Re: A Most brilliant Document. The ACHPR in the Case of the Southern Cameroons

http://www.surjournal.org/eng/conteudos/getArtigo16.php?artigo=16,artigo_04.htmThe
ACHPR in the Case of Southern Cameroons

SIMON M. WELDEHAIMANOT
Simon M. Weldehaimanot LL.B. (Uni. of Asmara, 2003) and a LL.M (Uni.
of Pretoria, 2006) is currently a JSD candidate at Notre Dame Law
School and Adjunct Faculty at The Women's College, University of
Denver. The author's area of interest covers international human
rights law and democratization with a specific focus on the African
human rights system and, thematically, on the right to democratic
governance, the right of self-determination, rights of minorities and
indigenous peoples, and the effect of these rights on forms of
government and the constitutional frame of multinational states.
Email: sweldeha@nd.edu; simoxen2001@gmail.com.
1 Introduction
International Human Rights Law (IHRL) is known for indeterminacy.
There is a common problem with international law: complex rules are
formulated in the absence of proper dispute settlement procedures
(CRAWFORD, 1994, p. 23). For example, Robert Lansing famously
described the right of self-determination as "loaded with dynamite"
(CASSESE, 1996, p. 22). For this reason, the "need for a principled
stance on self-determination has never been greater. Most large-scale
violent conflicts now occur within states rather than between them,
and in many cases of large-scale intrastate conflict,
self-determination is an issue – sometimes the issue" (BUCHANAN, 2003,
p. 332). "In recent years, people have been slaughtering each other
over the proper application of national self-determination in
Ethiopia, Afghanistan, Bosnia, Iraq, Sri Lanka, Azerbaijan, Vietnam,
and many other parts of the world" (TILLY, 1993, p. 31). The problem
cannot be exaggerated:
At present, there are about 26 ongoing armed self-determination
conflicts. Some are simmering at a lower level of irregular or
terrorist violence; others amount to more regular internal armed
conflicts, with secessionist groups maintaining control over
significant swathes of territory to the exclusion of the central
government. In addition to these active conflicts, it is estimated
that there are another 55 or so campaigns for self-determination which
may turn violent if left unaddressed, with another 15 conflicts
considered provisionally settled but at risk of reignition.
Self-determination conflicts, therefore, remain highly relevant, as
the most recent episode involving Georgia has demonstrated.
(WELLER, 2009, p. 112).
Even though the dynamite right of self-determination is about 90 years
old, still, "international law […] fails to provide coherent
conceptual and institutional support for forms of self-determination
short of full independence and for a principled way of ascertaining
when more limited modes of self-determination are appropriate"
(BUCHANAN, 2003, p. 331). Indeed, "It remains today for the world to
decide the validity of secession, and international law must provide
the mechanism to evaluate that decision" (WASTON, 2008, p. 292-293).
It is arguable that "a law of secession that strikes the proper
balance between self-determination and territorial integrity will
promote the greatest stability by providing peaceful means to address
ethnic disputes and bringing de facto independent pseudo-states into
the light" (WASTON, 2008, p. 292-293). In fact, going further, some
hold that "Creating and implementing default rules in international
law for partition and secession has significant potential to reduce
the risk of conflict at relatively low cost" (RICHARDSON, 2009, p.
716).
However, while noting the indeterminacy of IHRL, it is important to
admit that, regardless of the intensity of codification, law cannot be
free of ambiguity to the extent that courts and judges are
unnecessary. It is for this reason that international
law--specifically, Article 38 of the Statute of the International
Court of Justice (ICJ)--recognizes "judicial decisions and the
teachings of the most highly qualified publicists of the various
nations, as subsidiary means for the determination of rules of law".
When indeterminacy is unavoidable, the solution has been sought from
procedures and adjudicative tribunals. IHRL has many judicial and
semi-judicial institutions that have contributed to the process of
norm specification beyond human rights treaties "both through the
application of the standards to specific cases and through the general
interpretation of treaty provisions" (CAROZZA, 2003, p. 59). In fact,
norm specification seems one of the most important contributions of
the largely toothless human rights protection apparatus.
Unfortunately, this important task of interpreting IHRL is not
well-used. Not only are rulings given after a long time, but the
reasoning is also not always profound, for which reason alone it fails
to command respect. In addition, aggrieved sides that deserve
encouragement for seeking solution to their grievances from tribunals
of reason, as opposed to from the force of the gun, are sometimes
unconvincingly told that they have no remedy in the international
plane.
The main reason appears to be that the quasi-judicial institutions
mandated to consider human rights violations and interpret rights are
inadequately equipped. They are often confronted with complex problems
that they tend to prefer to avoid. The African Commission on Human and
Peoples' Rights (ACHPR), which is one of the monitoring institutions
of the African Charter on Human and Peoples' Rights (African Charter)
is a good example. In the past, the blame was directed to the African
Union for not adequately funding the ACHPR. However, even with
resources, the "creativity, and wisdom of those who run the system,"
sometimes disappointingly missing, "are absolutely crucial" (HEYNS,
2004, p. 701). For example, the procedure of litigation before the
ACHPR has been convincingly criticized not only as unduly
time-consuming but also as not conducive for the advancement of
jurisprudence (WELDEHAIMANOT, 2010, p. 14-38).
In 1995, the ACHPR had an opportunity to articulate the right of
self-determination in the post-colonial context in an important case,
Katanga. In Katanga, the ACHPR was asked to recognize the Katangese
Peoples' Congress as a liberation movement entitled to support in the
achievement of independence for Katanga, a region in Zaire (AFRICAN
COMMISSION ON HUMAN AND PEOPLE'S RIGHTS – ACHPR, Katangese Peoples'
Congress v Zaire, 1995, para. 1). In addition, the ACHPR was asked to
recognize the independence of Katanga and then "help secure the
evacuation of Zaire from Katanga". The ACHPR disposed Katanga in less
than half a page and it has been deservedly criticized for not
developing the jurisprudence of the right of self-determination.
In 2003, the ACHPR was presented with a substantially similar case,
Southern Cameroons.Fourteen Cameroonians from an area they called
Southern Cameroons petitioned the ACHPR alleging violations of many
rights of Anglophone Cameroonians, one of which is the right of
self-determination. The violation is allegedly caused by the
abrogation of a federal constitution and replacement by a unitary
state in which Anglophone Cameroonians have allegedly been dominated.
In this case, not only did the ACHPR fail to elaborate Katanga, but it
confused the one important point that Katanga contributed to the
jurisprudence of the right of self-determination.
Part II of this article alludes to the indeterminate but most feared
right of self-determination. Part III critiques the unsound reasoning
of the ACHPR by comparing it to the convincing jurisprudence that was
available before Southern Cameroons that the ACHPR should have
consulted. In addition, Part III discusses the sound jurisprudence
established before the ACHPR's ruling and updates it further by
reflecting on a recent advisory opinion from the ICJ. Considering the
specificity the right of self-determination has acquired as a result
of scholarly and judicial discourses, Part IV concludes by noting that
the remedies the ACHPR eventually gave could have been more specific.
Norm-specification or jurisprudence building, rather than proving
actual relief for victims of human rights violations, has been the
most notable achievement of the quasi-judicial human rights monitoring
institutions. However, more elaboration is still needed.
2 The Indeterminate Right of Self-Determination
From its origin until now, the right of self-determination is, of
course, controversial. Almost every writer has lamented the
indeterminate nature of the right. The most prophetic has been Robert
Lansing, who warned that "an application of this principle is
dangerous to peace and stability [...] The phrase is loaded with
dynamite. It will raise hopes that can never be realized. It will," so
Lansing shared his fear, "cost thousands of lives. In the end it is
bound to be discredited, to be called the dream of an idealist who
failed to realize the danger until too late, to check those who
attempt to put the principle in force. What calamity that the phrase
was ever uttered! What misery it will cause!" (CASSESE, 1996, p. 22)
To Klabbers, the "right of self-determination easily qualifies as one
of the more controversial norms of international law" (KLABBERS, 2006,
p. 186). To Jennings, the doctrine of self-determination of peoples
"was in fact ridiculous, because the people cannot decide until
someone decides who are the people" (JENNINGS, 1956, p. 55-56). To
Grant, "self-determination has notoriously lacked concrete legal
content. In particular, it has lacked a procedural framework for its
realization" (GRANT, 1999, p. 11). "Self-determination," so it seemed
to Fox, "has become either everything or nothing" (FOX, 1995, p. 733).
To Castellino, "within international law, self-determination has
become all things to all men" (CASTELLINO, 2000, p. 1).
The people in a state do not have homogeneous aspirations, preferences
and demands; and the right of self-determination does not explain how
conflicting desires should be reconciled or arbitrated. In addition,
the indeterminacy is related to the "self or people" which is entitled
to the right, the content of the right and the circumstances under
which the right can be exercised. Furthermore, almost every writer on
the area has noted conflict between the right of self-determination
and the principle of territorial integrity of states.
The right of self-determination is stated in many treaties and
different soft laws. Even though a word-for-word reading of all the
pronouncements of self-determination appears useless, a brief
restatement is important. In an unclear manner, article 1(2) of the
United Nations (UN) Charter states that one of the purposes of the UN
is to "develop friendly relations among nations based on respect for
the principle of equal rights and self-determination of peoples".
"With a view to the creation of conditions of stability and well-being
which are necessary for peaceful and friendly relations among nations
based on respect for the principle of equal rights and
self-determination of peoples," article 55(c) of the Charter further
required the UN to promote "universal respect for, and observance of,
human rights and fundamental freedoms for all without distinction as
to race, sex, language, or religion".
Paragraph 2 of the 1960 UN General Assembly Declaration on the
Granting of Independence to Colonial Countries and Peoples states that
"All peoples have the right of self-determination; by virtue of that
right they freely determine their political status and freely pursue
their economic, social and cultural development" (UNITED NATIONS,
1960). But, paragraph 6 of the same declaration adds a qualification
which subsequent pronouncements of the right of self-determination
almost consistently follow: "Any attempt aimed at the partial or total
disruption of the national unity and the territorial integrity of a
country is incompatible with the purposes and principles of the
Charter of the United Nations". Furthermore, paragraph 7 adds that all
States are required to "observe faithfully and strictly the provisions
of the Charter of the United Nations [...] on the basis of equality,
non-interference in the internal affairs of all States, and respect
for the sovereign rights of all peoples and their territorial
integrity" (UNITED NATIONS, 1960). Common article 1(1) of the
International Covenant on Civil and Political Rights (ICCPR) and the
International Covenant on Economic, Social and Cultural Rights
(ICESCR) reads, "All peoples have the right of self-determination. By
virtue of that right they freely determine their political status and
freely pursue their economic, social and cultural development" (UNITED
NATIONS, 1966a, 1966b).
However, the wording of the Declaration on Friendly Relations and
Cooperation among States is specifically important as it hinted that
in some cases, the right of self-determination can override
territorial integrity of a state and warrant secession. For their
territorial integrity to be maintained, the Declaration indicates that
states must be "conducting themselves in compliance with the principle
of equal rights and self-determination of peoples [...] and thus
possessed of a government representing the whole people belonging to
the territory without distinction as to race, creed or colour" (UNITED
NATIONS, 1970). Therefore, the Declaration Resolution gives an
indication of the fact that there is self-determination that can be
realized without affecting the territory of the state (internal
self-determination), and there is another one, which affects the
territory (remedial secession or external self-determination).
Article 20(1) of the African Charter on Human and Peoples' Rights
gives to "all peoples" "the unquestionable and inalienable right to
self- determination. They shall freely determine their political
status and shall pursue their economic and social development
according to the policy they have freely chosen" (AFRICAN UNION,
1981). Article 3 of the Declaration on the Rights of Indigenous
Peoples states that "Indigenous peoples have the right to
self-determination. By virtue of that right they freely determine
their political status and freely pursue their economic, social and
cultural development" (UNITED NATIONS, 2007). These are not the only
documents in which the right of self-determination is provided.
3 Determining the Indeterminate
It is not, however, helpful to indefinitely lament the indeterminate
nature of the right of self-determination and do nothing about it.
International law (article 38 of the ICJ Statute) recognizes "judicial
decisions and the teachings of the most highly qualified publicists of
the various nations, as subsidiary means for the determination of
rules of law". In reality, judicial decisions flesh-out indeterminate
rules in a more reasonable and coherent manner. Therefore, the
following sections try to fill the indeterminacy based on sound
judicial decisions.
3.1 Jurisprudence before Southern Cameroons
As of 1920, some aspects of the right of self-determination were
detailed. As norms have evolved, the interpretation of the right has
evolved. However, there is no need to chronicle the contradictory
history here. The ICJ had six opportunities to touch on the right of
self-determination. In the Frontier Dispute Case (INTERNATIONAL COURT
OF JUSTICE – ICJ, Burkina Faso v. Mali, 1986,p. 567), the ICJ argued
that "the maintenance of the territorial status quo in Africa is often
seen as the wisest course, to preserve what has been achieved by
peoples who have struggled for their independence, and to avoid a
disruption which would deprive the continent of the gains achieved by
much sacrifice" (ICJ, Burkina Faso v. Mali,, 1986, p. 567).
In Katanga, the ACHPR was also confronted with the issue of secession
based on the right of self-determination vis-à-vis territorial
integrity of an African state. In this case, the ACHPR offered one
significant point. It realized that self-determination may be
exercised in different approaches to autonomy systems such as
self-government, local government, federalism, confederation or any
other form of relations which have to be fully cognizant of other
recognized principles such as sovereignty and territorial integrity.
Establishing the basis for what is later called remedial secession,
the ACHPR noted that:
In the absence of concrete evidence of violations of human rights to
the point the territorial integrity of Zaire should be called to
question and in the absence of evidence that the people of Katanga are
denied the right to participate in Government […] Katanga is obliged
to exercise a variant of self-determination that is compatible with
the sovereignty and territorial integrity of Zaire.
(ACHPR, Katangese Peoples' Congress v Zaire, 1995, para. 6).
Afterwards, the Human Rights Committee of the ICCPR reflected on the
right and contributed one significant point. Many states and some
scholars hold that after decolonization is completed, the right of
self-determination expires. In this context, the Human Rights
Committee clarified that the scope of self-determination is not
restricted to colonized peoples but continues to regulate the
constitutional and political processes within states (UNITED NATIONS,
1994, para. 296). Later on, in its opinion on Quebec's claim to secede
unilaterally from Canada, the Supreme Court of Canada stated
"international law expects that the right of self-determination will
be exercised by peoples within the framework of existing sovereign
states and consistently with the maintenance of the territorial
integrity of those states. Where this is not possible, in the
exceptional circumstance [...] a right of secession may arise"
(CANADA, Reference re Secession of Quebec,1998, para. 130, 311).
The Court further noted that a "state whose government represents the
whole of the people or peoples resident within its territory, on a
basis of equality and without discrimination, and respects the
principles of self-determination in its own internal arrangements, is
entitled to the protection under international law of its territorial
integrity" (CANADA, Reference re Secession of Quebec, 1998, para. 130,
311).
When it comes to the "people" who are entitled to the right, in one
respect, there is consensus: people under colonial rule or alien
domination. At present, there are no such right-holders. However,
given that self-determination has post-decolonization application, it
has become important to define the self who is entitled to the right.
The most helpful question to define the self is to consider who has
been asking for the right of self-determination. Permanent
identification marks are helpful but even with these marks, such as
sex, group autonomy is not always demanded. Women, for example, even
though oppressed in many states, have never asked for a separate state
or autonomous province where men become aliens with a different
passport. The same is certainly true with workers, gays or lesbians.
However, race, ethnicity, culture, economic lifestyle and historical
separateness are essential factors for seeking a separate state. There
is a growing consensus in defining "people". InSouthern Cameroons, the
ACHPR, relying on experts, concluded that where a group of people
manifest common historical tradition, a racial or ethnic identity,
cultural homogeneity, linguistic unity, religious and ideological
affinities, territorial connection, and a common economic life, it may
be considered to be a "people" (ACHPR, Kevin Mgwanga Gunme et al v.
Cameroon, 2009, para. 170). In the ICJ's Kosovo Case, a separate
opinion employed a "conjugation of factors, of an objective as well as
subjective character, such as traditions and culture, ethnicity,
historical ties and heritage, language, religion, sense of identity or
kinship, the will to constitute a people". To these factors "a
significant one" was added – "common suffering" – common suffering
creates a strong sense of identity (ICJ, Accordance with International
Law of the Unilateral Declaration of Independence in Respect of
Kosovo, 2010, para. 228).
There has been some doubt as to whether different peoples who
experienced a common colonial experience for decades can indeed be
considered "people". But even this issue is well-settled. The case of
the Eritreans is similar to the situation in Southern Cameroons.
Eritreans belong to nine different ethnic groups with different
languages, culture, religion and economic and political history but
they spent more than 60 years under one colonial roof. The colonial
experience forged a common identity. In regard to Eritreans, the
Permanent Peoples' Tribunal ruled:
Eritrean people do not constitute a national minority within a state.
They have the characteristics of a people [...] In their quality as a
people they have the right to live freely, and without prejudice to
its national identity and culture, within the boundaries of their own
territory as delimited during the colonial period up to 1950.
(ROAPE, 1982, p. 39-52).
Therefore, in Southern Cameroons, the ACHPR is right in finding that
the people of Southern Cameroon qualify to be referred to as a people
(ACHPR, Katangese Peoples' Congress v Zaire, 2009, para. 179).
It is true that in Kosovo, the ICJ noted that many aspects of
self-determination are "subjects on which radically different views
were expressed" (ICJ, Accordance with International Law of the
Unilateral Declaration of Independence in Respect of Kosovo, 2010,
para. 82). The lack of consensus may justify disqualification of
publicists as subsidiary means for the determination of international
law. Yet the wealth of the debate should have enriched the reasoning
of the ACHPR in Southern Cameroons.
3.2 Southern Cameroons: jurisprudential disruption and regression
The root cause of the matter in Southern Cameroons is typical of the
crisis linked to Africa's colonial history and the inherited identity.
The present day Cameroon became a German colony in the late 19th
Century (KONINGS, 2005, p. 278). As part of the developments of First
World War, the defeated Germany was obliged to renounce its over-sea
colonies. Thus, the present day Cameroon was divided into French and
British administrations under the mandate system of the League of
Nations and, later on, the Trusteeship System of the United Nations
(MCPHEETERS, 1960, p. 367-375). French Cameroon constituted the larger
part and Northern and Southern Cameroons territories administered by
Britain consisted of "two narrow non-contiguous regions bordering
Nigeria and stretching from the Atlantic coast to Lake Chad" (KONINGS;
NYAMNJOH, 2003, p. 23). Later on, Northern Cameroons became part of
Nigeria while Southern Cameroons later on joined French Cameroon.
The French-Cameroon gained independence on 1 January 1960 as the
Republic of Cameroon orLa République du Cameroun. Under the auspices
of the United Nations, a plebiscite was conducted in Southern
Cameroons on 1 October 1961 to determine the decolonization fate of
the territory and the people of Southern Cameroons decided to join the
independent Republic of Cameroon (EBAI, 2009, p. 632). It needs to be
noted that the reunification of Southern Cameroons with the Republic
of Cameroon took place despite the Anglophone-Francophone divide
(KONINGS; NYAMNJOH, 1997, p. 207-229). Up to now, as the complainants
stressed:
Southern Cameroons was […] under British rule from 1858 to 1887, and
then from 1915 to 1961, a total period of nearly 80 years. That long
British connection left an indelible mark on the territory,
bequeathing to it an Anglo-Saxon heritage. The territory's official
language is English. Its educational, legal, administrative,
political, governance and institutional culture and value systems are
all English-derived.
(GUNME et al., 2004 apud ACHPR, Kevin Mgwanga Gunme et al v. Cameroon,
2009, para. 11).
For this reason, the initial association of the two territories took
the form of a federal republic consisting of the two parts. From the
outset, the political leadership of the French-speaking Republic of
Cameroon preferred a unitary instead of federal structure: federalism
was taken "as an unavoidable stage in the establishment of a strong
unitary state" (KONINGS; NYAMNJOH, 1997, p. 210). Therefore, the
federal constitutional and administrative structures adopted at the
time of the reunification of Southern Cameroons with the Republic of
Cameroon as a result of the 1 October 1961 plebiscite were
progressively altered (STARK, 1976, p. xx). In the end, the federal
structure of the state was abolished on 20 May 1972 in violation of
the constitutional clauses establishing the federation. In short, this
move has disappointed the people of Southern Cameroons, pushing them
from demanding the restoration of the federal constitution to complete
separation from Cameroon.
On 9 January 2003, Kevin Mgwanga Gunme and 13 others filed a complaint
before the ACHPR against the Republic of Cameroon giving rise to a
case already referred to in this article asSouthern Cameroons. They
alleged, among other violations, that for decades, the inhabitants of
Southern Cameroons were victims of the denial of the right of
self-determination. Two important points here are the relief that was
sought and the remedy that should have been given. The complainants
were not clear on the relief they sought. Among other things, they
asked the ACHPR "to reaffirm the inherent, unquestionable and
inalienable right of the people of the Southern Cameroons to
self-determination" (GUNME et al., 2004 apud ACHPR, Kevin Mgwanga
Gunme et al v. Cameroon, 2009, para. 11). The declaration issued on 3
April 1993 by elites of Southern Cameroons, the Buea Declaration,
elaborates the relief further. It was declared that "the only redress
adequate to right the wrongs done to Anglophone Cameroon and its
people since the imposition of the Unitary state is a return to the
original form of government of the Reunified Cameroon" (ACHPR, Kevin
Mgwanga Gunme et al v. Cameroon, 2009, para. 14). A declaration issued
a year later in May 1994, the Bamenda Proclamation, laments that the
constitutional proposals were not reacted upon. "Should the Government
either persists in its refusal to engage in meaningful constitutional
talks or fail to engage in such talks within a reasonable time," the
Proclamation hinted that there will follow a declaration of
independence of the "Anglophone territory of Southern Cameroon"
(ACHPR, Kevin Mgwanga Gunme et al v. Cameroon, 2009, para. 15). The
said declaration of independence was made on 30 December 1999. In
fact, there is a government in exile. It is, therefore, apparent that
endorsement of this declaration was impliedly sought as a relief.
For a case or communication to be considered by the ACHPR, there are
about seven admissibility requirements to be met but not all of them
are relevant to this article. According to article 56(2) of the
African Charter, Communications shall be considered by the ACHPR if
they are "compatible" with the Charter of the Organization of African
Unity or with the African Charter. The Charter of the Organization of
African Unity is now replaced by the Constitutive Act of the African
Union. The literal interpretation of this provision is that the
complained violation should be compatible with one but not necessarily
with both. This seems to be the position of the ACHPR because it
stated only the "condition relating to compatibility with the African
Charter" which the ACHPR found to have been met in Southern Cameroons
(ACHPR, Kevin Mgwanga Gunme et al v. Cameroon, 2009,para. 71-72).
However, it seems that compatibility has been interpreted in such a
manner that the main objectives and principles in the Constitutive Act
are taken as the limits within which the rights in the African Charter
shall be established. One of the main objectives of the African Union,
as stated in article 3(b) of the Constitutive Act, is to "defend the
sovereignty, territorial integrity and independence of its Member
States". One main principle stated in article 4(b) is "respect of
borders existing on achievement of independence". Indeed, in
affirmation of Katanga, in Southern Cameroons too, the ACHPR felt
"obliged to uphold the territorial integrity of the Respondent State.
As a consequence, the ACHPR cannot envisage, condone or encourage
secession, as a form of self-determination for the Southern Cameroons
that will jeopardise the territorial integrity of the Republic of
Cameroon" (ACHPR, Kevin Mgwanga Gunme et al v. Cameroon, 2009, para.
190). Very clearly, the ACHPR went to the extent of stating that the
"African Charter cannot be invoked by a complainant to threaten the
sovereignty and territorial integrity of a State party" (ACHPR,Kevin
Mgwanga Gunme et al v. Cameroon, 2009, para. 191).
For a case to be considered by the ACHPR, local (national) remedies
must have been exhausted, or their non-availability or ineffectiveness
convincingly argued. Another interesting point inSouthern Cameroons is
that the complainants submitted that "there are no local remedies to
exhaust in respect of the claim for self-determination because this is
a matter for international forum and not a domestic one" further
asserting that "the right of self-determination is a matter that
cannot be determined by a domestic court" (ACHPR, Kevin Mgwanga Gunme
et al v. Cameroon, 2009, para. 81). This claim is rather true. The
fundamental problems that societal heterogeneity posed for newly
emerging African states when they began their political existence have
not abated even more than forty years after the first African country
achieved independence from colonial rule (SELASSIE, 2003, p. 52). In
the face of this reality, the solution many African states adopted to
this problem is forced national unity. Fearing that official
recognition of diversity would foster divided loyalties and
separatism, virtually all African states have avoided coming to terms
with their heterogeneity and until the 1990s, it was highly uncommon
for any state to reflect its diversity in its constitution or laws
(SELASSIE, 2003, p. 53).
In fact, in Southern Cameroons, the respondent state agreed that "no
local remedies exist with respect to the claim for self-determination"
and it seemed to justify its position by arguing that the right of
self-determination for the people of Southern Cameroon was solved when
the latter, in the context of decolonization, used that right in favor
of becoming part of the present day Cameroon (ACHPR, Kevin Mgwanga
Gunme et al v. Cameroon, 2009, para. 82). There is some truth in this
position in the sense that external self-determination in the context
of former colonies is assumed to be a one-time choice and, once used,
it is irreversible at will. The case of Somaliland and Eritrea are
good examples. Because Somaliland voluntarily joined the other
Somaliland to form what is now Somalia, it is argued that the right is
irreversibly used (WELLER, 2008, p. 39-40). The case of Eritrea, a
former Italian colony, was denied much sympathy from international law
because in the 1950 Eritreans were considered to have chosen to be
part of Ethiopia – a fact contested by Eritreans.
Yet, the fact that external self-determination in the colonial context
is waived does not mean that there is no internal self-determination
or remedial secession. In this sense, the respondent state erred
gravely. As the ICCPR's Human Rights Committee noted, the scope of
self-determination is not restricted to colonized peoples but within
states continues to regulate the constitutional and political
processes (UNITED NATIONS, 1994, para. 296). The complainants', as
well as the main demand of the Anglophone part of Cameroon, has been
for internal self-determination. It was only when this demand for a
constitutional reform was not heeded that remedial secession was
demanded. Self-determination is a peoples' right and the ACHPR found
that "the people of Southern Cameroon can legitimately claim to be a
'people'" (ACHPR, Kevin Mgwanga Gunme et al v. Cameroon, 2009, para.
178).
Having found that Southern Cameroonians are "peoples", the ACHPR then
continued to address whether they are entitled to the right of
self-determination (ACHPR, Kevin Mgwanga Gunme et al v. Cameroon,
2009, para. 182). This was a wrongly framed question as the right is
explicitly provided in the African Charter. Rather, the ACHPR should
have asked whether internal or external self-determination is
justified. The ACHPR's failure to separate internal from external
self-determination (remedial secession) is fatal, and it explains the
ACHPR's confusion. The ACHPR seemed to deny remedial secession as part
of the right of self-determination when it held that the "African
Charter cannot be invoked by a complainant to threaten the sovereignty
and territorial integrity of a State party". However, Katanga
established that a high scale of perpetual human rights violations can
justify calling the territorial integrity of a state (ACHPR, Katangese
Peoples' Congress v Zaire, 1995, para. 6).
Again, the ACHPR set the cost of internal self-determination too high
by using the standard for external self-determination (secession). The
ACHPR resolved to investigate if the demand for constitutional reform
(towards a federal constitutional order) is within the right of
self-determination (ACHPR, Kevin Mgwanga Gunme et al v. Cameroon,
2009, para. 182). Rightly so, the ACHPR was convinced that the matter
merits its determination and it "accepted that autonomy within a
sovereign state, in the context of self-government, confederacy, or
federation, while preserving territorial integrity of a State party,
can be exercised under the Charter (ACHPR, Kevin Mgwanga Gunme et al
v. Cameroon, 2009, para. 184-191). The respondent state wrongly
asserted that internal self-determination "may be exercisable by the
Complainants on condition that they establish cases of massive
violations of human rights, or denial of participation in public
affairs" (ACHPR, Kevin Mgwanga Gunme et al v. Cameroon, 2009, para.
191). The ACHPR wrongly agreed with the position of the State "that in
order for such violations to constitute the basis for the exercise of
the right of self-determination under the African Charter, they must
meet the test set out in the Katanga case" (ACHPR, Kevin Mgwanga Gunme
et al v. Cameroon, 2009, para. 194). The standard in Katanga is that
there must be "concrete evidence of violations of human rights […]
coupled with the denial of the people, their right to participate in
the government" (ACHPR,Katangese Peoples' Congress v Zaire, 1995,
para. 6). "Going by the Katanga decision," the ACHPR thought that "the
right of self-determination cannot be exercised, in the absence of
proof of massive violation of human rights under the Charter" (ACHPR,
Kevin Mgwanga Gunme et al v. Cameroon, 2009, para. 194).
However, this standard is for calling into question the territorial
integrity of the state party. It is the standard that justifies
external self-determination (remedial secession), not a federal order
or any system of autonomy. The various autonomy systems must be
exercised without affecting territorial integrity but to say that
massive violations of human rights is the price of federalism or some
sort of autonomy deprives the right of self-determination any
meaningful content. The ACHPR would have been sound in concluding that
the scale of violation that justifies remedial secession is not
present in the respondent state. The ACHPR also turned internal
self-determination almost unavailable to peoples who are minorities in
a state by requiring that any form of internal self-determination
"must take into account the popular will of the entire population,
exercised through democratic means, such as by way of a referendum, or
other means of creating national consensus. Such forms of governance
cannot be imposed on a State Party or a people by the ACHPR" (ACHPR,
Kevin Mgwanga Gunme et al v. Cameroon, 2009, para. 199).
It is apparent that there are majorities and minorities in almost
every country. While the majorities, as in Cameroon, prefer a highly
centralized form of government, minorities prefer autonomy and
self-government. If the nature of government is left to a majoritarian
democracy, minorities will be denied the autonomy they want. The case
of Sri Lanka is a good example. It is for this reason that the
Complainants argued that there is no domestic remedy and the
respondent State agreed.
Given that the cost for internal self-determination is set too high,
in the end, the ACHPR "is not convinced that the Respondent State
violated Article 20 of the Charter". Even though, in giving
recommendations, the ACHPR tried to mitigate the error in not finding
a violation of the right of self-determination by asking the state to
"abolish all discriminatory practices against" the targeted people,
the recommendations remain weak. Rather than ordering restoration of
the federal constitutional order of 1961, which seems to satisfy the
demand for internal self-determination, the ACHPR recommended the
state enter "into constructive dialogue with the Complainants […] to
resolve the constitutional issues" (ACHPR, Kevin Mgwanga Gunme et al
v. Cameroon, 2009, para. 215). The ACHPR should have been more
specific and bolder with its recommendations.
3.3 Kosovo: jurisprudence corrected
The most serious consideration the right of self-determination has had
is in the recent Kosovo Advisory Opinion of the ICJ, given two years
later than Southern Cameroons. The reasoning of the ICJ clearly
demonstrates the limitations of the ACHPR.
The Kosovo Advisory Opinion arose because the General Assembly asked
the ICJ to decide if the unilateral declaration of independence by the
Provisional Institutions of Self-Government of Kosovo is in accordance
with international law (UNITED NATIONS, 2008). The ICJ pondered
"[w]hether, outside the context of non-self-governing territories and
peoples subject to alien subjugation, domination and exploitation, the
international law of self-determination confers upon part of the
population of an existing State a right to separate from that State"
(ICJ,Accordance with International Law of the Unilateral Declaration
of Independence in Respect of Kosovo,2010, para. 82). The majority
opinion dodged many pertinent questions. However three judges were
aware of the important task of norm-specification of international
judicial institutions. They held that "Many of the legal issues
involved in the present case require the guidance of the Court" and
thus they offered separate opinions (ICJ, Accordance with
International Law of the Unilateral Declaration of Independence in
Respect of Kosovo, Separate Opinion of Judge Sepúlveda-Amor, 2010,
para. 35).
3.3.1 On secession and territorial integrity
Surprisingly, against the fairly established jurisprudence, the Kosovo
majority opinion came with a disruptive stand. It held that "the scope
of the principle of territorial integrity is confined to the sphere of
relations between States" (ICJ, Accordance with International Law of
the Unilateral Declaration of Independence in Respect of Kosovo, 2010,
para. 81). Hence, "the Court considers that general international law
contains no applicable prohibition of declarations of independence" by
forces leading a province (ICJ, Accordance with International Law of
the Unilateral Declaration of Independence in Respect of Kosovo, 2010,
para. 84). Nevertheless, the seemingly disruptive ruling had support
from some scholarship. According to article 2(4) of the UN Charter,
"All members shall refrain in their international relations from the
threat or use of force against the territorial integrity [...] of any
state". Some scholars take article 2(4) as prohibiting "external
military attacks, but not necessarily against subversion by
Self-Determination" (SZASZ, 2000, p. 2). Article 2(4) does not imply
that a state's subjects are not bound to rebel. Indeed, in some of the
hearings of the Kosovo Advisory Opinion, some states argued that the
international legal norm of respecting the territorial integrity of
States does not apply to peoples. The position of the ICJ has placed
the ruling of the ACHPR in Southern Cameroons at the other extreme. In
fairness, however, the majority opinion in Kosovo is not without
criticism.
While taking the principle of territorial integrity as a matter of
inter-state relation appears true to the early development of the
principle among European states, in other parts of the world, and in
Africa in particular, where the principle has taken other factors of
legitimatization. Previously, the ICJ endorsed this line of argument
stating famously that "the maintenance of the territorial status quo
in Africa is often seen as the wisest course, to preserve what has
been achieved by peoples who have struggled for their independence,
and to avoid a disruption which would deprive the continent of the
gains achieved by much sacrifice" (ICJ, Burkina Faso v. Mali, 1986, p.
554). In Katanga the ACHPR hinted that only higher proportion
violations of human rights can bring territorial integrity of an
African state into question. In the absence of such level of
violations, Katanga, the province of Zaire that demanded endorsement
of its desire to secede by the ACHPR, "is obliged to exercise a
variant of self-determination that is compatible with the sovereignty
and territorial integrity of Zaire". Thus, the ACHPR felt "obligated
to uphold the sovereignty and territorial integrity of Zaire" (ACHPR,
Katangese Peoples' Congress v Zaire, 1995, para. 5-6).
Indeed, "international law has developed a powerful reverence for the
finality of national borders" (GEORGE, 2007, p. 188). Many scholars
"assume some support for regardingutipossidetis* as a norm of regional
customary law in Latin America and Africa, if not a general norm as
well, in the context of decolonization" (RATNER, 1996, para. 599).
Some tried to determine if self-determination or territorial integrity
is more powerful and "on whose side is International Law". Admitting
that such a decision is "a close call", they note, "that important
round appears to have gone to Territorial Integrity" (SZASZ, 2000, p.
3-4). Even though there have been a few situations where the
international community has ignored the utipossidetisprinciple, "the
preemption of the 'UtiPossidetis' principle by the international
community is definitely the exception rather than the norm" (SHAH,
2007, p. 35). However, the ICJ has refused to regard utipossidetis as
a peremptory norm (RATNER, 1996, p. 615). In addition,
utipossidetisdoes not bar post-independence changes in borders carried
out by agreement (RATNER, 1996, p. 600).
Therefore, the argument that territorial integrity is not a
conflicting norm to the exercise of the right of self-determination by
way of secession is not sound. To the contrary, the "people
(population) of a territory, incarnated after independence as the
State, has a right to territorial integrity. It holds this right,
post-independence, against the international community, and also
against its own citizens and component ethnic groups, who are
generally under a duty to respect it" (WHELAN, 1994, p. 114). In
addition, state practice is clearly in favor of territorial integrity
and self-determination is widely understood as meaning some sort of
autonomy within the boundaries of the state.
One of the separate opinions in Kosovo, though countered by a
dissenting opinion, is the most sound and most agreeable with the
majority of scholarship. In this separate opinion, and taking the
issue of self-determination in relation to territorial integrity,
Judge Yusuf observed that "the right of self-determination has neither
become a legal notion of mere historical interest nor has it exhausted
its role in international law following the end of colonialism".
However, he added that "international law disfavours the fragmentation
of existing States and seeks to protect their boundaries from foreign
aggression and intervention. It also promotes stability within the
borders of States". Thus, post-colonial self-determination "is a right
which is exercisable continuously, particularly within the framework
of a relationship between peoples and their own State". "In this
post-colonial conception," reasoned Judge Yusuf, "the right of
self-determination chiefly operates inside the boundaries of existing
States in various forms and guises [...] in which the population or
the ethnic group live, and thus constitute internal rights of
self-determination" (ICJ, Accordance with International Law of the
Unilateral Declaration of Independence in Respect of Kosovo, separate
opinion by Judge Yusuf, 2010, para. 7-9).
Judge Yusuf further noted that claims to external self-determination
by such ethnically or racially distinct groups pose a challenge to
international law as well as to their own State, and most often to the
wider community of States. To him, "there is no general positive right
under international law which entitles all ethnically or racially
distinct groups within existing States to claim separate statehood, as
opposed to the specific right of external self-determination which is
recognized by international law in favor of the peoples of
non-self-governing territories and peoples under alien subjugation,
domination and exploitation". "Thus," he continued, "a racially or
ethnically distinct group within a State, even if it qualifies as a
people for the purposes of self-determination, does not have the right
to unilateral secession simply because it wishes to create its own
separate State, though this might be the wish of the entire group".
The reason, according to Judge Yusuf, is that the "availability of
such a general right in international law would reduce to naught the
territorial sovereignty and integrity of States and would lead to
interminable conflicts and chaos in international relations" (ICJ,
Accordance with International Law of the Unilateral Declaration of
Independence in Respect of Kosovo, separate opinion by Judge Yusuf,
2010, para. 10).
However, in view of its growing emphasis on human rights and the
welfare of peoples within state borders, Judge Yusuf also noted that
international law "pays close attention to acts involving atrocities,
persecution, discrimination and crimes against humanity committed
inside a State". Judge Yusuf also recognizes that international law
does not turn a blind eye to the plight of such groups, particularly
in those cases where the State not only denies them the exercise of
their right of internal self-determination but also subjects them to
discrimination, persecution and egregious violations of human rights
or humanitarian law. "Under such exceptional circumstances," wrote
Judge Yusuf, "the right of peoples to self-determination may support a
claim to separate statehood provided it meets the conditions
prescribed by international law, in a specific situation, taking into
account the historical context" (ICJ, Accordance with International
Law of the Unilateral Declaration of Independence in Respect of
Kosovo, separate opinion by Judge Yusuf, 2010, para. 7, 11).
Judge Yusuf added that:
If a State fails to comport itself in accordance with the principle of
equal rights and self-determination of peoples, an exceptional
situation may arise whereby the ethnically or racially distinct group
denied internal self-determination may claim a right of external
self-determination or separation from the State which could
effectively put into question the State's territorial unity and
sovereignty.
(ICJ, Accordance with International Law of the Unilateral Declaration
of Independence in Respect of Kosovo, separate opinion by Judge Yusuf,
2010, para. 12).
He then offered helpful examples, which may legitimize a claim to
external self-determination:
Such as the existence of discrimination against a people, its
persecution due to its racial or ethnic characteristics, and the
denial of autonomous political structures and access to government
[...] Nevertheless, even where such exceptional circumstances exist,
it does not necessarily follow that the concerned people has an
automatic right to separate statehood. All possible remedies for the
realization of internal self-determination must be exhausted.
(ICJ, Accordance with International Law of the Unilateral Declaration
of Independence in Respect of Kosovo, separate opinion by Judge Yusuf,
2010, para. 16).
3.3.2 Majorities v. minorities on self-determination
As noted above, the people in a state are not homogeneous in their
aspirations. For this reason, no state can devise a system of
governance that satisfies every citizen or resident. This makes the
search for a formula that maximizes the level of satisfaction of a
state's population on a given policy relevant but such a formula has
not been simple.
The existence of groups of people with the same desires seems a
fortunate situation – smaller group of people can be permitted to be
governed based on their desires and preferences. This postulation,
however, assumes that one population group's desire is not a source of
disappointment to others – an assumption which would allow dividing
the population of a state into smaller population groups with similar
desires. However, this assumption is not always true. For example,
federalism pleases one segment of Sri Lankans and deeply disappoints
others. Union with Greece pleases Greek Cypriots and annoys Turkish
Cypriots. Religious fundamentalists of one state are not pleased when
same-sex marriage is permitted in the state next door, and those
wishing an end to capital punishment are not happy when the
neighboring state allows it.
In addition, for a state to allow groups to be governed in accordance
with their desire and will, for practical purposes the group should be
defined on more permanent bases and there should be many areas of
agreement such as regarding language, culture, livelihood and
geography. It is this communality with a higher level of permanency
that makes the argument of dividing the "peoples" to further smaller
"peoples" with common desires attractive. Ethnic minorities and
indigenous peoples, as defined below, satisfy the permanency of the
communality requirement. If the two requirements are not met, a state
cannot continue to form and reform smaller groups in order to maximize
the will of the people. In addition, endlessly dividing peoples to
smaller and smaller groups would eventually end into leaving
individuals live their life as they wish. In such a situation, group
affairs, as public governance is, becomes irrelevant. There is no need
for administration if every individual can live freely as he or she
desires.
There is little literature on the will of the people as the basis of
the authority of government – a concept set out in article 21 of the
Universal Declaration of Human Rights (UDHR). Works on the drafting
history of the UDHR do not tell anything about who the people are and
whether the people are divisible (MORSINK, 1999, p. 66). Even in the
most detailed attention to article 21 where the UDHR is treated
article by article, it evaded the mind of the participants that the
"people" needs a definition and more rules are needed to a regulate
situation of divided will. Thus, "there is a more immediate challenge
relating to article 21: how to ensure that the right of individuals,
groups and peoples to a minimum of 'internal' self-determination"
(ROSAS, 1999, p. 451).
Regarding mutually exclusive desires, a state has to have a formula by
which a certain desire overrides others. For a long time, this formula
has been majoritarian democracy. However, majoritarian democracy has
injustices, especially in situations when segments of a state's
population continuously find themselves losing to the majority. To
avoid the harshness of this formula, democracies protect minorities
through entrenched rights and the use of dispassionate judges. Of
course, this comes in the context of the majorities willfully putting
a limit to their might. "Although one may believe that majority rule
needs to be limited and constrained in various ways," some scholars
convincingly argue that in a creation ex nihilo (creating for the
first time),"these limits and constrains can ultimately have no other
normative foundation than a simple majority decision". Any legal
limitation on the will of the majority is a result of "a simple
majority deciding that a simple majority may not be the best way to
decide some issues" (ELSTER, 1994, p. 179-180).
Before the advent of IHRL, a constitution-making may have been
creation ex nihilo. At present, however, to some extent IHRL regulates
the constitutional order of states. This means that not everything is
at the mercy of the simple majority. It is not fair, nor does it serve
the purpose of international law, to tell complainants to go back home
and accept the result of a referendum. In this context, the ACHPR
should have been more specific and bolder with its recommendations.
It is helpful to recall that the Human Rights Committee of the ICCPR
has convincingly held that the right of self-determination has not
expired with the end of colonialism but within states continues to
regulate the constitutional and political processes (UNITED NATIONS,
1994, para. 296). A constitution-making or revision process is not a
one-time event relegated to history. Rather, "We live in an era of
constitution making. Of close to 200 national constitutions in
existence today, more than half have been written or re-written in the
last quarter century" (HART, 2003, p. 1). Indeed, there is an increase
in revision of constitutions. Especially as the Arab Spring has led to
the fall of many dictatorships and autocratic regimes, there is a
proliferation of demands for new constitutions.
In writing a new constitution or revising the old one, grievances of
minorities are likely to arise. For this reason, the role of IHRL in
framing or revising a constitution for a state is getting serious
attention. Recently, two scholars took the ICCPR as the principal
source of universal procedural norms that all states contemplating the
drafting or revision of their constitutions are well advised to
consider (FRANCK; THIRUVENGADAM, 2010, p. 3). A notable book on a
constitution-making or revising process notes a recent and growing
role of IHRL as a body of guiding principles for the process of
writing and content of a constitution (BRANDT et al., 2011, p. 62).
Indeed, throughout the twentieth century, IHRL has grown from a narrow
set of norms to governing detailed issues concerning the way in which
governments ought to be structured. Therefore, IHRL is now an embryo
of an emerging world constitution (EVANS, 2005, p. 1048).
The ruling of the ACHPR appears even weaker when examined in the light
of its previous ruling that "international human rights standards must
always prevail over contradictory national law," including a
constitution, because to "allow national law to have precedence over
the international law" "would defeat the purpose of" international law
(ACHPR, Media Rights Agenda, Constitutional Rights Project, Media
Rights Agenda and Constitutional Rights Project v. Nigeria, 1999,
para. 66). In this context, ergaomnes obligations, ratified (by the
state about to write or revise a constitution) or un-ratified treaties
of almost universal ratification, customary international law and
soft-laws have different levels of authority ranging from being
binding to merely persuasive.
So far, a constitution-making or revision process and the content of a
constitution have been explained by terminologies and concepts of
political science and constitutional law. However, these concepts and
terminologies are closely related to provisions of IHRL. For example,
the right of self-determination (as a component of IHRL) and
federalism (as a concept of government, thus the area of political
science and constitutional law) are related, but one must note that
the latter carries a binding legal element. For this reason, numeric
minorities are likely to use international law as a supreme law with
which the national constitution must comply and they are more likely
to petition treaty monitoring bodies for enforcement. Such cases,
complex as they are, should be welcomed as the alternative is that
minorities will rise with arms to realize their claim.
Even after identifying the "people/s", the content of the right of
self-determination needs fleshing out. There is no reason why
"peoples" who have the right of self-determination should not get the
protection accorded to ethnic minorities who are regarded as not
having a right to territorial autonomy. The rights of ethnic
minorities are the most proximate provisions to define the content of
internal self-determination within a state that must be respectful of
territorial integrity.
4 Conclusion
Many provisions of IHRL are indeterminate. However, legislation alone
does not make the law so specific that judges are unnecessary: the
specific part of the law is provided by those institutions authorized
to interpret or apply the law to facts. It must be for this reason
that international law explicitly recognizes judicial decisions and
the teachings of the most highly qualified publicists of the various
nations as subsidiary means for the determination of rules of law.
Judicial and quasi-judicial human rights treaty monitoring bodies have
contributed to the process of norm specification beyond human rights
treaties through general comments, resolutions and case law, perhaps
to the extent that it looks too much like law-making from the bench.
On the other hand, in many instances, these bodies have avoided
complex principles that desperately need elaboration or they have
disposed of them by inferior reasoning that further obscures the
principles. In fairness, these bodies suffer from a severe lack of
resources that has clearly affected the quality of their products.
On the right of self-determination, which so vital in Africa, the
ACHPR had two relevant cases. In the first one, Katanga, the ACHPR
offered less than one page of reasoning though, significantly, the
existence of remedial secession as part of the right of
self-determination is indirectly acknowledged. More than ten years
later, the ACHPR was confronted with Southern Cameroons.Unfortunately,
not only did the ACHPR fail to elaborate Katanga, but it also obscured
the important contribution of Katanga by failing to distinguish
internal from external rights of self-determination. Consequently, the
ACHPR set the standard for internal self-determination too high by
using the standard for secession. Furthermore, the ACHPR has made the
right of internal self-determination almost unavailable for "peoples"
(the main claimants) who could be numeric ethnic minorities. The ACHPR
did so by subjecting the nature of self-determination to majoritarian
democracy. As a result, the ACHPR gave soft recommendations that lack
specificity.
The ACHPR erred in holding that that the current political regime
(unitary state) and constitution of Cameroon do not violate the right
to self-determination of the people of Southern Cameroons. Facts
before the ACHPR show that the English-speaking Cameroon opted to be
part of the French-speaking Cameroon with great hesitation and on the
condition that when the two became one state, the form of government
would be federal. Shortly after, the federal constitution was
dismantled without the consent of the people in Southern Cameroons.
The move from a federal to a unitary form of government entails a
violation of the right to self-determination of Southern Cameroons.
This is exactly the case between Eritrea and Ethiopia – a case on
which the complainants relied in part. In 1952, the UN federated
Eritrea and Ethiopia, giving the first broad autonomy. In less than
ten years, Ethiopia abrogated and replaced the federal constitution
with a unitary one. Eritreans were outraged. The Permanent Peoples'
Tribunal found this to be a violation of the right of
self-determination of Eritreans. Eventually, a lengthy (30 years) war
brought settlement to the case, as a victorious Eritrea went beyond
internal self-determination to "secession".
The ACHPR would have been right in inviting Cameroon, the respondent
state, to return to the federal constitutional order of 1961 under
which the complainants and the people they represent had meaningful
levels of internal self-determination. By failing to do so, the ACHPR
may as well have contributed to the belief that the right of
self-determination is realized not in a court of reason or diplomatic
quarters but when claimants go to the bush and amass power.
REFERENCES
Bibliography and other Sources
AFRICAN UNION. 1981. African Charter on Human and Peoples' Rights.
______. 2007. African Charter on Democracy, Elections and Governance.
ANGHIE, A. 1993. "The Heart of My Home": Colonialism, Environmental
Damage, and the Nauru Case. Harvard International Law Journal, v. 34,
p. 445-506.
BRANDT, M. et al. 2011. Constitution-making and Reform: Options for
the Process. Geneva: Interpeace.
BUCHANAN, A. 2003. Justice, Legitimacy, and Self-Determination.
Oxford: Oxford University Press.
CAROZZA, P.G. 2003. Subsidiarity as a Structural Principle of
International Human Rights Law. American Journal of International Law,
v. 97, p. 38-79.
CASSESE, A. 1996. Self-Determination of Peoples: A Legal Reappraisal.
Cambridg: Cambridge University Press.
CASTELLINO, J. 2000. International Law and Self-determination. Boston,
MA: Martinus Nijhoff.
CORNELL, S. E. 2002. Autonomy as a Source of Conflict: Caucasian
Conflicts in Theoretical Perspective. World Politics, v. 54, n. 2, p.
245-276.
CRAWFORD, J. 1994. Democracy in International Law. Cambridge:
Cambridge University Press.
EBAI, S.E. 2009. The Right to Self-determination and the Anglophone
Cameroon Situation. International Journal of Human Rights, v. 13, p.
631-653.
ELSTER, J. 1994. Majority Rule and Individual Rights. In: SHUTE, S.;
HURLEY, S.L. 1994. On Human Rights. New York, NY: Basic Books.
EVANS, T. 2005. International Human Rights Law as Power/Knowledge.
Human Rights Quarterly, v. 27, n. 3, p. 1046-1068.
FRANCK, T.M.; THIRUVENGADAM, A.K. 2010. Norms of International Law
Relating to the Constitution-Making Process. In: MILLER, L.E.; AUCION,
L. (Org.). 2010. Framing the State in Times of Transition: Case
Studies in Constitution Making. Washington, D.C.: United States
Institute of Peace.
FOX, G.H. 1995. Book Review: Self-Determination in the Post-Cold War
Era: A New Internal Focus? Michigan Journal of International Law, v.
16, p. 733-781.
INTER-PARLIAMENTARY COUNCIL. 1997. Universal Declaration on Democracy.
GEORGE, A. 2007. We Had to Destroy the Country to Save It: On the Use
of Partition to Restore Public Order During Occupation. Virginia
Journal of International Law, v. 48, p. 187-210.
GRANT, T.D. 1999. Extending Decolonization: How the United Nations
Might Have Addressed Kosovo. Georgia Journal of International and
Comparative Law, v. 28, p. 9-53.
HART, V. 2003. Democratic Constitution Making. United States Institute
of Peace Special Report, v. 107, p. 1-12.
HEYNS, C. 2004. The African Regional Human Rights System: The African
Charter. Penn State Law Review, v. 108, p. 679-702.
JENNINGS, I. 1956. The Approach to Self-Government. Boston: Beacon Press.
KLABBERS, J. 2006. The Right to be Taken Seriously: Self-Determination
in International Law. Human Rights Quarterly, v. 28, p. 186-206.
KONINGS, P. 2005. The Anglophone Cameroon-Nigeria Boundary:
Opportunities and Conflicts. African Affairs, v. 104, n. 415, p.
275-301.
KONINGS, P.; NYAMNJOH, F.B. 1997. The Anglophone Problem in Cameroon.
Journal of Modern African Studies, v. 35, p. 207-229.
______. 2003. Negotiating an Anglophone Identity: A Study of the
Politic of Recognition and Representation in Cameroon. Boston: Brill.
MCPHEETERS, A.A. 1960. British Cameroons Development Program and
Self-Determination. Phylon, v. 21, n. 4, p. 367-375.
MORSINK, J. 1999. The Universal Declaration of Human Rights: Origins,
Drafting, and Intents. Philadelphia: University of Pennsylvania Press.
ORGANIZATION OF AMERICAN STATES. 2001. Inter-American Democratic Charter.
OSCE HIGH COMMISSIONER ON NATIONAL MINORITIES. 1999. The Lund
Recommendations on the Effective Participation of National Minorities
in Public Life & Explanatory Note.The Hague.
RATNER, S.R. 1996. Drawing a Better Line: Uti Possidetis and the
Borders of New States. American Journal of International Law, v. 90,
n. 4, p. 590-624.
RICHARDSON, N. 2009. Breaking Up Doesn't Have to be So Hard: Default
Rules for Partition and Secession. Chicago Journal of International
Law, v. 9, p. 685-717.
ROAPE. 1982. Eritrea and the Right to Self-determination. Review of
African Political Economy, v. 25, p. 39-52.
ROSAS, A. 1999. Article 21. In: ALFREDSSON, A.; EDIE, A. (Org.). 1999.
The Universal Declaration of Human Rights: A Common Standard of
Achievement. The Hague: Martinus Nijhoff.
SELASSIE, A.G. 2003. Ethnic Federalism: Its Promise and Pitfalls for
Africa. Yale Journal of International Law, v. 28, p. 51-107.
SHAH, S. 2007. An In-Depth Analysis of the Evolution of
Self-Determination under International Law and the Ensuing Impact on
the Kashmiri Freedom Struggle, Past and Present. Northern Kentucky Law
Review, v. 34, p. 29-50.
STARK, F.M. 1976. Federalism in Cameroon: The Shadow and the Reality.
Canadian Journal of African Studies, v. 10, n. 3, p. 423-442.
SZASZ, P.C. 2000. The Irresistible Force of Self-Determination Meets
the Impregnable Fortress of Territorial Integrity: A Cautionary Fairy
Tale about Clashes in Kosovo and Elsewhere. Georgia Journal of
International and Comparative Law, v. 28, p. 1-8.
THORNBERRY, P. 1993. International Law and the Rights of Minorities.
Oxford: Clarendon Press.
TILLY, C. 1993. National Self-Determination as a Problem for All of
Us. Daedalus, v. 122, n. 3, p. 29-36.
UNITED NATIONS. 1960. General Assembly. Declaration on the Granting of
Independence to Colonial Countries and Peoples, UN Doc.,
A/RES/1514(XV), 14 Dec.
______. 1966a. General Assembly. International Covenant on Economic,
Social and Cultural Rights, U.N. Doc. A/6316, 3 Jan.
______. 1966b. General Assembly. International Covenant on Civil and
Political Rights, U.N. Doc. A/6316, 23 Mar.
______. 1970. General Assembly. Declaration on Principles of
International Law Concerning Friendly Relations and Co-operation among
States in accordance with the Charter of the United Nations, U.N. Doc.
A/RES/2625(XXV), 24 Oct.
______. 1994. Human Rights Committee. Concluding Observation on
Azerbaijan, UN Doc.A/49/40, 3 Aug.
______. 2004. Committee on the Elimination of Racial Discrimination.
General Recommendations XXI, UN Doc., HRI/GEN/1/Rev.7, 12 May.
______. 2007. General Assembly. Declaration on the Rights of
Indigenous Peoples, UN Doc., A/RES/47/1, 7 Sept.
______. 2008. General Assembly. Request for an advisory opinion of the
International Court of Justice on whether the unilateral declaration
of Kosovo is in accordance with international law, UN Doc.,
A/RES/63/3, 8 Oct.
WELDEHAIMANOT, S. 2010. Towards Speedy Trials: Reforming the Practice
of Adjudicating Cases in the African Human Rights System. University
for Peace Law Review, v. 1, n. 14, p. 14-38.
WELLER, W. 2008. Escaping the Self-determination Trap. Boston:
Martinus Nijhoff.
______. 2009. Settling Self-Determination Conflicts: Recent
Developments, European Journal of International Law, v. 20, n. 1, p.
111-165.
WHELAN, A. 1994. Wilsonian Self-Determination and the Versailles
Settlement. International & Comparative Law Quarterly, v. 43, p.
99-115.

Jurisprudence
AFRICAN COMMISSION ON HUMAN AND PEOPLE'S RIGHTS (ACHPR). 1995.
Communication 75/92, Katangese Peoples' Congress v Zaire, African
Commission 8th Annual Activity Report.
______. 1999. Communications 105/93, 128/94, 130/94 and 152/96, Media
Rights Agenda, Constitutional Rights Project, Media Rights Agenda and
Constitutional Rights Project v. Nigeria, African Commission 12th
Activity Report 1998-1999, 12-14 July.
______. 2009. Communication 266/2003, Kevin Mgwanga Gunme et al v.
Cameroon, finalized in the 45th Ordinary Session of the ACHPR held in
Banjul, The Gambia, 13-27 May 2009.
CANADA. 1998.Reference re Secession of Quebec, [1998] 2 S.C.R. 217.
The Supreme Court of Canada, Aug. 20.
INTERNATIONAL COURT OF JUSTICE (ICJ). 1986.Frontier Dispute (Burkina
Faso v. Mali), 1986 I.C.J. 554 (22 Dec.) 25.
______. 2010. Advisory Opinion. Accordance with International Law of
the Unilateral Declaration of Independence in Respect of Kosovo.
NOTES
* Uti possidetis, "as you possess" in Latin, is a principle in
international law that territory and other property remains with its
possessor. The principle was used to require that former colonies
develop into states following colonial boundaries.



On 5/6/13, Ambasbay SC <ambasmediasc@gmail.com> wrote:
> http://www.isn.ethz.ch/isn/Digital-Library/Publications/Detail/?lng=en&id=156745
>
> https://www.facebook.com/pages/Organising-for-Southern-Cameroons/137650796301730
>

--
You received this message because you are subscribed to the Google Groups "ambasbay" group.
To unsubscribe from this group and stop receiving emails from it, send an email to ambasbay+unsubscribe@googlegroups.com.
For more options, visit https://groups.google.com/groups/opt_out.