By Nkongho Felix Agbor Balla* in Buea
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| Nkongho Felix Agbor Balla |
The definition of what constitutes a ‘people’ in international law has always generated heated debate and controversy with divergent opinions. The importance of the definition of the concept of ‘peoples’ in international law stems from the fact that only peoples are entitled to claim the right to self-determination. Not only is it clearly provided in the General Assembly Resolutions and the UN Charter, it is also provided in the Algiers Declaration and all other documents dealing with the right to self-determination.
The twin International Covenants on Human Rights of 1966 expressly provides in their common Article 1(1) “that all peoples have the right to self-determination”. The African Charter of Human and Peoples’ Rights (hereinafter referred to as the African Charter) also provides in its Article 20 that all peoples can claim the right to self-determination. However, despite the generally accepted importance of the concept of peoples in reference to the law of self-determination, there is no universally accepted definition of this enigmatic concept.
The lack of an accepted definition of ‘peoples’ makes it even more difficult for one to fully appreciate the right to self-determination. After all, without an adequate definition of those to whom the right to self-determination is provided, how can one fully situate those entitled to benefit from the right to self-determination?
‘Peoples’ as those under colonial rule
A very popular ‘people’ approach especially in third world countries is to consider peoples as all those still living under colonial or foreign regimes. According to advocates of this approach, the peoples entitled to claim the benefits of the right to self-determination are only those under colonial or oppressive regimes. This is the approach taken in the African Charter as evident in its Article 20. According to this school of thought, self-determination is akin to freedom from the yoke of colonialism and does not include ‘peoples’ who have already achieved independence. To them, self-determination is only limited to those under non-self-governing territories and it ends with independence.
With all due respect to exponents of this definition of peoples, the current state of the law of self-determination renders this approach unrealistic, since self-determination in its contemporary context has been accepted as existing outside the colonial context. This is evident from both State practice and the UN approach that have recognised this right outside the colonial context as evident in the recognition of the right to self-determination of Palestinians and to South Africans. This approach is also against General Assembly Resolution 2625 (XXV) that clearly shows that the right to self-determination is made to the world at large and not limited to those under colonial rule.
‘People’ as the inhabitants of a state
The most common definition of the concept of ‘peoples’ is that which considers the people who are entitled to claim the right of self-determination as the inhabitants of a State. It is my opinion that this approach does not take into consideration the fact that a State may have more than one group that identifies itself as a people. The shortcoming of this approach is that it fails to recognise the concept of people being dynamic, as peoples can change over time.
It is clear from State practice today that the right to self-determination is applicable to situations where the ‘peoples’ concerned form only part of the inhabitants of a State, such as the Palestinians and the Tibetans. It is noteworthy that the Supreme Court of Canada, in Reference to re Secession of Quebec, held that the term ‘people’ “may include only a portion of the population of an existing state.”
Minorities as peoples
The issue of whether or not minorities should fall under the definition of peoples has generated a lot of legal argument. International law considers minorities and peoples as two separate concepts. This is evident from the fact that whilst Article 1 of the twin International Covenants on Human Rights provides for the right to self-determination only to peoples, Article 27 of the International Covenant on Civil and Political Rights provides for the protection of minority rights.
Hence, under international law, minorities are not entitled to claim the right to self-determination. While some legal scholars such as Cristescu are of the opinion that the definition of peoples does not include minorities since their rights are protected in Article 27 of International Covenant on Civil and Political Rights, others such as Margalit and Raz hold the view that they do. To them, minorities constitute peoples and thus have a claim to the right to self-determination.
According to Thornberry and Seller, despite the fact that minorities do not meet the definition of people and thus do not have the right to self-determination, they should however still be taken into consideration since they are part of a ‘people’. It is my opinion that this last school of thought accords with reality, to reject outright the fact that ‘people’ do not constitute minorities and thus should not be taken into account if claims for the right to self-determination are fallacious.
Despite the absence of an accepted definition of the concept of ‘people’ in international law, there is a ‘peoples’ definition generally accepted by most legal scholars. This definition was arrived at in an UNESCO meeting of experts on international law. The following traits were considered, among others: a common historical tradition, ethnic group identity, linguistic unity, territorial connection, common economic life, religious or ideological affinity and cultural homogeneity. Another essential requirement agreed upon was that the whole group must be willing to be considered as a people.
Southern Cameroonians as a people
In analysing the issue of Southern Cameroonians as a people, it is necessary to take a look at the UNESCO meeting of experts on international law wherein the characteristics of a people were defined. Almost all the common features are applicable to the people of Southern Cameroons. This can be evident in features such as a common historical tradition that can be traced as far back as 1914. The issue of linguistic unity is quite evident in the use of the English language and Pidgin English as the means of communication in the whole of Southern Cameroons.
The common feature of territorial connection can be traced as far back as the period of the League of Nations during which Southern Cameroons was a mandated territory under British administration while La République du Cameroun was administered by the French; in spite of the fact that today the government of La République is fighting hard to disconnect the two Southern Cameroon provinces. Thus like Eritrea in Ethiopia, Southern Cameroons had existed as a separate entity from La République du Cameroun.
Furthermore, those who hail from Southern Cameroons have clearly manifested their willingness to be identified as a people. This can be buttressed by the All Anglophone Conference which they held in Buea on 2 and 3 April 1993. Another glaring manifestation by Southern Cameroonians in this regard is evident in the 1995 signature referendum organised by the Southern Cameroons National Council (SCNC), the mouthpiece of the Southern Cameroons struggle. During the said signature referendum, an overwhelming majority (99%) of Southern Cameroonians voted for secession from La République du Cameroun.
Thus the majority of Southern Cameroonians preferred independence as evident from a voter participation of 75% of Southern Cameroonians. The results of the signature referendum did manifest the subjective will of Southern Cameroonians to live together and be recognised as distinct. The results of the independence referendum unequivocally illustrated a popular will to separate, thus meeting the subjective criteria that there is a will to be governed separately.
There are many other examples, which clearly manifest the willingness of the Southern Cameroonians as a whole to be considered as a people. These include the reaction of the Southern Cameroonians in 1985 when the government of La République attempted to abolish the General Certificate of Education (GCE) exams and also the protest for the creation of the GCE Board. The element of self-identification by a group as a ‘people’ was recognised as a ‘fundamental criterion’ of the definition of ‘peoples’ in the ILO Convention concerning Indigenous and Tribal People in Independent Countries 1989.
Also worthy of note is the fact that the Government of La République du Cameroun has always considered the problems of Southern Cameroonians as a minority problem like any other minority problem in Cameroon. The conclusion from this reasoning is that Southern Cameroonians are not entitled to self-determination since they are a minority and not a people under international law. This argument is not at all tenable. Even if it was, it can still be argued that Southern Cameroonians have a right to reversion. This is a right which applies to a minority whenever that minority suffers oppression, in which case the minority attains the status of a people and may exercise a right of self-determination.
As a result of the oppression suffered in the hands of La République du Cameroun, the Southern Cameroonian minority has attained the status of a people; hence they are entitled to the right to self-determination. Thus the situation of Southern Cameroonians is similar to that of the Bengalis in East Pakistan whose right of reversion was triggered by the oppression suffered in the hands of the Pakistani soldiers.
*The author has served as Legal and/or Human Rights Officer for various UN missions abroad, and now runs the Agbor Nkongho Law Firm in Buea. He is also the Founder and Executive Director of the Centre for Human Rights and Democracy in Africa, Buea.
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