l e . The c o l l e c t i v e psyche of the c o l o n i a l peoples had absorbed the message that the empires could be dismantled 1 2. This was coupled with an awakening of the Third World from i t s p o l i t i c a l lethargy. Having fought with t h e i r c o l o n i a l masters to r i d the world of fascism many Third World colonies were ready to demand t h e i r reward. As a consequence as more independent states joined the UN so more See generally, Pomerance,M. Self-Determination i n Law and  Practice, supra. See Kohn,H. The United Nations and Self-Determination, Review of P o l i t i c s , 1956. 47 i n t e r n a t i o n a l pressure was brought to bear on the c o l o n i a l powers to allow further de-colonization. Anti-colonialism had become a potent force f o r self-determination. Soon, i t was to engulf self-determination e n t i r e l y . The Western powers, on the other hand, were chary of self-determination and did not regard i t as being of high p r i o r i t y . Only the a n t i - c o l o n i a l stance of the USA prevented the Western powers from eschewing i t altogether. Certainly the Western imperial powers were extremely antipathetic to the notion that self-determination might be used to f a c i l i t a t e the dismemberment of t h e i r empires. US democratic idealism fought a running b a t t l e with B r i t i s h c o l o n i a l entrenchment on the issue. The Americans stressed the need f o r i n t e r n a l self-determination proclaiming, "...the r i g h t of a l l peoples to choose the form of government under which they w i l l l i v e " 1 3 but the B r i t i s h , adopting an archaic Wilsonian approach, i n s i s t e d that such a tenet be applied only to those nation-states which had been submerged under Nazi domination. On the c o l o n i a l question, Douglas Williams, the B r i t i s h c o l o n i a l attache to Washington at the time, stated h i s p o s i t i o n succinctly, "most of our t e r r i t o r i e s , i f the p r i n c i p l e of self-determination were applied, would simply disi n t e g r a t e as administrative units and f a l l apart on the basis of t r i b a l d i v i s i o n s " 1 4 . See Wells B, UN Decisions On Self-Determination, Michigan: University Microfilms, 1963, p54. Ibid, p57. 48 The B r i t i s h view of self-determination was transparently p a t e r n a l i s t i c and i t was the influence of the B r i t i s h and the other major c o l o n i a l powers that resulted i n the adoption of an imprecise p r i n c i p l e of self-determination i n the C h a r t e r 1 5 . The Americans were at t h i s point reluctant to alienate t h e i r a l l i e s i n the face of a newly-perceived Soviet threat. Though they were eager, too, to curry favour with the new Afro-Asian states, American support f o r s e l f -determination was regarded by the Afro-Asians as l e s s than whole-hearted. In the absence of a power base fo r the new Afro-Asian states and American action i n the UN i t was l e f t to the Soviet Union to promote self-determination at the early discussions over the UN Charter. The Soviet version of self-determination needs to be seen i n the context of Marxist-Leninist dogma. Soviet support f o r self-determination from Lenin through to the present day has been e s s e n t i a l l y opportunistic. I f s e l f -determination meant de-colonization f o r the Afro-Asian bloc and representative democracy for the West, then f o r the Soviet Union i t was useful simply as a natural a l l y to revolutionary communism. Its conceptual framework was subordinated to the demands of the Communist manifesto. In the words of R.B. Levin, "...the a b o l i t i o n of colonialism and the r i s e of the new independent states constitutes the 1 5 See UNCIO, X, p441. See also Wells, B. , UN Decisions on  Self-Determination. supra, p57-64, Ofuatey-Kodjoe, W., The P r i n c i p l e of Self-Determination i n International Law, supra,pl04-105. 49 implementation of the p r i n c i p l e of s e l f -determination" 1 6 . This t e l l s only h a l f the story but i t i s the h a l f the Soviets chose to amplify i n the UN since i t most accorded with the aspirations of the Third World states. F u l l implementation of self-determination for the Soviet Union meant a working-class revolution based on s o c i a l i s t p r i n c i p l e s . National self-determination was envisaged as a t r a n s i t i o n a l phase between the break-up of empires and the formation of the s o c i a l i s t , multi-national state. National l i b e r a t i o n and decolonization were means for the Soviet Union as surely as they were ends for the Afro-Asians. ( i i ) The United Nations Charter The p r i n c i p l e of self-determination as contained i n the UN Charter i s as vague and unrevealing as one would expect given the wholly d i f f e r e n t t r a d i t i o n s from which i t was derived. The major powers ensured that the Charter said l i t t l e that was concrete or i l l u m i n a t i n g and i t was l e f t to the new states of the UN to develop the p r i n c i p l e i n subsequent years. • 1 7 The A t l a n t i c Charter of 1941 A' represents an early statement of A l l i e d intentions for the post-war reconstruction. Signed by the President of the United States and the Prime Minister See D.B.Levin, The P r i n c i p l e of Self-Determination i n  International Law, Soviet Y.B. I n t ' l L. 1962, p46. H.DOC. 358/77 CI 1941. 50 of the UK, i t refers to the need to,"... respect the r i g h t of a l l peoples to choose the form of government under which they l i v e s . " This i s without question a reference to in t e r n a l s e l f - d e t e r m i n a t i o n 1 8 only and f o r example " a l l peoples", for the B r i t i s h at lea s t , could only mean non-c o l o n i a l , independent peoples. The Dumbarton Oaks Proposals 1 9 , the precursor to the Charter, omitted self-determination e n t i r e l y from i t s purview. A r t i c l e 1(2) of the Proposal simply mentions the need "to develop f r i e n d l y r e l a t i o n s among nations and to take appropriate measures to strengthen universal peace" There are two reasons for t h i s omission. The f i r s t was the B r i t i s h aversion to a p r i n c i p l e which contemplated the break-up of i t s empire. The second reason can be found i n the general f e e l i n g that other p r i n c i p l e s such as the need to maintain peace and t e r r i t o r i a l i n t e g r i t y held incomparably greater s i g n i f i c a n c e i n the stated aim of avoiding a repeat of the recent war. I t was the Soviet Union that sought to have the p r i n c i p l e included i n the Charter at the San Francisco Internal self-determination i s distinguished from external self-Determination elsewhere i n t h i s study. In t h i s instance i t refer s to the r i g h t of the people i n the European and North American democracies to maintain those democratic t r a d i t i o n s . United Nations, Documents of the United Nations  Conference on International Organization. San Fransisco, 1945 New York: United nations Information Organization,1945. UNCIO I I I , p2-19. 51 Conference. I t was successful i n t h i s only a f t e r an amendment discussion i n Committee 1/1 i n which " i t was stated that the p r i n c i p l e conformed to the Purposes of the UN only i n so f a r as i t implied the r i g h t of self-government and not the r i g h t of s e c e s s i o n " . 2 0 Here we see for the f i r s t time an outright condemnation of secession without any c l e a r i n d i c a t i o n of how i t might be distinguished, i n c e r t a i n cases, from the r i g h t of self-government of peoples. No further d e f i n i t i o n s were thought necessary and the p r i n c i p l e entered the Charter as A r t i c l e 1(2) which stated one of the purposes of the UN to be, "to develop f r i e n d l y r e l a t i o n s among nations, based on respect f o r the p r i n c i p l e of s e l f -determination of peoples, and to take other appropriate measures to strengthen universal peace" 2 1. I t was on the basis of t h i s nebulous enunciation that L a c h s 2 2 and others f e l t able to assert that the UN Charter had confirmed what was already international law. However, e x i s t i n g i n t e r n a t i o n a l law represented most pointedly by the League of Nations Covenant, opinio j u r i s and state See UNCIO VI, p296. Peace and security were elevated above the p r i n c i p l e of self-determination i n any reckoning involving the these issues. Self-determination was not at t h i s time an independent value. See Lachs,M. The Law i n and of the United Nations: Some  Reflections on the P r i n c i p l e of Self-determination, Indian Journal of International Law, v o l 1, 1961, p429-442 52 practice'* J appeared to deny the existence of a r i g h t to self-determination i n customary in t e r n a t i o n a l law. There was no mention of i t i n the Covenant and u n t i l 1945 the legitimacy of colonialism was r a r e l y questioned. The UN Charter at best represented a cautious signal that s e l f -determination was to play an important r o l e i n international a f f a i r s i n the years to come. A r t i c l e 1(2) was merely the skeleton awaiting the f l e s h of future UN instruments and changing state p r a c t i c e . Certainly, i t was of secondary importance next to the p r i n c i p l e s of non-intervention (2(7)) and t e r r i t o r i a l i n t e g r i t y (2(4)) which were regarded as the supernorms of international law i n the wake of the Third Reich. There i s a strong conservative s t r a i n i n favour of the status quo i n the Charter so i t i s hardly s u r p r i s i n g that a r i g h t of secession seemed a distant prospect i n 1945 since the Charter i s the most conservative of instruments dealing with self-determination the UN has yet produced. I t i s the only major UN document which denies the existence of a r i g h t to immediate independence through the exercise of self-determination. Chapters XI and XII make i t cl e a r that self-determination f o r non-self-governing and t r u s t t e r r i t o r i e s i s to proceed at a pace dictated by the c o l o n i a l administrators e.g. A r t i c l e 73 (b) enjoins these powers "to develop self-government ...according to the p a r t i c u l a r circumstances of each t e r r i t o r y and i t s peoples and t h e i r varying stages of advancement". We can hardly include under the banner self-determination the quest for lebensraum undertaken by Adolf H i t l e r i n the name of Aryan self-determination. 53 Most writers have discerned here the genesis of a r i g h t to s e l f - d e t e r m i n a t i o n 2 4 . Lachs reads into a r t i c l e 2(1) a r i g h t of p o l i t i c a l independence and a r i g h t of independent peoples to choose t h e i r p o l i t i c a l structures and be free from i n t e r f e r e n c e 2 5 . A reading of a r t i c l e 1(2) and Chapter XI together obliges t h i s writer to come to an e n t i r e l y d i f f e r e n t conclusion. One can i n f e r the existence of a goal of self-determination but at t h i s stage there i s c e r t a i n l y no r i g h t of self-determination. Furthermore the phrase lacks even the barest of d e f i n i t i o n s which might have given i t j u r i d i c a l meaning. ( i i i ) Customary International Law. Customary international law, i n the form of state p r a c t i c e , supported the contention that self-determination was no more than a vacuous slogan. The c o l o n i a l powers f e l t l i t t l e o b l i g a t i o n to p r e c i p i t a t e the achievement of independence f o r t h e i r colonies. The B r i t i s h had i n mind eventual independence for t h e i r colonies but pledged, "...to guide c o l o n i a l peoples along the road to self-government within the framework of the B r i t i s h Empire" 2 6 (my emphasis). The French adopted an even more controversial See e.g. Ronen,D. The Quest for Self-Determination, New Haven: Yale University Press, 1979, p5. See Lachs,M. The Law i n and of the United Nations, supra. See Ofuatey-Kodjoe,W. The P r i n c i p l e of Self-Determination  i n International Law, supra, pl31. 54 p o l i c y that envisaged trusteeship as the f i r s t step leading to union with France. Their p o s i t i o n was stated c l e a r l y at the B r a z z a v i l l e conference of c o l o n i a l administrators i n 1944, i n the following d i c t a t e , "The aims of the work of c i v i l i z a t i o n accomplished by France i n i t s colonies exclude a l l idea of autonomy, a l l p o s s i b i l i t y of evolution outside of the French bloc of the Empire; the eventual establishment, even i n the distant future, of self-government i s to be d i s m i s s e d " 2 7 . Portugal, The Netherlands, Belgium and Spain pursued v a r i a t i o n s on one or both of these c o l o n i a l philosophies and even the Americans, who had long been the sternest c r i t i c s of Western imperialism, had reservations about s e l f -determination f o r t e r r i t o r i e s i n t h e i r sphere of i n f l u e n c e 2 8 . Meanwhile the Afro-Asians had yet to f i n d t h e i r c o l l e c t i v e voice i n the UN and many of them, i n dialogue with the metropolitan states, were content to accept an incremental move towards independence through negotiation rather than immediate achievement of that goal. The Soviet Union, the o r i g i n a l sponsor of self-determination at San Fransisco, continued to formally uphold the idea i n i t s See Hatch,J. A History of Post-War A f r i c a . New York: Praeger Publishing, 1965, p37. Quoted i n Ofuatey-Kodjoe,W. The P r i n c i p l e of Self-Determination i n  International Law,supra. pl32. See Kohn,H. The United Nations and National S e l f - determination , supra, p5. And note too, former secretary of state, Cordell H u l l who claims the US purpose was, "...to support the attainment of freedom fo r a l l peoples who, by t h e i r acts, show themselves worthy of i t and  ready for i t . " ( my emphasis), quoted i n Ofuatey-Kodjoe,W. The P r i n c i p l e Of Self-Determination i n  International Law, supra p l O l . c o n s t i t u t i o n y while denying i t to a succession of nations who became eithe r part of the Soviet Union i t s e l f ( Lithuania, Latvia and Estonia ) or were absorbed into what became known as the Soviet Bloc ( e.g. Poland, Czechoslovakia and Hungary). The UN i t s e l f i n sanctioning the demarcation of Germany, Korea and Vietnam along cold war l i n e s had, i n e f f e c t , abrogated the p r i n c i p l e of national self-determination i n favour of the in t e r e s t s of peace and security. Most pertinent, was the absence of any mention of self-determination or minority r i g h t s i n the Universal Declaration on Human R i g h t s J U drafted i n 1948. Intended as the instrument from which human ri g h t s would be developed progressively i t i s perhaps appropriate that s e l f -determination was not included since the r i g h t of s e l f -determination was about to explode on the scene i n a most non-evolutionary manner. (iv) The International Covenants on Human Rights. The two decades following the Universal Declaration was a period marked by the end of empire. Decolonization and the p r i n c i p l e s behind i t became totems of in t e r n a t i o n a l law and organization and self-determination was e n l i s t e d to the cause with l i t t l e thought f o r eithe r i t s heritage or p o t e n t i a l . Self-determination became as synonymous with " See The Soviet Constitution 1933 and 1970. 3 0 UN DOC. A. 1811. 56 independence i n the Third world i n t h i s period as i t had been with nation-state b u i l d i n g i n post-World War One Europe 3 1. From t h i s moment on, " a n t i - c o l o n i a l r e s u l t s [were] deemed more important than genuine self-determination methods" 3 2. I f the UN Charter had been an attempt to give p o l i t i c a l s i g n i f i c a n c e to what had been a moral p r i n c i p l e by making self-determination a p o l i t i c a l a s p i r a t i o n of the UN then the various declarations and resolutions made i n the UN during the 1960s s t r i v e d to give the p o l i t i c a l winds of change some l e g a l basis. L a c h s 3 3 states, " t h i s i s how l i f e implements the p r i n c i p l e of self-determination." I t could be more accurately described as a hi j a k i n g rather than an implementation of the p r i n c i p l e f o r i t was transformed from a multifarious democratic i d e a l into a monotheistic a n t i -c o l o n i a l imperative. A mere two years a f t e r the Universal Declaration, the General Assembly recognized the r i g h t of self-determination as a fundamental human r i g h t 3 4 . In 1951 the Commission on Human Rights at i t s 7th session adopted the following proposal, "By resolution 545 (VI) the General Assembly decided that the covenant or covenants on human 3 1 See generally, Cobban,A. The Nation State and National Self-Determination. New York: Crowell, 1969. 3 2 See Pomerance,M. Self-Determination Today: The  Metamorphosis of an Ideal, 19 I s r a e l Law Review,p329. 3 3 See Lachs,M. The Law i n and of the United Nations, supra p441 3 4 See G.A. Resolution 421 V Dec 4th, 1950. 57 r i g h t s should include an a r t i c l e on the r i g h t of a l l people and nations to s e l f - d e t e r m i n a t i o n " 3 5 . By 1955 the Third Committee had decided to include the r i g h t i n both the d r a f t covenants on human r i g h t s being prepared at the t i m e 3 6 . The Western European states opposed the i n c l u s i o n of a r i g h t of self-determination on a number of grounds. I n i t i a l l y they argued that since s e l f -determination was a p r i n c i p l e rather than a r i g h t i t would be premature to include i t as a r i g h t i n the i n t e r n a t i o n a l covenants 3 7. Furthermore, representatives from these states argued that the Charter did not provide immediate s e l f -government fo r t r u s t t e r r i t o r i e s through exercise of the r i g h t to s e l f - d e t e r m i n a t i o n 3 8 and that anyway the p r i n c i p l e of self-determination was too complex to be translated into l e g a l t e r m s 3 9 . History, however, was with the new and increasingly vociferous Afro-Asian bloc i n the UN. Adopted i n 1966, both the International Covenant on C i v i l and P o l i t i c a l Rights and the International Covenant on Economic, So c i a l and C u l t u r a l Rights contained at A r t i c l e One the following provision, " a l l peoples have the r i g h t to s e l f -determination. By v i r t u e of that r i g h t they f r e e l y 3 5 A/2929, Chapter IV, #1. 3 6 See GAOR 10th Sess. 1955/Annexes, agenda item 28-1 ( A/3077, para 77). 3 7 See E/CN.4/SR 253,p7 (GB) and E/CN.4/SR 243,pli (B). 3 8 See A/C.3/SR.309, #59 (GB) 3 9 See A/C.3/SR.311, #21-23 (F) and A/C.3/SR.647, #19 (AUS). 58 determine t h e i r p o l i t i c a l status and f r e e l y pursue t h e i r economic, s o c i a l and c u l t u r a l development". These two covenants were to have l e g a l force only between the signatories but were they also declarative of inte r n a t i o n a l law per se? Brownlie argues that they "represent authoritative evidence of the content of the concept of human righ t s as i t appears i n the Charter of the United N a t i o n s " 4 0 . Unfortunately self-determination does not appear i n the Charter as a human r i g h t . Rosalyn Higgins, thus, proposes the following convincing method for ascertaining the status of a l e g a l proposition: "What i s required i s an examination of whether resolutions with s i m i l a r content, repeated through time, voted f o r by overwhelming majorities, giving r i s e to a general opinio j u r i s , have created the norm i n q u e s t i o n " 4 1 . Using her formula self-determination could be said to have acquired the status of a p r i n c i p l e but not yet that of a f u l l y formed r i g h t 4 2 . (v) De-colonization and Self-determination at the General  Assembly. See Brownlie,I. Basic Documents on Human Rights, 2nd ed., Oxford: Clarendon Press, 1981,pl50. v See Higgins,R. The UN and Lawmaking: The P o l i t i c a l  Organs. 64 AJIL 43, (Sept, 1970) See state practice on t h i s point and i n p a r t i c u l a r the d i l a t o r i n e s s of the Western c o l o n i a l powers i n accepting the legitimacy of self-determination f o r t h e i r colonies. Gross argues that decolonization at t h i s point was a matter of " p o l i t i c a l expedience" rather than l e g a l approval. See Gross.L. The Right of Self-Determination  i n International Law, i n New States i n the Modern World, ed Kilson,M. New York: Harvard University Press. 59 The General Assembly,in I960, passed two resolutions within twenty-four hours of one another which further established the p r i n c i p l e of self-determination as the conceptual mechanism behind the act of independence. The Declaration on the Granting of Independence to Colonial Countries and Peoples (Resolution 1514) 4 3 attempted to amend the Charter without going through the appropriate amendment procedures. The Declaration heralded a revolution i n in t e r n a t i o n a l law. As a r e s u l t , writers such as Pomerance 4 4 and Ofatuey-Kodjoe 4 5 have lambasted i t as unconstitutional. I t s premises, outlined i n the Preamble, were contentious ( for 1960) and reveal a number of assumptions on the part of the d rafters that are only p a r t l y r e a l i z e d i n f a c t . I t recognizes "the passionate yearning f o r freedom on the part of a l l dependent peoples", yet i n subsequent years t e r r i t o r i e s such as the Cook Islands and Puerto R i c o 4 6 were to favour integration rather than freedom from t h e i r parent states. S i m i l a r l y Portugal and France might have taken some exception to the notion "that a l l the peoples of the world G.A. Res. 1514, Dec 14, 1960, 15 UNGAOR Supp. (no.16), 66, UN DOC.A/4684 (1960). See Pomerance,M. Self-Determination i n Law and Practice, supra pll-12 See Ofuatey-Kodjoe,W. The P r i n c i p l e of Self-determination  i n International Law, supra, pl21-122 See G.A. Resolution 748 (VIII) , 27 November 1953 which accepted that the Puerto Rican people had " e f f e c t i v e l y exercised t h e i r r i g h t to self-determination". 60 ardently desire the end of colonialism i n a l l i t s manifestations". Nevertheless, t h i s "Magna C a r t a " 4 7 of decolonization accurately r e f l e c t e d , at l e a s t i n s p i r i t , the p r e v a i l i n g current i n international law. The UN Charter had become something of an anachronism i n i t s references to non s e l f -governing and t r u s t t e r r i t o r i e s and the pattern of meticulous preparation f o r independence was scrambled i n favour of,"a speedy and unconditional end to colonialism. 1 1 P r i n c i p l e 3, the most r a d i c a l i n i t s departure from the UN Charter, states, "inadequacy of p o l i t i c a l , economic,social or educational preparedness should never serve as a pretext fo r delaying independence". Colonialism was thus i d e n t i f i e d as the great e v i l i n the modern world and was sa i d "to constitute a threat to the peace" which, under international law, took i t outside the p r o s c r i p t i o n against outside interference. A number of points can be u s e f u l l y extracted from t h i s declaration. F i r s t , there i s l i t t l e contained therein to suggest a move towards recognition of a r i g h t to i n t e r n a l self-determination i . e . the r i g h t to representative government and freedom from discrimination. Only those t e r r i t o r i e s "which have not yet attained independence" are regarded as relevant subjects f o r the r i g h t of s e l f -determination even i f t h i s r i g h t must be exercised according 4 7 See Gros E s p i e l l , H . The Right to Self-determination, New York: United Nations, 1980,p8. 61 to the " f r e e l y expressed w i l l and desire" of the people. Second, preservation of t e r r i t o r i a l i n t e g r i t y ( a r t i c l e 6) remains a supernorm of the UN and the a r t i f i c i a l boundaries imposed on the colonies by the Congress of B e r l i n were thus given t a c i t approval. This gave l e g a l approval to the quite l i t e r a l change of subject matter (of self-determination), described by Cameron, from pre-World War Two's " c u l t u r a l and l i n g u i s t i c communities without p o l i t i c a l organization" to the present, " . . . p o l i t i c a l l y defined but c u l t u r a l l y diverse colonies and ex-colonies of the developing world..." 4 8 Resolution 1541, 4 9 passed the following day, i s a cautious restatement of the UN Charter chapters on dependent and t r u s t t e r r i t o r i e s . In the l i g h t of i t s predecessor ( Resolution 1514) i t can be viewed as somewhat incongruous given the current trend. I t upholds the provisions of the Charter which Resolution 1514 appears to abjure and says nothing of the need for an immediate end to colonialism. A d d i t i o n a l l y , i t provides a number of a l t e r n a t i v e s 5 0 to complete independence which are conspicuously absent from the previous day's resolution. The s i m p l i s t i c notion of self-determination then i n vogue i s embroidered with a See Cameron,D. Nationalism. Self-Determination and the  Quebec Question, supra,p99. 4 9 G.A. Res. 1541, Dec 15, 1960, 15 UNGAOR Supp. (No 16), 29, UN Doc. A. / 4684 (1960). 5 0 See P r i n c i p l e VI. The a l t e r n a t i v e s offered are (a) emergence as a sovereign independent State, (b) free association with an independent State, (c) integration with an independent State. 62 number of other ideas so that while i t remains f u l l y -i d e n t i f i e d with decolonization i t i s no longer thought to be necessarily synonymous with independence. Alternatives to independence are offered but these do not include a r i g h t of secession. The c o l o n i a l p o l i t i c a l u n i t remains sacrosanct. (vi) A New Phase: The 1970 Declaration on P r i n c i p l e s of  International Law. The UN Declaration on P r i n c i p l e s of International Law 5 1 , adopted i n 1970, develops the r i g h t of s e l f -determination s t i l l further but provides few clues as to how a precise d e f i n i t i o n of terms might be accomplished 5 2. I t i s content to remain l o y a l to what Arangoir-Renizz c a l l s "the b i g p r i n t of s e l f - d e t e r m i n a t i o n " 5 3 f a i l i n g to grapple with i t s hidden agendas. Nevertheless, as the most recent major reso l u t i o n , concerning self-determination i t represents the G.A. Res. 2625, Oct 24th, 1970, 25 UNGAOR Supp. (no. 28) 122, UN Doc.A/8028 (1970). See Cassese,A. P o l i t i c a l Self-Determination - Old  Concepts and New Developments, i n UN Law Fundamental  Rights. Two Topics In International Law, ed. Cassese, Alphen aan den R i j n : S i t j h o f f & Noordhoff, 1979, pl43 i n which he states, "The Declaration suffers from the same defects of ambiguity and vagueness that marred the Covenants." See Arangior Renizz, The UN Declaration on Friendly Relations and the Systems of International Law, Netherlands: S i t j h o f f Noordhoff, 1979, pl31. 63 highest development yet of UN law D . At l e a s t one writer makes the point that, " i t i s no overstatement to say that the elaboration of the p r i n c i p l e of self-determination i n the 1970 Declaration provides jUie cornerstone of the UN approach to the concept" 5 . The Declaration on the P r i n c i p l e s of International law i s innovative i n two d i s t i n c t and s i g n i f i c a n t ways. F i r s t , i t proclaims not only a r i g h t of self-determination but also "a duty to respect t h i s r i g h t i n accordance with the provisions of the Charter" and "a duty to promote...realization of the p r i n c i p l e o f . . . s e l f -determination of peoples...". So, f o r the f i r s t time there i s reference to c o r r e l a t i v e duties even i f the object of these duties i s not i d e n t i f i e d . Secondly, and more importantly, i t l i n k s self-determination with human ri g h t s and reforges the bond between democratic representation and self-determination as part of that l i n k a g e . 5 6 For the purposes of t h i s resume i t can be said that the 1970 Declaration reinforces the b e l i e f that self-determination has ascended to a prominent, i f not predominant, p o s i t i o n amongst the p r i n c i p l e s of international law. I t can be 5 4 I t represents seven years work i n committee and on the f l o o r of the General Assembly. Brownlie claims that t h i s contributes a normative character to the Declaration. See Brownlie,I. P r i n c i p l e s of International Law. 3rd ed., Oxford: Clarendon Press, 1979,pl5,595. 5 5 See White,R. Self-determination: Time for a Reappraisal. Netherlands International Law Review, 28 1981 pl47. 5 6 See i n f r a f o r a d e t a i l e d analysis of the s i g n i f i c a n c e of t h i s development to both international law and the t h e s i s presented i n t h i s study, Chapter Eight. 64 described at t h i s stage as a r i g h t but only i n c e r t a i n c l e a r l y defined (by state practice) cases. ( v i i ) Summary of UN Practice. In the following section c e r t a i n t h e o r e t i c a l conclusions are abstracted from the preceding narrative i n reference p a r t i c u l a r l y to the i d e n t i f i c a t i o n of s e l f -determination with decolonization , the d i s t i n c t i o n between in t e r n a l and external self-determination and the p o s i t i o n of secession i n international law. From at l e a s t 1950, national self-determination, the dominant v a r i a t i o n of self-determination up to t h i s point, was relegated to the p o s i t i o n of an h i s t o r i c a l obscurity and replaced by c o l o n i a l self-determination, a theory whose sole concern was with the termination of white c o l o n i a l domination. Colony replaced n a t i o n a l i t y as the i d e n t i f y i n g c h a r a c t e r i s t i c of the object peoples of s e l f - d e t e r m i n a t i o n 5 7 and with the r i s e to prominence of the salt-water theory of colonialism i t became possible to deny a r i g h t of s e l f -determination to a European nation such as Lithuania while asserting i t f o r a piece of Af r i c a n t e r r i t o r y a r b i t r a r i l y arranged by the c o l o n i a l powers with l i t t l e thought for See Sinha,S.P. Is Self-determination Passe ?. Columbia Journal Of Transnational Law, v o l 12, 1973, p260-273. ethnic contiguity. As Connor s a reminds us, i t i s a r t i f i c i a l borders and not ethnic d i s t r i b u t i o n s which provided the physical springboard for action. I f t h i s reconstruction of the p r i n c i p l e had the merit of g i v i n g i t substance and c l a r i t y , i t also i n i t i a t e d the beginning of a period i n which the democratic dimension of self-determination was reduced to the p o s i t i o n of a r h e t o r i c a l device. External self-determination, meaning the r i g h t of peoples to choose the sovereignty under which they wish to l i v e , had become the only meaning subscribed to by the majority of members i n the UN. Internal s e l f -determination, a Wilsonian construct stre s s i n g the r i g h t of peoples to choose the type of government by which they wished to be represented, was regarded as an unnecessary encumbrance to the newly-independent Afro-Asian states. What resulted was what Beloff describes as the replacement of one r u l i n g e l i t e with another 5 9. In t h i s way "...government i t s e l f , i n the modern sense, gave way to d i r e c t and corrupt personal r u l e 6 0 . " The UN never enquired as to what democratic standards were being met i n the the newly-independent states. The achievement of self-determination was regarded almost u n i v e r s a l l y as, quite l i t e r a l l y , a See Connor,W. Self-Determination: The New Phase. World P o l i t i c s , v o l 20, 1967, p31. See Beloff,M. Self-Determination Reconsidered. Confluence: An International Forum, vol5, 1956, pl95-203. Ibid, p200. 66 desirable end. This universal acceptance had sveral consequences. By the time t h i s end had been achieved i n v i r t u a l l y a l l the ex-colonial t e r r i t o r i e s i t was possible to state a u t h o r i t a t i v e l y that a r i g h t of self-determination i n c o l o n i a l cases had been e s t a b l i s h e d 6 1 . Engers noted that, "ex o r i g i n e i t (self-determination) i s not a universal doctrine but rather a s p e c i f i c concept r e l a t i n g to the i n t e r n a t i o n a l law of d e c o l o n i z a t i o n " 6 2 . Behind t h i s statement l i e s a number of complicating factors which require i n v e s t i g a t i o n . Self-determination had indeed become associated with decolonization but only with a very p r e c i s e l y defined form of decolonization. In f a c t self-determination had never before been so c l o s e l y circumscribed by i d e o l o g i c a l l i m i t a t i o n s . Conversely, international l e g a l documentation continued to provide only vague signposts on t h i s developmental road and these were open to interpretations not always consistent with a practice that had become pervasive. F i n a l l y , the a p p l i c a t i o n of self-determination was not completely consistent despite t h i s new s p e c i f i c i t y . So, to Pomerance's argument that the new UN law of s e l f -See, Higgins,R. The United Nations and Law-making, supra. And note that even sceptics l i k e Emerson are w i l l i n g to admit t h i s much. See Engers,J.F. From Sacred Trust to Self-determination, i n Essays on International Law and Relations, ed. H. Meijers and E.W. Vierdag, The Hague: Sijthoff-Leyden, 1977, p88. determination was morally h y p o c r i t i c a l b J , one could add the further c r i t i c i s m that even on i t s own terms i t was t e c h n i c a l l y inconsistent. The source of t h i s confusion l i e s i n the r i g h t of secession, a r i g h t that i n c e r t a i n cases had great moral weight but remained p o l i t i c a l l y anathema to a l l sovereign states. U n t i l secession i s successfully dealt with t h i s confusion w i l l continue to i n h i b i t the development of the p r i n c i p l e of self-determination. The various attempts to define "peoples" f o r the purposes of self-determination often seem l i k e exercises i n f u t i l i t y dedicated to the circumnavigation of the r i g h t of secession. In the era of self-determination as decolonization, the p o s i t i o n held by some writers that "peoples" under the UN Charter and the series of instruments following i t had come to mean, "communities that l i v e under ( but do not share in) a l i e n s o v e r e i g n t y " 6 4 . A closer reading of the major resolutions indicates a more precise d e f i n i t i o n . The Declaration on the Granting of Independence (G.A.Resolution 1514) r e l a t e s self-determination to "the subjection of peoples to a l i e n subjugation" 6 5 and s p e c i f i c a l l y mentions colonialism three times. The 1965 Declaration on the 6 3 See generally Pomerance,M. Self-Determination i n Law and Practice, supra. 6 4 See Ofuatey-Kodjoe,W. The P r i n c i p l e of Self-Determination i n International Law, supra, p i l l . 6 5 See paragraph 3. 68 A d m i s s i b i l i t y of Intervention i n Domestic A f f a i r s and Protection of Their Independence and Sovereignty requires , " A l l states [to] respect the r i g h t of s e l f -determination and independence of peoples and nations, to be f r e e l y exercised without any foreign pressure, and with absolute respect f o r , human ri g h t s and fundamental freedoms. Consequently a l l states s h a l l contribute to the complete elimination of r a c i a l discrimination and colonialism i n a l l i t s forms and m a n i f e s t a t i o n s " 6 6 (my emphasis). The Declaration on P r i n c i p l e s of International Law (Resolution 2625) makes a s i m i l a r linkage but i t i s the r e s o l u t i o n o u t l i n i n g the D e f i n i t i o n of Aggression 6 7 that i s most i l l u s t r a t i v e of the p r e v a i l i n g current. I t applies the r i g h t of self-determination to "peoples under c o l o n i a l and r a c i s t regimes or other forms of a l i e n domination" 6 8. The Bandung Conference communique i n 1955 affirmed that, "colonialism i n a l l i t s manifestations...should e s p e c i a l l y be brought to an end" but noted i n addition that, "the exercise of the r i g h t of self-determination i s the pr e r e q u i s i t e of... e s p e c i a l l y the eradication of r a c i a l d i s c r i m i n a t i o n " 6 9 (my emphasis). Clearly, then Umozurike i s r i g h t to say that, " there i s almost complete unanimity that self-determination applies to c o l o n i a l p e o p l e s " 7 0 but he i s 6 6 G.A. Res. 2131 (XX), 12 Dec. 1965. 6 7 See G.A. Resolution, 3314 XXIX, 14 December 1974: Annex. 6 8 See A r t i c l e 7. 6Q • . . • • 0 3 See Ofuatey-Kodjoe,W. The P r i n c i p l e of Self-Determination  i n International Law, supra, pl41. 7 0 See Umozurike,U. Self-determination i n International Law, Conneticut: Archon Books, 1972, pl90. 69 content to leave i t at that. This i s a serious error since " c o l o n i a l self-determination" throughout the f i f t i e s and s i x t i e s referred to a highly s p e c i f i c mode of s e l f -determination f o r which the p r e f i x c o l o n i a l provides an i n s u f f i c i e n t explanation. The Afro-Asians, and consequently the UN i t s e l f , subscribed to a theory of salt-water c o l o n i a l i s m 7 1 . S e l f -determination could only apply to t e r r i t o r i e s which were separated from t h e i r metropolitan parent by oceans or high seas. In t h i s way, overland acquisitions such as those made by China and the Soviet Union were excluded from consideration. Excluded too were the ethnic groups within a c o l o n i a l t e r r i t o r y who regarded "the majority r u l e " 7 2 as a l i e n or oppressive. In the absence of any requirement that there be s t r i c t adherence to i n t e r n a l self-determination i t was almost enough that the e l i t e no matter how oppressive unrepresentative, was at l e a s t not attached with the c o l o n i a l stigma (in the salt-water sense). Although self-determination was a t t a i n i n g some measure of conceptual consistency i t could not, based as i t was at the time on a salt-water d e f i n i t i o n of colonialism, deal e f f e c t i v e l y with South A f r i c a n r u l e i n Namibia or Rhodesian See e.g. G.A.Res. 1541,supra, describing colonies as "geographically separate and...distinct e t h n i c a l l y and/or c u l t u r a l l y from the country administrating i t . " See Higgins,R. The Development of International Law Through the P o l i t i c a l Organs of the UN, London: Oxford Uni v e r s i t y Press, 1963, pl05. U.D.I. since neither white e l i t e was connected to a metropolitan power. Hence, a r a c i a l element was introduced. Self-determination was to apply where a r a c i a l e l i t e was denying representation to other r a c i a l groups. This dealt with the Namibian and Rhodesian questions but raised further ones about t r i b a l rule i n the r e s t of A f r i c a . In order to circumvent t h i s d i f f i c u l t y an additional c r i t e r i o n was incorporated. M a z r u i 7 4 , i t s prime academic exponent, termed the r e s u l t "pigmentational self-determination" meaning that self-determination could only apply where there was white European or pseudo-European domination. Thus, the r u l i n g r e l i g i o u s or r a c i a l l y discriminating e l i t e s i n the l i k e s of E r i t r e a , East Pakistan (now Bangladesh) and B i a f r a were deemed acceptable even though the peoples indigenous to the t e r r i t o r y regarded the c o n t r o l l i n g regime as c o l o n i a l . Furthermore, there was approbation i n the UN for the Moroccan absorption of I f n i and the Indonesian a s s i m i l a t i o n of West I r i a n and a multitude of other s i t u a t i o n s where the p r i n c i p l e of self-determination was ignored because there was no "foreign" domination where, as Neuberger states, "foreign = European" 7 5. The Syrians argued that providing the dominant e l i t e was not foreign to the whole continent i t J U n i l a t e r a l Declaration of Independence from B r i t a i n . 4 See Neuberger,B. National Self-Determination i n Post- Colonial A f r i c a , supra, p83. 5 Ibid p85. 71 should be regarded as indigenous, and therefore legitimate. This argument held sway i n the UN. To summarize, self-determination during the period i n which the Afro-Asian voice i n the UN and world a f f a i r s had most resonance, was defined as the r i g h t of external independence from white European c o l o n i a l r u l e held by the majority within an h i s t o r i c a l l y - d e f i n e d t e r r i t o r y . I t did not apply to ethnic groups within these t e r r i t o r i e s nor to majorities who were being oppressed by non-white a l i e n e l i t e s . Neither secession nor democratic representation were regarded as part of t h i s novel r i g h t of self-determination. Not s u r p r i s i n g l y these assumptions are being challenged and a multitude of concepts from secession to A f r i c a n colonialism and embracing human ri g h t s are now being employed to unearth the sins of i n t e r n a l oppression. C. THE UNITED NATIONS AND THE RIGHT OF SECESSION. International law has yet to admit a r i g h t of secession. This p r o s c r i p t i o n was p a r t i c u l a r l y intense during the previously discussed years of decolonization and can be i l l u s t r a t e d with reference to state practice, international l e g i s l a t i o n and the pronouncements of p o l i t i c i a n s , UN delegates and academics. This i s hardly s u r p r i s i n g for a 72 number of reasons. F i r s t i n t e rnational law i s , a f t e r a l l , the law intended to regulate the behavior of states and i s therefore premised on the existence of state sovereignty and t e r r i t o r i a l i n t e g r i t y . Secession f l i e s i n the face of these sacred norms. Second, i n d i v i d u a l states and, more p a r t i c u l a r l y , the r u l i n g e l i t e s i n these states have a w e l l -founded fear that a r i g h t of secession would bring about the dismemberment and ultimate destruction of the state and with i t t h e i r power base. From the conclusion of World War Two, the UN, and the states of which i t i s composed, have attempted, often unsuccessfully, to maintain a balance between the p o t e n t i a l l y c o n f l i c t i n g p r i n c i p l e s of self-determination, t e r r i t o r i a l i n t e g r i t y (including non-interference) and human ri g h t s . This precarious balance has been undermined by the requirement that secession be outlawed i n a l l possible cases The r e s u l t has been that the UN has become bogged down i n a miasma of p o l i t i c a l compromises, l e g a l t a u t o l o g i e s 7 6 and r h e t o r i c a l contradiction. I r o n i c a l l y , the quest for the f u l l r e a l i z a t i o n of human ri g h t s has been s a c r i f i c e d at the a l t a r of self-determination, putatively the very r i g h t from which a great many others must spring. U n t i l self-determination ceases to become a cover for the r i g h t to abuse one's nationals without the fear of an i n t e r n a t i o n a l l y sanctioned See Pomerance,M. Self-determination i n Law and Practice,supra. 73 r i g h t to secessionist a g i t a t i o n , i t w i l l continue to impede the cause of human ri g h t s throughout the globe In terms of i t s l e g a l i t y the r i g h t of secession regressed from the p o s i t i o n i t held j u s t a f t e r the F i r s t World War. Then, the secessions of Czechoslovakia and Yugoslavia were given the imprimatur of the League of Nations. Contrast t h i s with attempts made by Katanga and Bi a f r a to secede i n recent years which were met ei t h e r with condemnation or complete silence from the UN 7 7 . (i) The United Nations Charter. The UN Charter contains nothing d i r e c t l y pertaining to the subject of secession. However, i t was made obvious at discussions during the d r a f t i n g of the Charter that the p r i n c i p l e of self-determination could not incorporate a r i g h t of secession under any circumstances. At San Fransisco, the Committee debating the Charter provisions stated, "Concerning the p r i n c i p l e of s e l f -determination. .. i t was stated that the p r i n c i p l e conformed to the purposes of the Charter only i n so f a r as i t implied the r i g h t of self-government of peoples, and not the r i g h t of s e c e s s i o n . . . " 7 8 . See O'Brien,CC. The Right to Secede, New York Times, Dec 30. U. Thant, the Secretary-General of the United Nations at the time of the Biafran secession condemned i t i n the clearest possible terms as a threat to sovereignty. See UNCIO, DOC 343, 1/1/16. 74 Most of the state representatives supported t h i s aim but there were exceptions. The Soviet delegate claimed that a l l n a t i o n a l i t i e s had sovereign equality which i n c e r t a i n cases' could become a r i g h t of s e c e s s i o n 7 9 . He defined n a t i o n a l i t y i n i t s broadest possible sense to mean national communities under a l i e n subjugation. The Belgians, too, saw i n the d r a f t proposal an unintended approval of secession and i n an attempt to c l a r i f y the p o s i t i o n advanced the following t h e s i s : "One speaks generally of the equality of states ; surely one could use the word, "peoples" as an equivalent f o r the word, "states", but i n the expression "the peoples r i g h t of s e l f -determination" the word "peoples" means the national groups which do not i d e n t i f y themselves with the population of the s t a t e " 8 0 . Meanwhile, the UN drafters were reluctant to enter into a debate about the nomenclature of self-determination and instead made every e f f o r t , no matter how semantically i l l -fated, to widen the ambit of self-determination without allowing a r i g h t of secession. ( i i ) The International Covenants. Similar concerns to those mentioned above were raised at the committee stage of the International Covenants on Human Rights and the words of Abraham Lincoln warning of the See Ofuatey-Kodjoe,W. The P r i n c i p l e of Self-Determination  i n International Law, supra, pl08. 0 See UNCIO, DOC 374, 1/1/17. 75 p o t e n t i a l f o r anarchy inherent i n a r i g h t of s e c e s s i o n 8 1 were mirrored i n the statements of a number of delegates. The Iranian delegate cautioned that, " . . . i f s e l f -determination was misused and considered as an absolute r i g h t nothing but anarchy would ensue" 8 2. He went on to warn that, "...no country would be i n existence i f every national, r e l i g i o u s or l i n g u i s t i c group had an absolute a n <* Q., unrestricted r i g h t to s e l f -determination" 8 3 . The hierarchy of norms recognized by most member states was outlined by the Indian delegate i n a l a t e r discussion when he said, "neither national sovereignty nor t e r r i t o r i a l i n t e g r i t y must be infringed under the pretext of self-determination" 4 . But attempts at a more complex d e f i n i t i o n descended into sophistry. The confusion of the I r i s h delegate was t y p i c a l , "...the only v a l i d standard was the subjective one, i n the sense that any group of people l i v i n g i n a determinate t e r r i t o r y constituted a nation i f i t was conscious of i t s e l f as a national unity and asserted i t s e l f as such. That d i d not cover the r i g h t of s t r i c t l y l o c a l groups to secession, which would i n e f f e c t , shatter the r i g h t to s e l f -determination" 8 5 . See Emerson, R.Self-determination Revisited i n the Era of  Decolonization. Occassional papers i n International A f f a i r s , no 9, December, 1964.supra, p30 2 See A/C/3/SR/888 3 Ibid, at para. 25. 4 Ibid at 891. 5 Ibid at 887. 76 What are " s t r i c t l y l o c a l groups"? What i s a "determinate t e r r i t o r y " ? The questions raised by such " d e f i n i t i o n s " m u l t i p l i e d as surely as the solutions remained unattainable. Futhermore, i f one school of thought at these discussions was represented by the confident assertion that self-determination was, "a matter which was s o l e l y of in t e r e s t to c o l o n i a l t e r r i t o r i e s " 8 6 then another was equally attracted to the somewhat naive Soviet proposition that, "the General Assembly should not undertake t h e o r e t i c a l studies of such simple ideas as " s e l f -determination" , "peoples" and "nation"..." ! The covenants themselves with t h e i r bare assertion that " a l l peoples s h a l l have the r i g h t to s e l f -determination" 8 8 indicate that t h i s reductive view had prevailed. ( i i i ) The 1960 Declaration on the Grantincr of Independence. The 1960 Declaration on the Granting of Independence to Colonial Countries and Peoples 8 9 recognizes the r i g h t of self-determination of peoples and by "peoples" i t c l e a r l y has i n mind dependent peoples i n single t e r r i t o r i a l units. By h i g h l i g h t i n g the p r i n c i p l e of t e r r i t o r i a l i n t e g r i t y i t has the obvious intention of excluding the r i g h t of 8 6 Ibid at 894. 8 7 Ibid at 890. 8 8 A r t i c l e 1 of both covenants. 8 9 G.A. Res. 1514, December 14, 1960. 77 secession from these units . I t i s unsuccessful because of a f a i l u r e to define i t s terminology p r e c i s e l y enough. In the preamble i t notes that, " a l l peoples have an inalienable r i g h t to...the i n t e g r i t y of t h e i r national territory"(my emphasis) and P r i n c i p l e 6 states, "any attempt at the p a r t i a l or t o t a l disruption of the national unity and the t e r r i t o r i a l i n t e g r i t y of a country i s incompatible with the purposes and p r i n c i p l e s of the Charter of the United Nations"(my emphasis). The interchangeable nature of these concepts obscures the meaning of the Declaration. Based on a t r a d i t i o n a l d e r ivation of the word, "nation" i t sees p l a u s i b l e to make a textual claim that the clause dealing with t e r r i t o r i a l i n t e g r i t y does not, i n a l l cases, p r o h i b i t secession since i t i s not the t e r r i t o r i a l i n t e g r i t y of an a r b i t r a r y p o l i t i c a l u n i t that i s being asserted but rather that of a national u n i t . One can argue for example that the Nigerian state i s made up of several national groups 9 0 and that, therefore, the revolutionary creation of a new t e r r i t o r i a l u n i t contiguous with a n a t i o n a l i s t i c impulse does not offend the p r o s c r i p t i o n against the disruption of t e r r i t o r i a l i n t e g r i t y and would simply represent the exercise of a "peoples'" r i g h t to s e l f - d e t e r m i n a t i o n 9 1 . 9 0 But note that the United Nations did not characterize B i a f r a as a "national u n i t " . See Pomerance,M. Self-determination i n Law and Practice, supra, p318, where he states, "there i s no Charter-derived necessity to preserve the t e r r i t o r i a l i n t e g r i t y of a c o l o n i a l u n i t " . 78 (iv) The Declaration on P r i n c i p l e s of International Law. The p o s s i b i l i t y that a r i g h t to secession might e x i s t finds i t s most f o r c i b l e l e g a l expression i n the 1970 Declaration on the P r i n c i p l e s of International Law 9 2. Having re-affirmed the existence of a r i g h t of self-determination, and three modes of implementing that r i g h t , a c l e a r advance on the "self-determination=independence" equation, the Declaration includes the usual admonition against breaching the t e r r i t o r i a l i n t e g r i t y of a state. T y p i c a l l y used as a protective device against the p o s s i b i l i t y of secession, such clauses appear at the conclusion of most UN instruments dealing with self-determination. However the 1970 Declaration adds an important r i d e r to the p r o h i b i t i o n which seems to have the e f f e c t of allowing secessionist a c t i v i t y under c e r t a i n circumstances. The passage reads: "Nothing i n the foregoing paragraphs s h a l l be construed as authorizing or encouraging any action which would dismember or impair, t o t a l l y or i n part, the t e r r i t o r i a l i n t e g r i t y or p o l i t i c a l unity of sovereign and independent states conducting themselves i n compliance with the p r i n c i p l e of equal r i g h t s and self-determination of peoples... and thus possessed of a government representing the whole people belonging to the t e r r i t o r y without d i s t i n c t i o n as to race, creed or colour"(my emphasis). This i s important because i t f u l f i l l s a promise, often alluded to i n previous resolutions, namely the promise that self-determination could be f u l l y integrated with human G.A Res.2625, October 24th, 1970, supra. 79 r i g h t s This declaration takes the f i r s t step i n readmitting elements of the Western democratic t r a d i t i o n into the p r i n c i p l e of self-determination. Interestingly, i t appears to sanction "action" (secession ?) dedicated to the dismemberment of the t e r r i t o r i a l i n t e g r i t y of states with governments which are unrepresentative. There are two c r u c i a l caveats to be noted. F i r s t , there must be some r a c i a l or r e l i g i o u s discrimination accompanying t h i s lack of representation i n order that the t e r r i t o r i a l i n t e g r i t y p r o h i b i t i o n cease to apply. Second, such an in t e r p r e t a t i o n i s not r e f l e c t e d i n state p r a c t i c e 9 3 . (v) Conclusion. Nevertheless such conditions of government have existed i n a number of states from Bangladesh 9 4 to Guatemala (where the indigenous Indian population are excluded from government) and i n more progressive states such as the Soviet Union and Turkey 9 5. I f the United Nations i s to play a r o l e i n a l l e v i a t i n g the s u f f e r i n g caused by governments and experienced by See i n f r a , Chapter Eight. See i n f r a , Chapter Five. In the Soviet Union there i s a strong Russian bias i n Government and there i s no representation of r e l i g i o u s groups. In Turkey the Kurds and Armenians have been persecuted for centuries and appear to be excluded from representation i n the government. 80 minorities throughout the world i t must redefine the r e s p o n s i b i l i t y of the nation-state. Self-determination can be saved from the desuetude threatened by the end of colonialism only by a t h e o r e t i c a l reattachment to human ri g h t s and a f l e x i b l e approach to the p r i n c i p l e of t e r r i t o r i a l i n t e g r i t y . The Declaration on the P r i n c i p l e s of International Law 9 6 can provide a declarative basis for such a realignment. In order f o r t h i s to occur the l i m i t s of a ri g h t to secede must be given l e g i s l a t i v e e f f e c t at the United Nations. The remaining chapters of t h i s study w i l l investigate methods of determining the c r i t e r i a relevant i n the formulation of these l i m i t s beginning with a de t a i l e d survey of f i v e cases where a r i g h t to secede was or i s asserted. G.A. Res. 2625, October 24th, 1970,supra. CHAPTER IV ERITREA : THE NEW COLONIALISM AND SECESSION. OUTLINE i . Abstract A. INTRODUCTION: NEO-COLONIALISM AND SECESSION... B. ERITREAN HISTORY AND SELF-DETERMINATION  C. COLONIZATION  D. THE UNITED NATIONS AND THE AUTONOMY COMPROMISE E. HUMAN RIGHTS AND THE RIGHT TO SECEDE  F. UN LAW AND THE ERITREAN CLAIM  G. THE INDEX OF VALIDITY  (i) E r i t r e a ' s existence as a People ( i i ) Human ri g h t s ( i i i ) P o l i t i c a l s t a b i l i t y and legitimacy (iv) Economic p o t e n t i a l H. CONCLUSION 83 A b s t r a c t E t h i o p i a i s an independent country i n N o r t h - E a s t e r n A f r i c a bordered by Sudan (to the North and West), Somalia (to the E a s t ) , and Kenya (to the South). I t has a c o a s t l i n e o f 628 m i l e s on the Red Sea. The c a p i t a l i s Addis Ababa. A 1974 census put the p o p u l a t i o n a t 28 m i l l i o n . E r i t r e a l i e s i n the Noth-West on the Red Sea c o a s t . I t s c a p i t a l i s Asmara. As i n the r e s t o f E t h i o p i a , t h e r e i s a d i v i s i o n between those f o l l o w i n g C h r i s t i a n d o c t r i n e and those who are Moslems. A s i m i l a r d i v i s i o n can be made between. Caucoscoid and N e g r o i d p e o p l e s . There are no t r i b a l d i v i s i o n s as such, o n l y l i n g u i s t i c groupings. In 1974 a M a r x i s t regime r e p l a c e d the monarchy and t h i s regime c o n t i n u e s t o pursue the c i v i l war w i t h the E r i t r e a n s e c e s s i o n i s t s (EPLF) t h a t began i n 1952. That c i v i l war i s the s u b j e c t of the f o l l o w i n g d i s c u s s i o n . 84 A. S e c e s s i o n a n d N e o - C o l o n i a l i s i n . I t i s one o f t h e many i r o n i e s o f t h e E r i t r e a n s i t u a t i o n t h a t w h i l e i t may seem i n t h e c o n t e x t o f t h i s p a p e r t o r e p r e s e n t t h e e p i t o m e o f a n a t t e m p t e d s e c e s s i o n , t h e w h o l e p r e m i s e o f t h e E r i t r e a n r e b e l s ' p h i l o s o p h y i s i n f a c t t h a t t h e i r c a u s e h a s n o t h i n g t o do w i t h s e c e s s i o n o r s e p a r a t i s m b u t i s a movement d e d i c a t e d t o t h e t h e t h r o w i n g o f f o f t h e y o k e o f a new c o l o n i a l i s m 1 . I n o t h e r w o r d s t h i s i s a w a r o f n a t i o n a l l i b e r a t i o n more c l o s e l y p a r a l l e l i n g t h e p o s t - W o r l d War Two s t r u g g l e s f o r i n d e p e n d e n c e made b y f o r m e r c o l o n i e s i n b l a c k A f r i c a t h a n t h e more r e c e n t s e p a r a t i s t a g i t a t i o n s a n d u p r i s i n g s i n p l a c e s s u c h a s K a t a n g a a n d B i a f r a . T h e s e a c c u s a t i o n s o f n e o - c o l o n i a l i s m d i r e c t e d a g a i n s t t h e E t h i o p i a n s a r e more t h a n a m a t t e r o f mere r e v o l u t i o n a r y s e m a n t i c s . B u t i n d e s c r i b i n g t h e E r i t r e a n c o n f l i c t a s s e c e s s i o n i s t t h e r e n e e d n o t b e i n f e r r e d a d i s a v o w a l o f t h e l e g i t i m a c y o f t h e E r i t r e a n q u e s t f o r s e l f d e t e r m i n a t i o n . F o r i f t h e t y p o l o g y d e v e l o p e d l a t e r i s t o i n c l u d e t h e n o t i o n o f l e g i t i m a t e s e c e s s i o n t h e n i t m u s t a c c e p t t o o t h a t t h o s e 1 S e e , e . g . A n d e m a r i a n G e b r e m i c h a e l ' s c o m p l a i n t t h a t , " many i n t h e m e d i a c o n t i n u e m i s t a k e n l y t o d e s c r i b e E r i t r e a a s a n " E t h i o p i a n p r o v i n c e " a n d i t s f r e e d o m f i g h t e r s a s " s e c e s s i o n i s t s " . S u c h c h a r a c t e r i z a t i o n s h a v e g r e a t l y damaged t h e c a u s e o f t h e E r i t r e a n s a n d t h e i r e f f o r t s t o s u r v i v e w a r a n d f a m i n e . E r i t r e a n s a r e n o t f i g h t i n g a w a r o f " s e c e s s i o n " ; t h e y n e v e r h a v e b e e n a p a r t o f E t h i o p i a . T h e y a r e f i g h t i n g a w a r o f o c c u p a t i o n o f t h e i r h o m e l a n d b y a n e i g h b o u r ' . See C h r i s t i a n S c i e n c e M o n i t o r , J u l y 4-10, 1988. 85 seeking continued domination over the secessionists are oppressive i n some way. The term colonialism has been extended by most revolutionary movements to include any domination they perceive to be i l l e g i t i m a t e and i n some cases evidence of neo-colonialism i s undeniable 2. Therefore, t h i s newly-defined colonialism and secession can no longer be regarded as mutually exclusive phenomena. Indeed the question of colonialism, and the dispute over i t s correct characterization and r e l a t i o n s h i p to secession, l i e s at the heart of t h i s (Eritrean) matter and many others involving non-metropolitan or indigenous colonialism. At the crux of the E r i t r e a n p o s i t i o n i s the contention that continuing Ethiopian rule over t h e i r land constitutes the replacement of white ( I t a l i a n and l a t t e r l y B r i t i s h ) imperialism with black colonialism. This argument i s not pe c u l i a r to the Eritreans and has been employed by a number of s i m i l a r groups (e.g.like the Polisaro g u e r r i l l a s of the Western Sahara who have no d i f f i c u l t y i n equating t h e i r new Moroccan masters with the departed Spanish). This central issue i s further complicated by a number of factors such as ethnic composition, geostrategic l o c a t i o n , h i s t o r i c a l anomaly and geographic s i g n i f i c a n c e . I t i s these that h i g h l i g h t E r i t r e a as an i d e a l case study. E r i t r e a represents a t h e o r e t i c a l and p r a c t i c a l t e s t case for See i n f r a , Chapter V. the future development of the stagnant - 3 p r i n c i p l e of s e l f -determination. What i s drawn from the investigations here can be extrapolated successfully to cover other s i t u a t i o n s and, more importantly, provide further insights towards a u n i f y i n g theory of secession. Neither of the two most immediate par t i e s to the c o n f l i c t , the Ethiopians and Eritreans, deny the existence of the r i g h t to self-determination and both accept i t s a p p l i c a t i o n to the issue. The r e a l essence of the dispute l i e s with the form self-determination f o r the Eritreans should take. The Ethiopians favour a l i m i t e d form of s e l f -determination based on a purely formal grant of p r o v i n c i a l autonomy fo r E r i t r e a , s i m i l a r to that acquired by the Soviet s o c i a l i s t republics, with the r e a l power r e s i d i n g i n Addis Ababa. They are unwilling to negotiate away any part of Ethiopia's ultimate sovereignty over E r i t r e a . Ethiopian intransigence has led to the seemingly never-ending c i v i l war. However, i t i s matched by an equally stubborn insistence by the E r i t r e a n People's Liberation Front (EPLF) that nothing short of complete independence for E r i t r e a w i l l be s u f f i c i e n t to put an end to h o s t i l i t i e s on t h e i r part. Both sides have advanced a number of arguments to support t h e i r respective cases and i f i t i s on the b a t t l e f i e l d s of southern E r i t r e a that t h i s matter i s currently being 3 The p r i n c i p l e of self-determination i s at r i s k because of i t s recent confinement to colonialism. With the end of colonialism i t has been reduced to the l e v e l of p o l i t i c a l slogan. 87 contested, i t i s nevertheless the less l e t h a l t h e o r e t i c a l positions with which t h i s chapter w i l l be pri m a r i l y concerned. B. E r i t r e a n History and Its Significance f o r S e l f - Determination . The task of v a l i d a t i n g the h i s t o r i c a l claims of the two par t i e s i s one that has occupied the minds of a l l scholars wishing to make a serious study of the p o l i t i c a l s i t u a t i o n i n modern E r i t r e a . The debate centres round the question of whether E r i t r e a has "always" been part of Ethiopia or whether i t s a s s i m i l a t i o n was a recent turning point i n the hi s t o r y of a previously discrete e n t i t y . Most commentators approaching t h i s matter hold the view that a decisive r e s o l u t i o n of t h i s debate would lay to r e s t the whole question of self-determination. I t i s perhaps more f r u i t f u l to see t h i s issue as only one of many which must be resolved i n order to ascertain the legitimacy of the two claims. No doubt i t i s banal to remind ourselves that j u s t i c e i n the present and future i s u n l i k e l y to be grounded i n an unquestioning acceptance of the i n j u s t i c e s of the past. This i s p a r t i c u l a r l y true when that past provides us with no d e f i n i t i v e version of i t s character. Such i s the case with E r i t r e a . The following narrative i s drawn from a number of contradictory academic, sources. Reference w i l l also be made 88 to the two c o n f l i c t i n g " h i s t o r i e s " provided by the Ethiopian government and the p o l i t i c a l wing of the E r i t r e a n rebel movement. These h i s t o r i e s lead t h e i r two proponents to predictably opposite conclusions. The Ethiopian government p o s i t i o n i s summed up i n the following extract from a 1977 p o l i c y declaration: " I t i s an i n d e l i b l e h i s t o r i c a l f a c t that the northern region of Ethiopia, c a l l e d E r i t r e a f or the l a s t 87 years, has been the seat of the hist o r y , culture and administration of ancient E t h i o p i a . " 4 This version i s reconfirmed by the statement of the Ethiopian Minister f o r Foreign A f f a i r s to the UN Commission 27 years previously which ran : "In the course of your t r a v e l s i n E r i t r e a and Ethiopia you have been able to note f o r yourselves the complete i d e n t i t y of t e r r i t o r i e s and peoples which have been i d e n t i f i e d under the name of Ethi o p i a . . . f o r 4000 years E r i t r e a and Ethiopia have been, i d e n t i c a l i n t h e i r o r i g i n s , i d e n t i c a l i n t h e i r h i s t o r i c a l development, i d e n t i c a l i n t h e i r defence of the Ethiopian and E r i t r e a n r e g i o n " 5 . See Basic Documents of the Ethiopian Revolution, Published by The Provisional O f f i c e f o r Mass Organizational A f f a i r s ; Agitation, Propaganda and Educational Committee, Addis Ababa, May 1977, Poli c y Declaration of the Provisional M i l i t a r y Government to solve the problem i n the administrative region of E r i t r e a i n a peaceful way". Consultations with the Government of Ethiopia, Annex 6, Report of the United Nations Commission. Quoted i n Firebrace and Holland, Never Kneel Down - drought. 89 E r i t r e a n statements, on the other hand, stress the lack of h i s t o r i c a l continuity i n the region and the d i s t i n c t t e r r i t o r y E r i t r e a occupied. Discussing the connection between the two empires on which the Ethiopians r e s t many of t h e i r arguments, the Eritreans state: " A l l a v a i l a b l e documentary evidence about the Axumite Kingdom shows that Axum did not comprise a l l of present day E r i t r e a . Nor i s i t true that the Abyssinian kingdom i s an "expansion", "extension", "growth" or "evolution" of the Axumite kingdom. The two kingdoms occupied d i f f e r e n t t e r r i t o r i e s at d i f f e r e n t periods of time" 6. Objective history, i f such a thing can be said to ex i s t , points to a conclusion closer to the Er i t r e a n version. E r i t r e a has never been an "independent" country i n the same way as the great European nations were. Equally, however, E r i t r e a has never consistently formed a part of a larger e n t i t y such that i t could be said to have been f u l l y absorbed into that country's t e r r i t o r y and c u l t u r a l h i s t o r y . The Ethiopian version of h i s t o r y depends on acceptance of the notion that the various r u l i n g e l i t e s i n the region were mostly representative of Ethiopian c u l t u r a l supremacy. Haggai E r l i c h supports t h i s , h i s t o r i c a l l y dubious, assertion i n s t a t i n g : development and l i b e r a t i o n i n E r i t r e a , Nottingham: Spokesman, pl3 See In Defence of the Er i t r e a n Revolution, New York, 1978, p32. 90 "...the core regions of today's E r i t r e a were undoubtedly an i n t e g r a l part - indeed the cradle -of Ethiopian c i v i l i z a t i o n , statehood and h i s t o r y " . Other h i s t o r i a n s and p o l i t i c a l analysts t e l l a d i f f e r e n t and, given our knowledge of the haphazard route of h i s t o r i c a l development i n other parts of the world, more cred i b l e story. The e a r l i e s t records we have of E r i t r e a come from Egyptian hieroglyphs which t e l l of the trade c a r r i e d on between the pharoahs and inhabitants of the Red Sea coast around 3000 B.C. This combined with the H e l l e n i s t i c conquest of Egypt points to very early cosmopolitan influences on these coastal people which helped set them apart from t h e i r neighbours i n the i n t e r i o r 8 . Ethiopian empire b u i l d i n g began with the Axumite empire which c o n t r o l l e d much of the region from at l e a s t the 4th to the 10th century A.D.. Axum depended on the Red Sea coast f o r trading and had a major port i n what i s now the E r i t r e a n c i t y of Massawa. The r e s t of E r i t r e a was of l i t t l e i n t e r e s t to the Axumites whose centre of power moved south to Tigre during the remaining period of t h e i r dominance. Ethiopian h i s t o r y stresses the connection between the Axumite dominion and Melenik's 19th century empire. However 7 See E r l i c h , H . The Struggle Over E r i t r e a , 1962-78, War and Revolution i n the Horn of A f r i c a , Stanford, C a l i f . : Hoover I n s t i t u t i o n Press, 1983. 8 See Kaplan,R. The Loneliest War. A t l a n t i c Monthly, July 1988, p60. S e l a s s i e y disputes the nature of t h i s connection arguing that Melenik's empire, while i t covered s u b s t a n t i a l l y the same land mass that now constitutes Ethiopia, i n no way corresponds to Ancient Axum. Given the t r i b u t a r y nature of Axumite control and the fac t that i t was not p a r t i c u l a r l y secure i n the coastal regions not required for trade, i t i s u n l i k e l y that i t ever acquired the degree of c e n t r a l i z e d authority a t t r i b u t e d to Melenik. The f a l l of Axum heralded the r i s e of Islam and a period i n E r i t r e a n h i s t o r y equivalent to the European Dark Ages. During t h i s period the Bejas invaded E r i t r e a and maintained control for four centuries. The Bejas were replaced by a serie s of Abyssinian kings beginning with the Amhara people who were ascendents of the pre-1977 Ethiopian r u l i n g e l i t e s . The s i g n i f i c a n c e of the Beja interlude i s that i t represents an interruption of four centuries i n which the E r i t r e a n region was subject to the rul e of a group with no Ethiopian heritage whatsoever. Even the Amhara rul e beginning i n the 14th century was an ephemeral one marked by an unwillingness on the part of the inhabitants of the region to accept what they perceived as a l i e n r u l e . The various Abyssinian kingdoms established over E r i t r e a became subject to additional pressures from foreign powers. With the increasing s o p h i s t i c a t i o n of the communications networks they were eager to gain some measure 9 See Selassie,B. From B r i t i s h Rule to Federation and  Annexation i n Behind The War i n E r i t r e a , eds. Davidson, C l i f f e and Selassie, Nottingham: Spokesman, 1980. 92 of influence over the c r u c i a l Red Sea coast. This meant that E r i t r e a became prey to a number of diverse incursions which the central Ethiopian land mass escaped. Egyptians, Greeks, Persians and Arabs were among those who sought a foothold on t h i s precious Red Sea coastal land but the most dominant r u l e r s for three centuries from the 16th to l a t e 19th century were the Ottoman Turks whose occupation of E r i t r e a v i r t u a l l y cut Ethiopia o f f from the outside world. These developments unquestionably had a profound e f f e c t on the attitudes of the inhabitants of these two areas. The r e s u l t was that, as Kaplan says, "the Eritreans came to be more sophisticated and le s s xenophobic than the Amharas of the i n t e r i o r " 1 . The Amharas continued to covet the E r i t r e a n coast but never achieved much success i n t h i s venture. By contrast, more powerful foreign imperial powers seemed to invade with impunity. European adventurers,too, began to a r r i v e i n the area. The Portugese landed i n 1520 and there are records of them becoming aware of a coastal region d i s t i n c t from the i n t e r i o r which they i d e n t i f i e d as Medi Bahr. They were followed by a Scott i s h explorer named James Bruce of Kinnaird who made a s i m i l a r discovery i n 1770. See Kaplan, The Loneliest War, supra, p60. 93 C. COLONIZATION. European i n t e r e s t i n the region began i n the l a t t e r h a l f of the 19th century. F i r s t the Egyptians, with B r i t i s h support, displaced the Turks. Foolowing t h i s , the I t a l i a n s began t h e i r penetration of Abyssinia i n 1885. Though t h i s marked a new era i n E r i t r e a n h i s t o r y many of the themes were the same. More powerful states were s t i l l engaging i n c y n i c a l aggrandizement and the t r i b e s indigenous to E r i t r e a continued to be dedicated to e v i c t i n g the invaders. The I t a l i a n occupation of E r i t r e a was, however, a turning point and one from which the modern-day quest for self-determination by the Eritreans can be traced. I t was c r i t i c a l f o r two d i s t i n c t reasons. F i r s t , i t was the I t a l i a n s who i n i t i a t e d the formation of an E r i t r e a n e n t i t y t e r r i t o r i a l l y d i s t i n c t from Ethiopia. This occurred not because of any express desire on the part of the I t a l i a n s but because t h e i r m i l i t a r y thrusts into Ethiopia i t s e l f had met with d i s a s t e r and they had been forced to sue f o r peace with Melenik, the Amhara Emperor, who, i n signing The Treaty of U c c i a l i , recognized the existence of an E r i t r e a n land d i s t i n c t from the Ethiopia over which he held c o n t r o l 1 1 . But I t a l i a n colonialism had a second major e f f e c t . For, having established the parameters of an E r i t r e a n nation, they then set about creating an i n f r a s t r u c t u r e suited to 1 1 On the 1st January, 1880, the King of I t a l y proclaimed the creation of the colony of E r i t r e a . 94 c o l o n i a l e x p l o i t a t i o n . This, i n turn, created an e f f e c t which i s central to our whole discussion. E r i t r e a underwent something of a socio-economic revolution during which the seeds of a national consciousness were sown. In UN terms, Eritreans were about to become a "people". I t i s true that the I t a l i a n occupation made l i t t l e difference to the l e v e l of i n t e r n a l d i v e r s i t y among E r i t r e a ' s various ethnic and r e l i g i o u s groupings but i t i s surely an absurdity to state, as E r l i c h does, that, " I t a l y ' s impact on E r i t r e a n society was minimal" 1 2. Certainly the I t a l i a n s did l i t t l e to forge a sense of national i d e n t i t y i n the Eritreans. I t would have been contrary to t h e i r i n t e r e s t s to do so. They did however lay the foundations for such a process to take place. They i n d u s t r i a l i z e d parts of E r i t r e a and brought aspects of the European s o c i a l and p o l i t i c a l culture to the people there. Whole new classes were formed during t h i s colonially-imposed s o c i a l revolution and Leonard 1 3 makes the a d d i t i o n a l point that these classes were interdependent i n a way the old t r i b a l units had never been. S t a t i s t i c a l l y , the most t e l l i n g 1 2 See E r l i c h , The Struggle Over E r i t r e a , supra, p3. 1 3 See Leonard,R. European Colonization and the Socio- Economic Integration of E r i t r e a , i n The E r i t r e a n Case: Proceedings of the Permanent Peoples' Tribunal of the International League for the Rights and Liberation of Peoples, Session on E r i t r e a , Rome: Research and Information Centre on E r i t r e a , 1982. 95 fig u r e i s the 18% reduction i n the numbers of peasantry from 98% to 80% during the c o l o n i a l r u l e of the I t a l i a n s and B r i t i s h . Even the modernized communications network set up by the I t a l i a n s was instrumental i n forming E r i t r e a into a more recognizable socio-economic unit. I f the Eritreans were not yet ready to f u l l y digest a l l these changes the p o l i t i c a l legacy l e f t by the I t a l i a n s i s an indisputable one. A p o l i t i c a l structure had been created which was to form the basis of the E r i t r e a n argument fo r formal s e l f -determination and make that self-determination a r e a l i s t i c p o s s i b i l i t y i n an area which had previously known no r e a l s o c i a l cohesion. The B r i t i s h period of r u l e from 1941, when the I t a l i a n s were defeated at Keren, to 1952 resulted i n only a modification of the displaced c o l o n i a l administration. I t did however serve to further fan the flames of n a t i o n a l i s t aspirations by at f i r s t a c t i v e l y encouraging Eritreans to win self-determination and l a t e r , when B r i t i s h p o l i c y changed, by allowing a measure of free speech which f a c i l i t a t e d a greater degree of p o l i t i c a l a g i t a t i o n against A l l i e d plans to dispose of E r i t r e a i n a manner contrary to the wishes of the population. But the establishment of p o l i t i c a l p a r t i e s wrought by the increasing l i t e r a c y of the Eritreans and a greater general awareness of E r i t r e a n nationhood were to play a minor r o l e i n decisions concerning E r i t r e a ' s future. The question concerning the h i s t o r i c a l v a l i d i t y of competing c l a i m s 1 4 can be addressed with t h i s i n mind. In a nebulous sense E r i t r e a could be described as having been part of "Greater E t h i o p i a " 1 5 . Writing i n 1945, Stephen Lonrigg suggests that, had there been no I t a l i a n occupation, E r i t r e a "would be pa r t l y , as always before, the ill-governed or non-governed northernmost province of E t h i o p i a " 1 6 . Even i f h i s t o r i c a l l y accurate, such hypotheses have become la r g e l y i r r e l e v a n t , E r i t r e a was colonized and t h i s f a c t alone renders much of the h i s t o r i c a l d i a l e c t i c superfluous. E r i t r e a may well be, "an a r t i f i c i a l creation of European i m p e r i a l i s m " 1 7 but i t i s f a r from alone among modern A f r i c a n states i n t h i s respect. C l e a r l y , t h i s f a c t i s immeasurably more c r i t i c a l to the question of sovereignty than the c o l l e c t i o n of t r i b u t e on an intermittent basis and over an area much smaller than present-day E r i t r e a over 100 years ago-1-. I f any party should understand t h i s i t i s the marxist Ethiopians whose own ideology makes the creation of the nation-states dependent on the advent of capitalism. Thus Ethiopia and E r i t r e a could only be nation-states a f t e r 1 5 See Levine,D. Greater Ethiopia. Chicago: 1974. 1 6 See Lonrigg,S. A Short History of E r i t r e a , Oxford: Clarendon Press, 1945, p3. 1 7 See E r l i c h , The Struggle over E r i t r e a , supra,pi. 1 8 See Pool,D. i n The E r i t r e a n Case.supra. 97 the I t a l i a n colonization. Their claims to self-determination should be based on t h i s period's l e g a c i e s . 1 9 By the time the I t a l i a n s l e f t E r i t r e a a c o l o n i a l u n i t had, without question, already been carved out of the "Greater Ethiopian Empire". D. THE UNITED NATIONS AND THE AUTONOMY COMPROMISE. At the Paris Peace Conference i n 1946 following the end of the war I t a l y gave up her ri g h t s to E r i t r e a and i t was decided that the ultimate disposal of the ex-cplony should l i e i n the hands of the Big Powers (the USA, USSR, France and Great Britain) or, f a i l i n g agreement between them, the UN. In an e f f o r t to f i n d some common ground between the Big Powers a commission of inquiry was sent to E r i t r e a . I t s report, submitted i n May,1948, contained nothing that might have formed the basis of an agreement between the four powers and the question was submitted to the UN under the terms of the Treaty of Paris ( a r t i c l e 23) . The UN had s i m i l a r d i f f i c u l t y f i n ding a s a t i s f a c t o r y s o l u t i o n and resorted to sending a second commission of inquiry with 1 9 Confirmation of t h i s view can be found i n Salmon J . , "Droits des peuples et d r o i t s des Etats, i n Realites du d r o i t i n t e r n a t i o n a l contemporain faculte du d r o i t de Reims, 1976, p221, where he makes the point that the Western Sahahra Case had been decided " i n a l i n e with the t r a d i t i o n a l view according to which only a state established i n a European s t y l e can hold t i t l e to sovereignty". Clearly, t h i s could be applied equally to the E r i t r e a n s i t u a t i o n . 98 members from Burma, Guatemala, Norway, Pakistan and South A f r i c a . This commission was charged with ascertaining, "the wishes of the E r i t r e a n people and the means of promoting t h e i r future w e l f a r e " 2 0 . I t could agree only on opposition to p a r t i t i o n , o r i g i n a l l y mooted i n the Bevin-Sforza plan and strongly opposed by the Eritreans themselves. In the end the wishes of the E r i t r e a n people played a r e l a t i v e l y minor r o l e i n the f i n a l report. The commission was more concerned with the other elements of i t s b r i e f , notably the need to be cognizant of "the i n t e r e s t s of peace and se c u r i t y i n East A f r i c a " 2 1 and the requirement that i t take into account the "legitimate" needs of Ethiopia. Security was defined i n terms of the geostrategic in t e r e s t s of the Western powers a r t i c u l a t e d f o r the Americans most unambiguously by Secretary of State John Foster Dulles when he stated, "From the point of view of j u s t i c e , the opinions of the E r i t r e a n people must receive consideration. Nevertheless the s t r a t e g i c i n t e r e s t of the United States i n the Red Sea basin.. .make i t necessary that our country has to be linked with our a l l y , E t h i o p i a " 2 2 . UN Resolution 289 A (iv) 2 1 Ibid. 2 2 Quoted i n Selassie, B.H.Eritrea and the United Nations i n The E r i t r e a n Case, supra, pl32. 99 The French and B r i t i s h were equally prejudiced against E r i t r e a n independence ; the French because they regarded independence anywhere i n A f r i c a as a danger to t h e i r control over colonies such as A l g e r i a and neighbouring French Somalia, and the B r i t i s h because of an obsession with access to the Red Sea and Suez canal which was to r e s u l t i n a disastrous expedition against Nassar only four years l a t e r . These powerful states undoubtedly had an influence on the commission's findings. The opinion that E r i t r e a was incapable of supporting a s e l f - s u f f i c i e n t national economy or e f f e c t i v e self-government came about because of an over-r e l i a n c e on the skewed judgments of the B r i t i s h administering a u t h o r i t i e s . These judgements formed the basis for the f i n a l decision to federate E r i t r e a with Ethiopia despite the reservations of the representatives from Guatemala and Pakistan who favoured f u l l and immediate independence. The r e s o l u t i o n i t s e l f was r e a l l y the c h i l d of i l l - d i s g u i s e d s t r a t e g i c bargaining on one hand and general apathy as to the i n e v i t a b l e outcome on the other. The US made a t a c i t agreement with Ethiopia's Emperor H a i l i e Selassie not to support the E r i t r e a n claim f o r self-determination • i n exchange fo r the use of the m i l i t a r i l y important Kagnew communications base. None of the other major powers (apart from the USSR who had l i t t l e influence i n the region) had much to gain from E r i t r e a n independence and as a consequence were e i t h e r unable or, more l i k e l y , unwilling to perceive 100 the obvious flaws i n the f i n a l r e s o lution on E r i t r e a ' s future. The drafters of the resolution paid l i p - s e r v i c e to the p r i n c i p l e of self-determination without ever mentioning i t by name but t h i s was the period, before the l a s t vestiges of colonialism had disappeared, when i t was s t i l l acceptable to make the exercise of self-determination conditional on such factors as the preparedness of the self-determining u n i t and the i n t e r e s t s of other states. Had the resolution been prepared ten years l a t e r i t s tenor would have been much d i f f e r e n t . As i t stands, i t f a i l s to conform to the new standards set out i n l a t e r declarations on s e l f -determination such as The Declaration on P r i n c i p l e s of International Law (Res 2625) and The Declaration on the Granting of Independence to Colonial Peoples (Res. 1514). Even i f the resolution, and the new co n s t i t u t i o n springing from i t , had been adhered to by the part i e s to them (and i t w i l l be i l l u s t r a t e d conclusively that t h i s was not the c a s e 2 3 ) i t i s s t i l l doubtful whether i t was consistent with the exercise of self-determination as i t has come to be defined. In i t s preamble the resolution makes i t c l e a r that the disposal of the t e r r i t o r y i s to take place only, " i n the  l i g h t of the wishes and welfare of the inhabitants" and that such disposal should take,"into consideration the views of interested governments"(my emphasis). These "interested" 2 3 See below p96-98. 101 governments include the major Western powers and the USSR. Thus, not only i s t h i s preamble a negation of the f u l l r i g h t to self-determination, i t a c t u a l l y appears to approve the continuation of what came to be known as neo-colonialism ( i . e . the notion that colonialism was capable of e x i s t i n g i n l e s s overt forms than had previously been extant). Later instruments on self-determination were dedicated to extinguishing t h i s phenomenon. The most decisive voice among these interested governments, and one that eventually prevailed over the E r i t r e a n r i g h t to self-determination, was that of the Ethiopians. Paragraph (c) enshrines t h i s " i n t e r e s t " s t a t i n g that the f i n a l recommendation should take into consideration, "The r i g h t s and claims of Ethiopia based on geographical, h i s t o r i c a l , ethnic or economic reasons, including i n p a r t i c u l a r Ethiopia's legitimate need for adequate access to the sea." The r e s o l u t i o n also recognizes, "that the disposal of E r i t r e a should be based on i t s close p o l i t i c a l and economic association with Ethiopia". The s p i r i t of compromise that inform t h i s document and the need to s a t i s f y Ethiopia's imperial claims, are perhaps best i l l u s t r a t e d i n the following paragraph whose ostensible purpose was to safeguard E r i t r e a n culture, "Desiring that t h i s association assure the inhabitants of E r i t r e a the f u l l e s t respect and safeguards f o r t h e i r i n s t i t u t i o n s , t r a d i t i o n s , r e l i g i o n s and languages, as well as the widest 102 possible measure of self-government, while at the same time respecting the Constitution, i n s t i t u t i o n s , t r a d i t i o n s and the i n t e r n a t i o n a l status and i d e n t i t y of the Empire of Ethiopia. 1 1 The actual recommendations themselves, not s u r p r i s i n g l y , favoured an E r i t r e a that was to, "constitute an autonomous unit federated with Ethiopia under the sovereignty of the Ethiopian Crown"(Clause 1). The remainder of the resolution assigned j u r i s d i c t i o n i n various matters to either a proposed E r i t r e a n Government (domestic a f f a i r s ) or the Federal Government (defence, foreign a f f a i r s and finance) and enumerated a se r i e s of r i g h t s which were to accrue to the residents of E r i t r e a . Did the creation of such a unit constitute an act of s e l f -determination on the part of the Eritreans ? One of the p r i n c i p a l arguments employed by the Ethiopian regime and those who favour i t s claims over E r i t r e a i s that by accepting the resolution the Eritreans engaged i n a d e f i n i t i v e act of s e l f - d e t e r m i n a t i o n 2 4 which they cannot now rescind. This argument i s e a s i l y refuted on two major grounds. The f i r s t ground l i e s i n the flawed nature of the resolution i t s e l f , the other i n the behaviour of the Ethiopians i n the A once-only self-determination. See Index of V a l i d i t y , Chapter VIII. 103 years immediately following the federation of E r i t r e a with Ethiopia. I t i s never made cl e a r i n the resolution why Ethiopia should acquire de facto control over a t e r r i t o r y and people who had, i n the preceding seventy years, severed most of i t s (tenuous) h i s t o r i c a l l i n k s with that state. Nor i s i t obvious why 11 interested" governments should play such a prominent r o l e i n the process of self-determination. There are several, more tech n i c a l , reasons why r e s o l u t i o n 390 must be d i s q u a l i f i e d from consideration as a v a l i d act of s e l f -determination: (1) The "capacity of the people for self-government" (paragraph(a)) was deemed a relevant factor i n the f i n a l decision. Resolution 1514 makes i t c l e a r that t h i s can no longer attenuate the r i g h t to self-determination stati n g , "Inadequacy of p o l i t i c a l , economic, s o c i a l or educational preparedness should never serve as a pretext f o r delaying independence" 2 5. Two other points should be noted i n connection with t h i s matter. F i r s t , there i s the question as to whether t h i s "capacity" or economic v i a b i l i t y was ever f u l l y investigated. There are indications that the commission may have simply depended on the extremely prejudiced views of the B r i t i s h administering a u t h o r i t i e s when i t came to determine t h i s . Second, there i s the issue of consistency and motive. Equivalent disposals of c o l o n i a l units around 2 5 See G.A. Res. 1514, Dec. 14th, 1960 supra, P r i n c i p l e 3. 104 t h i s time paid no heed to the capacity of the people to govern themselves e f f e c t i v e l y (e.g. Libya) r a i s i n g the suspicion that t h i s may have simply been another ploy to subvert the E r i t r e a n r i g h t to self-determination. (2) I f we assume that E r i t r e a existed as a " c o l o n i a l u n i t " (something I w i l l elaborate on later) and a l l y t h i s to the apparent recognition i n the resolution that the Eritreans do e x i s t as a people26 we have to ask why i t was i n t h i s p a r t i c u l a r case that a powerful neighbour (Ethiopia) was thought to have such extensive claims to the E r i t r e a n unit when s i m i l a r A f r i c a n colonies were ei t h e r granted outright independence or were at l e a s t put under the temporary authority of an administering power as a t r a n s i t i o n a l step to independence. The only reasonable conclusion one can come to i s that the i n t e r e s t s of governments with no claim on E r i t r e a n sovereignty were allowed to play a decisive and unwarranted r o l e i n the ultimate disposal of E r i t r e a . E. Human Rights and the Er i t r e a n Right to Secede I f the Eritreans were d i s s a t i s f i e d with the outcome of the UN involvement i n the issue, the Ethiopian government, despite i t s c o n c i l i a t o r y tone, was equally unhappy and See references to the capacity of the "people" at paragraph (a) and the d i s t i n c t i v e " i n s t i t u t i o n s , t r a d i t i o n s , r e l i g i o n s and languages" i n the f i n a l clause of the preamble. 105 hinted on several occasions that E r i t r e a n autonomy was to become severely l i m i t e d . A number of objections were made by Ethiopian representatives to the Commission including complaints about the existence of an E r i t r e a n national f l a g and the decision to make Tigrinya and Arabic the o f f i c i a l languages of E r i t r e a . By the time the co n s t i t u t i o n was passed (on July 10th, 1952) these objections had been set aside and i t appeared that Eritreans had secured some measure of administrative independence for themselves. Unfortunately, the decade following the passing of the co n s t i t u t i o n was marked by a series of Ethiopian assaults on i t s provisions each with the apparent intention of undermining E r i t r e a n autonomy. Between 1952 and the outright annexation of E r i t r e a on November the 14th, 1962, the Ethiopian federal government systematically subverted the co n s t i t u t i o n and, by implication the UN Resolution that i n i t i a t e d i t . In 1956 Tigrinya was replaced by Amharic (the o f f i c i a l Ethiopian language) as E r i t r e a ' s o f f i c i a l language and was followed by a f a m i l i a r sequence of human ri g h t s deprivations. Ethiopian courts t r i e d E r i t r e a n c i t i z e n s (impermissible under the co n s t i t u t i o n ) , newspapers were closed down, trade unions abolished and dissent was treated harshly, culminating i n several - massacres during demonstrations against Ethiopian o p p r e s s i o n 2 7 . The Ethiopian intimidation campaign resulted See Selassie,B.H. E r i t r e a and the United Nations, supra, pl41-152. 106 i n the absorption of E r i t r e a into the modern Ethiopian empire. However i t had the paradoxical e f f e c t of further molding an E r i t r e a n national consciousness which was to prove f a t a l to the ultimate ambition of the Ethiopian government to completely eliminate E r i t r e a n resistance to i t s regional hegemony. The decision by the E r i t r e a n Assembly (made under duress) to accept the annexation i n i t i a t e d a period i n which armed resistance became the only e f f e c t i v e method of reclaiming an E r i t r e a n national i d e n t i t y . Furthermore the Ethiopian action frustrated the whole arrangement. I t has been argued that E r i t r e a became part of Ethiopia only a f t e r the federation Therefore, i f we accept that the federation was i l l e g a l l y implemented then under in t e r n a t i o n a l law E r i t r e a has never been part of Ethiopia. The Eritreans were never given the opportunity to exercise even the diminished r i g h t of self-determination awarded them by the UN. The UN, therefore, has a continuing duty to ensure that t h i s r i g h t i s r e s u r r e c t e d 2 8 . The proposition that E r i t r e a exercised i t s once-only r i g h t to s e l f -determination i s a preposterous one i n these circumstances. The E r i t r e a n Liberation Force (ELF) was formed i n 1962 i n response to the p o l i t i c a l f a i l u r e of the UN and the autonomy See UN Commissioner for E r i t r e a , Matienzo, F i n a l Report, Chapter 11, p201,"...it does not follow that the UN would no longer have any r i g h t to deal with the question. The UN Resolution on E r i t r e a would remain an i n t e r n a t i o n a l instrument and, i f v i o l a t e d , the General Assembly could be seized of the matter." 107 compromise described above. The v i o l e n t intransigence of the Ethiopians on the question of even a measure of Ethiopian independence. Support for the ELF i n the early years of t h i s struggle was tempered because of i t s association with the more powerful e l i t e s i n E r i t r e a n society and the f a c t that i t was an Islamic fundamentalist group with l i t t l e attachment to the C h r i s t i a n majority among the E r i t r e a n people. This lack of unconditional public support meant that the r o l e of the ELF was marginal during t h i s period. The ELF fought a c l a s s i c low-level g u e r r i l l a war punctuated by the occasional publicity-seeking t e r r o r i s t attack including several PLO-style hijackings which did l i t t l e to improve t h e i r standing abroad. Eventually they were superseded by an off-shoot group, the E r i t r e a n People's Liberation Front (EPLF), who a f t e r a decade of m i l i t a r y i n - f i g h t i n g gained dominance over t h e i r parent organization and by 1981 could be described as the only s i g n i f i c a n t opposition to Ethiopia i n E r i t r e a . This change was mirrored i n Ethiopia by the 1974 coup i n which a m i l i t a r y committee made up, primarily, of middle ranking o f f i c e r s and NCOs i n the Ethiopian armed forces overthrew Emperor Haile Selassie and began the transformation of Ethiopia from feudal monarchy to modern marxist state. The Dergue, as i t was known, f l i r t e d b r i e f l y with the notion of negotiating with the E r i t r e a n rebels. However, a f t e r a s e r i e s of unsuccessful discussions, following which leading 108 Dergue o f f i c i a l s were usually l i q u i d a t e d for t h e i r " f a i l u r e " , i t began to zealously pursue the m i l i t a r y sol u t i o n to which i t remains committed. The infamous switching of sides undertaken by the superpowers during the Ogaden war between the Somalis and Ethiopians had major implications for the future of E r i t r e a . No longer could the Eritreans depend on the support of f r i e n d l y marxist governments abroad since the Soviets were now a l l i e s of the Ethiopian government. I r o n i c a l l y i t was the Soviets, erstwhile suppliers to the Eritreans, who encouraged the Dergue to seek m i l i t a r y ascendence over the EPLF. Major offensives i n pursuit of t h i s objective have resulted only i n a m i l i t a r y and p o l i t i c a l stalemate with the EPLF c o n t r o l l i n g approximately 85% of E r i t r e a and the Ethiopian army presence r e s t r i c t e d to a handful of towns 2 9. I t i s questionable whether t h i s m i l i t a r y stalemate w i l l lead to a desire to seek p o l i t i c a l solutions as has happened i n Afghanistan, the Persian Gulf and Angola. There appears to be l i t t l e common ground between the two sides save t h e i r shared marxist dogma which i n t h i s case serves merely to convince them both that t h e i r s i s the h i s t o r i c a l l y correct p o s i t i o n . The questions we must ask are, what outcome would best secure self-determination for E r i t r e a and Ethiopia ?, Does E r i t r e a have a r i g h t to self-determination under 2 9 See Gebremichael,A. "Famine makes i t c r u c i a l to  understand E r i t r e a n struggle", C h r i s t i a n Science Monitor, supra. i n t e r n a t i o n a l law as formulated i n the UN ? And f i n a l l y what are the implications of our f i n a l assessment for a theory of secession ? F. ERITREA'S RIGHT TO SELF-DETERMINATION UNDER UN LAW. In addressing t h i s issue two aspects of the question should be distinguished. To begin with, E r i t r e a ' s claim to be a "people" with a r i g h t to self-determination must be assessed according to how the UN has chosen to define the term over the l a s t three decades. Associated with that i s the second question: do the conditions e x i s t by which t h i s r i g h t comes into e f f e c t over the norm of t e r r i t o r i a l i n t e g r i t y ? The rapid development of the r i g h t to s e l f -determination i n various UN instruments simply serves to make the E r i t r e a n claim increasingly i r r e f u t a b l e . There i s hardly a c r i t e r i o n i n the new UN law of self-determination that E r i t r e a f a i l s to f u l f i l l . Support f o r the establishment of a new state of E r i t r e a does not offend the p r i n c i p l e s of t e r r i t o r i a l i n t e g r i t y or p o l i t i c a l sovereignty since E r i t r e a ' s incorporation into Ethiopia was a recent and an unconstitutional a c t 3 0 . Nor can i t be said that E r i t r e a In other words E r i t r e a does not constitute part of Ethiopia's t e r r i t o r i a l i n t e g r i t y . 110 achieved self-government, "by association with another s t a t e . . . f r e e l y and on the basis of absolute equality" . The EPLF describes the Ethiopian claim to i t s t e r r i t o r y as " c o l o n i a l " and the recent h i s t o r y of c u l t u r a l imperialism (e.g. the banning of languages) and economic e x p l o i t a t i o n gives credence to that description and would indicate that the Eritreans are under the " a l i e n subjugation, domination and e x p l o i t a t i o n " disapproved of i n Resolution 1514. Certainly t h e i r so-called exercise of self-determination does not come close to s a t i s f y i n g the guarantees l a i d out i n P r i n c i p l e s VII to IX of Resolution 1541. Perhaps i t i s the Declaration on P r i n c i p l e s of International Law 3 2 that provides the best argument fo r a renewed r i g h t of E r i t r e a n self-determination. As a people they, "have the r i g h t to f r e e l y determine without external interference, t h e i r p o l i t i c a l status and to pursue t h e i r economic, s o c i a l and c u l t u r a l development...". This much i s c l e a r . However, even i f we accept the p o s s i b i l i t y that E r i t r e a has become part of the sovereign state of Ethiopia i t i s d i f f i c u l t to envision how the Ethiopians can a v a i l themselves of the t e r r i t o r i a l i n t e g r i t y p rovision since any state not. See General Assembly Resolution 742 (VIII), 27th November 1953. See G.A.Resolution. 2625, Oct. 24th, 1970.supra, Chapter 2. I l l "conducting i t s e l f i n compliance with the p r i n c i p l e of equal rig h t s and self-determination of peoples... and thus possessed of a government representing the whole people belonging to the t e r r i t o r y without d i s t i n c t i o n as to race, creed or colour", foregoes the r i g h t to an inalienable sovereignty. So, under the formal rules of the UN law of s e l f -determination the Eritreans have a strong 1case to secede. The index of v a l i d i t y , outlined l a t e r i n t h i s paper, imposes a substantive body of rules on the UN law of s e l f -determination. This index i s the construct central to the proposed theory of legitimacy. In the index a set of es s e n t i a l conditions are a l l i e d to a number of c r i t i c a l v a r iables with a view to empirically assessing the l e g a l and p o l i t i c a l v a l i d i t y of a claim to secede. How does the Er i t r e a n s i t u a t i o n respond to the indices of v a l i d i t y ? Is there also a substantive r i g h t of secession conforming to our v i s i o n f o r the new world order lurking below a l l the revolutionary verbiage and f o r m a l i s t i c rule-making? In order to q u a l i f y for the r i g h t of secession the Eritreans must s a t i s f y a number of basic c r i t e r i a and i f E r i t r e a i s l e g a l l y disbarred from exercising the r i g h t to secession i t must be assumed that other supernorms such as t e r r i t o r i a l i n t e g r i t y and p o l i t i c a l sovereignty have worked i n Ethiopia's favour. 112 G.ERITREA AND THE INDEX OF VALIDITY. In order to assess the legitimacy of the E r i t r e a n claim we should r e f l e c t on the indices of v a l i d i t y developed as part of t h i s theory of secession and apply them to the E r i t r e a n s i t u a t i o n . (i) E r i t r e a ' s existence as a people. An E r i t r e a n national consciousness can be traced back at l e a s t to the time of I t a l i a n colonization. P r i o r to t h i s , h i s t o r i c a l evidence would indicate that the people of t h i s region were never integrated into Ethiopia. I t i s unnecessary then to preempt any concluding discussions on the t h e o r e t i c a l d e f i n i t i o n s of "people" i n order to conclude that Eritreans do indeed constitute a people. The o r i g i n a l UN Resolution (390) makes i t c l e a r that the Eritreans are to be regarded as such and the i l l - f a t e d proposed federation with Ethiopia c a r r i e d with i t a c o n s t i t u t i o n a l caveat that the E r i t r e a n state would be protected. Even at t h i s early p o s t - c o l o n i a l stage E r i t r e a was being treated as a d i s t i n c t e n t i t y . The f a i l u r e of the UN to intervene when the Ethiopians abrogated the agreement i n no way detracts from i t s i n i t i a l decision. So, based on arguments previously made, the existence of an E r i t r e a n people i s uncontestable. ( i i ) Human Rights. 113 Severe deprivation of human ri g h t s on a widespread scale by the state from which secession i s sought can, i f other factors are present, set up a v a l i d claim to s e l f -determination. This i s p a r t i c u l a r l y true i f such deprivation i s aimed at the minority group within the seceding e n t i t y . Ethiopia's human ri g h t s record i s said to be the worst i n the w o r l d . 3 3 The Government's l i s t of transgressions of i n t e r n a t i o n a l human ri g h t s law i s a f a m i l i a r and depressing one and needs no enumeration here. T y p i c a l l y the worst abuses have occurred i n areas of c o n f l i c t including the Tigre and E r i t r e a . In E r i t r e a , the Ethiopians have been waging a campaign of t e r r o r since World War Two. The bribery and intimidation which marked the early period of E r i t r e a n autonomy have been replaced by m i l i t a r y t a c t i c s whose natural consequence i s indiscriminate violence contrary to the humanitarian law of armed c o n f l i c t . 3 4 In f a c t i t i s thought to be deliberate p o l i c y on the part of the Ethiopians to create an optimal environment f o r starvation i n the r e g i o n . 3 5 J J See Amnesty International Report 1978. L i t t l e would appear to have changed i n the intervening decade. 3 4 See e.g. the Ethiopians are reported to be using napalm and chemical weapons on E r i t r e a n c i v i l i a n s . Reports of massacres are too numerous to be doubted see e.g. N.Y. Times, Aug 23, 1988, p6 and ICJ Review 40, June 1988, p2. 3 5 See Gebremichael,A. C h r i s t i a n Science Monitor, supra. See also the frequent complaints by r e l i e f organizations concerning the obstructive behaviour of Ethiopian o f f i c i a l d o m during the famines of the l a s t decade. 114 Conversely the Eritreans have shown that human right s are u n l i k e l y to be compromised i n an E r i t r e a n state to the point where claims to i n t e r n a l self-determination w i l l be activated. The recent attack by the EPLF on a r e l i e f convoy i s at worst an aberration, at best a natural response to Ethiopian deceit i n t h i s arena. The Eritreans have a very p o s i t i v e human ri g h t s record. Well-documented i n various w r i t i n g 3 6 on the subject, i t includes a t h r i v i n g health service, women's ri g h t s , r e l a t i v e l y benevolent treatment of prisoners of war and a commitment to a s o c i a l i s t democracy that seems les s spurious than most. While the longevity of a g u e r r i l l a cause can never be a measure of i t s legitimacy the Eritreans have survived as a nation because of the proven humanitarian concerns of i t s p o l i t i c a l and m i l i t a r y representatives, the EPLF. ( i i i ) P o l i t i c a l S t a b i l i t y and Legitimacy. The s i t u a t i o n i n E r i t r e a has been met with the greatest apathy around the w o r l d . 3 7 Of the major power blocs, only the EEC has indicated support for the Eritreans. See Kaplan,R., The Longest War, supra. See also Firebrace and Holland, Never Kneel Down, supra. 3 7 See e.g. C.B.C., The F i f t h Estate, on the war i n E r i t r e a Sunday 11th October. 9p.m. where i t was said by a commentator that "the Canadian government has no idea what's going on i n E r i t r e a " Globe And Mail Tuesday, October 11th 1988 pl6. Also i n Kaplan, "The Longest War", where a g u e r r i l l a finds comfort i n the presence of s a t e l l i t e s i n the sky because i t "meant that at l e a s t somebody somewhere was paying attention to the war",p65 115 I r o n i c a l l y t h i s has strengthened t h e i r claim to s e l f -determination. L e l i o Basso t e l l s only h a l f the story when he says : "...the E r i t r e a n people have, f o r 17 years now been f i g h t i n g a war of l i b e r a t i o n , and have thereby furnished the best possible proof of t h e i r existence as a people, and as a consequence, of t h e i r r i g h t to se l f - d e t e r m i n a t i o n . " 3 8 What he omits to mention i s that t h i s war of l i b e r a t i o n has been fought without the patronage of any major powers. The EPLF i s one of the few g u e r r i l l a movements that can claim almost complete s e l f - s u f f i c i e n c y . This i s a powerful argument against the idea that granting independence to a small nation i s simply to grant i t the r i g h t to dependence as the c l i e n t of a major sponsoring power. The EPLF also has the support of the l o c a l populace 3 9 and i s said to have "reversed the c l a s s i c a l g u e r r i l l a warfare pattern" by feeding the peasants rather than l i v i n g , p a r a s i t i c a l l y , o f f them. 4 0 There was some doubt as to whether E r i t r e a n nationalism was powerful enough to cohere the various r e l i g i o u s and ethnic groups i n Er i t r e a n society. E r l i c h argues that the F i r s t Assembly (between 1952 and 1956) f a i l e d because, 3 8 See L e l i o Basso, The Er i t r e a n Case, supra, plO 3 9 See Firebrace and Holland, Never Kneel Down, supra, p43 4 0 See Shepherd,J. Issue, quoted at R.Kaplan, The Loneliest War,supra, p63 " E r i t r e a ' s fragmented society had no m a j o r i t y " 4 1 . He concludes that by 1978, "the r e a l i t y of ethnic, r e l i g i o u s , regional, s o c i a l and personal r i v a l r i e s . . . l e g i t i m i z i n g d i s u n i t y proved stronger than the r e l a t i v e l y young sentiment of E r i t r e a n n a t i o n a l i s m " 4 2 According to E r l i c h , while Ethiopian nationalism survived the revolution i n 1977, E r i t r e a n nationalism was too fragmented to survive a s i m i l a r t r i a l . This argument i s highly disingenuous. What E r l i c h f a i l s to mention i s that Ethiopian "nationalism", i n the dubious shape of a m i l i t a r y committee, survived only because i t s leader, Mengistu, eliminated a l l possible fragments i n several bloody l i q u i d a t i o n s of high l e v e l opponents. Further, E r i t r e a n nationalism " f a i l e d " p r e c i s e l y because there was no s i m i l a r ruthlessness manifested on the E r i t r e a n side. He might have made reference too, to the scorched earth p o l i c y of an Ethiopian Army apparently dedicated to making E r i t r e a almost e n t i r e l y uninhabitable. This "fragmentation" i s e s s e n t i a l l y a m u l t i - e t h n i c i t y which cannot possibly preclude the exercise of s e l f -determination unless we are to return to a neo-Nazi 4 1 See Erl i c h , H . The Struggle over E r i t r e a , supra, p8. 4 2 Ibid, p96. 117 d e f i n i t i o n of national self-determination . As Leonard says, "Under I t a l i a n colonialism, E r i t r e a was not formed as a nation-state but as a multi-national s t a t e " 4 4 Eritreanism may well be the negation of Ethi o p i a n i z a t i o n but i t has served to coalesce the diverse forces within the country under the EPLF. Internal disunity i s no longer a problem and the a b i l i t y of the l i b e r a t i o n movement to unite Eritreans augurs well f o r the p o l i t i c a l s t a b i l i t y of an E r i t r e a n state. Economic Potential 45 One of the p r i n c i p a l reasons given by the UN Commission (sent to investigate E r i t r e a i n 1950) for i t s reluctance to recommend an independent E r i t r e a was a B r i t i s h report which stated that E r i t r e a was incapable of supporting a national economy. However i f E r i t r e a i s to be judged according to a continental standard i t i s discovered that when that decision was made i t had an economic in f r a s t r u c t u r e , See Cobban,A. The Nation-State and Self-determination, supra, p53 See Leonard, The E r i t r e a n Case, supra ,p58 Note Resolution 1514, Paragraph 3 states "Inadequacy of ...economic...preparedness should never serve as a pretext f o r delaying independence." In terms of formal l e g a l rules the following discussion i s not relevant. I f we are to take t h i s process a step beyond these rules the issue becomes c e n t r a l . 118 in h e r i t e d from the I t a l i a n s , which gave i t a d i s t i n c t advantage over i t s A f r i c a n neighbours. I t s current economic capacity i s a more controversial subject. There i s no doubt that E r i t r e a i s at present i n d i r e economic circumstances, unable to feed i t s people f a r less support a healthy economy. Nevertheless any c r i t e r i a developed must take into account p a r t i c u l a r circumstances. E r i t r e a i s at present a war-zone with one of the combatants f i g h t i n g a war intended to destroy the E r i t r e a n s o c i a l and economic i n f r a s t r u c t u r e . The Ethiopians have f o r years been i n the process of dismantling E r i t r e a n industries l e f t by the I t a l i a n s and B r i t i s h . I t i s unjust to depend on these present circumstances i n any judgment since they have l i t t l e bearing on the p o s s i b i l i t i e s i m p l i c i t i n an independent E r i t r e a . Instead, i t i s more i n s t r u c t i v e to view the progress made by the EPLF within t h e i r extremely l i m i t e d means. Though information about the EPLF i s not r e a d i l y a v a i l a b l e there i s enough evidence to suggest that they operate an equitable and e f f i c i e n t d i s t r i b u t i v e economy, a l b e i t on a minimal s c a l e 4 6 and that t h e i r , See Kaplan,R. The Loneliest War, supra, p58,60 and 64 on the ERA (Eritrean R e l i e f Association) health-care service and Orotta, "one of the few black A f r i c a n " c a p i t a l s " that a c t u a l l y works" (58), Richard Sherman on the semi-dormant state of the E r i t r e a n economy, Chapter 5, The Unfinished Revolution and Firebrace and Holland, Never Kneel Down, supra, on s e l f - r e l i a n c e , "In an economically backward Third World country l i k e E r i t r e a , given the domination of the world markets by the im p e r i a l i s t power, t h i s p o l i c y of s e l f - r e l i a n c e i s a necessary precondition for the establishment of an independent and vi a b l e economy" (72) "... achievements to date provide a strong argument within the o v e r a l l case f o r the economic v i a b i l i t y of a future self-governing E r i t r e a . " 4 7 H.CONCLUSION. E r i t r e a s a t i s f i e s not only the standards f o r legitimacy set out i n the index of v a l i d i t y but has an equally strong claim to self-determination by secession under the UN law of self-determination mapped out i n the 1970 Declaration on p r i n c i p l e s of International Law 4 8 and by self-determination as decolonization. E r i t r e a ' s p o l i t i c a l and economic v i a b i l i t y , geographic p o s i t i o n and high bona fides combined with the abysmal and highly discriminatory human ri g h t s record of the Ethiopian state, confirm i t as an id e a l candidate f o r a legitimate exercise of the r i g h t to secession. See Firebrace and Holland, Never Kneel Down, supra, p83 See Resolution. 2625,October 24th, 1970. October 24th, 1970, supra. 120 CHAPTER V. BANGLADESH: HUMANITARIAN BASIS FOR SECESSION 121 OUTLINE i.Abstract. A. INTRODUCTION  B. THE SOURCES OF BANGLADESH'S QUEST FOR SECESSION... (i) The formation of Pakistan ( i i ) Developments i n East Pakistan from Independence to secession ( i i i ) The e l e c t i o n of 1971 (iv) The m i l i t a r y solution C. SUCCESS. SELF-DETERMINATION AND SECESSION  (i) Success and legitimacy ( i i ) Unique features of the Bangladesh secession ( i i i ) Discrimination against Bangladesh (iv) Economic discrimination and the r i g h t to s e l f -determination • • • • (v) The Bona Fides of Bangladesh's Claim to Secede and the Pakistan Government (vi) Human ri g h t s and the r i g h t to secede D.THE INDEX OF VALIDITY 122 (i) Some General Remarks ( i i ) Economic v i a b i l i t y ( i i i ) Geo-strategic d e s t a b i l i z a t i o n (iv) Popular allegiance and p o l i t i c a l legitimacy 123 Abstract Bangladesh i s an independent state i n South Asia l y i n g at the Ganges delt a . I t i s bordered by the Indian states of West Bengal (to the west and north) , Assam (to the north) , Meghalaya (to the north and north-east) and Tripara (to the East). I t also has a border with Burma to the south-east and a southern coast along the Bay of Bengal. I t s population of 105 m i l l i o n consists of 86 % Moslems and 12 % Hindus. In ethnic terms 98% of the inhabitants of Bangladesh are Bengalis with a small number of Bi h a r i s . Bengali i s the o f f i c i a l language. Known as East Bengal during the B r i t i s h c o l o n i a l r u l e of India, i t became part of the independent state of Pakistan i n 1947. The other provinces of Pakistan and the central government were a l l to be found i n West Pakistan from which East Pakistan (now Bangladesh) was separated by 6000 miles. A c i v i l war broke out between East and West i n 1971 a f t e r c o n s t i t u t i o n a l attempts by East Pakistan's major p o l i t i c a l party, The Awami League, to secure a greater measure of autonomy for the region. This c i v i l war ended with the Indian intervention and Bangladesh became an independent state i n 1972. A.INTRODUCTION Bangladesh's secession from Pakistan i n 1971 and i t s subsequent recognition by the world community i s often used as a basis f o r asserting the legitimacy of secessionist struggles. I t i s invoked as the prime example of separatist success and i s summoned whenever there i s a s i m i l a r movement f o r independence elsewhere i n the world. I t i s examined here because i t serves as a model for a p o l i t i c a l l y desirable and l e g a l l y acceptable secession. Yet the circumstances surrounding i t s achievement were a t y p i c a l , making i t s u t i l i t y as a paradigm doubtful. In the absence of these p e c u l i a r circumstances, Bangladesh would l i k e l y have been consigned to the same fate as B i a f r a . The questions to be answered, then, are the following : why was t h i s the only s u c c e s s f u l 1 secession since World War Two ? Is success the only standard by which we can measure legitimacy ? What was the reaction of the world community before and a f t e r the conclusion of the armed insurgency ? How does the Bangladesh s i t u a t i o n respond to (1) the p r i n c i p l e of self-determination i n i n t e r n a t i o n a l law as i t has been developed i n the United Nations and (2) the index of v a l i d i t y formulated i n t h i s paper? I include only secessions that were contested by the parent state i n t h i s category. 125 B. THE SOURCES OF BANGLADESH'S QUEST FOR SECESSION. The human tragedy which marked the point of no return fo r Bangladeshi independence began on March the 25th, 1971 when the Pakistani armed forces began a period of m i l i t a r y r u l e i n Dacca and i n i t i a t e d a s i x month campaign of t e r r o r against the c i v i l i a n population of what was then East Pakistan. These events and the establishment of Bangladesh as a nation-state i n i t s own r i g h t f i n d t h e i r source i n a p o l i t i c a l - h i s t o r i c a l context which must be traced back at le a s t to the B r i t i s h c o l o n i a l r u l e of the Indian peninsula. (i) The Formation of Pakistan. India, having played such a prominent r o l e i n the defeat of the Axis forces during the Second World War, nat u r a l l y f e l t independence should be i t s reward. The emergence of Gandhi made B r i t i s h c a p i t u l a t i o n i n e v i t a b l e but even he was incapable of welding the potent r e l i g i o u s forces of Hinduism and Islam into one p o l i t i c a l u n i t and the preferred s o l u t i o n of the Muslim e l i t e was the creation of a Muslim state independent of India. The powerful Muslim League ensured that the Indian Independence Act of 1947 recognized t h e i r wish for a single Islamic state* and See generally, Saxena J.N., Self-Determination. Delhi: University of Delhi,1978, p49-51. 126 Pakistan came into being as a state encompassing two c u l t u r a l l y disparate and, more s i g n i f i c a n t l y , geographically d i s t i n c t t e r r i t o r i a l units known as West and East Pakistan separated by 1200 miles of Indian t e r r i t o r y . 3 Islam was the u n i f y i n g p r i n c i p l e , thought capable of overriding the concepts of nationhood and culture which might otherwise have favoured the two-nation solution for Pakistan. 4 So Pakistan came into existence with i t s component units "sharing only Islam, fear of India and a common poverty..." 5 and p o l i t i c a l differences were not long i n manifesting themselves. One prescient observer was moved to note that t h i s could only lead to further fragmentation i n the Indian sub-continent at a l a t e r date. See Hans J . Morgentau, M i l i t a r y I l l u s i o n s . The New Republic, 19 March, 1956, pl4-16 C l e a r l y t h i s was something that was seri o u s l y contemplated as can be seen from the following quote, "That geographically contiguous units be demarcated into regions which should be constituted with such t e r r i t o r i a l adjustments as may be necessary, that the areas i n which Muslims are numerically i n a majority as i n the North-Western and Eastern zones of India should be grouped to constitute independent states i n which the constituent units s h a l l be autonomous and sovereign" Muslim League Conference,1940 at Lahore quoted i n The Events In Pakistan. A Legal Study By The Secretariat Of The International Commission Of J u r i s t s Geneva, 1972,p7. Hereinafter "ICJ, A Legal Study". See Barnds, Pakistan's Disintegration. World Today 27 1971. 127 ( i i ) Developments i n East Pakistan from Independence to  Secession. A s p i r a l , t y p i c a l of these cases, began to p r e c i p i t a t e events. As the unit seeking secession ( or, as was the case i n East Pakistan at l e a s t u n t i l 1970, autonomy) agitated for greater independence so the central government eager to preserve the t e r r i t o r i a l i n t e g r i t y of the state adopted increasingly repressive measures to secure t h i s end. This i n turn has the ine v i t a b l e consequence of i n v i t i n g further r e b e l l i o n by transforming a p o l i t i c a l action into a national and human imperative. Thus, a c o n s t i t u t i o n a l l y permissible p o l i t i c a l campaign, denied a voice, becomes a b i t t e r armed insurgency. On the other hand, as the tragedy of 1971 amply i l l u s t r a t e s , governmental disquiet r e a d i l y metamorphosizes into m i l i t a r y frenzy. This sequence of events, seen to a le s s e r extent i n E r i t r e a and Bi a f r a , i s epitomized by what occurred i n Pakistan between 1950 and 1971. As early as that f i r s t date l e g i s l a t o r s began demanding greater autonomy for East Pakistan and i n 1954 the Muslim League (which had come to symbolize continued allegiance to the one-nation ideal) was routed i n an e l e c t i o n . From that point on East Pakistan was i n e f f e c t governed by a West Pakistani government i n Islamabad. By 1958 the two men most capable of leading Pakistan from the abyss, Liaquat A l i Khan and Jinnah, had died (the former was assasinated) and the country was i n a state of chaos. The r e s u l t i n g army coup placed General Ayub 128 Khan at the head of government and h i s government exacerbated the grievances of the East Pakistanis with a ser i e s of measures guaranteed to preserve the dominance of the western part of the country. By the time Khan came to power the Urdu language spoken by those i n the west had already been declared Pakistan's o f f i c i a l language despite the f a c t that i t was not widely spoken by East P a k i s t a n i s 0 . He was p a r t i c u l a r l y zealous i n pursuing mono-linguilism i n Pakistan i n the process perhaps t a c i t l y admitting that r e l i g i o n was no longer a s u f f i c i e n t binding force f o r h i s country. Throughout the s i x t i e s the army retained a tenuous control, implementing a number of programmes designed to a l l e v i a t e the pressure from i t s numerous p o l i t i c a l opponents. These included a new c o n s t i t u t i o n i n 1962 which proclaimed a "basic democracy" revealed soon afterwards as a sham, the release of opposition leaders such as Bhutto, from the West and Sheikh Mujibur Rahman, from the East, and f i n a l l y , the imposition of martial law i n 1969 under a new president, General Yahya Khan. Yahya Khan commited himself to the re-introduction of democracy and an e l e c t i o n was held i n the December of 1971. ( i i i ) The E l e c t i o n of 1971. The 1971 e l e c t i o n was a turning point i n the nation's h i s t o r y . I t marked the emergence of a fully-formed Bengali 6 Note the s i m i l a r i t i e s here with Ethiopian attempts to impose Amhara on the Eritreans. 129 national consciousness i n the East which translated i t s e l f at the p o l l s into an overwhelming v i c t o r y for Sheikh Mujibur's Awami League and i t s Six Points for East Pakistani autonomy.7 In the months following the e l e c t i o n intense negotiations took place between General Khan, Mr Bhutto (who had a majority of the seats i n the West) and Sheikh Mujibur i n order to f i n d a way out of the p o l i t i c a l impasse r e s u l t i n g from Khan's reluctance to see central control diminished by an elected assembly led by a party committed to autonomy, Bhutto's unwillingness to see l o c a l power s h i f t eastwards and Sheikh Mujibir's r e f u s a l to compromise the st r i d e n t tone of the Six Points which he now declared were "public property" 8 and, therefore, not open to negotiation. Under pressure from Bhutto, who threatened a general s t r i k e i n the West, Khan postponed the Assembly i n d e f i n i t e l y on March the 1st. From then on the s i t u a t i o n i n East Pakistan s t e a d i l y aggravated . The Awami League and the majority of people i n East Pakistan, f e e l i n g that t h e i r democratic r i g h t s had been subverted, p a r t i c i p a t e d i n a five-day general s t r i k e during which there were several v i o l e n t clashes.9 Meanwhile both the army and Sheikh Mujibur ' The e l e c t i o n was c a r r i e d out on a one-man,one-vote p r i n c i p l e thus giving the Eastern province 169 seats to the West's 144. When the Awami League won 167 of the East's a v a i l a b l e seats i t found i t s e l f with a cle a r majority i n the country o v e r a l l and a powerful mandate from a l l inhabitants of East Pakistan. 8 See A Legal Study, ICJ, pl3 9 Ibid, pl5-16 130 were becoming more obdurate i n t h e i r demands. Khan warned that the armed forces would move to ensure that Pakistan's i n t e g r i t y was not threatened while Sheikh Muj ibur declared that he was about to "outline a programme for achieving the r i g h t of self-determination f o r the people of Bengal"10. (iv) The M i l i t a r y Solution. On March the 25th the army broke out of i t s barracks i n Dacca and began an operation designed to end any hopes of Bengali independence or autonomy. What happened between that date and the surrender of the Pakistani armed forces i n the newly-constituted Bangladesh on December the 16th, has been f o r c e f u l l y described elsewhere and can best be described as something akin to an Asian h o l o c a u s t . 1 1 In the early days of the crackdown the army eliminated a l l known supporters of independence and c a r r i e d out a massacre of the i n t e l l i g e n t s i a at Dacca University. This was followed by even more indiscriminate abuses amounting to a campaign of t e r r o r . Later the army concentrated on persecution of the Hindu minority i n East Pakistan and f i n a l l y on the r u r a l population, amongst whom the Mukti Bahani ( i . e . the Bengali g u e r r i l l a army) operated. While the army dealt with the g u e r r i l l a forces the task of maintaining order among the c i v i l i a n population was handed over to the West Pakistan 1 0 Ibid, pl6 1 1 See, e.g. i b i d , p24-45 and Saxena, Self-determination, supra, p56-59 131 p o l i c e and a paramilitary force known as the Razakars whose record of b r u t a l i t y i n some cases outstripped that of the Pakistani Army. The violence spread to other sections of the populace ; r e l i g i o u s antipathies surfaced and various groups within the country turned on each other with venom. 1 2 The intervention of the Indian Army a f t e r a series of border clashes throughout November (1971) was the decisive act of the war. Prompted p a r t l y by concern f o r what was happening inside East Pakistan and p a r t l y by the refugee problem which had sent m i l l i o n s into India, i t became ine v i t a b l e when Pakistan launched a series of a i r - s t r i k e s on Indian a i r f i e l d s on December the 3rd. The war lasted only 12 days and on December the 14th Indian troops entered Dacca. Two days l a t e r the war was over with the surrender of the Pakistan Army at Dacca. On January the 20th the independent state of Bangladesh was established and immediately recognized by seven states including India. C.SUCCESS . SELF-DETERMINATION AND SECESSION. (i) Success and Legitimacy. Bangladesh has since been u n i v e r s a l l y recognized, leading one commentator to conjecture that "success i s s t i l l The "war" within a war between the B i h a r i minority and the Bengals i n East Pakistan i s the most prominent example of such tendencies. 132 relevant.. .to the question of who or who may not exercise the " r i g h t " of se l f - d e t e r m i n a t i o n . 1 , 1 3 Even i f that opinion c a r r i e s an element of p l a u s i b i l i t y i t i s important to note that recognition i s perforce a p o l i t i c a l act and need not imply approval of the methods used to secure the emergence of a nation-state. Acceptance into the world community does not necessarily invest a p a r t i c u l a r act of self-determination with legitimacy. I t would be impractical to expect states to withhold recognition from new e n t i t i e s on the grounds that they did not come into being i n a l e g a l l y acceptable manner. Equally i t would be perverse for states to continue to recognize e n t i t i e s that no longer e x i s t as independent states, such as Bi a f r a . Yet surely we cannot equate the r i g h t of s e l f -determination with success. To do so would be to diminish the p r i n c i p l e of self-determination to the status of a j u r a l veneer f o r the ex post facto j u s t i f i c a t i o n of successfully accomplished acts of secession. The r i g h t of s e l f -determination must mean more than the might of s e l f -determination, i t must integrate p o l i t i c a l realism with l e g a l c e r t a i n t y 1 4 and be f i r e d by a v i s i o n f o r the future structure of the world community. 1 3 See Pomerance,M. Self-determination i n Law and Practice, supra, p20 1 4 See Chapter Eight, i n f r a . 133 While an investi g a t i o n into the question of whether Bangladesh had the r i g h t to secede from the res t of Pakistan may be accused of lacking p o l i t i c a l relevance i t retains i t s l e g a l s i g n i f i c a n c e by v i r t u e of the fac t that the success of a m i l i t a r y or p o l i t i c a l campaign can never e s t a b l i s h legitimacy. The p r i n c i p l e of self-determination should illuminate the various scenarios i t encounters not shape i t s e l f i n t h e i r p o l i t i c a l l i g h t . That i s not to say that success has no relevance when assessing a claim to secede. I f that success r e s u l t s i n the permanent establishment of a nation-state there i s a presumption created that some of the factors necessary for the presence of a r i g h t to secede have been f u l f i l l e d (e.g. economic v i a b i l i t y and p o l i t i c a l a l l e g i a n c e ) . Furthermore i f that success was aided by the support of a large section of the world community arguments f o r the legitimacy of the act are enhanced. The Bangladesh case i s i n t e r e s t i n g because i t indicates the sort of conditions that might have to be present for a successful act of secession. I f success was derived from legitimacy and not the other way round, as some writers have argued' 1 5 then Bangladesh can be used as a marker for past acts of self-determination and a precursor for future ones. See Neuberger,B. National Self-determination i n Post- Colonial A f r i c a , supra, p80 ( i i ) Unique Features of the Bangladesh Secession 134 The three facts that d i s t i n g u i s h the Bangladesh case from others examined i n t h i s essay, notably B i a f r a and E r i t r e a are, not c o i n c i d e n t a l l y , the very aspects which contributed most d i r e c t l y to the successful r e s o l u t i o n of the Bengali claim. These are the geographic b i f u r c a t i o n of East and West Pakistan, the human ri g h t s holocaust that occurred as a d i r e c t r e s u l t of action taken by the Pakistan army and the intervention of the Indian Army i n Bangladesh 1 6. At l e a s t two of these factors have a d i r e c t bearing on the question of legitimacy (under international law and the index of v a l i d i t y ) . The t h i r d (the Indian intervention) had perhaps the greatest e f f e c t on success but i t s r e l a t i o n s h i p to legitimacy i s more ambiguous 1 7. These factors are i n t e r r e l a t e d . I t was Bangaldesh's geographic d i s t i n c t i v e n e s s that allowed ' the Pakistan Army to act with such f e r o c i t y . The members of the armed forces were drawn predominantly from the West and therefore because of the distance between the two regions would have been u n l i k e l y to have had any contact with the Bengalis. This must have allowed them to form the impression that they were dealing with an a l i e n population. S i m i l a r l y Indian intervention was made les s onerous by the f a c t that the t e r r i t o r i a l i n t e g r i t y of the central government 1s unit was unimpaired during the Indian foray into East Pakistan. F i n a l l y , the human ri g h t s abuses c a r r i e d out by the Pakistanis formed a climate of opinion i n India which was to favour intervention. See also the refugee problem caused by these a c t i v i t i e s . I w i l l discuss t h i s ambiguity i n greater d e t a i l l a t e r i n t h i s chapter. Bangladesh's geographic separateness 1 8 from the res t of Pakistan gives t h i s case i t s unusual character. Pakistan i n 1947 was another a r t i f i c i a l creation of the post-colonial period and l i k e the many states enclosed by c o l o n i a l l y -imposed boundaries, i t was a creature of expediency as much as commonsense. Unlike these new Af r i c a n states Pakistan could not even claim to e x i s t over a s i n g l e - t e r r i t o r i a l unit capable of engendering a national sentiment based s o l e l y on a f e e l i n g of t e r r i t o r i a l unity. I r o n i c a l l y , Pakistan i s a r a r i t y among such creations i n that i t was permitted to determine i t s own area. The accepted c o l o n i a l t e r r i t o r i a l u n i t was an India that at the time included the two regions of Pakistan. The UN's accepted pr a c t i c e of o f f e r i n g s e l f -determination only to c o l o n i a l t e r r i t o r i a l u nits was, i n t h i s case, not followed. Instead the relevant "people" of the area were allowed to choose t h e i r t e r r i t o r i a l destiny based on something other than the administrative unit i n h e r i t e d from the c o l o n i a l power. Religion was, thus, reckoned to be a glue more powerful than geographical contiguity. In e f f e c t , Pakistan seceded from the Indian c o l o n i a l u n i t but i t was an imperfect secession which paid l i t t l e heed to ethnic and p o l i t i c a l r e a l i t i e s . Pakistan died from the same sword of which i t was born but the geographic p e c u l i a r i t y outlined makes i t a poor contender for the domino theory of secession which i t might be thought to 1 8 The t r i p from one wing to the other had to be undertaken by a i r . The al t e r n a t i v e was an arduous 7-day journey by sea. 136 i l l u s t r a t e 1 9 . Rather, the 1200 miles separating East from West were mirrored by a gulf i n attitudes that could not be bridged by e i t h e r common r e l i g i o n or a shared mistrust of India. Pakistan p r i o r to 1971 was a p o l i t i c a l a r t i f i c e undermined by a geographic and c u l t u r a l gulf. ( i i i ) Discrimination against Bangladesh. There i s no shortage of documentation demonstrating how the p o l i c y of Pakistan's central government i n Islamabad served to further cleave the two regions to the point where an engagement of overt discrimination was d i s c e r n e d 2 0 . The Army was an almost exclusively West Pakistani one. Only 10% of the o f f i c e r corps were from the East and out of a t o t a l number of f i f t y appointments to the post of general since independence only one had been an E a s t e r n e r . 2 1 At a government l e v e l a l l but one of the m i n i s t e r i a l appointees since that time had been from the West. The o f f i c i a l language of Pakistan became Urdu despite the fac t that the majority (55%) i n the East spoke v a r i a t i o n s of Sanskrit and See l a t e r f o r more de t a i l e d study of the implications of t h i s domino theory for secession. See Khan, The Disintegration of Pakistan. Meerut: Meenakshi Prakashan, 1985, plO. where i t i s described as "...a central p o l i c y of invidious economic discrimination...". These figures come from Nanda,V.P. Self-determination i n  International Law : The Tragic Tale of Two C i t i e s :  Dacca and Islamabad, 66 A.J.I.L. p321. 137 were deeply opposed to the imposition of the etymologically, Persian-derived Urdu. But i t was i n the economic sphere that the inequitable d i s t r i b u t i o n of power was most keenly f e l t . Nanda goes as far as to describe the re l a t i o n s h i p as belonging to a "neo-c o l o n i a l status of economic r e l a t i o n s " 2 2 and some of the economic f i g u r e s 2 3 from t h i s time c e r t a i n l y bear out that d e s c r i p t i o n . Estimates for the period from 1958 to 1968 speak of an annual budget i n which c i v i l expenditure for the respective regions amounted to 62% for the West and 38% for the East. Nearly a l l major i n d u s t r i a l programs were allo c a t e d to the West, foreign a i d was assigned f o r projects i n the West while exports of jute and jute products from the East were often used to pay for the aid. Unfortunately, while East Pakistani exports amounted to 59% of t o t a l exports i t received only 30% of the imports 2 4. In 1954, The Economist concluded that, "... Pakistan i s economically v i a b l e l a r g e l y because of the eastern wing's export and exchange ea r n i n g s . " 2 5 There i s l i t t l e doubt that the government's aim was to improve the economic p o s i t i o n of the western wing and thus 2 2 See i b i d , p330. See also, A Legal Study. ICJ, supra,plO for a s i m i l a r point. 2 3 Economic figures come from Bangladesh Documents. External A f f a i r s Ministry, Government of India, New Dehli, 1971 quoted i n New York Journal of International Law and P o l i t i c s 4 1971 p524. 2 4 See Saxena,J.N. Self-determination, supra, p63,64. 2 5 See The Economist. Vol 170, 27th March 1954, p958. 138 consolidate i t s p o l i t i c a l primacy. This i n e v i t a b l y l e d to neglect i n the East and even as droughts were being tackled vigorously i n the West using modern immigration techniques v i r t u a l l y nothing was done about the long-standing flooding problems i n the more f e r t i l e East. The 1965 Indo-Pakistan War added to the problems a f t e r the government ordered a trade embargo against India. This e f f e c t i v e l y sealed the East o f f from i t s major trading partner and caused further economic hardship. The e f f e c t of these measures and p o l i c i e s was to create a f e e l i n g of resentment towards the central government which was further aggravated by the apparent indiffe r e n c e of that body to the s u f f e r i n g endured by East Pakistan during the cyclone of November, 13th 1970. I t i s suggested by the International Commission of J u r i s t s that "callous i n d i f f e r e n c e " 2 6 contributed d i r e c t l y to the overwhelming mandate given to the autonomy-seeking Awami League a month l a t e r i n the general e l e c t i o n . (iv) Economic Discrimination and the Right to S e l f - determination . Can i t be said that t h i s economic discrimination i t s e l f activated a r i g h t to self-determination f o r the Bengalis ? Certainly the unfairness of the economic system employed by the Government of Pakistan can be established beyond doubt. However, does i t amount to the sort of discrimination required to provoke a j u s t i f i a b l e surge f o r independence ? 2 6 See A Legal Study,ICJ, supra, pl2. 139 Under in t e r n a t i o n a l law the r i g h t of secession i s ruled out i n a l l but the most extreme cases. Economic discrimination i s absent from a l i s t of the sort of practices which might give r i s e to a r i g h t of self-determination. Only a very wide d e f i n i t i o n a l standard would include i t among "colonialism...and discrimination associated t h e r e w i t h " 2 7 or " a l i e n . . . e x p l o i t a t i o n " 2 8 and even the most l i b e r a l reading of The UN Declaration on Friendly R e l a t i o n s 2 9 finds l i t t l e to support such a claim f o r self-determination. Given the very r e s t r i c t i v e interpretations of these clauses made thusfar and state p r a c t i c e on t h i s matter i t would be imprudent to assert that Bangladesh had a r i g h t to s e l f -determination as early as 1970 based on perceived economic discrimination. Perhaps a stronger case could be made on the basis of under-representation of Bengalis i n senior government and the army but the same objections would a r i s e . The Government of Pakistan could argue that the country was, "possessed of a government representing the whole people belonging to the t e r r i t o r y without d i s t i n c t i o n as to race,creed or c o l o u r " 3 0 . I t has a pl a u s i b l e case for arguing that . under-representation was due to a lack of competence and that the cent r a l government did represent the whole people regardless 2 7 G.A. Res. 1514. Dec 14, 1960, Preamble, Paragraph 10, supra.. 2 8 Ibid, P r i n c i p l e 2. 2 9 G.A. Res. 2625. Oct 24, 1970,supra. 3 0 Ibid, Paragraph 8,beginning, "Nothing i n the foregoing...." 140 of i t s ethnic make-up 3 1. This argument does have force i n that i t has never been a requirement of UN resolutions on . 3 o the subject that a perfect democracy be extant J . Few states would be able to depend on the paragraph quoted i f such an int e r p r e t a t i o n was adopted. The inherently conservative, s t a t i s t i d e als of the UN make the preservation of t e r r i t o r i a l i n t e g r i t y the fulcrum of any d e f i n i t i v e rendering. The presumption i n favour of t e r r i t o r i a l i n t e g r i t y i s very high and could be rebutted only i n very exceptional circumstances. I w i l l enumerate these i n the index of v a l i d i d t y but they would incorporate a large human ri g h t s dimension. (v) The Bona Fides of Bangladesh's Claim to Secede and  the Pakistan government. Did the massacre c a r r i e d out by the army i n 1971 provide grounds for such a rebuttal ? It has been suggested that the reason f o r the imbalance i n the armed forces was due to the inherently war-like q u a l i t i e s i n the people of the western wing and the more p a c i f i c tendencies of the Bengalis. I t i s d i f f i c u l t to see how t h i s argument could be extended to the respective propensity to acquire positions i n central government. Resolution 1514, supra, states, "Inadequacy of p o l i t i c a l , economic,social or educational preparedness should never serve as a pretext for delaying independence" ( P r i n c i p l e 3 ). The obvious conclusion to draw from t h i s long accepted rule i s that here i s no requirement that the act of self-determination and the subsequent implementation of government and national economy should be of a p a r t i c u l a r l y sophisticated nature. Lack of preparedness i s l i k e l y to lead to administrative unfairness and the absence of a j u s t d i s t r i b u t i v e system f o r the economy. 141 The events leading up to the armed intervention are important i n t h i s regard because they may be used to e s t a b l i s h what the grounds fo r the government action were. I f the grounds for intervention are shown to be j u s t i f i e d i t w i l l be harder to show that the methods used, no matter how reprehensible, give r i s e , i n themselves, to a r i g h t of secession. The people of East Bengal f e l t an understandable grievance when the Awami League, whom they voted for by a vast majority i n the elections of 1970, was denied i t s place as the majority party i n the National Assembly. The Awami League's p o s i t i o n on the status of East Bengal was vague. Did i t support autonomy (as i t claimed) or was i t s manifesto a v e i l e d attempt to secede ? The d i s t i n c t i o n i s c r u c i a l . I f the former i s true then the Government acted rashly and i l l e g a l l y i n sending i n the army. I f , on the contrary, the Awami League was dedicated to the independence of East Pakistan then, under international law, the Government had a prima f a c i e r i g h t to do everything i n i t s power to preserve the t e r r i t o r i a l i n t e g r i t y of i t s nation. The Six Points under which the League fought the e l e c t i o n were ostensibly a programme for regional autonomy. It s provisions included a demand for, " . . . f u l l regional autonomy, including the powers of management of the economy (in order to) save the regional economy from ruination" . 3 3 Awami League Manifesto, Ministry of External A f f a i r s , Republic of India, Bangladesh Documents, 66 1971. See note 21, supra. 142 There was a further c a l l to "break loose from the i n s t i t u t i o n a l framework which i s a legacy from c o l o n i a l t i m e s " 3 4 . Whether the e l e c t o r a l mandate given t h i s plan meant only "a vote for p r o v i n c i a l autonomy and not for the di s i n t e g r a t i o n of the cou n t r y " 3 5 or was, as Bhutto believed, an attempt to s t r i k e at Pakistan's unity. There i s l i t t l e doubt that i t s f u l l implementation would have led to a severe emasculation of federal power ultimately f a c i l i t a t i n g any outright act of s e c e s s i o n 3 6 . This hypothesis was never tested because the central government refused to l e t the democratic process continue to the point where the Awami League could enact the Six Points c o n s t i t u t i o n a l l y . Did t h i s denial of democratic r i g h t s strengthen the Bengali claim to self-determination ? Some extremely complex issues are raised by t h i s question. Though most writers seem to accept that East Pakistan d i d have a r i g h t to s e l f - d e t e r m i n a t i o n 3 7 at t h i s point the International Commssion of J u r i s t s Secretariat concludes i n i t s report that: " I t i s d i f f i c u l t to see how i t can be contended that i n March 1971 the people of East Pakistan or 3 4 Ibid, p525. 3 5 Address by Mohammd Yahya Khan, President of Pakistan, June 28 1971. See i b i d , p559. The Six Points c a l l e d f or federation but central control was to be precariously established e.g. the "autonomous" East was to have j u r i s d i c t i o n over taxes and be permitted to create i t s own m i l i t i a . 3 7 See e s p e c i a l l y , Saxena, Self-determination, supra, p82-84. 143 the leaders of the Awami League on t h e i r behalf, were e n t i t l e d i n international law to proclaim the independence of Bangladesh under the p r i n c i p l e of self-determination of p e o p l e " 3 8 The date of course i s c r i t i c a l because i t was at the end of March when the army began i t s campaign of t e r r o r , a campaign that changed many of the premises on which the above question i s based 3 9. The ICJ contends that the 1970 e l e c t i o n extinguished many of the legitimate grievances on which the East Pakistanis demanded a r i g h t of self-determination. P r i o r to that the denial of "equal r i g h t s " f o r the East may have been s u f f i c i e n t grounds for an assertion of the r i g h t 4 0 based on the 1970 Declaration on P r i n c i p l e s of International Law 4 1 but the el e c t i o n , according to the ICJ, ended the discrimination against East Pakistan even though the Awami League was denied i t s place i n the National Assembly following the e l e c t i o n . The ICJ reasoning supporting t h i s anomalous p o s i t i o n i s f a i r l y confused beginning with the statement, "As we have seen, the Declaration of P r i n c i p l e s of International Law seems to imply that a separate 3 8 See A Legal Study,ICJ, supra, p75. 3 9 I w i l l discuss the impact of the army's action l a t e r i n t h i s essay but for now i t i s important to discover whether a r i g h t of self-determination existed before t h e i r assault. 4 0 See A Legal Study. ICJ, supra, p73 and some of the figures showing economic discrimination and under-representation i n government that I have already quoted and upon which the ICJ base t h e i r tentative decision. 4 1 See G.A. Res. 2625, October 24, 1970, supra. 144 people within a nation state are e n t i t l e d to a high l e v e l of self-government i n order to develop t h e i r own c u l t u r a l , s o c i a l and economic i n s t i t u t i o n s . But how i s i t to be determined what that l e v e l should be? On what c r i t e r i a can i t be said that the Six Points complied with the p r i n c i p l e , whereas a federal c o n s t i t u t i o n within the Legal Framework Order would not have done ?" 4 2 This i s , ex f a c i e , a reasonable argument but the Legal Framework Order was an executive enactment with no democratic mandate whereas the Six Points were overwhelmingly endorsed i n an e l e c t i o n which the ICJ i n s i s t s re-introduced equal ri g h t s for the Eastern province. I f the e l e c t i o n i s the basis on which the East f o r f e i t s i t s r i g h t to self-determination then surely that e l e c t i o n must be given some meaning outside the p o l l i n g booths ? The ICJ goes on to say that President Yahya Khan did nothing to undermine the r i g h t of self-determination because, "He considered that i n any c o n s t i t u t i o n (drawn up i n accordance with the Six Points) which would have resulted, the powers of the central government of Pakistan would have been weakened to the point where the future t e r r i t o r i a l i n t e g r i t y and p o l i t i c a l unity of Pakistan was threatened" 4 3 And yet i f one considers the ICJ's l a t e r point that, "The Awami League had no mandate for independence, nor d i d they claim to have one. They had fought the e l e c t i o n on the Six Points programme of autonomy within a federal c o n s t i t u t i o n " 4 4 , 4 2 Ibid, p73-74. 4 3 Ibid, p74. 4 4 Ibid. 145 then c l e a r l y Khan subverted the democratic process on the capricious grounds that he disapproved of the outcome. This subversion makes i t impossible to argue that h i s decision to allow an e l e c t i o n i n the f i r s t place was enough to re-e s t a b l i s h equal r i g h t s for the people of the eastern province. A l t e r n a t i v e l y i f these "equal r i g h t s " were re-acquired by involvement i n the e l e c t o r a l process then the f a i l u r e to accord that involvement (in the shape of a majority vote for the Six Points) any p o l i t i c a l relevance reverts the people of East Pakistan to t h e i r pre-election p o s i t i o n v i s a v i s self-determination. The ICJ p o s i t i o n i s further confused by t h e i r assumption that armed resistance on the part of East Pakistan was j u s t i f i e d because, "Provided the majority were ready...to grant an equal degree of autonomy to the people of West Pakistan, i t i s d i f f i c u l t to see why on democratic p r i n c i p l e s t h e i r w i l l was not e n t i t l e d to p r e v a i l . I f the people of West Pakistan were not prepared to accept a c o n s t i t u t i o n on t h i s basis, the only remedy would have been p a r t i t i o n of the state. The minority were not e n t i t l e d to force t h e i r preferred c o n s t i t u t i o n upon the majority As the army had resorted to force to impose t h e i r w i l l , the leaders of the majority party were e n t i t l e d to c a l l f o r armed resistance to defeat t h i s action by an i l l e g a l regime" 4 5 This statement i s at odds with the previous t h e s i s and cannot be squared with the b e l i e f that the people of East Pakistan were not e n t i t l e d to exercise the r i g h t of s e l f -determination i n March 1971. I f the "only remedy" p r i o r to the army response was p a r t i t i o n how could i t possibly be the 4 5 Ibid, p75 146 case that Bangladesh was not e n t i t l e d to the r i g h t of s e l f -determination? Did the armed attack by the minority not simply confirm the existence of t h i s right? What the ICJ has attempted to do i s support a r i g h t of resistance (which appears morally incontestable) while at the same time denying a r i g h t of secession. I t has merely ended up defying l o g i c . I f the Awami League had been permitted to form a co n s t i t u t i o n and had implemented t h e i r Six Point plan then the r i g h t of secession would have been extinguished. Had the League subsequently attempted to secede the army's intervention would not have been i l l e g a l since the electorate had endorsed autonomy and not secession. Had there been no e l e c t i o n and no change i n the conditions of the Eastern Province a r i g h t of self-determination would continue to be present. The complication arises when one considers the Six Point plan i t s e l f . I f the plan r e a l l y was a "v e i l e d scheme fo r secession" designed to mislead the electorate and deceive the central government then that government i s placed i n a d i f f i c u l t s i t u a t i o n . I f i t allows democracy to take i t s course the government may f i n d i t s e l f acquiescing to a de facto declaration of secession something a government need not do to ensure the equal r i g h t s of a l l the electorate are met. I f i t takes the opposite course i t may be accused of refusing a legitimate demand for greater autonomy thereby a c t i v a t i n g a r i g h t of secession. 147 International law suggests that the r i g h t to autonomy or minority r i g h t s i s a much more r e a d i l y invoked r i g h t than the r i g h t to secede. Following the e l e c t i o n of 1970 the Eastern province established the r i g h t to autonomy within a federal structure based on both the e l e c t i o n r e s u l t and the previous two decades of discrimination. I t d i d not have a r i g h t to secede since the human ri g h t s element required was not present. I f the government had granted autonomy based on a reading of the Six Points corresponding to i t , and not outright secession, then i t might have avoided both the c o n f l i c t and the establishment of a separate state. I f i t could be established that the Awami League rejected autonomy during the negotiations then the government response was a l e g a l one. (vi) Human Rights and the Right to Secede. The motives of neither party are c l e a r but the argument i s resolved by the large-scale human ri g h t s v i o l a t i o n s which took place following the army intervention. These brought into place the factors required to give East Pakistan a r i g h t to self-determination under i n t e r n a t i o n a l law. I t could no longer be argued that Pakistan was a state conducting i t s e l f , " i n compliance with the p r i n c i p l e of equal r i g h t s and self-determination of peoples... and thus possessed of a government representing the whole 148 people belonging to the t e r r i t o r y without d i s t i n c t i o n as to race,creed or colour" A l l evidence indicates that there was no compliance with these p r i n c i p l e s . A.S. Choudhury, the Pakistani member of the UN Human Rights Commission, described what he saw a s , " a t r o c i t i e s unparalleled i n h i s t o r y " 4 7 . Further, there i s l i t t l e doubt that these a t r o c i t i e s were conducted by an army composed almost e n t i r e l y of so l d i e r s from West Pakistan against the Bengali majority i n East P a k i s t a n 4 8 . There are records i n d i c a t i n g that a p o l i c y which counselled genocide 4 9 was d i r e c t i n g army action. The o f f i c e r who stated, "We are determined to cleanse East Pakistan once and f o r a l l of the threat of secession, even i f i t means k i l l i n g o f f two m i l l i o n people and r u l i n g the province as a colony for 30 y e a r s " 5 0 was not alone i n t h i s determination and h i s statement confirms the neo-colonial designs the West had on the East at t h i s time. The m i l i t a r y strategy of the army was inherently discriminatory. I t encompassed r a c i a l d i s crimination and r e l i g i o u s persecution and thus q u a l i f i e d 46 See G.A. Resolution. 2625, Oct 24, 1970, supra. 4 7 New York Times, May 30th 1971 p5 c . l quoted i n Nanda,V.P. Self-determination i n International Law, supra, p3 32. 4 8 See A Legal Study. ICJ Study, p24, "The m i l i t a r y reign of t e r r o r i n East Pakistan was directed almost exclusively against the unarmed c i v i l i a n population" 4 9 See Indira Gandhi, who claimed that Pakistan's intention was the "a n n i h i l a t i o n of an entir e people whose only crime was to vote democratically". New York Times, December 4th,1971, plO. 5 0 See ICJ Press Release, Aug 16, 1971, p,3-4 149 as " a l i e n s u b j u g a t i o n " 5 . F i r s t there was the elimination of the i n t e l l i g e n t s i a at Dacca University. This was followed by massacres directed exclusively at Hindus, ex-members and associates of the Awami League and f i n a l l y a large proportion of the Bengali peasantry (who were accused of providing support f o r the Mukti Bahni resistance forces). Even West Pakistan estimates of those k i l l e d amount to no l e s s than a quarter of a m i l l i o n - a remarkable figure considering that they were engaged i n a clean-up o p e r a t i o n . 5 2 These s t a t i s t i c s seem to confirm Anthony Mascarenhas' opinion that, "This was organized k i l l i n g , t h i s i s what was t e r r i f y i n g about i t . I t was not being done by mobs. I t was a systematic organized t h i n g " 5 3 Nanda suggests,correctly i n my opinion, that, "...where violence i s perpetrated by a minority to deprive a majority of p o l i t i c a l , e c o n o m i c , s o c i a l and c u l t u r a l r i g h t s , the p r i n c i p l e s of " t e r r i t o r i a l i n t e g r i t y " and "non-intervention" should not be permitted as a ploy to perpetuate the p o l i t i c a l subjugation of the majority" 5*. The Government of Pakistan had i n e f f e c t foregone the r i g h t to l e g a l l y govern the region of East Bengal. S e l f -determination could no longer be r e a l i z e d while that government had j u r i s d i c t i o n over Bangladesh. See Res.2625, Declaration on the P r i n c i p l e s of International Law supra. See A Lecral Study, ICJ , p33 and 36. Sunday Times. London, June 13,1971 quoted at i b i d , p33. See Nanda,V.P. Self-determination i n International Law, supra,p336. 150 D. THE INDEX OF VALIDITY. I t was, unquestionably, India's intervention that led to the successful separation of Bangladesh from Pakistan. Nevertheless, i t i s u n l i k e l y that Pakistan would have survived as a single u n i t for much longer a f t e r the c i v i l war i n 1971 such was the resentment harbored by the people of Bangladesh towards the Pakistan Government. The r i g h t of self-determination came into e f f e c t when i t became l e g a l l y , morally and p r a c t i c a l l y impossible to refute i t . And yet state p r a c t i c e hardly confirms t h i s view. Certainly the UN chose not to in t e r p r e t events as giving r i s e to a d e f i n i t i v e r i g h t to secede. The UN Secretary-General expressed concern at what had evolved i n Bangladesh p r i o r to independence but never came out i n support of t h i s i r r e f u t a b l e claim. During the Biafran c r i s i s i n 1968 he had said that the UN could never support the act of secession against a member state but h i s p o s i t i o n on t h i s occasion was modified and he delivered the UN's most ambivalent message yet regarding the r i g h t of secession, declaring, "A r e l a t e d problem which often confronts us and to which as yet no acceptable answer has been found i n the provisions of the Charter, i s the c o n f l i c t between the p r i n c i p l e s of i n t e g r i t y of sovereign states and the assertion of the r i g h t to s e l f -determination, and even secession, by a large group within a sovereign state. Here again, as i n 151 the case of human r i g h t s , a dangerous deadlock can paralyze the a b i l i t y of the U.N. to help those i n v o l v e d " 5 5 This p a r a l y s i s arises as a r e s u l t of the perceived ambiguity i n the r e l a t i o n s h i p between self-determination and t e r r i t o r i a l i n t e g r i t y i n UN instruments on s e l f -determination and through a reluctance to read some of these declarations and resolutions i n a way that might threaten the s t a t i s t framework. The UN, and the states of which i t i s composed, are most concerned to maintain peace and security and to avoid sanctioning a process which might threaten t h e i r existence. These phenomena have been variously described as the "disruption f a c t o r " 5 6 and the "domino e f f e c t " . What i s needed then i s a new formulation of s e l f -determination which a l l a y s these fears by incorporating c r i t e r i a which recognize these factors. In t h i s way c e r t a i n t y would be established within the parameters of p o l i t i c a l r e a l i t y . States would f e e l more secure i n supporting a legitimate case for secession such as i n the example c i t e d without worrying that by doing so they were sanctioning the a c t i v i t i e s of every organization intending the destruction of a state's t e r r i t o r i a l i n t e g r i t y . See Thant,U."Introduction to the Report of the Secretary-General", 1971, A Legal Study, ICJ, p65. See Bucheit,.L.C. Secession. The Legitimacy of S e l f - determination , New Haven and London: Yale U. Press, 1978,Chapter 4. 152 I f the indices of v a l i d i t y are applied, Bangladesh i s found to possess a r i g h t to secession which was morally i r r e f u t a b l e (from a human ri g h t s point of view), l e g a l l y grounded (the 1970 Declaration and a more complex hypothetical instrument based on our index), p r a c t i c a l l y attainable (taking into account some of the factors stated above) and p o l i t i c a l l y r e a l i z a b l e . The human ri g h t s v i o l a t i o n s committed by the Pakistan army provide ample support for the f i r s t point and a reasonable reading of the UN instruments concerning s e l f -determination establishes formal l e g a l i t y . What of the substantial r e a l i t i e s contemplated by our t h i r d and fourth contentions i . e . the c r i t e r i a established i n the index of v a l i d i t y . (i) Some General Remarks. A l l four of the e s s e n t i a l conditions necessary for a legitimate exercise of the r i g h t of secession under the index of v a l i d i t y are present i n the Bangladesh case. That the people of Bangladesh possessed a sense of s e l f -i d e n t i f i c a t i o n and the p o l i t i c a l w i l l to take action i n the int e r e s t s of that s e l f i s obvious from the preceding narrative. So, too i s the existence of a separable t e r r i t o r i a l u n i t . Ample evidence also e x i s t s for the proposition that the human ri g h t s deprivations i n f l i c t e d on the people of Bangladesh were of such a magnitude that the c r i t e r i a r equiring substantial human r i g h t s abuse was e a s i l y 153 s a t i s f i e d . F i n a l l y , the Awami League's apparent willingness to pursue greater autonomy through the state's c o n s t i t u t i o n a l framework and the Pakistan government's i n f l e x i b l e response would seem to point to the conclusion that t h i s was indeed a remedy of the l a s t resort and that the people of Bangladesh were denied the option of appraising r e a l i s t i c a l t e r n a t i v e s 5 7 . In addition to thse e s s e n t i a l conditions i t i s necessary to assess a number of c r i t i c a l v a r iables before judging the legitimacy of Bangladesh's r i g h t of secession. ( i i ) Economic V i a b i l i t y . Bangladesh's a b i l i t y to survive as a state has been proven over the l a s t two decades. However, even i n 1971 i t was predictable that Bangladesh had an economic p o t e n t i a l capable of supporting an independent nation-state. Previously mentioned figures suggest that the, Eastern province was already carrying the burden of aiding development i n the West and was receiving l i t t l e i n return. I n d u s t r i a l l y , the area was backward only because of a lack of investment i n i t by the central government and i n a g r i c u l t u r a l terms Bangladesh has been described as the most f e r t i l e land i n the world. Renewed l i n k s with India following independence were also expected to boost the economy. In other words, Bangladesh could not be worse o f f These conclusions are supported i n the preceding text. 154 a f t e r secession since p r i o r to independence i t was economically exploited by the West to i t s obvious detriment. Another concern linked with economic p o t e n t i a l i s that the parent state w i l l be l e f t an economic i n v a l i d by the secession. This was the case with B i a f r a and i s of p a r t i c u l a r importance when the seceding e n t i t y has exclusive access to sources of raw materials or controls a l l outlets to the sea ( E r i t r e a ) . None of these factors were an issue i n Pakistan's case. Nanda makes t h i s d i s t i n c t i o n c l e a r i n stati n g , " . . . i t s (Bangladesh's) independence would not undermine that of West Pakistan, for the l a t t e r does not depend upon the former eith e r f o r i t s p o l i t i c a l s t a b i l i t y or f o r i t s economic v i a b i l i t y . Therein l i e s the major di s t i n g u i s h i n g feature between the East-West Pakistan r e l a t i o n s h i p as contrasted with the Katanga-Congo and B i a f r a -Nigeria r e l a t i o n s h i p s " 5 8 . ( i i i ) Geo-stratecric D e s t a b i l i z a t i o n . The fear both of the domino e f f e c t and of geo-strategic d e s t a b i l i z a t i o n l e d most states to hesitate i n recognizing Bangladesh's r i g h t to secede. How r e a l i s t i c were these fears 7 The two states most l i k e l y to s u f f e r from the domino e f f e c t were India and Pakistan. India was concerned because of the p o s s i b i l i t y of an independent Bangladesh (East Bengal) causing unrest i n West Bengal, a province of India. See Nanda,V.P. Self-determination i n International Law, supra, p334. 155 This never became a problem f o r India i n the ensuing years and t h e i r support for Bangladesh indicates that these fears were not j u s t i f i e d . The claim that Pakistan's concern that independence f o r Bangladesh would lead to the d i s i n t e g r a t i o n of the country into several smaller units has proved unfounded. Certainly the Pathans i n West Pakistan were more active i n t h e i r desire for greater autonomy for Pakhtoonistan during the c r i s i s i n the east and Bhutto had threatened that Pakistan would become f i v e separate provinces i f martial law was l i f t e d i n Bangaldesh. Notwithstanding, Pakistan remained t e r r i t o r i a l l y i n t a c t because the s i t u a t i o n i n the western provinces was not comparable to that of Bangladesh. The contagion of secession spreads only where the state-body i s weak or abused. 5 9 I t i s a highly s e l e c t i v e "disease" and, to continue the metaphor, requires amputation only i n the most serious of cases. I n s t a b i l i t y i n the, s t r a t e g i c a l l y important, Indian sub-continent was not a prospect many viewed with equanimity. Support f o r Pakistan's t e r r i t o r i a l i n t e g r i t y even i n the face of the human ri g h t s d i s a s t e r i n Bangladesh was based on t h i s fear of i n s t a b i l i t y . United States Secretary of State, Rogers said at the time, "We favour unity as a p r i n c i p l e and we do not favour secession as a p r i n c i p l e , because once you Contra Neuberger,B. National Self-determination i n Post- Colonial A f r i c a . supra, "...there w i l l not be a Bangladesh only i n Pakistan, there w i l l be a Bangladesh everywhere." p94 156 s t a r t down that road i t could be very d e s t a b i l i z i n g " 6 0 . But as Bucheit points out, "the US's much-criticized r o l e i n the Bangladesh a f f a i r was dictated less by i t s t h e o r e t i c a l approval of secession than by. i t s perception of Soviet and Chinese alignments"^ 1. International p o l i t i c s dictated how the superpowers would reveal t h e i r hands. The Americans, p r e f e r r i n g the status quo, demonstrated l i t t l e i n c l i n a t i o n to come to the aid of the people of Bangladesh. Only Congress, displaying a t y p i c a l l y greater humanitarian concern than the executive, indicated disapproval of Pakistan's action by suspending m i l i t a r y a i d . The Soviet Union expressed i t s desire to see a peaceful r e s o l u t i o n to the c o n f l i c t as d i d a number of other s t a t e s . 6 2 In various sessions of the UN delegates spoke of t h e i r sympathy for the people of East Pakistan but a l l steered c l e a r of advocating a r i g h t of self-determination. ECOSOC condemned Pakistan's action but the remedy was to be "compromise". The Sinhalese Ambassador to the UN, H.S. Amersinge, a r t i c u l a t e d the ambiguity f e l t by nearly a l l member states when he requested that, "immediate recognition (be given) to the w i l l of the East Pakistan population as expressed i n the elections of December 1970...(but)...the East Pakistan leaders must renounce a l l secessionist demands. We do not, however question t h e i r r i g h t to negotiate secession with the Government of Pakistan, but we cannot condone or encourage the 6 0 Quoted i n Bucheit,Secession. supra, p209. 6 1 Ibid, p208. 6 2 See Saxena, Self-determination,supra, p71-73. 157 use of f ? r c e i n t n e pursuit of these o b j e c t i v e s " 6 3 . A l l state observers wished to give the appearance of supporting a solut i o n i n l i n e with democracy and the preservation of human r i g h t s . Unfortunately, they could not bring themselves to condone the exercise of secession. The reasons, as stated, l i e i n the absence of consensual agreement about the substance of the r i g h t . I t , therefore, behooves those anxious about the st r a t e g i c e f f e c t s of an unfettered r i g h t of secession to engineer a process by which the r i g h t can be e f f e c t i v e l y delimited. Predictions of legitimacy would do much to remove the uncertainty which creates a climate of i n s t a b i l i t y . (iv) Popular Allegiance and P o l i t i c a l Legitimacy. These are what Buccheit describes as the "i n t e r n a l m e r i t s " 6 4 of the claim. They e x i s t independently of the a c t i v i t i e s of other states and are a measure of the ingredients which are said to constitute nationhood leading to statehood. In general terms they answer the question: Is there a people with a s u f f i c i e n t sense of s e l f - i d e n t i f i c a t i o n and c o l l e c t i v e p o l i t i c a l allegiance to support a state-structure? A/PV 2003, Dec 7th, 1971, p l l - 1 7 . Quoted above, p79. See Buccheit,L, Secession, supra, p228-231 158 In the case of E r i t r e a a national consciousness was created by the c o l o n i a l powers (Ita l y and Great Britain) and reached a high point of organized national s o l i d a r i t y because of the repressive a c t i v i t i e s of the Ethiopian Government. The opposite process occurred i n Bangladesh which began as a separate u n i t and was l a t e r absorbed into an a r t i f i c i a l state e n t i t y . The Pakistan Government was l e f t with the massive problem of "...making one nation out of what are e s s e n t i a l l y two" 6 5. I t s f a i l u r e to do so comes as no surprise given the ethnic, c u l t u r a l and, most of a l l , geographical cleavages that distinguished East from West. I t i s t h i s l a s t f actor that proved most t e l l i n g . I t had the e f f e c t of encouraging an allegiance to national i n the East and i t made d i f f e r e n t i a t i o n from those i n the West even more pronounced than ethnic and c u l t u r a l differences alone might have produced. Pakistani national integration proved impossible and the p o l i c i e s of the central government seem designed to accomplish the opposite e f f e c t . The e l e c t o r a l mandate given to the Awami League was the best evidence of a universal sense of belonging which characterized East Pakistan i n 1970. The unanimous support f o r a dominant party representing one set of p o l i t i c a l i d e a ls was a democratic statement of intent that creates a strong presumption both of the existence of a people and of the r i g h t of that people to self-determination. This, See Loshak,D. Pakistan C r i s i s , London: Heinemann,1971, pl8 159 combined with the Government r e f u s a l to grant any a l t e r n a t i v e forms of self-determination o r i g i n a l l y sought, and a p o l i c y of r a c i a l discrimination and neo-colonial e x p l o i t a t i o n culminating i n almost unegualed human right s deprivations gave r i s e to an i r r e s i s t i b l e r i g h t of secession . See C C . O'Brien, C C who decribes Bangladesh's r i g h t of secession as "the most s o l i d l y founded r i g h t to secede which has emerged since WW I I " . See New York Times, Dec 30, 1971. 160 CHAPTER VI  CASE STUDY: BIAFRA  SECESSION AND THE AUTONOMY COMPROMISE . OUTLINE i . Abstract A. INTRODUCTION. . B. COLONIALISM TO SECESSION.  (i) The Colonial Legacy... ( i i ) Independence ( i i i ) Secession. C. THE RIGHT TO SECEDE  D. UN LAW AND THE BIAFRAN CLAIM  E. THE INDEX OF VALIDITY  a. E s s e n t i a l Conditions: (i) B i a f r a as a people ( i i ) B i a f r a as a T e r r i t o r y Capable of Supporting Right of Secession ( i i i ) Human Rights and Bi a f r a b. C r i t i c a l Variables: (i) Economic V i a b i l i t y of Nigeria and B i a f r a . . ( i i ) Geo-strategic Implications and Domino E f f e c t . ( i i i ) A l ternatives to Secession (iv) Bona Fides and the Autonomy Compromise.... 163 Abstract Nigeria i s the largest state i n West A f r i c a and the most populous i n A f r i c a (1986 est.106 m i l l i o n ) . I t i s bordered by Niger to the North, Chad and the Cameroons to the East, Benin to the West and has a coast on the Gulf of Guinea to the South. The c a p i t a l , Lagos l i e s on t h i s coast. The North i s predominantly Moslem while the South i s mainly C h r i s t i a n . I ts major ethnic groups are the Hausa and the Fulani (in the North), the Yoruba (in the West) and the Ibos i n the Eastern Province (Biafra). The languages spoken tend to correspond to the ethnic d i v i s i o n s though English i s the o f f i c i a l language. Nigeria was a B r i t i s h colony u n t i l 1960 when i t gained i t s independence. Intra-ethnic disputes have been a feature of Nigerian p o l i t i c a l l i f e since then. The worst cases of ethnic c o n f l i c t p r e c i p i t a t e d the secession of B i a f r a (the Eastern Province) i n 1967. In 1970 the Biafrans capitulated a f t e r a c i v i l war that l e f t a m i l l i o n dead. The legitimacy of t h i s secession w i l l be discussed i n the following study. A.INTRODUCTION. I f Bangladesh i s famous for i t s success i n seceding from Pakistan then equally B i a f r a has gained notoriety as a representative of f a i l e d secession. Yet the pattern of a l i e n a t i o n , mobilization and suppression i s s i m i l a r i n these two cases. The difference i n outcome can be a t t r i b u t e d to a number of factors but the key to d i s t i n g u i s h i n g the r e l a t i v e legitimacy of the two demands for self-determination w i l l be found i n the substantial nature of each of the elements i n the pattern. In Bangladesh these elements were present i n t h e i r most extreme manifestations making the secession more l i k e l y to f i n d success and be accorded legitimacy. This was not true of B i a f r a where any dispassionate i n v e s t i g a t i o n would discover a number of moral, l e g a l and p o l i t i c a l ambiguities. The Eastern Region of Nigeria seceded from the federal state of Nigeria on the 30th of May, 1967 declaring i t s independence as the Republic of B i a f r a . On July the 6th of that same year the armed forces of Nigeria attacked B i a f r a (in what was described as a p o l i c e action) with the stated aim of reintegrating the area within a new Nigerian federal structure. The c i v i l war ended on the 12th of January, 1970 when the leaders of the Biafran secession surrendered 165 unconditionally and the Eastern Region was reabsorbed into Nigeria. The antecedents for the i n i t i a l declaration are complex and i n bear remarkably few s i m i l a r i t i e s to the Bangladeshi s i t u a t i o n . As with E r i t r e a and Bangladesh however, the c o l o n i a l legacy was a decisive factor i n creating the conditions which led to the secessionist struggle. B. COLONIALISM TO SECESSION (i) The Colonial Legacy. The B r i t i s h i n t e r e s t i n Nigeria began i n the mid-nineteenth century with the occupation of Lagos (a port on the South-West coast on the Bay of Guinea) i n the 1860s and the appointment of a B r i t i s h consul i n 1849. 1 This was followed by the proclamation of a Niger Coast protectorate i n 1900 and the establishment of the United Protectorate of Nigeria i n 1914. This c o l o n i a l u n i t was set up p r i n c i p a l l y for reasons of administrative convenience and marked the f i r s t attempt to merge the Moslem North and the, predominantly, C h r i s t i a n South. S i g n i f i c a n t l y , there are records of the resentment f e l t by the North towards the 1 See Umozurike.U. Self-determination i n International Law,supra, p261. 166 merger 2 and there are indications that Northern separatism might have become a potent force had i t not been for i t s desire to r e t a i n access to the sea through the ports i n the South. 3 The B r i t i s h p o l i c y from t h i s point on was e s s e n t i a l l y one of "divide and r u l e " beginning with i n d i r e c t r u l e a f t e r the F i r s t World War which enabled the Eastern Nigerians to advance at a more rapid pace than t h e i r northern counterparts and consolidated by the Richards Constitution of 1946 which enacted a very weak federalism. Throughout t h i s period regional differences remained entrenched and there was l i t t l e attempt on the part of eit h e r the B r i t i s h or Nigerians to f a c i l i t a t e a national i d e n t i t y . In fac t the d i v i s i o n of the country i n 1946 into three units, North, East and West 4, encouraged these regional tendencies and i n the following decade i n t e r -regional r i v a l r y resulted i n several outbreaks of xenophobic violence. Between 1957 and 1959 a l l three regions made demands under the co n s t i t u t i o n f o r self-government, ominously pr e f i g u r i n g post-independence t u r m o i l . 5 2 Ibid,p261. 3 see Tamuno, Separatist Agitations i n Nigeria since 1914, 8 Journal of Modern A f r i c a n Studies 1970, p566 4 These changes were made p a r t l y to perpetuate r t h n i c d i v i s i o n s and p a r t l y to f a c i l i t a t e B r i t i s h administration. 5 These were made at the Constitutional Conferences i n 1957 and 1959. Amber,P. Modernization and P o l i t i c a l  D isintegration: Nigeria and the Ibos, 2 Journal of Modern A f r i c a n Studies (1967),pl63. 167 At t h i s time the country was composed of three major t r i b a l peoples and several smaller ethnic groups. The more populous North was the t e r r i t o r y of the Hausa-Fulani who were overwhelmingly Moslem and of a more t r a d i t i o n a l o r i e n t a t i o n than the other groups. Their r e l a t i v e lack of development was p a r t l y a consequence of c u l t u r a l differences and p a r t l y because of deliberate B r i t i s h p o l i c y . In the West were the Yorubas who were a mix of Moslems and Christians and the C h r i s t i a n Ibos dominated the Eastern region. The Ibos were the most Westernized and entrepreneurial of the three groups and thus had a tendency to fan out over Nigeria i n search of opportunity. This however had l i t t l e e f f e c t on the s o l i d i t y of t r i b a l t i e s and a l l three areas continued to display more regional l o y a l t y than national unity. C o n f l i c t , at f i r s t sporadic and non-violent, was the i n e v i t a b l e consequence of the attempt to make three nations intp one s t a t e . 6 ( i i ) Independence Independence i n 1960 brought l i t t l e r e s p i t e from t h i s s t r i f e . Central government was incapable of imposing any semblance of unity on the country. Census figures were disputed, t r i b a l i s m f l a r e d and the federal e l e c t i o n i n 1964 was marked (especially i n the Western region) by, 6 Many writers make the point that the Yorubas, Ibos and Hausa-Fulani constitute nations i n much the same way as the English,Welsh or I r i s h . See K.W.J. Post, Is There A  Case For B i a f r a ? International A f f a i r s 44, 1968, p28. 168 " the most g l a r i n g abuses that could be witnessed anywhere i n parliamentary el e c t i o n s " . With the whole country engulfed i n ethnic h o s t i l i t y and government corruption, the stage was set fo r a series of coups that were to lead d i r e c t l y to the Biafran secession. The f i r s t coup began on January the 15th, 1966 and was led by d i s a f f e c t e d junior o f f i c e r s i n the army. Predominantly Ibo-inspired, i t s victims were nearly a l l Northern p o l i t i c i a n s and senior army commanders. On May 24th a counter-coup was launched by Major General Aguiyi Ironsi (an Ibo senior o f f i c e r who had survived the f i r s t coup) who began a personal war on regionalism which he c l e a r l y regarded as the scourge of Nigerian unity. He succeeded only i n estranging both North and South with h i s U n i f i c a t i o n Decree and he was k i l l e d i n the year's t h i r d coup of July the 29th 1966. This coup was prompted by the North's fear of Southern domination and was headed by a Northerner, Lieutenant-Colonel Yakubu Gowon. Gowon saw l i t t l e to encourage him that national u n i f i c a t i o n was possible and he contemplated withdrawing the North from the r e s t of Nigeria. Meanwhile during the period September-October 1966 a number of r i o t s took place i n the North accompanied by massacres which took the l i v e s of between 10,000 and 40,000 Ibos l i v i n g i n the region. One m i l l i o n Ibos were expelled from the North and r e s e t t l e d i n the Eastern region. By t h i s time See Umozurike,Self-determination , supra, p263. 169 two opposing forces were gathering momentum. Gowon had implemented a 12-state federal compromise which gave the central government added strength while d i v i d i n g the country p r o v i n c i a l l y according to ethnic c h a r a c t e r i s t i c s . His government became committed to t h i s s o l u t i o n and made i t cl e a r that any attempt to r e j e c t i t would be met with force. ( i i i ) Secession The Eastern Ibos and t h e i r leader, Lieutenant-Colonel Odumegwu Ojukwu, resent f u l of the North's treatment of t h e i r people were intent on achieving independence from Nigeria. The Republic of Bi a f r a was declared i n May, 1967 and was supported by both the Ibos and, to les s e r extent, the other ethnic groups which inhabited the Eastern Region. The ine v i t a b l e c o l l i s i o n occurred and a c i v i l war i n which m i l l i o n s were k i l l e d or wounded ended only with the defeat of the Biafrans i n 1970. C. THE RIGHT TO SECEDE In Bangladesh v i c t o r y went to the secessionists and the resultant state has long been accepted into the int e r n a t i o n a l community. The s i t u a t i o n i n E r i t r e a remains unresolved but probably marginally favours the creation of a new sovereign state. B i a f r a , i n contrast, has become a 170 purely h i s t o r i c a l term; the region i t occupied i s simply another province of Nigeria. As Umozurike states, "the law takes note of a f a i t accompli" 8. The Biafran claim i s no longer an issue i n international r e l a t i o n s but l i k e Bangladesh's i t s t h e o r e t i c a l and p r a c t i c a l implications remain a l i v e . Unlike Bangladesh i t c l o s e l y resembles the self-determination archetype of the federated province which occupies a land mass within the state's larger geographical area. B i a f r a also wishes to gain i t s own independence from colonially-imposed national boundaries but as with a l l cases of secession and attempted secessions the pertinent factors are frequently those peculiar to i t s e l f . B i a f r a was a t e s t case not only f o r self-determination but also f o r the precarious notion of A f r i c a n t e r r i t o r i a l i n t e g r i t y and the wider i d e a l of pan-Africanism. I t s legitimacy was thus perceived i n d i f f e r e n t terms from that of Bangladesh. The future of the black A f r i c a n state was said to be at stake. I t became a matter of A f r i c a n "public p o l i c y " that B i a f r a , regardless of the i n t e r n a l merits of i t s claim, should f a i l to a t t a i n independence. The sovereign r i g h t s of the new A f r i c a n states were regarded as being under threat from the Biafran secession so that even i f the Biafrans were thought to possess a good case i n vacuo the greater good of A f r i c a n unity would have to p r e v a i l . This i s a consideration of some weight but to ignore the substantive case brought by the Biafrans would be to 8 I b i d p267 171 deny the a p p l i c a b i l i t y of l e g a l p r i n c i p l e and j u s t i c e to the res o l u t i o n of A f r i c a n problems. B i a f r a was no more a wholly A f r i c a n concern than i t was a matter of i n t e r n a l Nigerian p o l i t i c s . Secession i s an international problem, s e l f -determination decidedly a matter of int e r n a t i o n a l concern. The claims to exclusive j u r i s d i c t i o n are anachronistic and reactionary. On turning to the substantive issue one i s immediately confronted by the complex nature of t h i s p a r t i c u l a r claim. The Biaf ran case i s undermined by a number of c r u c i a l factors while the central Nigerian a u t h o r i t i e s acted with a degree of p o l i t i c a l and human concern not present i n Bangladesh 9 or E r i t r e a . Biafra's claim to self-determination i s not wholly without merit but unlike the claim held eventually by East Pakistan i t never takes the appearance of an i r r e f u t a b l e or undeniable one. This i s because, as stated e a r l i e r , neither the al i e n a t i o n of the Ibos nor t h e i r suppression was as severe as that of ei t h e r the East Pakistanis or the Eritreans. Furthermore, the p o s i t i o n of the rest of Nigeria was much d i f f e r e n t from that of West Pakistan i n 1971. The fear of d i s i n t e g r a t i o n and economic catastrophe was reasonable i n the case of Nigeria and the central government's attempts to hold the body p o l i t i c together appear to have been made i n a 9 See Chowdhury,S.R. The Genesis of Bangladesh. London:APH, pl04 i n which i t i s stated, "evidence shows Army action [in East Pakistan] f a r more bruta l than anything seen i n the Nigerian c i v i l war". 172 s p i r i t of compromise not present i n Pakistan. F i n a l l y , unlike the Awami League, the Ibos could not guarantee the support of the other t r i b a l groups i n t h e i r area whose own t e r r i t o r i a l ambitions did not necessarily coincide with that of the Ibos. That said, B i a f r a was born out of some genuine grievances that should not be overlooked. This was not a case comparable to that of the Katangan secession i n the Congo between 1960 and 1963. In that case the secessionists were inspired by mercenary motives and supported i n the venture by the c o l o n i a l Belgians who saw opportunities for further economic e x p l o i t a t i o n of the mineral r i c h area without which the r e s t of the Congo would have l o s t i t s v i a b i l i t y . Biafra's mineral wealth was substantial but the economic p o s s i b i l i t i e s of the area were not what caused Biafran secessionism nor was i t s cause aided by an ex-c o l o n i a l power eager to e x p l o i t i t s economic p o t e n t i a l . B i a f r a l i e s somewhere on the spectrum between Katanga and E r i t r e a i n terms of the legitimacy of i t s claim to secede. I want to now look i n more d e t a i l at the relevant circumstances i n order to discover whether B i a f r a had a r i g h t to self-determination by secession under (1) the United Nations law of self-determination and (2) the index of v a l i d i t y outlined l a t e r 1 0 . See Chapter E i g h t . i n f r a . D. UN LAW AND THE BIAFRAN CLAIM. The Biafran claim was looked on with some disdain by the large majority of the states that made up the UN and t h i s may account f o r the organization's passive response to the c r i s i s . There was l i t t l e attempt to address the l e g a l and p o l i t i c a l dilemmas presented by the case and the UN seemed content to allow the OAU exclusive supranational j u r i s d i c t i o n . The timing of the secession i s of some importance i n t h i s regard. Biafra's struggle f o r independence predated by three years the Declaration on P r i n c i p l e s of International Law 1 1. The UN p o s i t i o n on self-determination underwent something of a transformation i n that declaration. The Biafran secession came at a time when the concept of c o l o n i a l self-determination was predominant and the post-c o l o n i a l unit's r i g h t to t e r r i t o r i a l i n t e g r i t y was free of the caveats subsequently attached by the 1970 Declaration. U.Thant, the secretary-general of the UN i n 1967, made cle a r the organization's o f f i c i a l p o s i t i o n when he stated, "As f a r as the question of secession of a p a r t i c u l a r section of the State i s concerned, the United nations' attitude i s unequivocable. As an inte r n a t i o n a l organization, the United Nations has never accepted and does not accept and I do not believe i t w i l l ever accept the p r i n c i p l e of secession of a part of i t s member s t a t e " 1 2 . x ± See G.A. Resolution. 2625, 24 October, 1970,supra. i 2 - UN Monthly Chronicle. Vol 7, Feb 1970, p36. 174 United Nations law i n 1967 was most concerned with eradicating colonialism and preserving post-colonial boundaries. I t was ill - e q u i p p e d to deal with the coming era of self-determination i n si t u a t i o n s which did not conform to the c o l o n i a l model. The p r i n c i p l e s incarnated i n the 1960 Declaration on the Granting of Independence to Colonial Countries and P e o p l e 1 3 applied only to these cases where there was, " a l i e n subjugation, domination and e x p l o i t a t i o n " 1 4 . None of these factors was present to a s i g n i f i c a n t degree i n the Nigeria of 1967. There was l i t t l e of the n e o - c o l o n i a l i s m 1 5 which marked the r e l a t i o n s h i p between East and West Pakistan. The Eastern Province (Biafra) had contributed i t s f a i r share of Nigerian leaders and i t s influence i n the army was at l e a s t as great as that of any of the other provinces. Economically the Eastern Province was probably the strongest of the provinces and i t enjoyed symbiotic economic r e l a t i o n s with the r e s t of the country. See UN General Assembly Resolution 1514, 14 December,1960, supra. Ibid , P r i n c i p l e 1 See the d e f i n i t i o n of colonialism quoted i n Saxena, S e l f - Determination , supra, p l O l , "colonialism i s the establishment and maintenance for an extended time of ru l e over an a l i e n people that i s separate from and subordinate to, the r u l i n g power ...[where there i s ] a manifestation of the everpresent truth that the strong dominate the weak and a part of that country does or ought to e x i s t for the benefit of the other part." from Emerson, R. & Fieldhouse,D.K., Colonialism. International Encyclopedia of the S o c i a l Sciences, Vol 3, p i . 175 Under present UN law, as embodied i n the 1970 Declaration on the P r i n c i p l e s of International Law, i t i s doubtful whether the Biafran claim has l e g a l force. The cent r a l question here must be : Was Nigeria a state conducting i t s e l f , " i n compliance with the p r i n c i p l e of equal r i g h t s and self-determination of peoples as described above and thus possessed of a government representing the whole people belonging to the t e r r i t o r y without d i s t i n c t i o n as to race, creed or c o l o u r " 1 6 ? This issue has both a temporal and a fac t u a l dimension. There has to be not only an evaluation of the above phenomena but also a recognition that the expression "Nigerian state" meant d i f f e r e n t things at d i f f e r e n t times. The Biafran secession was prompted by a perception on the part of the Ibos that t h e i r physical s e c u r i t y could no longer be guaranteed i n the Nigerian state. This i s i n part borne out by the evidence of widespread massacres of Ibos i n the North p r i o r to the declaration of independence. 1 7 However, human ri g h t s abuses alone do not give r i s e to an i r r e s i s t i b l e r i g h t to secede under i n t e r n a t i o n a l law. They See General Assembly Resolution 2625, 24th October,1970, supra. see Legum,Colin. Observer, 16th October, 1966, who i s quoted as saying, " a f t e r a fortnight, the scene i n the Eastern Region continues to be reminiscent of the i n -gathering of the e x i l e s into I s r a e l a f t e r the end of the l a s t war. Men, women and children a r r i v e d with arms and legs broken, hands hacked o f f , mouths s p l i t open. Pregnant women were cut open and the unborn children k i l l e d " have to be accompanied by a central p o l i c y of discrimination and repression. There i s no suggestion that the massacres were authorized i n t h i s instance as they were i n Bangladesh and continue to be i n E r i t r e a . The Nigerian government was unquestionably g u i l t y of negligence but the Gowon government had j u s t acquired power and had l i t t l e control over the simmering ethnic h o s t i l i t i e s . Furthermore, the government's bona fi d e s are well established by i t s willingness to negotiate on the question of r e a l autonomy fo r the provinces. Gowon's 12-state solution was an advanced scheme for ameliorating regional jealousies and antipathies. The 12-State decree of May the 27th, 1967 outlined a new federal system which was to replace the four large semi-autonomous, mutually-suspicious regions with twelve smaller, more interdependent and p r o v i n c i a l l y s e n s i t i v e states. This arrangement found favour among three of Nigeria's four provinces (the fourth being B i a f r a ) . The North feared a southern c o a l i t i o n and saw the 12-State sol u t i o n as a means to prevent united opposition to i t s perceived s u p e r i o r i t y . The Mid-West was concerned about an independent B i a f r a and wished to forge new c o n s t i t u t i o n a l t i e s with the North while the West, though i n i t i a l l y i n favour of secession for i t s e l f , saw d i s t i n c t p o s s i b i l i t i e s f o r greater Northern domination should B i a f r a be allowed to withdraw from the federation. As Nixon points out, N i g e r i a 3 (as he describes the 12-State Nigeria), posited a new, more legitimate " s e l f " as a counterweight to the Biafran "self"- 1- . Gowon's 12-State s o l u t i o n permits Nigeria to claim both a r i g h t to i t s s e l f -determination and t e r r i t o r i a l i n t e g r i t y based on a reading of the Declaration on P r i n c i p l e s of International Law. E.BIAFRA AND THE INDEX OF VALIDITY. How would Biafra's claim be approached under the more sophisticated l e g a l framework for secession proposed i n t h i s study? C l e a r l y some of the factors relevant under present i n t e r n a t i o n a l law would remain so under any new proposal. The merit of searching f o r a more complex t e s t would l i e i n i t s more comprehensive nature. A number of socio-economic and p o l i t i c a l factors not considered i n any formulation of the UN law on self-determination would enter the l e g a l equation. This would have the e f f e c t of reducing the f o r m a l i s t i c elements to a minimum and give any l e g a l decision p o l i t i c a l meaning. Therefore, what i s proposed i s i s a combination of procedural consistency, l e g a l c e r t a i n t y and p o l i t i c a l relevance i n defining the r i g h t to secede and i t s l i m i t s . See Nixon, Self-determination : The Niqeria/Biafra Case, World P o l i t i c s 24 1972, p492. 178 The case involving B i a f r a i s not one that lends i t s e l f e a s i l y to any decisive conclusion. This i s because i t s claim to secede from Nigeria, while having great moral and p o l i t i c a l weight, i s flawed i n some important respects. Equally the Nigerian claim to maintain i t s t e r r i t o r i a l i n t e g r i t y has some foundation but cannot be admitted without c e r t a i n reservations. (a)Essential Conditions: (i) B i a f r a as a "People". No question of secession can a r i s e without a preliminary designation of the group seeking i t as a people. I t i s the Biafran claim to be regarded as such that must now be considered. Do the Biafrans possess the objective c r i t e r i a ( e t h n i city, culture, t e r r i t o r y ) and, more importantly; what Nayar describes as the determining factor ( i . e . "the subjective sense of i t s (the people's) own i d e n t i t y and common destiny" ) ? The Ibos can be regarded as a nation i n the same way as the Welsh or English. They have common t r i b a l and r a c i a l c h a r a c t e r i s t i c s which d i s t i n g u i s h them from other Nigerians. Furthermore they were undoubtedly an oppressed people at the 1 9 See Kaladharan Nayar,M.G. Self-determination Beyond The  Colonial Context : Bi a f r a In Retrospect. Texas International Law Journal, Vol 10, 1975,p334. 179 time of the events i n question. The major d i f f i c u l t y , though, l i e s with the f a c t that the Ibos and the Biafrans were not synonymous groups. Ojukwa, the Biafran leader, hinted at t h i s when he said, "Biafra i s a people not a t r i b e " 2 0 . The concept of the Biafran nation embraced not only the Ibos but also the other t r i b a l groups i n the Eastern Region. Of course i t has never been a prerequisite f o r self-determination that the "people" i n question be e t h n i c a l l y homogeneous and the Biafran Consultative Assembly which sanctioned the pursuit of secession contained a very substantial non-Ibo m i n o r i t y 2 1 . Nevertheless the Biafran claim was p a r t l y based on the r i g h t to physical security - a r i g h t which had been withdrawn from the Ibos i n the r e s t of Nigeria. But i f t h i s was an Ibo claim why then was the whole of the Eastern Region forced to secede ? I f on the other hand i t was a Biafran claim how could the massacres of the Ibos be used as a j u s t i f i c a t i o n f o r secession ? 2 2 Had these issues been resolved they might have lent more weight to the Biafran cause. See Ojukwa,G Bia f r a : Selected speeches and random  thoughts. P133-134. (1969). The non-Ibo minority made up 165 of the 335 members of the Assembly. See Panter-Brick.S.K. The Right to Self-determination:  I t s Application to Nigeria. International A f f a i r s 44, 1968, p254-66, for an elaboration of these questions. 180 ( i i ) B i a f r a as a t e r r i t o r y capable of supporting a claim to  self-determination. The Eastern Province of Nigeria (Biafra) was recognisably a t e r r i t o r i a l u n i t almost from the moment Nigeria i t s e l f was created. I t has always been a d i s t i n c t component of that state and i n 1957 i t gained i t s i n t e r n a l autonomy, even sending i t s own representatives to London. 2 3 By the l a t e s i x t i e s p r o v i n c i a l l o y a l t i e s enhanced by t r i b a l cohesion meant each region was most concerned with securing i t s own i n t e r e s t s i n the co n s t i t u t i o n ahead of any perceived Nigerian national i n t e r e s t . Secessionist tendencies continued to dominate the p o l i t i c a l scene as they had done throughout the hi s t o r y of modern N i g e r i a . 2 4 These tendencies are unsuprising considering the assessment, made by a former administrator that Nigeria was, "...perhaps the most a r t i f i c i a l of the many administrative units created i n the course of the European occupation of A f r i c a . " 2 5 The Biafran claim can f i n d l i t t l e solace i n such an appraisal since the Eastern Province i t s e l f was an administrative unit and, given the t r i b a l differences, was probably as a r t i f i c i a l as the Nigerian u n i t . I t was not a 2 3 See Nixon, Self-determination : The Nigeria/Biafra Case,supra. p481. 2 4 see f o r further examples, Tamuno, Separatist Agitations, supra. 2 5 See Lord Hailey, An Afr i c a n Survey Revised, London : Oxford University Press, 1957, p307 "natural i n t e r n a l demarcation"^ but rather a c o l o n i a l d i v i s i o n . This i s not to discount B i a f r a as a t e r r i t o r y with the p o t e n t i a l f o r self-determination but rather to post a reminder that i t s claim on t h i s ground i s no better than Nigeria's. ( i i i ) Human Rights and Bia f r a The question of human righ t s has already been dealt with at some length i n the discussion of the UN law of s e l f -determination 2 7. The condition of aggravated human ri g h t s abuse i s not s u f f i c i e n t l y present here to activate a r i g h t to secession. No doubt there was a temporary suspension of equal r i g h t s f o r the Ibos but i t took the form of i n t e r -ethnic c o n f l i c t rather than d i r e c t government oppression (e.g. E r i t r e a and Bangladesh). The degree of central d i r e c t i o n present i n the l a t t e r two cases was not apparent here. Even during the c i v i l war i t s e l f the Nigerian Army appears to have operated within a c e r t a i n code. An int e r n a t i o n a l group of observers found no evidence of genocide and concluded that federal troops had behaved with r e s t r a i n t 2 8 . This i s not to deny that human r i g h t s abuses 2 6 See Tamuno, Separatist Agitations, supra, p565. 2 7 Ibid. 2 8 see Woronoff, J . , Organizing A f r i c a n Unity. p424, quoted i n Saxena, Self-determination, supra p47. The representatives came from Canada, Poland, Sweden, United Kingdom, United Nations and the OAU. A l l these organizations and states however favoured Nigerian unity which may colour t h e i r c o l l e c t i v e assessment. 182 di d take place on a large scale, but the remedy 2 9 i n t h i s case could not be one of a l a s t resort since (1) t h i s was not the most extreme denial of r i g h t s possible and (2) a number of a l t e r n a t i v e remedies had been by-passed. I t i s to these alternatives and the r e l a t i v e legitimacy of the Nigerian and Biafran claims t h i s analysis turns. (b) C r i t i c a l Variables; (i) Economic v i a b i l i t y of B i a f r a and Nigeria The Katangan secession f a i l e d to meet the c r i t e r i a of the index of v a l i d i t y on a number of grounds but the most important of these was the devastating economic impact such a move would have had on the r e s t of Zaire at that time. In B i a f r a the s i t u a t i o n was l e s s c l e a r . B i a f r a (or the Eastern Region) was c e r t a i n l y the l o c a t i o n of a large number of o i l d e p o s i t s 3 0 without which Nigeria would have been much poorer. However, there i s l i t t l e doubt that Nigeria, as the most populous state on the A f r i c a n continent, could have survived the secession and remained economically v i a b l e 3 1 . 2 9 See generally White. Self-Determination: Time For A Reappraisal, Netherlands Law Review, supra. 3 0 See Saxena, Self-determination, supra, p37. He puts the fi g u r e at between 600-1200 m i l l i o n tons of o i l . 3 1 pace Post,K.J. Is there a case f o r B i a f r a , supra, p38 i n which he argues that Nigeria would not have been v i a b l e 183 Equally these same o i l reserves and the entrepreneurial d i s p o s i t i o n of the Ibo people would have ensured a r e l a t i v e l y bright economic future for an independent B i a f r a . The one question that remains then i s that of motive. One would c l e a r l y prefer to exclude from the category of legitimate secessions those that are undertaken f o r purely s e l f i s h economic reasons. This does not appear to have been the case with B i a f r a where the secession was prompted by humanitarian and p o l i t i c a l concerns-1 . Nor do the pronouncements of the central Nigerian a u t h o r i t i e s reveal any suspicions on t h e i r part that t h i s might have been the motive of the Biafrans. Instead they stress the need for p o l i t i c a l unity rather than economic integration. ( i i ) Geo-strateqic implications and domino e f f e c t . A successful Biafran secession would undoubtedly have had major s t r a t e g i c consequences. Nigeria would have lacked access to the sea and there was the p o s s i b i l i t y of continuing c o n f l i c t between i t and a newly-independent B i a f r a . Biafra's choice of i n t e r n a t i o n a l allegiance would with the amputation of the Biafran t e r r i t o r y . One can only assume that h i s standards f o r v i a b i l i t y are much too high. 3 2 Note too that unlike the Katangan secession where the secession was supported by the Belgian mining company, Union Miniere, the Biafran secession was looked on with d i s t a s t e by the large multi-national o i l companies who did not view the p o s s i b i l i t y of having to renegotiate petroleum contracts with any enthusiasm. As a consequence t h e i r support was for the Nigerian government. 184 have been a controversial issue but there i s l i t t l e doubt that i t was capable of maintaining i t s p o l i t i c a l independence free of overt, big power influence. External dis r u p t i o n would probably have been minimal since Nigeria was not regarded as an area where superpower c o n f l i c t , e i t h e r d i r e c t or by proxy, was l i k e l y . Far from minimal was the p o t e n t i a l for i n t e r n a l disruption. Talk of secession among the various regions was common currency and the t r a n s l a t i o n of t a l k into action i n one of these regions might have had a disturbing knock-on e f f e c t i n the o t h e r s . 3 3 Even B i a f r a may have been met with a swift claim to secession on the part of the I j awes. There was the further question of resentment amongst di s a f f e c t e d Ibos l e f t behind i n the Mid-West province. These considerations, though not decisive, weigh against the legitimacy of the Biafran secession. They suggest that the trauma caused by a Biafran secession would have had a profoundly negative impact hardly a l l e v i a t e d by the increased sense of security f e l t by the Biafrans themselves. Secession has been envisaged by each of the regions at some point. At the Constitutional Conference of September the 12th, 1966 the North o r i g i n a l l y wished to include the following clause i n any c o n s t i t u t i o n a l amendment, " [the] r i g h t of self-determination of a l l people i n t h i s country must be accepted ...[including]...the r i g h t of any state within the country to secede." The Western Region too proposed that, "each state should have the r i g h t u n i l a t e r a l l y to secede from the Commonwealth at any time of i t s own choice." See Umozurike, supra p478. 185 ( i i i ) A l t e r n a t i v e s to secession and Nigeria's r i g h t to i t s  p o l i t i c a l unity. Gowon's 12-State federal proposal i s the key to t h i s whole discussion. His proposal transformed a bald declaration of p o l i t i c a l sovereignty into a sophisticated assertion of Nigeria's r i g h t to self-determination. Biafra's claim to secede would have acquired greater legitimacy i n the face of government intransigence. Instead i t was met by a competing claim based on a r e s t r u c t u r i n g of the c o n s t i t u t i o n a l arrangements intended to eradicate the very problems the secession i t s e l f was dedicated to abolishing. The Nigerian government chose an integrative s o l u t i o n rather than an inherently c o n f l i c t u a l one. 3 4 The new Nigeria envisaged by the government became a more legitimate counterweight to the Biafran quest f o r self-determination which began to look l i k e a s o l u t i o n designed to add to the p o l i t i c a l a l i e n a t i o n of the many minorities l e f t i n N i g e r i a . 3 5 (iv) Bona Fides and the Autonomy Compromise. This poses a major question pertaining to our study ( i . e . i s the promise of a c o n s t i t u t i o n a l arrangement that the state w i l l "represent the whole people" s u f f i c i e n t to see Saxena,Self-determination, supra p93 see Nixon, Self-determination: The Nigeria/Biafra Case, supra p492 186 allow a government to claim a r i g h t to i t s t e r r i t o r i a l i n t e g r i t y over a competing claim to secede?) Or should the secession be judged against previous c o n s t i t u t i o n a l e f f o r t s to maintain unity? I f the l a t t e r i s the case then Nigeria's claim i s harder to support given the fact that imperfections i n the system caused such resentment that a m i l l i o n Ibos were forced to evacuate parts of t h e i r own country. However, i f we look at the promise contained i n the 12-State compromise then the Biafran claim seems les s secure. Biafran secession i s made to look l i k e the s e l f i s h act of a mineral r i c h u n i t within a federal state l i k e l y to have consequences detrimental to the other minorities i n Nigeria. Furthermore i t has not been conclusively established that the Ibos had the f u l l support of the other t r i b a l groups within the Eastern Region of which there were approximately 40%. There i s some i n d i c a t i o n that the I j awes would have wished some measure of autonomy over Port Harcourt - something they would be u n l i k e l y to achieve under Biafran sovereignty. The 12-State proposal would have greatly weakened B i a f r a and t h i s may have been Gowon's intention. However, hi s power base i n the North was also to be compromised by the new arrangement which would have divided the Northern region. The 12-state proposal catered more to the needs of minorities within Nigeria. The Ijawes p o s i t i o n under t h i s arrangenment may have looked more a t t r a c t i v e than Biafran independence. This i n e v i t a b l y gives r i s e to the further question : Would the Biafran state have been any more 187 capable of representing the whole people than the Nigerian state ? There i s no conclusive answer to that question, a f a c t that i t s e l f argues i n favour of the status quo. From the study made above i t can be argued that, the Ibos and B i a f r a d i d have a r i g h t to self-determination but not a r i g h t to outright secession. The Eastern Province had a r i g h t to self-determination within a newly constituted Nigerian federal structure. In order to s a t i s f y the demands of the p r i n c i p l e of self-determination t h i s should have taken the form of greater regional autonomy and an end to the discriminatory practices that had a f f l i c t e d Nigerian p o l i t i c a l l i f e up to that point. Had these requirements not been met then secession might, under under the index of v a l i d i t y proposed, become a legitimate means to achieve self-determination for the Biafran people. CHAPTER VIII  CASE STUDY: SCOTLAND AND QUEBEC. SECESSION IN A REPRESENTATIVE DEMOCRACY: PROVINCIALISM AND REGIONALISM. 1 8 9 OUTLINE. i . Abstract: Scotland. : Quebec. A. INTRODUCTION. B. SCOTLAND  (i) The Scots as a people ( i i ) Scotland's r i g h t to self-determination under int e r n a t i o n a l law ( i i i ) Scotland and the r i g h t to secede (iv) Human ri g h t s (v) Constitutional law, international law and secession. C. QUEBEC  (i) Quebec as a people ( i i ) Quebec and the r i g h t to secede 190 Abstract  Scotland Scotland covers the northern part of the United Kingdom occupying 37% of the t o t a l B r i t i s h land mass. I t has a border with England to the South but i s otherwise surrounded by water (the A t l a n t i c Ocean and I r i s h Sea to the West and the North Sea to the East). O r i g i n a l l y inhabited by a d i s t i n c t C e l t i c people, i t can now be said that the Scots are of the same ethnic background as the majority of the B r i t i s h people. The Kingdom of Scotland entered into a union with England and Wales i n 1707 and has remained part of the United Kingdom ever since. The Scots are possessed of a strong sense of national i d e n t i t y though they do constitute a state i n themselves. This latent nationalism has had only the l i m i t e d p o l i t i c a l e f f e c t described i n the following pages. 191 Quebec Quebec i s a province of Canada with a population of 6,658 000 (Jan,1987). I t i s bordered by the fellow Canadian provinces of Ontario to the west and Newfoundland and New Brunswick to the east. To the south i t i s bordered by the US states of Vermont, Maine, New York and New Hampshire. I t has a 1000km. coa s t l i n e on the Hudson Bay (west) and A t l a n t i c Ocean (east). Quebec i s the French-speaking province of Canada with eighty-one per cent naming French as the mother toungue. Eighty-eight per cent are Catholics and t h i s gives Quebec i t s d i s t i n c t i v e q u a l i t y within the Canadian state as seen i n the recent Meech Lake Accord which recognizes Quebec as "a d i s t i n c t society". Quebec's claim on the r i g h t of secession, i n t e r m i t t e n t l y agitated for, i s the subject of the following case study. A.INTRODUCTION. The problem of secession i s not confined to states i n the developing world even i f most of i t s v i o l e n t manifestations are found there. In North America and Europe there are disc r e t e , t e r r i t o r i a l l y - s e p a r a t e minorities within states who have at one time or another sought independence from those states. North America's most voluble separatist movement i s found i n the French-speaking, Canadian province of Quebec which witnessed rare outbreaks of violence during the c r i s i s of 1970 when i t seemed possible that secession might occur. Though the s i t u a t i o n i s calmer now, the Quebec issue remains a c o n s t i t u t i o n a l thorn i n Canada's side and the Canadian Government i n Ottawa has expended a great deal of energy i n the l a s t two decades i n ensuring that secession i s never again contemplated by the French Canadians i n Quebec. Likewise few European countries are free of separatist concerns despite the high l e v e l of economic advancement and cent r a l control found on that continent. The Basque separatists i n northern Spain and t h e i r t e r r o r i s t arm ETA have the highest p r o f i l e among western European groups while i n Eastern Europe such tendencies threaten the dismemberment of the multi-national Yugoslav state. In the Soviet Union, 193 the B a l t i c nations, Lithuania, Estonia and Latvia, are beginning to perceive Gorbachev's perestoika as an opportunity to agitate for increased autonomy i f not outright independence. These and other movements i n Europe have met only l i m i t e d success since the Second World War. However, i t i s important to recognize that precedents f o r a successful secession do e x i s t there. In 1905 Norway seceded from Sweden i n a peaceful i f not wholly- uncontested manner and low-intensity armed struggle i n Ireland during and following the F i r s t World War resulted i n the creation of a new I r i s h s t a t e 1 , the Republic of Ireland, i n the southern part of an Ireland which had once formed a part of the B r i t i s h state. Indeed the UK i s perhaps the most f e r t i l e ground f o r separatist movements i n Europe since i t continues to bind four very d i s t i n c t national groups, the English, I r i s h , Welsh and Scots, a l l of whom maintain a strong national i d e n t i t y . The following study, then, w i l l examine the separatist movements i n Scotland, a d i s t i n c t country covering the north of Great B r i t a i n 2 , and the province of Quebec i n Canada. This state was known f i r s t as the I r i s h Free State but l a t e r became the Republic of Ireland (or E i r e as i t i s commonly referred to i n the UK). A d i s t i n c t i o n can and should be drawn between Great B r i t a i n and the United Kingdom (UK). Great B r i t a i n includes only Scotland, England and Wales. The UK adds Northern Ireland to these three. The term " B r i t a i n " i s used synonymously with the UK and the B r i t i s h are regarded as the n a t i o n a l i t y of those who l i v e i n the UK. 194 The purpose i s to analyze secession i n the context of modern i n d u s t r i a l states (Canada and the UK) and i n p a r t i c u l a r to examine whether secession could ever possess legitimacy while a sophisticated democracy functions e f f e c t i v e l y . B.SCOTLAND Scotland's p o s i t i o n i n the B r i t i s h unitary state i s a strangely anomalous one. I t has no status under int e r n a t i o n a l law and has few of the powers of a state or province within a federal arrangement e.g. i t has no l e g i s l a t i v e capacity such as that found i n Texas or Ontario. I t i s however a nation with a more pronounced sense of h i s t o r y and i d e n t i t y than many of the nation-states currently i n existence and represents a curiously w e l l -defined sub-system within the UK. Scotland i s r e a d i l y i d e n t i f i a b l e as a country and the Scots as a people yet i t s absorption into the larger B r i t i s h s o c i a l , p o l i t i c a l and economic unit has been both harmonious and r e l a t i v e l y comprehensive. This absorption began i n 1707 with the Treaty of Union between England and Scotland which forged a s i n g l e state out of two nations. Previous to t h i s , Scotland had existed as an independent s t a t e 3 with i t s own crown and n o b i l i t y . The d i s t i n c t i v e n e s s of Scotland within the B r i t i s h land mass began with the Roman invasion of B r i t a i n i n AD 43. By AD 77 the south of B r i t a i n had been conquered but the Roman army I use t h i s term loosely to describe an independent actor on the i n t e r n a t i o n a l scene. States as we now conceive of them did not e x i s t at the time referred to i n the paper. was r e p e l l e d by the P i c t s i n the region of Caledonia 4. The Romans b u i l t two walls to separate England from Scotland and a f t e r t h e i r departure the d i v i s i o n was perpetuated by t h i s physical demarcation and consolidated by the d i f f e r i n g degree of s o c i a l development i n the two parts of B r i t a i n . With the union between the P i c t s and the Scots (from Ireland confusingly) i n the Middle Ages a Scottish nation emerged whose independence i n the centuries p r i o r to 1707 was asserted i n various wars with the English and a l l i a n c e s with the French. I t was i n t h i s period, too, that Scotland's d i s t i n c t educational, l e g a l and e c c l e s i a s t i c a l systems took shape. The Union of 1707 has been the subject of much dispute over the centuries. However, there i s l i t t l e doubt that i t was a voluntary act on the part of two sovereign powers that was mutually-beneficial. I t undoubtedly constituted an act of self-determination by Scotland which remains i n c o n s t i t u t i o n a l force today. Though t h i s may not have been a decisive act of self-determination ( i . e . a once-only decision) , i t i s one whose consequences are now so thoroughly entrenched as to be almost irrevocable. Furthermore t h i s c o n s t i t u t i o n a l formula has never been subject to the subversion which marked the E t h i o p i a - E r i t r e a c o n s t i t u t i o n three and a h a l f centuries l a t e r . The v a s t l y more powerful English nation, while imposing i t s dominant Caledonia encompassed most of what we now know as Scotland. 1 9 7 stamp on the B r i t i s h state, has done l i t t l e to weaken the Sco t t i s h i n s t i t u t i o n s of church, law and education protected by the treaty. Scotland has thus remained c u l t u r a l l y and p o l i t i c a l l y d i f f e r e n t i a t e d . This i s evident by the uniqueness of i t s national i n s t i t u t i o n s . In the following section i t w i l l be shown that Scotland, despite c o n s t i t u t i n g a well-defined "people", more s o c i a l l y and e t h n i c a l l y homogeneous than that of the Eritreans or Biafrans, does not possess a r i g h t of secession (under ei t h e r UN law or my suggested index of v a l i d i t y ) because of the absence of c e r t a i n necessary conditions. fi) The Scots as a "people". Scotland's claim to nationhood i s a p a r t i c u l a r l y emphatic one. In fact, only the absence of l e g i s l a t i v e capacity prevents us from designating Scotland a sub-state. In other matters Scotland i s already r e l a t i v e l y autonomous. I t s education system i s very d i f f e r e n t from that i n England and Wales with a unique examination process and an e n t i r e l y separate administrative structure. The Scottish u n i v e r s i t i e s o f f e r degree programs with a r a d i c a l l y d i f f e r e n t o r i e n t a t i o n from that found i n England. The Sco t t i s h p o l i c e force operates under p o l i c e l e g i s l a t i o n which applies only i n Scotland and many of i t s procedures are d i f f e r e n t from that of i t s English counterparts. 198 Edinburgh i s the seat of Scotland's executive branch where a mini-government led by the secretary of state f o r Scotland implements important p o l i c i e s formulated by the Scottish bureaucracy. Major p o l i c i e s are i n i t i a t e d i n London by ce n t r a l government. However, the method of t h e i r a p p l i c a t i o n i n Scotland i s often l e f t to Sco t t i s h administrative bureaux. As Kellas reminds us, "Scottish government should serve two purposes : to run the things which must be done d i f f e r e n t l y i n Scotland ( e.g. law, education, housing and i n d u s t r i a l development) and to coordinate government a c t i v i t y on a l l fronts to take account of Sco t t i s h needs (e.g. economic planning)." 5 Apart from defence and foreign p o l i c y , then, there i s l i t t l e with which the central Scottish "government" i s not d i r e c t l y involved. I t i s the l e g a l system, however, which argues most persuasively f o r the notion of a Scottish "nation sub-state" and, by implication, "people". Scotland's independent l e g a l system i s enshrined i n the Treaty of Union and has been guarded c a r e f u l l y by Scots lawyers and p o l i t i c i a n s a l i k e . Scots law, unlike i t s English equivalent, i s derived from Roman Law and i s more " p r i n c i p l e " than "precedent" based. I t s p r a c t i t i o n e r s nearly a l l come from the Scottish u n i v e r s i t y law f a c u l t i e s which teach only Scots law and those aspects of UK law which have a p p l i c a b i l i t y i n See Kellas,J.G, .The Scottish P o l i t i c a l System ,3rd,ed.,Cambridge:Cambridge University Press,1984,p61. 199 Scotland 6. Even at Westminster, home of the UK parliament, separate laws must be passed for Scotland 7. Kellas, again, states that t h i s separate l e g i s l a t i o n " i s important i n strengthening the autonomy of Scott i s h p o l i t i c s . " 8 These i n s t i t u t i o n a l factors are reinforced by the consciousness of the Scots that they do constitute a people. The S c o t t i s h national i d e n t i t y i s a powerful one and recent p o l l s show that Scots overwhelmingly perceive of themselves as Scots f i r s t and B r i t i s h second 9. This subjective s e l f -i d e n t i f i c a t i o n i s an indicator of the existence of a people. C u l t u r a l l y , t h i s s e l f - i d e n t i t y i s encouraged by the existence of a d i s t i n c t Scottish press and news media. In the sporting world, Scotland often competes as a separate e n t i t y . This i s p a r t i c u l a r l y true of f o o t b a l l where Scotland f i e l d s a national team i n World Cup tournaments competed for almost exclu s i v e l y by teams representing s t a t e s 1 0 . A l l t h i s has helped fo s t e r a continuing sense of national i d e n t i t y i n the absence of statehood. ° e.g. Revenue or tax law. 7 Private law i s exclusively Scottish with minor exceptions. The public law areas which are most often l e g i s l a t e d for Scotland s p e c i f i c a l l y are i n the areas of law reform, l o c a l government,education and agri c u l t u r e . 8 See Kellas J.G. The Scottish P o l i t i c a l System, supra, p25. 9 Ibid. 1 0 Only the other "home" countries are permitted to compete on t h i s basis. I t i s inconceivable that any other ethnic or national minority be admitted to int e r n a t i o n a l sport at t h i s l e v e l . 200 ( i i ) Scotland's r i g h t to self-determination under UN law By almost any d e f i n i t i o n the Scottish nation can be described as a "people". I t s a t i s f i e s the c r i t e r i a , both subjective and objective, by which most models determine the existence of a people. However i t s r i g h t to s e l f -determination can only be asserted rather ambiguously. UN law u n t i l 1970 applied the r i g h t only to sovereign states and t e r r i t o r i e s s t i l l under (racial) c o l o n i a l r u l e . The Declaration on the P r i n c i p l e of International Law 1 1, of that year, gave the r i g h t meaning fo r "peoples" within a state which f a i l e d to meet c e r t a i n democratic and humanitarian standards 1 2. The UK meets those standards e a s i l y and Scotland can hardly therefore claim the r i g h t to secede as a l a s t resort under that declaration. A d d i t i o n a l l y i t i s d i f f i c u l t to discern a c o l o n i a l patina i n the r e l a t i o n s h i p between England (or the UK i n general) and S c o t l a n d . 1 4 1 1 General Assembly Resolution 2625 , 24th October 1970, supra. 1 2 See Chapter I I I , i n f r a . 1 3 See White,R. Self-determination; Time for a Re-assessment ,Netherlands Law Review. 1 4 But see "Getting Away Scot-free, Fed by economic stagnation and p o l i t i c a l neglect, Scottish separatism i s regaining i t s head of steam." Michael Keating, The Globe  and Mail, Monday, January 16th, A7. But there i s l i t t l e evidence i n the a r t i c l e that t h i s economic stagnation i s p e c u l i a r to Scotland. "Parts of southern England have been booming" but Scotland i s s u f f e r i n g no more badly than the North of England and i n some areas i s doing much better. 201 Scotland has benefited from the Union and there i s evidence that Scotland receives a proportionally greater share of the s o c i a l services and i n d u s t r i a l development budget of the UK. 1 5 Scotland's r i g h t to self-determination i s a d i f f e r e n t issue. As a d i s t i n c t national group Scotland q u a l i f i e s for c e r t a i n minority r i g h t s and a r i g h t to some degree of autonomy. These r i g h t s have already been acquired. Scotland possesses and exercises the r i g h t to self-determination by maintaining a separate s o c i o - p o l i t i c a l existence short of outright secession. Certainly Scotland has been allowed to exercise i t s democratic r i g h t to determine i t own future. In the referendum on devolution i n 1975, during which Scots were given the opportunity to vote for greater l e g i s l a t i v e autonomy , only 32.8% of the electorate confirmed t h e i r support f o r t h i s c o n s t i t u t i o n a l change. ( i i i ) Scotland and the r i g h t to secede. This absence of popular approval for even a l i m i t e d measure of autonomy has important consequences for the r i g h t of secession. One of the central determinants of the existence of the r i g h t l i e s i n the degree to which the people i n question have a desire to secede. This i s i t s e l f determined by the amount of grievance f e l t by the people and the l e v e l of s o l i d a r i t y a r i s i n g from t h i s sense of 1 5 See Mackintosh, Scottish Nationalism , 38 P o l i t i c a l Quarterly,1967, p345. 202 resentment. The Scottish people experience only a comparatively "low-level g r i e v a n c e " 1 6 next to the Eritreans or Tamils which i s i n d i c a t i v e of the absence of discrimination and/or human ri g h t s abuse. ( i i i ) Human Rights i n Scotland Human r i g h t s contributes the most c r i t i c a l indicae to the index of v a l i d i t y f or secession. Secession i s posited under t h i s scheme as a possible antidote to human ri g h t s abuse. This i s i n keeping with the UN law set out i n the Declaration on the P r i n c i p l e s of International Law. Certainly, the severity of the abuse w i l l determine ( a l l things being equal) whether a r i g h t to secede a r i s e s . C l e a r l y genocide, regardless of other factors, must give r i s e to an immediate r i g h t of secession. This occurred i n Bangladesh and the near-genocidal p o l i c y of the Ethiopian Government has strengthened E r i t r e a ' s claim to become an independent state. Lower l e v e l s of abuse may, i n combination with a series of other factors, contribute to the establishment of a r i g h t to secede. Even these abuses must be associated with the r i g h t to physical security. Rights such as the r i g h t to work or the r i g h t to suitable housing are not relevant to our study unless deprivation of these r i g h t s i s accompanied by See Schwarz , The SNP. Nonviolent Separatism and Theories  of Violence , 22 World P o l i t i c s , 1970. 203 massive discrimination. According to these c r i t e r i a human ri g h t s are not a relevant indicae i n the case of Scotland which suffers from, at worst, mild deprivation. This deprivation i s a r e s u l t of an economic recession which b i t deeper into Scotland's more t r a d i t i o n a l industries than t h e i r more adaptable English e q u i v a l e n t s 1 7 . Unlike East Pakistan, Scotland does not su f f e r form extreme economic discrimination. Any such i n e q u a l i t i e s have a natural provenance and are not a r e s u l t of central government p o l i c y . • There i s no i n s t i t u t i o n a l i z e d violence against Scots as there was against the Hindus i n Bangladesh and the Eritr e a n s . I t i s doubtful whether there i s even minimal discrimination against the Scots i n the UK 1 8. In fa c t , the Sco t t i s h people may well be as successfully assimilated into B r i t i s h p o l i t i c a l and c u l t u r a l l i f e as i t i s possible for any national minority to be. To t a l k of secession under these circumstances i s , arguably, an absurdity. (iv) Constitutional Law, International Law and Secession 1 7 pace Tom Nairn, a Marxist, who believes Scotland w i l l secede because of uneven c a p i t a l i s t development and ex p l o i t a t i o n . see Nairn,T. The Break-up of Britain,London:Verso,2nd ed,1981. 1 8 e.g. the National Society for the Vindication of Scotti s h Rights published a comprehensive programme for change. Hanham estimates that every part of the programme has been adhered to by central government. See Hanham,H.J. The Scottish Nation Faces the Post- Imperialist World, 23 International Journal 1967/68. 204 The S c o t t i s h National Party, the major p o l i t i c a l voice fo r independence i n Scotland, remains a minority party. Its anticipated success has been much-heralded but i t has never broken the hold of Labour over Scotland. I t i s best seen as a party of protest whose demand for independence does not a t t r a c t the majority of the Scottish p e o p l e 1 9 . Nevertheless, i t has long claimed a r i g h t of secession for Scotland and t h i s view has, intermittently, been shared by a l l the major p a r t i e s i n the UK 2 0. I t i s important then to d i s t i n g u i s h the c o n s t i t u t i o n a l r i g h t to secede from the international law r i g h t to secede. Under UK c o n s t i t u t i o n a l law Scotland's r i g h t to secede i s not c l e a r l y recognized. I t has, however, become a matter of convention that a democratically held referendum i n which These sudden spurts of e l e c t o r a l l y - s i g n i f i c a n t nationalism are, according to Berger, a product of the c y c l i c a l nature of self-determination among the European n a t i o n a l i t i e s . Major breakthroughs at the p o l l s such as the recent v i c t o r y i n the Govan by-election f o r the SNP are part . of t h i s cycle i n which protest i n e v i t a b l y follows apathy and d i s a f f e c t i o n , see Berger.S. Bretons.  Basques. Scots and Other Nations. Journal of International History 3 1972 pl67 The Labour Party has promised some degree of independence should they a t t a i n power at Westminster and Leon B r i t t a n , the former Home-Secretary i n Mrs Thatcher's cabinet, has p u b l i c a l l y stated following the SNP v i c t o r y at the Govan by-election that, self-determination being a fundamental r i g h t , " i f i t r e a l l y could be proved that a majority of Scots seriously and on a sustained basis want Scotland to go i t s own way within the European community, then B r i t a i n ' s duty would be c l e a r . . . s e l f -determination i s a fundamental r i g h t that could not be denied by those unequivocally claiming i t " , see The  Times. November the 17th, 1988 p i . 205 the Scots voted overwhelmingly for independence would be given e f f e c t under c o n s t i t u t i o n a l law. This does not mean that Scotland has a r i g h t to secede under int e r n a t i o n a l law. I t s i n t e r n a l p o s i t i o n i n the UK i s not r e f l e c t e d by i t s external status i n international law. Any referendum would be held and given e f f e c t as a matter of i n t e r n a l state-government d i s c r e t i o n i . e . Scotland has no r i g h t under int e r n a t i o n a l law, whose democratic standards are rather l e s s stringent than that of UK c o n s t i t u t i o n a l law, to demand that a referendum be held. Rather the UK has an absolute r i g h t to maintain i t s t e r r i t o r i a l i n t e g r i t y providing i t continues to possess a government representing the B r i t i s h people as a whole. Scotland's q u a l i f i c a t i o n s under the index of v a l i d i t y are v i r t u a l l y n e g l i g i b l e . I t possesses the sine qua non f o r secession i . e . a national i d e n t i t y , but i n terms of mobilization, a l i e n a t i o n and suppression i t could not claim the r i g h t under present circumstances. As Kellas says "Scottish i n t e r e s t s can be preserved without national s e l f -determination. 2A " What Scotland has a r i g h t to i s not secession but c u l t u r a l and low-level p o l i t i c a l s e l f -determination. Gros-Espiell, i n a study conducted under the auspices of the UN, states c l e a r l y that, 2 1 See Kellas, The Scottish P o l i t i c a l System , supra pl61. 206 "where the people [Scotland], through the exercise of the r i g h t to self-determination [Treaty of Union 1707] has formed a p o l i t i c a l e n t i t y [U.K.] ... the c u l t u r a l content of i t s r i g h t to s e l f -determination remains i n e f f e c t . . . " 2 2 Scotland's quest for self-determination e x i s t s more i n the c u l t u r a l domain than the political-economic domain. I t i s more a product of regionalism than n a t i o n a l i s m 2 3 and t h i s regionalism seeks only "to provide [Scotland] with addi t i o n a l powers to secure self-determination i n broad c u l t u r a l m a t t e r s 2 4 . " This i s c e r t a i n l y f e a s i b l e under e x i s t i n g c o n s t i t u t i o n a l arrangements without recourse to secession. See Hector Gros E s p i e l l , The Right To Self-determination.  Implementation of UNResolutions. E/CN.4/Sub,2/405/Rev.1, p28 See Mercer,J. Scotland : The Devolution of Power. London:J.Calder,1978 p3. See Eadie, Alex & S i l l a r s , Jim, "Don't Butcher Scotland's Future : The case f o r reform at a l l l e v e l s of government" i n Drucker,H. Breakaway, The Scot t i s h Labour  Party, Edinburgh: EUSB,1978,pl4 C.QUEBEC Quebec i s Canada's largest province and i t s predominantly francophone community 2 5 i s the biggest outside France. I t possesses i t s own Quebecois i n s t i t u t i o n s and French t r a d i t i o n s and culture which make i t Canada's most d i s t i n c t i v e community. Unlike Scotland Quebec has i t s own p r o v i n c i a l government with a l e g i s l a t i v e capacity separate from that of the central government i n Ottowa. Howevever, l i k e Scotland i t s h i s t o r i c a l claim to self-determination i s a well-established one. The French f i r s t s e t t l e d i n Quebec i n 1627 and the next century saw a further i n f l u x of s e t t l e r s , bringing the number up to around 20,000. Following t h i s , there was l i t t l e immigration from France. However, by 1987 that o r i g i n a l 20,000 has become s i x and a h a l f m i l l i o n . The French of "New France" have engaged i n struggles with t h e i r more numerous English countrymen throughout hi s t o r y . B r i t i s h domination was secured i n 1759 a f t e r a short war. but the new B r i t i s h government allowed the residents of Quebec to keep t h e i r language and r e l i g i o n . Quebec's i d e n t i t y was severely threatened throughout the 19th century u n t i l Confederation I t i s estimated that 82.5% of Quebec's inhabitants speak French as a f i r s t language. 208 i n 1867 when Quebec became a province of Canada with control over i t s c i v i l laws, education, r e l i g i o n and language. Quebec's development i n the l a t t e r h a l f of the 19th century was retarded by a weak p r o v i n c i a l government and the i n a b i l i t y of i t s i n s t i t u t i o n s , notably the church, to adapt to modern i n d u s t r i a l l i f e 2 7 . By the 20th century, Quebec had gone some way to re-assert i t s e l f economically but the great depression of 1930 saw the r i s e of Quebec nationalism. This was born out of a f e e l i n g that French Canadians had been discriminated against by the r e s t of Canada. The Union Nationale P a r t i c o n t r o l l e d Quebec for the next three decades and strengthened i t s c u l t u r a l autonomy. However, i t f a i l e d to arrest a further economic decline, p a r t l y because of the r e f u s a l on the part of the dominant Duplessis regime to accept federal subsidies. A L i b e r a l v i c t o r y i n 1960 heralded a new awakening of Quebecois nationalism. The economy expanded ra p i d l y and a modern administration was developed to meet the needs of the l a t e -20th century. In t h i s period, too, the p r o v i n c i a l government began to f l e x i t s international muscles, e s p e c i a l l y v i s a v i s France, sometimes to the ' chagrin of the federal government. More recently, i n 1980, French-Canadian 2 6 See The B r i t i s h North American Act, 1867, 30 Vic, c.3. but note that the Quebec Act of 1774 had entrenched these r i g h t s f o r Quebec. 2 7 The resurgence of the American economy i n 1896 also had an adverse e f f e c t on Quebec's economy. The church continued to stress the value of simple r u r a l l i f e during t h i s period. 209 nationalism received a set-back when separatism was defeated i n the referedum of that year. P r o v i n c i a l - f e d e r a l r e l a t i o n s have improved from that point and disputes now tend to be resolved by a c o n s t i t u t i o n a l compromise, the l a t e s t of which i s the Meech Lake Accord. Quebec nationalism has been accompanied by sporadic violence since the formation of Front de Liberation de Quebec i n 1963. In 1970 FLQ kidnappings sparked a c o n s t i t u t i o n a l c r i s i s i n Canada and led to the imposition of the War Measures Act by the Trudeau Government. However, i t has never been established that the FLQ had more than minimal support from the Quebec people. fi) Quebec as a "people". As we have seen "peoples" have a r i g h t to s e l f -determination under international law although defining these peoples and d e l i m i t i n g the scope of t h e i r r i g h t has proved extremely problematic. The genus of peoples l e g a l l y capable of gaining independence from a larger p o l i t i c a l administration has been r e s t r i c t e d thusfar to c o l o n i a l peoples. Secession i s impermissible under i n t e r n a t i o n a l law except i n c e r t a i n cases where an ethnic group within a state and occupying a d i s t i n c t area of that state lacks representation at a governmental l e v e l . This p o s s i b i l i t y a r i s e s from a reading of the 1970 Declaration on the 210 P r i n c i p l e s of International Law 2 0. I t i s the purpose of t h i s paper to both l i m i t and elaborate on t h i s p o s s i b i l i t y . Self-determination i s more i n c l u s i v e a concept than secession and i t s exercise need not lead to either independence or secession. The n a t i o n a l i s t - p r o v i n c i a l -federal matrix that e x i s t s i n Quebec allows us to delineate more c l e a r l y these d i s t i n c t i o n s and show how the r i g h t to self-determination can be exercised and asserted without detriment to the body p o l i t i c (in t h i s case Canada) and without recourse to secession. Quebec's r i g h t to self-determination i s premised on i t s existence as a people i n the vaguest, s o c i o l o g i c a l sense (as opposed to the conditional United Nations d e f i n i t i o n s ) . Here, there i s v i r t u a l l y no argument29-. The French Canadians i n Quebec are a people by v i r t u e of t h e i r unique history, e t h n i c i t y , culture, language and r e l i g i o n . A glance at Quebec's culture-defining i n s t i t u t i o n s i s s u f f i c i e n t to e s t a b l i s h the existence of a separate, s e l f - i d e n t i f y i n g , people. Quebec's own p r o v i n c i a l government i s responsible for education and the a l l o c a t i o n of health and the s o c i a l service resources. As with Scotland, the law i s d i s t i n c t i n terms of i t s j u r i s d i c t i o n and content. While criminal law i s 2 8 See supra f o r f u l l e r analysis of i t s provisions. 2 9 See Carey.C.Self-determination i n the Post-Colonial Era : The Case Of Quebec. ASILS International Law Journal,Vol 1,1977,47. But for an opposing view see Pierre Trudeau,Federalism and the French Canadians, Toronto:MacMillan, 1968, where he state "...(a people) i s no more and no le s s than the ent i r e population of a state." pl53 211 l e g i s l a t e d f o r fed e r a l l y , each province has j u r i s d i c t i o n over i t s c i v i l laws. Quebec's c i v i l law i s based on the Roman law-derived C i v i l Law. The other provinces a l l operate codes based on the Anglo-American common law system. The most s i g n i f i c a n t c u l t u r a l differences are language based. The predominance of the French language i s the clearest physical s i g n a l that Quebec i s d i f f e r e n t from the res t of Canada - t h i s predominance a f f e c t s a l l areas of Quebec l i f e and i s the source of both pride and concern f o r the French Canadians 3 0. This language difference gives them an even stronger sense of s e l f - i d e n t i t y than the Scots and t h i s perception of themselves as a people with c u l t u r a l uniqueness encourages the adoption of shared p o l i t i c a l i n t e r e s t s and as Johnson states, "The ultimate c h a r a c t e r i s t i c of nationhood i s the development of national i d e n t i t y among a pe o p l e . " 3 1 So, the French Canadians s a t i s f y both the objective and subjective standards used to assess the presence of "national" i d e n t i t y . 3 0 See Robert Bourassa's decision to use the "notwithstanding" clause i n the Charter to circumvent "freedom of expression" i n the Charter of Rights and Freedoms. 3 1 See Johnson,H. Self-determination Within the Community of Nations. Leyden,1967, p50. 212 ( i i ) Quebec and the Right to Secede. These factors are not i n themselves s u f f i c i e n t to assert a r i g h t of secession. Other factors must be present i f the French Canadians are to avow a r i g h t to separate under in t e r n a t i o n a l law. The f i r s t question to be answered i s : Is the presumption i n favour of Canada's t e r r i t o r i a l i n t e g r i t y rebutted by evidence of discrimination or human r i g h t s v i o l a t i o n s against the people of Quebec? In order to make that claim the French Canadians must show eithe r that the Quebec-Canada re l a t i o n s h i p has been a c o l o n i a l one or that Canada does not have "a government representing the whole people belonging to the t e r r i t o r y " 3 2 . The burden i n the l a t t e r case i s on the en t i t y seeking secession and i t i s a heavy one. The c r i t e r i a presented i n t h i s thesis for determining legitimacy centre round t h i s aspect of "representation". Given the fact that secession i s anathema to nearly a l l states i n the UN and that customary international law favours the r e j e c t i o n of the r i g h t altogether, i t i s important that the conditions for secession be stringent i f our theory of legitimacy i s to be pr a c t i c a b l e . This i s why human ri g h t s must play such a a large r o l e i n the f i n a l reckoning. Canada's record on human r i g h t s i n Quebec has been attacked on two major fronts. See G.A. Resolution 2625, Oct. 24th 1970. supra. 213 Many writers have discussed human ri g h t s deprivation i n Quebec, stres s i n g p a r t i c u l a r l y economic deprivation or r e l a t i v e deprivation. Certainly Quebec has suffered i n the past from economic inequities but i t s present economic vibrancy argues against i n s t i t u t i o n a l discrimination. True, Quebec contains 30% of the Canadian population and yet a much smaller proportion of i t s s k i l l e d and managerial c l a s s . However, these figures b e l i e the advances made by the French Canadians i n recent decades and the discrepancies that remain have more to do with h i s t o r i c a l factors than present discrimination. Others have pointed to a d i l u t i o n of p o l i t i c a l r i g h t s for the French Canadians i n Quebec. However, Quebec, l i k e Scotland, has been, at worst, the v i c t i m of a malfunctioning democracy and cannot be said to lack representation i n the Canadian government. P o l i t i c a l l y , the French Canadians are indeed a minority but recently they have wielded a disproportionate amount of power i n the Canadian p o l i t i c a l system J . There can be no sense i n which they are deprived democratic r i g h t s . Federally Quebec i s marginally over-represented i n parliament and p r o v i n c i a l l y i t exercises a good deal of independence already. Even i f the majority of Quebecois desired independence and saw i t as the best means Robert Bourassa, the Quebec premier, was instrumental i n Brian Mulroney's v i c t o r y i n 1988's federal e l e c t i o n which was won by the conservatives i n Quebec. Furthermore t h i s e l e c t o r a l success was p a r t l y due to Mulroney's willingness to accommodate Quebec's desire fo r s p e c i a l treatment i n the c o n s t i t u t i o n at Meech Lake. 214 to achieve a high l e v e l of democratic representation the federal province of Quebec would have no standing i n i n t e r n a t i o n a l law to pursue the c l a i m 3 4 . This could only occur i f the s i t u a t i o n i n Quebec deteriorated to the point where the treatment of the French Canadians became a matter causing i n t e r n a t i o n a l disquiet. As Umozurike states, "Inasmuch as the p o l i t i c a l machinery of Canada has adopted a f l e x i b l e approach to the problem of French Canadians, i t i s maintained that i t remains an i n t e r n a l a f f a i r and not one of i n t e r n a t i o n a l concern." Quebec's r i g h t to self-determination e x i s t s i n the c u l t u r a l s p h e re 3 6. Denial of t h i s r i g h t combined with human "...the component states of a federal state normally (my i t a l i c s ) are not subjects of i n t e r n a t i o n a l law. Only the federal state has international r i g h t s and duties.", Klsen,H. General Theory of Law and the State. Russel & Russel:1961 p316. See also, Is There A Right to Secede ?, Murphy K.in The Referendum and Separation Elsewhere :  Implications for Quebec. Rowat,D.C. ed.,Dept of P o l i t i c a l Science: Carleton University. And, Can Quebec  Separate ?. Matas,D. M c g i l l Law Journal, Vol 21, 1975, p399-401, i n which he states "Quebec has no l e g a l r i g h t to assert that claim against Ottowa."(p401) Co n s t i t u t i o n a l l y , Canada i s under no o b l i g a t i o n to implement a programme supported by a majority of the Quebec people. A f u l l analysis of the c o n s t i t u t i o n a l minutiae involved i s outwith the purview of t h i s paper. For a f u l l e r treatment see The Legal Secession of  Quebec. A Review Note, Greenwood,F.M. UBC Law Review, Vol 12, p71. See Umozurike,U.Self-determination i n International Law. Conneticut:Archon,1972, p259. see Gros Espiell.H.The Right to Self-determination,supra ,p28. See also Declaration of P r i n c i p l e s adopted by Habitat: UN Conference on Human Settlements,para 9 section I I , which states, "Every country should have the r i g h t to be a sovereign i n h e r i t o r of i t s own c u l t u r a l values created throughout i t s h i s t o r y and has a duty to preserve them as an i n t e g r a l part of the c u l t u r a l heritage of mankind". 215 r i g h t s abuses and a number of associated factors might lead to a r i g h t of secession as a remedy of the l a s t resort. However, these conditions do not obtain i n Quebec where Quebec's culture has been preserved successfully without undue interference from the federal a u t h o r i t i e s 3 7 . P o l i t i c a l l y and economically Quebec has suffered from inconsistencies i n government p o l i c i e s and some residual discrimination. However many of these discriminations have been r e c t i f i e d and Quebeckers can hardly claim the gross maltreatment that has given r i s e to secessionist movements i n Asia and A f r i c a . A Quebecois secession would pose d i f f i c u l t i e s too numerous to mention fo r Canada, Quebec and the world community. Among them would be r e a l l o c a t i o n of national debt, r e d i s t r i b u t i o n of defence r e s p o n s i b i l i t i e s , economic res t r u c t u r i n g and trade complications. Furthermore there would be the problem of irredenta both inside (English-speaking Canadians) and outside (French-speaking Canadians) Quebec. As Cameron notes there i s only a " f i c t i o n a l coincidence between the province of Quebec and the French-Canadian n a t i o n " 3 8 . The benefits are harder to gauge though And note, too, that, as Claydon and Whyte say, "... the c u l t u r a l a f f i l i a t i o n of an i n d i v i d u a l may not always be coterminous with h i s other allegiances." Legal Aspects of Quebec's Claim for Independence i n Must Canada F a i l ? ed. Simeon,R. Montreal:Queens University Press,1977,p269. See Cameron,D. Quebec and the Right to National S e l f - determination , supra,pl52. 216 the preservation of Quebec' French-Canadian culture would be ensured i f a secession took place. Quebec's r i g h t to self-determination i s not disputed i n t h i s case study. Clearly, Quebec constitutes a " d i s t i n c t society" and the French Canadians i n Quebec are a predominant group who deserve the status of a people by v i r t u e of t h e i r d i s t i n c t i v e culture and hi s t o r y . However, i t i s argued that Quebec, as part of the Canadian federation, possesses a degree of p o l i t i c a l autonomy which, a l l i e d to the protection of i t s culture, r e s u l t s i n the exercise of self-determination already. The index of v a l i d i t y used i n t h i s paper envisages a r i g h t of secession as a remedy of the l a s t resort when the r i g h t of self-determination i s denied a people and t h e i r human r i g h t s are grossly v i o l a t e d . The s i t u a t i o n i n Quebec f a i l s to meet these q u a l i f i c a t i o n s for a r i g h t to secede. CHAPTER EIGHT  A NEW STANDARD OF LEGITIMACY: THE INDEX OF VALIDITY 218 OUTLINE A. A NEW STANDARD OF LEGITIMACY B. THE INDEX OF VALIDITY  I. ESSENTIAL CONDITIONS (1) The existence of a people (2) Existence of a geographically discrete t e r r i t o r i a l base occupied predominantly by the seceding group (3) Human r i g h t s and the r i g h t of secession (4) Remedy of the l a s t resort: absence of r e a l i s t i c a l t e r n a t i v e s • • • • I I . CRITICAL VARIABLES (1) Economic v i a b i l i t y (2) Motive (3) P o l i t i c a l s t a b i l i t y and legitimacy (4) Geo-strategic d e s t a b i l i z a t i o n (5) The bona f i d e s of the state and the seceding e n t i t y . . . . (6) General va r i a b l e s . . . . C. CONCLUSION 219 A. A NEW STANDARD OF LEGITIMACY. I t i s t h i s author's contention that the r i g h t to e x t e r n a l 1 self-determination no longer has s u f f i c i e n t l e g a l substance or j u r i s p r u d e n t i a l coherence to serve as the r i g h t i n i n t e r n a t i o n a l law from which most human ri g h t s must flow 2. The p r i n c i p l e of self-determination having been e n l i s t e d i n the cause of de-colonization has been discarded by statesmen now that t h i s process i s near completion 3. I t s association with anti - c o l o n i a l i s m brought i t to a p o l i t i c a l zenith but a f a i l u r e to grasp i t s humanitarian p o t e n t i a l i n other aspects of p o l i t i c a l organization threatens i t with p e t r i f i c a t i o n 4 . Reduced to a r h e t o r i c a l device 5, i t has The concept of i n t e r n a l self-determination continues to have relevance i n terms of p o l i t i c a l p a r t i c i p a t i o n , democracy,limited autonomy and the r i g h t s of indigenous peoples. See The International Covenants on Human Rights and numerous writers on t h i s point. See chapter I I I , i n f r a . See D.W. Bowett, Self-determination and P o l i t i c a l Rights  i n Developing Countries, Proceedings of the American Society of International Law, 129, where he states that self-determination may have, "exhausted i t s mandate" since the end of colonialism. 220 remained i n the past two decades i n a t h e o r e t i c a l wilderness inhabited by confusion,hypocrisy and even, on occasion, contempt. I f the p r i n c i p l e i s to be salvaged from " i t s descent into incoherence" 7 i t must f i r s t be injected with c l e a r and d e f i n i t i v e meaning. This can be accomplished only by recognizing a r i g h t of secession i n international law and thus renewing the l i n k between human ri g h t s and self-determination. Only by adopting a r a t i o n a l l y formulated, l i m i t e d , r i g h t of secession can the p r i n c i p l e of self-determination be galvanized and retrieved from p r a c t i c a l and t h e o r e t i c a l disuse. I t i s to t h i s end I propose an index of v a l i d i t y outlined i n d e t a i l i n t h i s chapter and applied throughout t h i s study. The u t i l i t y of self-determination has been undermined by an unsubstantiated and l o g i c a l l y - i n c o n s i s t e n t fear of The most recent example of t h i s being the US State Department's insistence that Afghanistan be accorded the r i g h t to self-determination even though the re t r e a t i n g Soviet Army w i l l leave a p o l i t i c a l vacuum i n which self-determination may have only l i m i t e d meaning. See New York Times, Thursday, Feb 9th. p6, c.6. Witness the unsavoury regimes and organizations who have na i l e d t h e i r colours to the mast of self-determination. Among them are the Khmer Rouge, the IRA, the Contras and Renamo ( the insurgency group operating i n Mozambique with US approval and support and with a seemingly mindless degree of b r u t a l i t y ) . see T. Franck, Legitimacy i n the International System, AJIL 82, 1988, p746. 7 'i secession 0 and by a f a i l u r e to define i t i n a way that would be meaningful i n the contemporary world. This d e f i n i t i o n a l lacuna has several disturbing consequences. F i r s t , self-determination has been emptied of moral content. The p r i n c i p l e has been unable to r e s i s t adoption by a host of international actors whose s t r a t e g i c ambitions have only a s u p e r f i c i a l connection with the ideas of democracy and human righ t s on which self-determination i s founded. This has l e d to i t s transformation from l e g a l p r i n c i p l e to p o l i t i c a l weapon9. Second, while i t i s argued 1 0 that self-determination has acquired the status of jus cogens 1 1, i n terms of c l e a r d e f i n i t i o n i t i s r e l a t i v e l y i l l - e q u i p p e d next to the p r i n c i p l e s with which i t i s most often i n competition e.g. t e r r i t o r i a l i n t e g r i t y and international peace and security. These "hard" supernorms of international law are kinder to t h e i r adherents than the l e s s well-defined concept of s e l f -determination. This paper, then, seeks, what Franck describes as, "textual determinacy" 1 2. As he points out, See Chapter I I I , i n f r a . See e a r l i e r examples note 4, supra. See H.G.Espiell, Self-Determination and Jus Cogens,in UN  Law Fundamental Rights, Two Topics i n International  Law, ed.A.Cassese, supra, pl67-171. i . e . "a peremptory norm of general i n t e r n a t i o n a l law". See A r t i c l e 53, Vienna Convention on the Law of Treaties. See T.Franck, Legitimacy i n the International System, supra, p713. 222 "Rules with a r e a d i l y ascertainable meaning have a better chance than those that do not to regulate the conduct of those to whom t h e i r r u l e i s addressed or exert a compliance p u l l on t h e i r policy-making p r o c e s s " 1 3 . F i n a l l y , t h i s absence of substance has reduced i t s c r e d i b i l i t y as a mediating p r i n c i p l e i n c o n f l i c t s . Here, I do not r e f e r to c o n f l i c t s between p r i n c i p l e s . Rather, I r e f e r to d i r e c t c o n f l i c t s between competing s e l v e s 1 4 . Usually both sets of adversaries i n these c o n f l i c t s can at present support a r i g h t of self-determination without r i s k i n g r i d i c u l e . I t may be that proclamation of the s h i b b o l e t h 1 5 of self-determination i s c y n i c a l l y s e l f -s e r v i n g 1 6 . However, i t can lend i t s e l f equally to sincere enunciations of allegiance by two d i a m e t r i c a l l y opposing sides i n a c i v i l war. As with any l e g a l statute, "confusion over the nature of the process, and misapplication of i t s meaning, have d i s t o r t e d self-determination i n p r a c t i c e and weakened i t s p o t e n t i a l resolutory r o l e as a l e g a l remedy" 1 7. Ibid, p713. See Chapter V, i n f r a , where the Nigerian state and the Biafran people were selves each with a recognizable claim to respect and legitimacy. See, Van Dyke, Human Rights. The United States and World  Community, New York,London,Toronto, 1970, p77, " S e l f -Determination has become an emotion-laden term i n the f i e l d of human r i g h t s , a shibboleth that a l l must pronounce to i d e n t i f y themselves with the virtuous." See Pakistan and Ethiopia. See Alexander and Friedlander, Self-Determination:  National .Regional and Global Dimensions, supra, p x i i i . 223 This d i s t o r t i o n and confusion has come as a d i r e c t consequence of attempts to outline a r i g h t of s e l f -determination while denying a remedy of secession. This r i g h t without a remedy has proved worthless to national l i b e r a t i o n groups whose r i g h t to self-determination seems incontestable. With a c l e a r d e f i n i t i o n would come the p o s s i b i l i t y of meaningful application - 1- 0 and a consistent a p p l i c a t i o n of the p r i n c i p l e of self-determination, incorporating a l i m i t e d r i g h t to secession, would have a number of p o s i t i v e p r a c t i c a l consequences. (1) I t would enhance the r o l e of the United Nations i n i n t e r n a l struggles which, by v i r t u e of the presence of a human r i g h t s element, would f a l l within the category of those a c t i v i t i e s characterized as a threat to i n t e r n a t i o n a l peace. A precise d e f i n i t i o n would assign legitimacy to one of the p a r t i e s i n such a struggle. Under these circumstances "... i t i s c e r t a i n l y safe to assert that the removal of confusion and uncertainty from a d e f i n i t i o n tends to heighten considerably the expectation of a c l e a r and unambiguous ap p l i c a t i o n of the p r i n c i p l e " . See W. Ofuatey-Kodjoe, The P r i n c i p l e of Self-determination i n  International Law, s u p r a , p v i i i . 224 the UN would, at the very l e a s t , be given a l e g a l mandate for expressing moral d i s a p p r o v a l 1 9 . (2) Clearer guidelines would be established f o r the r i g h t of t h i r d p a r t i e s to give aid and support e i t h e r to the o r i g i n a l state or seceding e n t i t y . Already, according to at l e a s t one important United Nations Resolution there i s a r i g h t to seek support for self-determination. The 1970 Declaration of P r i n c i p l e s of International Law states, "Every State has the duty to r e f r a i n from any f o r c i b l e action which deprives peoples referred to above i n the elaboration of the present p r i n c i p l e of t h e i r r i g h t to self-determination and freedom and independence. In t h e i r actions against, and resistance to, f o r c i b l e action i n pursuit of the exercise of the r i g h t to self-determination, such peoples are e n t i t l e d to seek and receive support i n accordance with the purposes and p r i n c i p l e s of the C h a r t e r 2 0 " . Customary international law, however, does not favour the extension of t h i s r i g h t to i n t e r f e r e beyond the c o l o n i a l s i t u a t i o n and only the removal of the p r o s c r i p t i o n against See H.Blix, Sovereignty, Aggression and Neutrality. 1970 who states, " [the r i g h t of self-determination] i s an example of a r u l e which, for i t s proper a p p l i c a t i o n to concrete cases, requires international i n s t i t u t i o n s . Which people i s e n t i t l e d to self-determination ? I f , on one hand, dangerous fragmentation of states i s to be avoided, and on the other, the r u l e i s to have p r a c t i c a l s i g n i f i c a n c e , there needs to be a t h i r d party to assess the concrete cases and apply the r u l e . While a p o l i t i c a l organ l i k e the General Assembly may not be i d e a l i n the r o l e i t seems to be the only one which has assumed i t for the time being." But note that f i r s t we need a r u l e which the i t can u s e f u l l y apply. Such a ru l e does not yet exist.pl3-14 See G.A. Resolution 2625, 24 October, 1970, supra. secession would permit outside interference'*-1- on behalf of secessionist groups. While such interference would prolong some struggles, i t s o v e r a l l e f f e c t would be to truncate c o n f l i c t . I f a secession i s to be legitimate i t must s a t i s f y a s t r i c t set of c r i t e r i a . Popular support, v i a b i l i t y and p o l i t i c a l i n f r a s t r u c t u r e are important determinants for the seceding group. I f such groups s a t i s f y these c r i t e r i a (amongst others) they w i l l not only q u a l i f y for support but also be more l i k e l y to succeed without that support. External influence would therefore p r e c i p i t a t e the conclusion of the c o n f l i c t . The case studies already presented i l l u s t r a t e t h i s point. For example Bangladesh's secession from Pakistan succeeded primarily due to Indian intervention. Had t h i s intervention not been forthcoming i t i s possible a long and b i t t e r insurgency would have ensued which, given the p o l i t i c a l climate i n 1970, would have been f u e l l e d by an inexhaustible supply of grievances against Pakistani repression. Likewise, support f o r the E r i t r e a n rebels would probably lead to the defeat of the Ethiopian Army and the recognition of an E r i t r e a n state,, not to mention the conclusion of a c i v i l war which has led to anguish and torment for the E r i t r e a n people. Conversely, m i l i t a r y a i d for hypothetical insurgents i n Scotland and Quebec would simply up the ante i n terms of government response and lead to unnecessary bloodshed i n 2 1 Though not armed intervention. See however the doctrine of humanitarian intervention f o r a d i f f e r e n t p o s s i b i l i t y . 226 pursuit of secessions which would, providing l i m i t e d forms of autonomy remained genuinely available, be denied legitimacy under the premises of the index of v a l i d i t y presented here. The Biafran case would appear less i l l u s t r a t i v e of t h i s point but t h i s i s not the case. Under the guidelines proposed Biafran independence would be denied legitimacy and, therefore, so too would external support f o r the insurgency. But i f the autonomy compromise 2 2 favoured by t h i s writer f a i l e d to s a t i s f y legitimate Biafran demands not only would a remedy of secession a r i s e but the r i g h t of t h i r d p a r t i e s to support t h i s second attempt would be established. The e f f e c t such a r u l e might have on the government i s l i k e l y to be a salutary and p o s i t i v e one. This i s not an argument for success as a determinant of legitimacy but rather an e x p l i c a t i o n of the fortunate coincidence between legitimacy and l i k e l y success and the need to make that coincidence a more f r u i t f u l one. F i n a l l y , (3) i t would allow secessionist movements to claim a r i g h t to secede as a human r i g h t i n international fora such as the UN General Assembly. This would make any resort to armed c o n f l i c t a l a s t resort rather than the f i r s t option i t i s now. A r b i t r a t i o n between the p a r t i e s could take place under the auspices of the UN which could then apply these guidelines to resolve the dispute. I t i s not claimed here that secessionist c o n f l i c t s would disappear. Rather the 2 2 See Chapter VI, i n f r a . 227 seceding group would, at the very l e a s t , be able to predict the l i k e l i h o o d of international support and make a decision as to whether a secessionist u p r i s i n g i s advisable. The rules by which legitimacy f o r secession are established derive substantive force from the index of v a l i d i t y r e f e r r e d to and applied throughout t h i s paper. I s h a l l now turn i n the following section to an analysis of t h i s index and i t s capacity to resolve secessionist claims. The theory of legitimacy proposed d i f f e r s from those of other writers i n a number of ways. F i r s t , i t i s based, not on p r i n c i p l e s derived from l i b e r a l i s m 2 3 or democracy 2 4, but on the idea that a new world order should s a t i s f y the demands not of ideology but of human r i g h t s and human dig n i t y . Second, i t recognizes p o l i t i c a l r e a l i t i e s as factors i n the process, i f not determining ones. F i n a l l y , i t i s a theory based on a t e l e o l o g i c a l reading of inte r n a t i o n a l See Berans,H. A L i b e r a l Theory of Secession, supra,p21-31. See Birch,A. Another L i b e r a l Theory of Secession, supra, p596-602. 228 law rather than a construct responding excl u s i v e l y to the dictates of r e a l p o l i t i k 2 5 . The connection between human r i g h t s , p o l i t i c a l r e a l i t y and i n t e r n a t i o n a l law i s not always an obvious one and each phase i n the development of self-determination has tended to r e f l e c t a p r e v a i l i n g philosophy which neglects a comprehensive treatment. The most recent United Nations declaration concerning self-determination, the 1970 Declaration on P r i n c i p l e s of International Law 2 6, reaches a compromise only through an equivocal rendering of competing normative standards. Nevertheless, i t does permit an in t e r p r e t a t i o n of the r i g h t to self-determination i n which the above connection i s r e a l i z e d . The theory of secession developed i n t h i s study takes such an in t e r p r e t a t i o n as i t s s t a r t i n g point. The basis i n international law f o r a r i g h t to secede can be traced through the development of international r e l a t i o n s and the problems of p o l i t i c a l organization since Grotius. The p r i n c i p l e of self-determination i s pregnant with the p o s s i b i l i t i e s of re-organization and each of i t s 2 5 See Buchheit,L. Secession. The Legitimacy of S e l f -determination , supra, n. Buchheit i s not the most g u i l t y party i n t h i s regard but h i s the s i s depends too much on p o l i t i c a l exigencies and too l i t t l e on int e r n a t i o n a l law. See Also,Emerson,R. S e l f - determination . AJIL Vol 65, 1971,who states, "the r e a l i s t i c issue i s s t i l l not whether a people i s q u a l i f i e d f o r and deserves the r i g h t to determine i t s won destiny but whether i t has the p o l i t i c a l strength, which may well mean the m i l i t a r y force, to v a l i d a t e i t s claim" p475. 2 6 See G.A. Resolution 2625, 24 October, 1970,supra. 229 developments has r e f l e c t e d a basic human need to re-invent the s o c i a l model. I t s b i r t h as a p o l i t i c a l concept came about because of a revolutionary urge to reclaim sovereignty for the people i n more advanced nation-states. National integration gave way to international r e v i s i o n following the F i r s t World War when self-determination was advocated as the moving p r i n c i p l e behind the dismantling of the central European empires 2 7. The post-Charter era marked the end of empire and the period of self-determination as de-colonization. Each of these developments was a response to p o l i t i c a l necessity a r i s i n g out of human desire and i n each case a human need became a human r i g h t as defined by int e r n a t i o n a l law. The human ri g h t s of the c o l o n i a l e n t i t i e s were s a t i s f i e d by t h i s process but as Bibo recognizes, " c o l o n i a l l i b e r a t i o n created some f i f t y new st a t e s . . . t h e i r formation r e f l e c t i n g the r i g h t to self-determination without any advance i n the technique of applying the p r i n c i p l e " 2 8 . In the post-colonial phase of self-determination the human r i g h t s of "peoples" had been abandoned i n favour of a crude supplication to the norm of t e r r i t o r i a l i n t e g r i t y and with the severing of the l i n k with human r i g h t s has come a t h e o r e t i c a l c r i s i s 2 9 . 2 7 In fac t i t was never used as such. See Chapter II , i n f r a . J P , , • , , , See I Bibo, The Paralysis of International I n s t i t u t i o n s and the Remedies. New York: Wiley & Sons, 1976, p31. 2 9 Internal self-determination continues to have meaning but i t s connection with external self-determination has also been severed. 230 The intimate connection between the r i g h t to secede as the ultimate exercise of external self-determination and human r i g h t s must be reasserted. The 1970 Declaration on the P r i n c i p l e s of International Law 3 0 i s a tentative move towards such a reassertion. I t states, "nothing i n the foregoing paragraphs s h a l l be construed as authorizing or encouraging any action which would dismember or impair, t o t a l l y or i n part, the t e r r i t o r i a l i n t e g r i t y or p o l i t i c a l unity of sovereign and independent States conducting themselves i n compliance with the p r i n c i p l e of equal r i g h t s and self-determination of peoples as described above and thus possessed of a government representing the whole people belonging to the t e r r i t o r y without d i s t i n c t i o n as to race, creed or c o l o u r " 3 1 . The r i g h t of states to maintain t h e i r t e r r i t o r i a l i n t e g r i t y i s enshrined i n the United Nations C h a r t e r 3 2 and has become a sacred norm of international law. This r i g h t i s the predominant international more i n the OAU Charter and a ser i e s of UN instruments. The p r i n c i p l e of t e r r i t o r i a l i n t e g r i t y i s the a n t i t h e s i s of the r i g h t to secede but i t i s not imperative that either be rejected outright i n order that a stable international system based on human ri g h t s be maintained. The maintenance of t e r r i t o r i a l i n t e g r i t y i s a preferred value given the disruptive consequences of breaches of that i n t e g r i t y . However, t e r r i t o r i a l i n t e g r i t y G.A. Resolution. 2625, October 24,1 1970, supra. Ibid, P r i n c i p l e 3, The p r i n c i p l e of equal r i g h t s and  self-determination of peoples. See A r t i c l e 2(4). 231 cannot be an end i n i t s e l f . There must be exceptions to promotion of that value i f we are to avoid passive acceptance of human ri g h t s catastrophes l i k e the k i l l i n g f i e l d s of Cambodia and the carnage i n East Pakistan. I t i s important not to lose sight of the o r i g i n a l raison d'etre of t e r r i t o r i a l i n t e g r i t y . This point i s emphasized by Umozurike: "... the ultimate purpose of t e r r i t o r i a l i n t e g r i t y i s to safeguard the inte r e s t s of the peoples of a t e r r i t o r y . The concept of t e r r i t o r i a l i n t e g r i t y i s . . .meaningful [only] so long as i t continues to f u l f i l l that purpose to a l l the sections of the pe o p l e " 3 3 . The 1970 Declaration makes t e r r i t o r i a l i n t e g r i t y a presumption which can only be invoked by States who act i n accordance with the p r i n c i p l e of s e l f - d e t e r m i n a t i o n 3 4 . This t h e s i s p o s i t s secession as a remedy3 5 when the state's actions extinguish that presumption. The index of v a l i d i t y should therefore furnish the 1970 Declaration with content and resolve the d i a l e c t i c between t e r r i t o r i a l i n t e g r i t y and self-determination through a reaffirmation of human r i g h t s . See Umozurike,U. Self-Determination i n International Law, supra, p236. See Ofuatey-Kodjoe,W. The P r i n c i p l e of Self-determination  i n International Law. supra, who describes s e l f -determination as "a r i g h t that j u s t i f i e s the remedying of a deprivation by restoring self-government." Buchheit c a l l s t h i s "remedial secession", see Buchheit,L. Secession, supra, p220-223. 232 An assertion of the r i g h t of secession would be a remedy 3 6 of the l a s t r e s o r t 3 7 , an exercise of the ultimate c o l l e c t i v e human r i g h t as a means to secure basic i n d i v i d u a l human r i g h t s . This exercise of the r i g h t of secession should s a t i s f y the c r i t e r i a outlined i n the index to acquire legitimacy. B.THE INDEX OF VALIDITY. The indices to be abstracted from the case studies made above are of two d i s t i n c t v a r i e t i e s . The f i r s t group are the es s e n t i a l conditions of any legitimate r i g h t of secession. The second are variables which weigh i n the balance of any decision as to legitimacy but are not decisive i n themselves. I intend to arrange them i n the following groups: I. E s s e n t i a l Conditions. (1) The existence of a "people". See Cobban,A. The Nation-State and National S e l f - Determination , supra, who states, "self-determination comes into play not as a panacea f o r a l l national d i s s a t i s f a c t i o n s , but as the remedy, to be administered i n extremis, when a l l else has f a i l e d " , p74. See White,R. Self-Determination: Time f o r a Reassessment, Netherlands International Law review, 28, 1981, pl48. 233 (2) The existence of a d i s c r e t e t e r r i t o r i a l base occupied predominantly by the seceding group. (3) The presence of substantial human ri g h t s abuse. (4) The absence of r e a l i s t i c a l t e r n a t i v e s : remedy of the l a s t r e sort. I I . C r i t i c a l Variables. (1) Economic v i a b i l i t y . (2) Geo-strategic d e s t a b i l i z a t i o n . (3) P o l i t i c a l s t a b i l i t y and legitimacy. (4) Motive. (5) Bona fides (good faith) of state and seceding e n t i t y . (6) General variables The following d e t a i l e d analysis of these indices should be read with a caveat i n mind. While the index of v a l i d i t y i s proposed as a t h e o r e t i c a l t o o l f o r e s t a b l i s h i n g legitimacy, i t i s not a mathematical model and can only be applied with t h i s i n mind. These standards are as objective as possible but only imaginative implementation could bring a measure of success. I.Essential Conditions. (1) The Existence of a People. The r i g h t of secession i s the c o l l e c t i v e r i g h t of a people to separate t e r r i t o r i a l l y from a parent state. As such i t obviously requires the existence of a people. This 234 begs the question: How are we to define "people 1 1 f o r t h i s purpose? The various instruments on self-determination drafted at the United Nations have omitted defining the status of the possible beneficiary of the r i g h t of self-determination. Some writers f e e l that peoples ref e r s only to s t a t e s 3 8 . However, most agree that "peoples" can also r e f e r to groups under a l i e n or c o l o n i a l r u l e . Recently the trend has been towards according "people" a s t i l l wider d e f i n i t i o n 3 9 . For the purpose of t h i s study "peoples" has been defined i n a s o c i o l o g i c a l sense. Additional stress i s l a i d on the concepts of subjective s e l f - i d e n t i f i c a t i o n and e f f i c a c y which are discussed below. The International Commission of J u r i s t s i n i t s study of the Bangladesh secession l i s t e d common features based on (a) history, (b) race or e t h n i c i t y , (c) culture or language, (d) r e l i g i o n or ideology, (e) geography or t e r r i t o r y , and (f) economy as possible elements i n the existence of a p e o p l e 4 0 . These objective c r i t e r i a are not important i n themselves 4 1 3 8 See Kelsen,H. The Law of The United Nations: A C r i t i c a l Analysis of i t s Fundamental Problems. London: Stevens, 1950. 3 9 See e.g. Nawaz, The Meaning and Range of the P r i n c i p l e of Self-determination, Dukes Law Journal,1965 supra. 4 0 See ICJ, A Legal Study, supra, p70. 4 1 See e.g. the idea of a common histo r y . Sometimes t h i s i t s e l f i s a r t i f i c i a l l y created i n service of the secession. To a ce r t a i n extent t h i s i s true of the Er i t r e a n secession. There probably needs to be some s e l f - i d e n t i f i c a t i o n with the past even i f the l i n k with objective common hi s t o r y i s tenuous. 235 but rather as determinants of a subjective s e l f -i d e n t i f i c a t i o n 4 2 . This s e l f - i d e n t i f i c a t i o n i s derived from p o s i t i v e and/or negative referents. The group s o l i d a r i t y that " i s an e s s e n t i a l precondition f o r secessionist a l i e n a t i o n " 4 3 can be the r e s u l t of c o l l e c t i v e antipathy towards a l i e n r u l e and oppression (Eritrea) or a p o s i t i v e association with fellow group members based on common goals or objective c h a r a c t e r i s t i c s (e.g.Bangladesh). The extent of s e l f - i d e n t i f i c a t i o n may also be relevant i f the population i d e n t i f i e s i t s e l f with two groups. There must be a strong f e e l i n g of d i f f e r e n t i a t i o n from the people of the parent s t a t e 4 4 . There must also e x i s t e f f e c t i v e s e l f - i d e n t i f i c a t i o n ( i . e . a self-image as p o l i t i c a l u n i t ) . As Mancini warns, "The n a t i o n a l i t i e s which do not possess a government issuing from t h e i r inmost lif e . . . h a v e become means for the purposes of others and, therefore, mere o b j e c t s " 4 5 . I f a c o l l e c t i o n of i n d i v i d u a l s i s to be assigned the status of "people" i n international law i t must be organized 4 2 They have greater importance to other aspects of the index of v a l i d i t y . 4 3 See Wood,J. Secession: A Comparative A n a l y t i c a l  Framework. Canadian Journal of P o l i t i c a l Science XIV:1,March, 1981,pll6. 4 4 See e.g. Scotland where the Scots i d e n t i f y themselves as both B r i t i s h abd Scottish. 4 5 See Mancini, On Nationality as the Foundation of International Law, i n H.Kohn, The United Nations and  National Self-Determination i n Review of P o l i t i c s 1956, p527. 236 as a p o l i t i c a l unit capable of acting at an international l e v e l . A disparate group without t h i s structure w i l l be unable to claim a r i g h t to secede 4 6. Such a group does not lack\ legitimacy but w i l l be unable to exercise the r i g h t to secede without a p o l i t i c a l c a d r e 4 7 . To summarize,the objective appearance of a group i s of only l i m i t e d importance. What i s required i s self-perception combined with a representative p o l i t i c a l s t r u c t u r e 4 8 . In t h i s way genuine s e l f - i d e n t i f i c a t i o n w i l l be given p o l i t i c a l e f f i c a c y leading to international legitimacy. (2) Existence of a Geographically Discrete T e r r i t o r i a l  Base Occupied Predominantly by the Seceding Group. This i s an es s e n t i a l precondition for the exercise of the r i g h t of secession because t e r r i t o r i a l s e p a r a b i l i t y i s the essence of the r i g h t to secede. The absence of t h i s condition makes i t impractical for groups such as the black This structure need not be p a r t i c u l a r l y sophisticated but i t should be both representative and capable of representing. See e.g. Afghanistan where the Mujahdeen caanot be said to possess a r i g h t to self-determination because the benefi c i a r y of the r i g h t i s so i l l - d e f i n e d and disparate. But see J.Wood, Secession: An A n a l y t i c a l Framework, supra , who notes that, "ethnic i d e n t i t i e s can be p o l i t i c a l a r t i f a c t s , manipulated by ethnic leaders or government p o l i c y " . p l l 5 . See also A.Cobban, Historians and the  Causes of the French Revolution, i n which he argues that the French Revolution f a r from being a popular u p r i s i n g was a r e v o l t directed by a t i n y portion of the middle-classes,p8. Similar revolutions have been witnessed i n t h i s century, p a r t i c u l a r l y i n the Third World. 237 Americans to secede from the United States even i f the p o l i t i c a l w i l l existed. The presumption against the legitimacy of secession by a group occupying an area with no external boundaries i s strengthened i f i t i s l i k e l y to cause "unacceptable harm" 4 9 to the residue state. In fact, i t may force a de facto secession on other t e r r i t o r i a l units and therefore deny self-determination to these u n i t s 5 0 . The length of occupation and the l e v e l of predominance are moot points. The f i r s t point i s often referred to as the problem of the " c r i t i c a l d a t e " 5 1 . What i s the relevant population f o r ascertaining predominance? The United Nations has offered few solutions i n dealing with t h i s problem. In the case of G i b r a l t a r , a r i g h t of self-determination has been denied the residents because the population of G i b r a l t a r i s characterized as an imported c o l o n i a l population. The Indian F i j i a n s on the other hand, who now outnumber the indigenous F i j i a n s , have never faced t h i s problem despite a r r i v i n g i n F i j i long a f t e r the B r i t i s h occupation of G i b r a l t a r . White suggests that the seceding See Wood,J. Secession: An A n a l y t i c a l Framework, supra, p l l 2 . One need only imagine the e f f e c t a Quebec secession might have on the A t l a n t i c provinces i n Canada who would f i n d themselves detached from the remainder of of central and western Canada. See Pomerance,M. Self-Determination i n Law and Practice, supra, pl-3. See also, B.Neuberger, National S e l f - Determination i n Post-Colonial A f r i c a , supra, p57-60. 238 group should have " h i s t o r i c t i e s " 5 2 with the t e r r i t o r y but he i s unable to elaborate on what t h i s might e n t a i l . Ultimately, the issue of the c r i t i c a l date i s not one which o f f e r s any easy standards. Fortunately, i n the case of secession, i t i s r a r e l y an issue. Most seceding groups do have h i s t o r i c t i e s with t h e i r t e r r i t o r y . Without these t i e s i t i s u n l i k e l y that the process leading to secession could begin. The c r i t i c a l date i s an important concept only where imported c o l o n i a l nationals have become the majority group i n a t e r r i t o r y . This study i s concerned with the post-c o l o n i a l age i n which the r i g h t of secession has been claimed p r i m a r i l y by indigenous peoples. The issue concerning the predominance of a seceding group i n a t e r r i t o r y i s a more contentious one. What i f some groups within the t e r r i t o r y do not wish to secede 5 3? This was c e r t a i n l y an issue i n B i a f r a where the Ijawes were ambivalent about the secession. A s i m i l a r problem occurred i n E r i t r e a where only Ethiopian a t r o c i t i e s turned C h r i s t i a n Eritreans against the idea of union with Ethiopia. The controversy between competing selves can be addressed by looking at imaginative a l t e r n a t i v e s (e.g. a further secession by the Ijawes should they so de s i r e ) . F a i l i n g t h i s only a sophisticated u t i l i t a r i a n s o l u t i o n can 5 2 See White,R. Self-Determination: Time fo r a Reassessment, supra, pi60 5 3 Suzuki describes these people as "residual i n d i v i d u a l s " . See Suzuki,E. Self-Determination and World Public  Order: Community Response to T e r r i t o r i a l Separation, supra, p276. 239 be offered ( i . e . which solution w i l l most s a t i s f y the values of self-determination for the largest number of people). In these cases the majority can only be permitted to s e l f -determine i f the r i g h t s of the minorities to a l i m i t e d form of self-determination (e.g. autonomy) are entrenched. Against possible accusations that t h i s method has the makings of an offensive human calculus, i t should be noted that a legitimate secession i s a response to large scale human r i g h t s deprivations by the o r i g i n a l state. Such v i o l a t i o n s generally have the e f f e c t of a l i e n a t i n g a l l peripheral communities 5 4. Throughout t h i s d i s s e r t a t i o n there has been emphasis on the l i n k between human ri g h t s and the r i g h t of secession. This nexus w i l l now be investigated more f u l l y . (3) Human Rights and the Right of Secession. The r i g h t of secession has been variously described as a r i g h t to s e l f - p r e s e r v a t i o n 5 5 , a variant of s e l f - d e f e n c e 5 6 and a r i g h t to s e l f - h e l p . In t h i s study the r i g h t of secession has been conceived of as a f e t t e r on abusive government behaviour. Obviously, i t i s c r u c i a l then to Unless one of these communities has been indulged by the cen t r a l government with the intention of playing i t o f f against the secessionists. See Ojukwa, B i a f r a . Selected Speeches. p76. See Neuberger,B. National Self-Determination i n Post- Colonial Africa,supra, p71. 240 e s t a b l i s h what behaviour might activate the human right s component i n the index of v a l i d i t y . The r i g h t to s e l f - p r e s e r v a t i o n 5 7 , asserted by the Biafran leader, General Ojukwa, has i t s roots i n a philosophical heritage descending from Grotius. He said that a r i g h t to secede was based on gross acts of tyranny such that a province could "not otherwise preserve i t s e l f " 3 0 . S i m i l a r l y , Cobban recognized a r i g h t of secession when the state, "...does not protect and promote, i n reasonable measure, the ri g h t s of the in d i v i d u a l c i t i z e n s , included among which are t h e i r i n t e r e s t s as members of a national community" 5 9. These writers converge on the aspect of general human ri g h t s . Others make secession a remedy when the r i g h t of self-determination cannot be executed e f f e c t i v e l y e.g. Umozurike states, "A people whose development i s s t u l t i f i e d by the o f f i c i a l p o l i c y of the state to which they belong do not enjoy the r i g h t to s e l f - d e t e r m i n a t i o n " 6 0 . Gros E s p i e l l , i n an o f f i c i a l United Nations study, reinforces t h i s t i e , noting, 5 7 See Ojukwa, B i a f r a . Speeches, supra. 5 8 See Wells,B. United Nations Decisions On S e l f - Determination , supra, p322. 5 9 See Cobban,A. The Nation State and National S e l f -Determination . supra, p71. 6 0 See Umozurike,U. Self-Determination i n International Law. supra,p269. 241 " I f the r i g h t of peoples...to self-determination i s i n the l a s t analysis a basic human r i g h t , as well as a prerequisite for a l l other r i g h t s and freedoms, the conclusion must be drawn that i t i s meaningful only i n a system aimed at ensuring f u l l respect f o r a l l human beings" . The r i g h t to secede ari s e s , argues White, when there i s , "a sustained campaign of discrimination making i t unreasonable to expect the people to be able to a t t a i n self-determination within the e x i s t i n g s t a t e " 6 2 . There are several dimensions of the human r i g h t s - s e l f -determination-secession matrix which should be extracted i n developing a l e g a l theory of secession. The human righ t s indice i s activated only i f there are (a) fundamental, endemic and discriminatory abuses against (b) a t e r r i t o r i a l l y d iscrete, p e o p l e 6 3 within a state. This abuse should e i t h e r be (c) state-sponsored (e.g.Bangladesh) or the state must be responsible f o r (1) a loss of control, authority or a b i l i t y to govern or (2) negligence i n acting to constrain those responsible (e.g.Biafra). By fundamental abuses i s meant those involving the s a c r i f i c e of c i v i l - p o l i t i c a l r i g h t s and, i n p a r t i c u l a r , personal security r i g h t s . In simpler terms, a large See Gros E s p i e l l , H . The Right to Self-Determination, E/CN.4/Sub.2/405/Rev.l, p66. See White,R. Self-Determination: Time for a Reassessment, supra, pl60. See above d e f i n i t i o n s . 242 proportion of the people i n question must possess a reasonable fear f o r t h e i r personal safety. This may seem too s t r i c t a standard but there i s no basis i n inte r n a t i o n a l law f o r asserting a r i g h t to secession based on the mere absence of democratic r i g h t s . The state system i s the basis for inte r n a t i o n a l law and re l a t i o n s and the state i s s a n c t i f i e d within t h i s system. T e r r i t o r i a l i n t e g r i t y i s a "value p r e f e r e n c e " 6 4 of the inte r n a t i o n a l community and rebuttal of the presumption i n favour of i t must be supported by evidence of behaviour of which the majority of states have demonstrated abhorrence. A standard permitting secession i n cases where democratic values are absent would be unacceptable and therefore unworkable i n a l l but the most i d e a l of worlds. The normative appeal of these standards unfortunately has l i t t l e bearing on t h e i r p r a c t i c a b i l i t y . Instead, as I have said, fundamental and discriminatory abuse must be present. The discrimination should be directed predominantly, but not necessarily exclusively, at the relevant people. Human r i g h t s deprivations are impossible to quantify and such an exercise would be f u t i l e . Instead, I would encourage adoption of the Human Rights Commission c r i t e r i o n which requires as i t s ground f o r investigation, See R.A.C. White, Self-Determination: Time for a  Reassessment, supra, pl63. 243 "...a consistent pattern of gross ^nd r e l i a b l y attested v i o l a t i o n s of human r i g h t s " 6 5 . Evidence of such abuses directed against a t e r r i t o r i a l l y separate people would s a t i s f y the human rights-based c r i t e r i o n of the index of v a l i d i t y . (4) Remedy of the Last Resort: Absence of R e a l i s t i c A l t e r n a t i v e s . 6 6 The l a s t of the es s e n t i a l conditions requires the exhaustion of a l l modes of self-determination short of secession. In. other words, can the ri g h t s of the people i n question not be s a t i s f i e d by greater autonomy or p r o v i n c i a l status within a federal framework or a devolution of power from the centre to the peripheries? Has the seceding e n t i t y channeled i t s grievances domestically using i t s c o n s t i t u t i o n a l r i g h t s and/or capacity as a pressure group? Has i t attempted to access resolutory mechanisms i n international fora? Associated with these c r i t e r i a , i s the attitude of the cent r a l government. What has the parent state offered by way of compromise ? How sincere i s t h i s o f f e r 6 7 ? See ECOSOC Resolution 1503. See the e a r l i e r discussion on secession as a remedy of the l a s t resort for additional comments. See the question of "bona f i d e s " , i n f r a . 244 The salience of t h i s indice i s obvious from an examination of the case studies made above. In the cases of E r i t r e a and Bangladesh the r i g h t to secede would have been legitimated only a f t e r several c o n s t i t u t i o n a l compromise were aborted by the parent-State. The federal compromise advanced by the United Nations for E r i t r e a was undermined by Ethiopia so that i t could no longer be e f f e c t i v e as a means to secure self-determination. Subsequent actions by the Ethiopian Government made i t cl e a r that an armed struggle f o r secession was the only possible method of acquiring self-determination for the region. In Bangladesh, The Awami League's proposals for greater p r o v i n c i a l autonomy met with a v i r u l e n t m i l i t a r y response from the Pakistan a u t h o r i t i e s , l i c e n s i n g secession as the only remaining remedy for Bangladesh's grievances. Conversely, i n the case of both Quebec and Scotland, the respective states (UK and Canada) have shown a willingness to negotiate r e a l i s t i c a l t e r n a t i v e s to secession which makes recourse to that r i g h t by the people i n question unreasonable. F i n a l l y , i n the Nigerian c i v i l war of 1967-70, the legitimacy of the Biafran secession was weakened by the f a i l u r e of the Biafran leadership to respond to the 12-State so l u t i o n offered by General Gowon on behalf of the Nigerian State. 245 As evidenced by the above discusion, the remedy as a l a s t resort p r i n c i p l e formulated must be seen as an advisory guideline designed to exclude a capricious decision to secede rather than a bureaucratic tangle intended to s t i f l e a legitimate r i g h t of secession. The seri e s of indices to be analyzed now are those I have termed " c r i t i c a l v a r i a b l e s " . These are not preconditions f o r the r i g h t to secede but rather formulae which should weigh i n the balance of any equation to assess legitimacy. I I . C r i t i c a l Variables. (1) Economic V i a b i l i t y . The economic v i a b i l i t y of both the seceding region and the parent state must be reckoned with here. For the state, independence would be meaningless without an economic in f r a s t r u c t u r e capable of supporting that independence. More importantly, a secession which destroys the economic capacity of the parent state must surely be denied legitimacy on humanitarian and geo-s t r a t e g i c grounds. 246 (i) V i a b i l i t y of Seceding E n t i t y . This cannot be a s t r i c t standard. No state i s completely independent economically. Indeed many states are economic i n v a l i d s . What must be avoided are si t u a t i o n s where newly-created states become economic, and therefore p o l i t i c a l , proxies of larger sponsors. Secession should not be a cover f o r vica r i o u s superpower expansion through economic leverage. Ideally the seceding e n t i t y should be large enough to both carry the r e s p o n s i b i l i t i e s of statehood and r e j e c t the expansionist overtures of dominant states. V i a b i l i t y i n t h i s case should be measured against the comparative economic p o s i t i o n of the parent state and other states i n the region. However the the p o s i t i o n r e l a t i v e to that of the seceding e n t i t y p r i o r to secession i s perhaps the most c r i t i c a l factor i n t h i s assessment. These antecedent ca l c u l a t i o n s may not, of course, be r e f l e c t e d i n the changing world following s e c e s s i o n 6 8 . As Wood indicates, "...the r e t a l i a t o r y p o t e n t i a l of the l o y a l i s t area and the reaction of external economic actors are only two unknowns which leave the economic future i n doubt f o r s e c e s s i o n i s t s " 6 9 . See e.g. Bangladesh which given i t s superior economic performance to West Pakistan up u n t i l 1970 ,might have anticipated economic success. Instead the e f f e c t s of the c i v i l war combined with natural causes to severely undermine Bangladesh's economic v i a b i l i t y . See Wood,J. Secession: An A n a l y t i c a l Framework, supra, p l l 8 . 247 Often the t r a n s i t i o n to independence can be economically traumatic and i t i s perhaps best to look at the long-term p o t e n t i a l of the seceding area i n assessing v i a b i l i t y rather than the short-term e f f e c t s , many of which w i l l be negative. The case studies presented point up the d i f f i c u l t i e s i n t h i s c a l c u l a t i o n . Bangladesh appeared, antecedently, to possess economic v i a b i l i t y but i t i s now one of the world's most under-developed states. However i t i s u n l i k e l y that continued union with Pakistan would have changed t h i s p i c t u r e given the absence of concern displayed by the Pakistan government up to the secession i n 1971. Furthermore Bangladesh's p o t e n t i a l for development i s greatly increased by the renewed sense of i d e n t i t y and p o l i t i c a l awareness that comes with the long-term e f f e c t s of independence. E r i t r e a ' s economic p o s i t i o n could only improve following a v i c t o r y i n the c i v i l war and a subsequent secession. Eritreans are forced to t o l e r a t e a state of seige i n which there i s no p o s s i b i l i t y of economic development. ( i i ) E f f e c t on O r i g i n a l State. I f a secession has the e f f e c t of depriving the state of i t s economic base t h i s w i l l weigh upon the legitimacy of that secession quite profoundly 7 0. This applies only i f the revenues from that economic base had not been d i s t r i b u t e d i n 7 0 I t w i l l not exclude i t however. 248 a manner which discriminated against the seceding group. This was the case with Bangladesh which received only a t i n y proportion of the wealth i t created. The cases concerning B i a f r a and Scotland are i n s t r u c t i v e . Both possess huge o i l reserves whose contribution to the economic well-being of the state i s great. Secession by these e n t i t i e s would have an i n i t i a l l y negative impact on Nigeria and the UK r e s p e c t i v e l y but i t i s doubtful whether the economic in f r a s t r u c t u r e would collapse i n e i t h e r case. Ethiopia claims the E r i t r e a n region i s necessary to the s u r v i v a l of the Ethiopian state. Certainly E r i t r e a ' s port f a c i l i t i e s hold an obvious a t t r a c t i o n f o r the Ethiopians but such f a c i l i t i e s are not necessary for economic s u r v i v a l and cannot be allowed to trump humanitarian considerations i n a c a l c u l a t i o n of legitimacy. (2) Motive. Few writers have f e l t obliged to address the question of motive for secession. As a consequence i t s connection with the previous discussion i s not apparent. Morally, the motive of the seceding e n t i t y must be permitted a r o l e i n the index of v a l i d i t y . B r i e f l y , a secession c a r r i e d out for exclusively mercenary motives should be denied legitimacy. A secession with a large mercenary component cannot a t t r a c t sympathy or legitimacy p a r t i c u l a r l y i n a study whose prime concern i s the 249 protection of human r i g h t s . There must e x i s t a threat to self-determination not ju s t an i l l - d e f i n e d f e e l i n g that the l o t of a p a r t i c u l a r people could be improved through t e r r i t o r i a l separation. To permit secession i n such instances would be to t r i v i a l i z e the p r i n c i p l e of s e l f -determination and undermine the legitimacy of a r i g h t to secede. (3) P o l i t i c a l S t a b i l i t y and Legitimacy. The concepts of s t a b i l i t y and legitimacy have been p a r t i a l l y dealt with i n the discussion on the existence of a people. A few additional points w i l l be made here. The state system i s predicated on the permanence of the states within i t and the establishment of a new state c a r r i e s with i t c e r t a i n r e s p o n s i b i l i t i e s . I t i s therefore important that the seceding e n t i t y be p o l i t i c a l l y v i a b l e . S t a b i l i t y and legitimacy are the two most v i t a l , mutually-supportive, components of t h i s v i a b i l i t y . I t i s desirable that the new state should survive as a r e l a t i v e l y stable p o l i t i c a l unit capable of recovering and subsequently securing the human right s l o s t under the old regime. Relative s t a b i l i t y i s i s the c r i t i c a l factor here. I t would be inequitable to expect a greater degree of s t a b i l i t y i n the new regime than that present i n the o r i g i n a l state. In the case of Bangladesh, i n s t a b i l i t y does 250 not become an obstacle to legitimacy because of the s i m i l a r l e v e l of i n s t a b i l i t y i n Pakistan. These factors are therefore neutralized i n t h i s example. Nevertheless, the incidence of human righ t s deprivations often d i r e c t l y correlates with the l e v e l of i n s t a b i l i t y i n a s t a t e 7 1 and i f the s t r i f e caused by the t r a n s i t i o n i s l i k e l y to be severe then the secession may have a counterproductive e f f e c t on human r i g h t s . The legitimacy of the new regime w i l l p r edict the l i k e l i h o o d of a stable p o l i t i c a l future. Does i t have " p o l i t i c a l coherence" 7 2 ? I f i t i s both representative and capable of i n s t i t u t i n g e f f e c t i v e decision-making procedures then both legitimacy and s t a b i l i t y w i l l be assured. I t w i l l be d i f f i c u l t to gauge whether these two requirements w i l l be met. Support f o r the secession w i l l not always be r e f l e c t e d i n support f o r the regime established a f t e r i t s successful completion. However the only evidence av a i l a b l e w i l l be the secessionist organization's a b i l i t y to mobilize the people of the region behind the secession. I d e a l l y the r e s u l t s of a p l e b i s c i t e should determine the legitimacy of a new regime but, predictably, states facing This i s not always so. Often the most stable governments are the most oppressive e.g. North Korea, Saudi Arabia and Albania. However on the whole t h i s c o r r e l a t i o n holds up well when we discuss states whose creation comes about a f t e r a legitimate struggle for independence. See Ofuatey-Kodjoe,W. The P r i n c i p l e of Self-Determination  i n International Law, supra, pl56 251 secessionist threats within t h e i r borders have shown no readiness to submit to the r e s u l t s of p l e b i s c i t e s . (4) Geo-Stratecfic D e s t a b i l i z a t i o n . The question of s t a b i l i t y has an i n t e r n a t i o n a l as well as an i n t e r n a l dimension. The p r e s c r i p t i o n i n favour of i n t e r n a t i o n a l peace and security i s a norm of international law carrying great weight and any theory of secession must incorporate a concern f o r the p o s s i b i l i t y of geo-strategic d e s t a b i l i z a t i o n . There are two major strands to t h i s problem. The f i r s t concerns what i s termed the domino theory. The domino theory r e f e r s to the phenomenon of a successful act of secession from one state encouraging r e p e t i t i o n i n other states. According to proponents of t h i s idea, to characterize secession as legitimate further weakens the dominoes. The second, and most obvious, encompasses the general fear of widespread conflagration and c o n f l i c t escalating from the i n i t i a l act of secession. (i) The Domino Theory. Despite i t s metaphorical attractiveness the domino theory has r a r e l y been r e f l e c t e d i n r e a l i t y . I t found great currency as a j u s t i f i c a t i o n f o r the United States presence 252 i n Vietnam but f i f t e e n years a f t e r the departure of the l a s t marine a l l the dominoes remain s t a n d i n g 7 3 . In the case of secession the "demonstration e f f e c t " 7 4 has proved n e g l i g i b l e . The secessions of Bangladesh, Singapore, Norway, Ireland and Senegal i n t h i s century have had no d i s c e r n i b l e e f f e c t on s i m i l a r movements i n proximate areas. S i m i l a r l y , f a i l e d secessions i n Nigeria and Katanga have not discouraged secession i n other states. There are three reasons for t h i s . F i r s t , each s i t u a t i o n i s d i f f e r e n t and a d i f f e r e n t set of circumstances i s l i k e l y to lead to a d i f f e r e n t set of perceptions and d i s s i m i l a r outcome. Second, there i s minimal contact between secessionist e l i t e s i n the same way as there i s between m i l i t a r y e l i t e s 7 5 . F i n a l l y , secessionist organizations have a tendency to regard themselves as e n t i r e l y unique with l i t t l e to learn from other separatist movement. This often leads them to condemn other secessions while simultaneously pursuing t h e i r own. These factors make the domino theory i r r e l e v a n t to t h i s problem. ( i i ) Geo-strategic Disruption. Thailand was regarded as the next target of the Vietnamese; instead they are contemplating a retreat from Kampuchea (1989). See Kamanu, Secession and the Right of S e l f - Determination; An OAU Dilemma, supra, p356. 7 5 Ibid, p368-369. 253 I f a secession appears l i k e l y to cause a major war, the force of i t s legitimacy must be re-evaluated. The humani t a r i a n - u t i l i t a r i a n teleology of t h i s study r i s k s subversion i f i t permits a people to secede where the c o l l e c t i v e human misery w i l l be increased by permitting the secession. This i s one of Buchheit's major points but he overstates the c e n t r a l i t y of t h i s c o n s t r u c t 7 6 . Disallowing (otherwise legitimate) secession on the grounds that i t w i l l cause geo-strategic disruption may be counterproductive. • • . . . 7 7 . I n s t a b i l i t y and c o n f l i c t w i l l continue to f e s t e r ' ' and with t h i s w i l l come the r i s k that the superpowers may be drawn into the c o n f l i c t on a partisan, basis rather than a legally- p r e d i c a t e d one. This i s a l e g a l theory of secession therefore j u s t i c e must play a greater r o l e than i t might do i n a p o l i t i c a l theory. The r i s k of major c o n f l i c t must be substantial. Ultimately, as the UN i t s e l f recognizes, the greatest threat to peace and security i s the abuse of human r i g h t s . S t a b i l i t y i s not an end i n i t s e l f . A stable world order which does not protect the notion of human di g n i t y i s a See Buchheit.L, Secession: The Legitimacy of S e l f - Determination . supra,231-249. This i s in e v i t a b l e i n cases where the secession i s legitimate under the index of v a l i d i t y since t h i s legitimacy presumes a high l e v e l of organization and commitment on the part of the people pursuing i t . . 254 morally empty vessel. The r i g h t to secede i s a threat only to a version of "order" which oppresses the human s p i r i t . (5) The Bona Fides of the State and the Seceding  E n t i t y . The claims to the r i g h t of self-determination advanced by competing selves must be assessed according to the good f a i t h evinced by the " s e l f " up to that point. I c a l l these the bona f i d e s of the competing selves. The c r e d i b i l i t y of solutions proposed by the state w i l l be dependent on i t s past performance 7 8. The most pungent example from our case studies i s E r i t r e a where the Ethiopian state, by i t s f a i l u r e to heed the terms of the autonomy compromise and numerous examples of bad f a i t h since then, has extinguished i t s own bona f i d e s . In contrast the EPLF's bona fides are high because of i t s proven a b i l i t y and w i l l to cater for the human needs and r i g h t s of the E r i t r e a n p e o p l e 7 9 . To take an example d i r e c t l y concerned with the r i g h t of self-determination, see debate i n the UN over the Vietnamese occupation of Kampuchea (Cambodia) where the Kampuchean Representative of the Khmer Rouge argued that the Vietnamese should leave Kampuchea i n order that free elections take place. This proposition was supported i n the UN. Under an index of v a l i d i t y the Khmer Rouge would have the lowest bona fides possible. Any promise to hold free elections would be deemed worthless. See 17 UN Monthly Chronicle 122 (Jan, 1980). See Chapter IV, i n f r a . 255 The question of bona fides w i l l not always be so easy to resolve as i n the Ethiopian case. Often a new government w i l l promise changes or make c o n s t i t u t i o n a l amendments i n order to placate the seceding group. These changes may be l a r g e l y cosmetic or e a s i l y revocable. They may be persuasive but never decisive. Past performance of the state must remain the c r i t i c a l factor. The bona fides of the seceding group may be j u s t as questionable and w i l l be somewhat diminished by a record of human ri g h t s abuse, discrimination or international t e r r o r i s m 8 0 . An i n t u i t i v e sense of the difference between the sincere and the bogus may have to be r e l i e d on by future adjudicators to bridge any factual gaps. However, again i t should be stressed that i n the case studies investigated determining the respective bona fides has not proved d i f f i c u l t 8 1 . The above l i s t i s f a r from comprehensive and each case tends to amplify a d i f f e r e n t set of vari a b l e s . In applying the index of v a l i d i t y a c e r t a i n f l e x i b i l i t y must be displayed once the e s s e n t i a l conditions have been s a t i s f i e d . E r i t r e a n action against aid a i r c r a f t i s harmful i n t h i s regard. With the notable exception of B i a f r a where the Gowon 12-State sol u t i o n appeared to come with a s p i r i t of compromise but may have simply been a delaying t a c t i c . 256 This may involve taking into account one or more of the variables found below. (6) General Variables. (i) The Level of Integration Achieved and Length of Time as Single State. This can work i n two opposing ways. A high l e v e l of integration and a long h i s t o r y of as s i m i l a t i o n w i l l work against the seceding group because of the d i f f i c u l t y i n separating and the degree of intermingling i n the p o p u l a t i o n 8 2 . Conversely, i f a union has existed f o r only a very short time the secessionists may be accused of p r e c i p i t a t i n g a national c r i s i s without allowing the state a period of grace i n which to unify the n a t i o n 8 3 . ( i i ) Non-Alignment. A stronger case can be made for a seceding u n i t which professes non-alignment. Rules of legitimacy should discourage the formation of c l i e n t e l e states as part of the int e r n a t i o n a l system. Furthermore, a seceding u n i t whose 8 2 See Scotland and Quebec and compare these two to the case studies made of Bangladesh and E r i t r e a . 8 3 See B i a f r a and Katanga where these arguments were employed. 257 independence does not depend on sovereignty-threatening deals struck with major powers i s l i k e l y to operate more e f f e c t i v e l y as a p o s i t i v e force i n i n t e r n a t i o n a l a f f a i r s . A successful secession accomplished without external support would seem to indicate a high l e v e l of i n t e r n a l support. ( i i i ) A Previous Act of Self-Determination. Self-determination has been described as a once-only r i g h t 8 4 . Gros-Espiell refutes t h i s notion i n his a u t h o r i t a t i v e study for the United Nations where he states, "The r i g h t of peoples to self-determination has l a s t i n g force [and] does not lapse upon f i r s t having been exercised to secure p o l i t i c a l s e l f -determination" 8 5. I t seems inconceivable that a decision made several generations previously should become an obstacle to a renewed exercise of self-determination by a completely d i f f e r e n t c o l l e c t i o n of i n d i v i d u a l s under new circumstances 8 6. The l a t i n maxim, rebus s i c s t a n t i b u s 8 7 , 8 4 See e.g., generally, Trudeau,P. Federalism and the French  Cnandians, supra. 85 86 87 See Gros E s p i e l l , H . The Right to Self-Determination, supra, p8. See e.g. can i t seriously be argued that Scotland s e l f -determined d e f i n i t i v e l y i n an 18th century treaty (the 1707 Treaty of Union) ? Change of circumstances frustrates the contract. See Levin, The P r i n c i p l e of Self-Determination of Nations i n International Law, 1962, Soviet Yearbook of International Law, p45. 258 operates to rebut pacta sunt servanda, the rul e that an agreement once reached and complied with by the pa r t i e s can no longer be tampered with. I t i s as applicable to the s o c i a l contract as i t i s to the private contract. C.CONCLUSION. The index of v a l i d i t y outlined above i s as comprehensive and quantifiable as a l e g a l - p o l i t i c a l concept can be. I t should serve to, at worst, darken the.shade of grey areas inherent i n the p r i n c i p l e of self-determination. At best i t provides a new code with which to ascertain the legitimacy of secession. This code, i f applied with p o l i t i c a l and l e g a l dexterity, should have the e f f e c t of advancing the cause of human right s i n the world through a renascence of the r i g h t of self-determination. 259 BIBLIOGRAPHY Books Alexander,Y, and Friedlander,R. (eds.). S e l f - determination: National, Regional and Global Dimensions. Boulder,Colo.: Westview, 1980. Arangio-Ruiz, G. The United Nations Declaration on  Friendly Relations and the System of the Sources of  International Law. 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