Self-determination: ‘A right’ or a ‘privilege’? , Asari joins the fray

This was first published in in 2015 under the title: ‘Biafra and the Secessionist Right Of A Democratic Minority’ followed by a re-jigged version of it in 2017 under the title ‘Biafra: In Peace Or In Pieces’. And now that Alhaji Asari Dokubo is hijacking the struggle for the actualization of Biafra, I have decided, just for the records, to re-publish a slightly edited version again,

titled ‘Biafra: Now That Asari Joins the Fray’. Most of the criticisms that greeted the earlier piece centered on what someone described as its ‘mischievous silence’ on the now universal principle of ‘self-determination’. I have, in this third ‘revisit’, expanded the ‘Postscript’ to accommodate a brief on the principle of ‘self-determination’ side by side, still, with the more universally superior principle of defense of ‘territorial integrity’. Happy reading

Is a union sacred and inviolable?

Whether a constitutionally governed nation exists in perpetuity, sacred and inviolable even by the existential realities of irredeemable socio-cultural fault lines, is a matter for the conjecture of the jurisprudence of municipal and international law.

The questions being: Is a democratic society immune from the rumblings of dissent by self-determining minorities bent on opting out of the union? Does a part of a constitutionally governed nation have a right unilaterally to opt out of that union?

Will a president be obligated by law or morality to allow a part to secede from a country he has been elected to govern? Or will he rather be obligated to fight to keep a union for which he was constitutionally inaugurated to preserve, protect and defend?

These questions have continued to agitate jurists and theorists and there does not seem to be a single jurisprudential solution to the question of ethnic or other classes of minorities and their presumed right to self-determination side by side with their constitutional duty of fidelity to the state –even if it is one they were ill-fated by the circumstances of socio-political history to be part of.

Is ‘might’ ‘right’?

Yet proponents of the ‘right’ of ‘might’ say that any minority can secede from a state it no longer desires to be part of, -if not by a constitutional process, then by ‘force’. Provided it has the ‘grit’ and the ‘gumption’ to force its way out of the union. And provided thereafter it also has the ‘muscle’ to defend its newfound sovereignty either against the revolting anger of un-yielding irredentists or against potentially emergent new rebellions from its very own.

But the reverse is also the case that even as a democratic minority has recourse to the use of force to assert the right to self-determination, so does a democratic majority the right to the use of force to preserve the union. So that the search for who is right between a majority fighting to preserve a union and a minority fighting to opt out of it, lies in who asserts the most ‘firepower’ -and not in who has the legal or moral justification to do so.

And just as any argument by democratic majorities in favor of the ‘right’ to preserve the union is concurrent with the arrogation of the ‘right’ to prevent the minority from breaking away, so do minorities, in arrogating the ‘right’ to self-determination, tend always to deny the ‘right’ of the existing political order to fulfill its constitutional obligation of preserving the union.

And so by the doctrine of the ‘right of ‘might’, agitators of Biafra, to secede, must not only be able to outgun the state, they must be able to enforce their breakaway. But going by the logic of the ‘might of right’, no minority has the right to force its way out of a legal union except by the leave of the majority through the due process of law and not the sentiments of moral considerations.

The Lincoln perspective

Abraham Lincoln, the 16th President of the United States of America provided an excellent jurisprudential justification for the use of force to suppress any rumbling of un-democratic dissent that has secession as its ultimate goal.

Lincoln came into office in 1861 and the advent of a Republican administration had created apprehension in the southern slave-dealing states, who now wanted to secede because they feared the president might interfere with slavery. It was thus clear to Lincoln that the secessionists were not to be pacified but confronted. Thus, in his inaugural speech, Lincoln informed a divided nation that he was

‘prepared to fight a war to maintain the Union’. The right of a ‘minority’ to balkanize the nation, he said, cannot be exercised in override of the constitutional right of a ‘democratic majority’ to preserve it. Said he: “A majority held in restraint by constitutional checks and limitations … is the only true sovereign of a free people” and that “Whoever rejects it does of necessity fly to anarchy or to despotism”.

And since it is settled that democracy is a system of ‘majority rule’, it makes no sense that a ‘minority’, outside of the due legal and democratic process, should terminate the Union or permanently alter its constitutionally-prescribed configuration? In fact,

Lincoln had used the ‘doctrine of perpetuity’ to advance the argument that “in contemplation of universal law and of the constitution” the Union of a is “perpetual”, and that, that ‘perpetuity’ is implied even though if not expressly stated

“in the fundamental law of all national governments”. Said he: “no state upon its own mere motion can lawfully get out of the Union”. Which is what the German philosopher Jurgen Habermas is saying, that “Being bound to the constitutional achievements and ideals of their predecessors, future generations remain un-free; for they are denied the opportunity to found their own constitution”.

‘Oath registered in heaven’

And although the constitution, as Lincoln said, “contained no prohibition of secession or enforcement language to preserve the Union”, it prescribed an oath of office mandating the president “to preserve, protect and defend the constitution” –by extension its ‘territorial integrity’. And “since the people had not vested the president with the authority to fix the terms of separation”,

Lincoln said that he was right to make “war the inevitable consequence of secession” and to declare himself “constitutionally unable to stop it”. Said he, whereas the secessionists had “no oath registered in heaven to destroy” the union, he had

“the most solemn one to ‘preserve’ it”; and that even in the hypothetical scenario that the U S were ‘not a government proper’ but merely an association of states in the nature of ‘contract’, that contract could not be “peaceably unmade by less than all the parties who made it”; because whereas “One party to a contract may violate (or)… break it”, it requires ‘all’ to lawfully rescind it?”

Epilogue

The right of the Igbo or other ‘minorities’ to secede from a constitutionally governed Nigeria must be located in the complex hyacinth of these jurisprudential argument. And it is a right concurrent with –if not inferior to- the right of the ‘majority’ to deny.

Self-determination: ‘A right’ or a ‘privilege’?

The United Nations 2000 Millennium Declaration conceded the right to self-determination only to “peoples…under colonial domination and foreign occupation”. But international law generally concedes it also to ‘non-self-governing peoples (colonized and/or indigenous). Plus, where a people lack representation in a state,

such are said to become a ‘separate people’ and therefore entitled also to self-determination. International law does not recognize ‘ethnic and other minorities as ‘separate peoples’ entitled to self-determination except where they “are systematically disenfranchised”. And although even a “people” who suffer no disability can rely on their unanimity to desire self-determination, unanimity without disability merely “strengthens their claim” without conferring on it a right to self-determination.

The criteria for defining “people having the right of self-determination” was proposed during 2010 Kosovo decision of the International Court of Justice to consist of several socio-cultural factors not excluding ‘common suffering’ (colonization, occupation,

disenfranchisement, un-representation). But whether the right to self-determination is inferior or superior to ‘territorial integrity’ is also at issue. But the Helsinki Final Act of 1975, asserts that the principles of defence of ‘territorial integrity’ takes precedence over the right to self-determination. Ditto Buchanan author of several books on ‘self-determination’.

Nonetheless he advanced a “Remedial Rights Only Theory” with three possibilities for secession thus: 1], where the constitution includes the right to secede; 2], where the state grants the choice to secede or 3], where a people suffer certain injustices, for which secession is the appropriate remedy of last resort.”

Others insist only “in cases of non-self-governing peoples and foreign military occupation (does) the principle of ‘self-determination’ trump that of ‘territorial integrity’.

Secession within a single state, they insist, is a domestic matter not covered by international law. And although Paragraph 2 of UN Resolution 1514(XV) conditionally guarantees that “all peoples have the right to self-determination”, Paragraph 6 of UN Resolution 1514(XV), insists that any attempt

“aimed at partial or total disruption of the national unity and the territorial integrity of a country is incompatible with the purposes and principles of the (UN) Charter”.

It is the reason most liberal democracies do not recognize the right to self-determination through secession in their constitutions. Many in fact expressly forbid it, insisting that the principle of ‘majority rule’ effectively subsumes the right to secession.