STATEHOOD, TERRITORY, RECOGNITION

AND INTERNATIONAL LAW

A study of their interactions and interrelations
With an overview of the Practice of African States
E.Y. BENNEH

PRELIMINARY CONSIDERATIONS

Statehood, territory and recognition are inter-related topics in international law.

Apart from the obvious fact that territory is one of the pre-requisites for statehood, it is
recognition (at least in terms of the constitutive doctrine of international law) that a State
becomes an international person and a subject of international law. At the present time,
the interaction between these topics and other relevant legal principles gives rise to
complex and difficult questions in international law. For example, what is the relation
between statehood and the principle of self-determination. In other words, does the
principle of self-determination provide the basis for legitimising state constitution? What
of the relation between statehood and human rights/democracy? Still, how can the
principle of self-determination reach over the sensitive issue of uti possidetis?
For African international lawyers, these questions must be investigated so as to
respond to the complex of issues presented to the world by the situation in Rwanda,
Burundi, Liberia, Somalia and Zaire which is perceived as being primarily the decay of
the nation State in Africa, and a challenge for reworking new social and political
institutions for meeting the challenges of the twenty-first century.
Reflecting on this view point, Ezetah Chinedu - one of the contributors to this discussion
- has observed : „For a critical holistic investigation of the crisis of the State in Africa, a
concept which is not decidedly blinded to the historical, sociological and cultural
connections or disconnections between the State and its people is pertinent‟.1
The same contributor takes a very critical view of perspectives that examine the
condition of the post-colonial State in Africa mainly through the European and American
experience, (an „institutional lens‟ as he labels it), and emphasises that: „A post-
institutional concept should be one that reconnects the incidence of State collapse to the
original nature of the post-colonial State in Africa based on the comparative analysis with
European States experience‟.2 There is of course, much to be learned from this
perspective rather than „institutionalise‟ the problem of the post-colonial State in Africa
(and thereby withholding it from a deeper analysis of the historico-sociological
foundations of the State).3
At the level of political discourse, one can also discern in the writings of contributors
to this discussion on the phenomenon of „State-collapse‟ in Africa, a suggestion for
African States to abandon the principle of the sanctity of existing State boundaries and
strive towards achieving „continental union government‟. „This, notes Amegatcher, „is

Lecturer, Faculty of Law, University of Ghana.
1
Ezetah Chinedu, „Of Failed States, The Scholastic Void‟, p.12 - 13. Unpublished Article. Copy on
writer‟s file.
2
Ibid., p. 13.
3
See Amegatcher, Statehood in Africa - A Historical Perspective. Unpublished Article. Copy on writer‟s
file.
the raison d’etre of pan-Africanism.4 But this solution has weakened since much of
Africa achieved independent Statehood and is unlikely to be adopted in view of the
probable future course of African politics, and in any case, it would take a long time to
achieve even if it were feasible.
This study confines itself to the pursuit of the main theme, viz; the issue of Statehood
in Africa, in order to discover whether there is an African State practice on the issue and
if there is none to suggest a position that African States might wish to take on the subject.
Because of the close relationship between Statehood, territory and recognition, it is
virtually impossible to leave out the other two subjects when examining the problem of
Statehood. Questions that arise in delienating Statehood are for example: “What
conditions are exacted by international law from the concept of a State?” “Does a State
lose its personality if it temporarily loses one of the attributes of Statehood, or has never
had one?” Does a State lose its personality as a result of anarchy or civil war which
makes it impossible for a government to function? In the second part on „Territory‟,
questions that arise include: The relation between territorial integrity of States and self-
determination. What is the general meaning of the Uti possidetis? “ Is there an African
interpretation of this rule?” If so, has that changed in the light of recent practice e.g. the
admission of Eritrea into the Organization of African Unity (OAU)? Then, in the third
part, the question of „Recognition‟ will be presented.
Questions that abound include: What is the African States policy on recognition of
States generally? Does the OAU‟s recognition of the Sahara Arab Democratic Republic
indicate an African State practice of recognising de jure States as a rule or is it an
exception?

STATEHOOD
Few propositions enjoy overwhelming support than that international law is based on
the concept of the State. But the State as such is not defined by that law. What
international law does provide are certain attributes or criteria of Statehood. The now
famous Article 1 of the 1993 Montevideo Convention on the Rights and Duties of States
contains these attributes:
The State as a person of international law should possess the following
qualifications:
(a) a permanent population
(b) a defined territory
(c) government
(d) capacity to enter into relations with other States.5
The crucial distinguishing feature of these criteria is that of effectiveness. Problems
however arise in the context of recent State practice and it would be suggested that the
concept of Statehood is more complex than that suggested by the Montevideo
Convention. All the same any enquiry into statehood must begin with an examination of
the traditional criteria.

4
Ibid. p. 5
1. THE DIRECTION OF THE TRADITIONAL ENQUIRY
The traditional enquiry leads one to turn to the principle of effectiveness to
characterise statehood. Why this should be the approach probably has to do with the
absence of a generally accepted legal definition of a State. It may also be, as observed by
Professor Crawford, that the question of statehood normally arises only in the borderline
cases, where a new entity has emerged bearing some but not all of the characteristics of
undoubted States.'6 Yet the traditional criteria have continuing significance and their
examination for the purposes of defining a State in international law cannot be avoided.

(a) Permanent Population

The requirement of a permanent population for statehood is not controversial as a
general proposition. So also the size of population appears unimportant. As a matter of
principle, the small size of a territory's population is itself not a bar to statehood. The
United Kingdom Government appeared to argue this point in its conflict with Argentina
over the Falklands/Malvinas Islands in 1982.7 A crucial element may well turn on the
recognition of an entity as a self-determination unit rather than on size.

(b) Defined Territory

There is no doubt that territory is an important requirement for statehood. That
requirement is traditionally defined in terms of a territorial base upon which
governmental powers may be exercised. This does not include precise delimitation of the
boundaries of the territory, nor is size a crucial element in the definition.
Despite this emphasis on a territorial base, some entities have been admitted to
Statehood even though they did not have a certain territorial base. This was the case of
the „State of Palestine‟ declared as a valid State by the Conference in Algeria in
November 1988, and recognised as such by several African States. On the other hand,
the establishment of a `new State' in certain territory, as we shall see presently, may not
be decisive. These considerations appear to lead Professor Crawford to characterise the
requirement of territory as `rather a constituent of government and independence than a
separate criterion of its own'.8

(c) Government
Government is the legitimate authority within the State recognisable under
international law. As such, this requirement must be important for defining statehood.
The essence of government is effective control and actual exercise of authority over a
given territory. In the words of Akehurst, „A State cannot exist for long, or at least,
cannot come into existence, unless it has a government‟.9 The proposition may be
extended even to require governmental or public authority strong enough to assert itself
throughout a territory without assistance of foreign troops.
That, of course, does not suggest that the criterion of „effective' government has been
6
Crawford, The Creation of States in International Law (1979) p.31.
7
See Statement by the British Prime Minister, HC Deb., Col. 946, 13 May 1992.
8
Crawford, op.cit., p.40.
9
Ake hurst, A Modern Introduction to International Law. (1988) 6th Ed. P. 56.
unaffected by modern rules of international law. The central point of this modern
development is that of the principle of self-determination. Cases presenting this issue
have arisen in decolonisation situations where the doubts over the extent of control of
territory did not prevent statehood. The Congo episode affords an instance where the
complete breakdown of governmental authority at independence (from the Belgian
colonial power) on 30 June 1960, did not prevent that putative State from being regarded
as a State.10 The case of the former Portuguese colony of Guinea-Bissau appears to lend
further support to the proposition.11 On 24 September 1973, the PAIGC proclaimed the
Republic of Guinea-Bissau as an independent State. Thereafter, the General Assembly of
the United Nations through its Resolution 3061 (XXVIII) affirmed the validity of the
independence of the new state in international law. It did so by mentioning the recent
accession to independence of the people of Guinea-Bissau'. Another instance is the
Sahara Arab Democratic Republic which has been admitted to membership of the OAU
but has never had a permanent government. On the other hand, as in the case of
Rhodesia, the principle of self-determination will operate to prevent an effective
territorial unit, the governmental control of which was in violation of that principle, from
becoming a State.
It is crucial, however, to note two qualifications of the requirement of government in
the context of recent African and international practice. First the requirement does not
appear to apply as a qualification for statehood in a secessionary situation where the
principle of self-determination is inoperative anyway. Biafra is a case in point12. The
position of Eritrea before independence in 1993 is rendered somewhat difficult because
of the absence of any definite determination that Eritrea was a self-determination unit.13
Indeed, the Organisation of African Unity (OAU) did not treat it as such. Secondly, the
requirement has relevance only in cases of the creation of new States. Therefore, the
absence of effective government or collapse of political structure in an existing State will
not affect statehood. Rwanda, Burundi, Zaire, Liberia and Somalia are cases in point,
Where for purposes of United Nations admission, Statehood has been acknowledged. 14

(d) Capacity to enter into relations with other States

The capacity of a State to enter into relations with other States is an important
expression of that State's sovereignty. That capacity also signifies independence. But
recent practice shows that the denial of statehood in some situations cannot be explained
solely in terms of this requirement of capacity to enter into relations with other states or
that of the independence criterion; rather the crucial element appears to be the illegality
affecting their creation. This was so with the Bantustans (Transkei, Venda,

10
See Crawford, op. cit;
11
See Year book of the UN, 1973, pp.143-147.
12
See Crawford, pp. 265-266.
13
See, however, Eyassu Gayin, The Eritrean Question: The Conflict Between the Right of Self-
Determination and the Interests of States (1993).
14
See Higgins, Problems and Progress: International Law and How we use it, (1995) p. 40; op. Cit, pp. 7-8
Bophutaswana, etc) created by South Africa in the 1980s 15. The „independence' of these
territories was declared invalid, both by the Organisation of African Unity and the United
Nations which called upon all States not to recognise the new entities.

2. THE DIRECTION OF THE MODERN ENQUIRY

It has already been suggested that the concept of statehood is more complex than that
suggested by the principle of effectiveness. That must be the case since in certain
situations statehood has been based on criteria other than effectiveness. As an example,
Rhodesia, which appeared to satisfy the factual requirements of Statehood, was
nonetheless not recognised as a State by the international community. On the other hand,
are entities which have been regarded as States even though they did not appear to satisfy
fully the criteria for Statehood based on effectiveness. Guinea-Bissau before Portuguese
recognition appears a case in point. It may, therefore, be, as expressed by Professor
Crawford, that in cases in which the metropolitan state forcibly denies self-determination'
and where a liberation movement is supported by the population and controls substantial
territory', if the Guinea-Bissau precedent is regarded as determinative, the situation would
appear to be that the principle of self-determination operates as it were to transfer legal
sovereignty to the self-determination unit, legitimising recognition of it by other States'16.
If this be so, then Statehood must be re-examined in the light of modern practice.

Statehood and Self-Determination

A particular result yielded by modern developments in international law is that of the
principle of self-determination.17 The principle has been accepted as a legal right at least
in decolonisation situations. In this light, the formulation used in the Declaration of
Principles annexed to General Assembly Resolution 2625 (xiv) of 24 October 1970 - that
all peoples have the right freely to determine their political status and freely pursue their
economic, social and cultural development - is more than empty rhetoric. It is a principle
that assures that the `territory of a colony or other non-self-governing territory has, under
the Charter, a status separate and distinct from the State administering it; and that such a
status shall exist until the people of the colony or non-self-governing-territory have
exercised their right of self-determination in accordance with the Charter, Consequently,
as the Declaration further states: `Every State shall refrain from any action aimed at the
partial or total disruption of the national unity or territorial integrity of any other State or
country'.
This important principle has also been given judicial imprimatur by the International
Court of Justice in the Namibia Opinion 18 and the Western Sahara Case 19. As Judge

15
See Crawford, pp.222-7
16
Ibid., pp.261-2.
17
See Cassese, Self-Determination of Peoples: A legal Reappraisal, (1995). That author notes that the
principle has „had an enormous influence on the content of some fundamental norms and, more generally,
on the out look of States towards the present community; See p. 165

18
I.C.J. Reports (1971) p.6, 31.
Dillard put it, in the latter case:

The pronouncements of the Court thus indicate, .... that a norm of international law has
emerged applicable to the decolonisation of those non-self-governing territories which are
under the aegis of the United Nations. It should be added that the force of these
pronouncements is in no way diminished by virtue of the theoretically non-binding
character of an advisory opinion.20

Judge Dillard referred also to:

the cardinal restraint which the legal right of self-determination imposes. That restraint
may be captured in a single sentence. It is for the people to determine the destiny of the
territory and not the territory the destiny of the people. 21

So important is the legal right of self-determination in the law of decolonisation that

a significant body of authority even considers it as a separate criterion of statehood,
although in a limited sense: „that where a particular territory is a self-determination unit
as defined, no government will be recognised which comes into existence and seeks to
control the territory as a State in violation of self-determination'.22 Elsewhere, Crawford
writes: „The principle of self-determination does not qualify the operation of the principle
of effectiveness, but operates as a distinct and overriding criterion, suspending Statehood
until the constitutional and governmental structure is consistent with the principle of self-
determination‟.23
The most interesting application of this possible and overriding criterion was the
Rhodesia case where despite the effectiveness of the government in Southern Rhodesia,
statehood was denied by both the General Assembly and the Security Council of the
United Nations because the Unilateral Declaration of Independence (UDI) by an „illegal
racist minority' was deemed inconsistent with the principle of self-determination.24 In
truth, Southern Rhodesia was a territory the administration of which the United Kingdom
was responsible. Significantly, too, various Security Council resolutions, for example,
that of Resolution 232 of 16 December 1966 reaffirmed the inalienable rights of the
people of Southern Rhodesia to freedom and independence' and recognised `the
legitimacy of their struggle to secure the enjoyment of their rights as set-forth in the
Charter of the United Nations'.
In considering the Rhodesia case in the present context, it is interesting to note the
view expressed by Professor Fawcett some thirty years ago:

to the traditional criteria for the recognition of a regime as a new State must now be added the

19
I.C.J. Report (1975) p.12.
20
Ibid., p.122.
21
Ibid.
22
Crawford, p.105. See, also Shaw, International Law 3rd Ed. pp.177-8.
23
Crawford, p. 263
24
Ibid., pp. 103-106.
 requirement that it shall not be based upon a systematic denial in its territory of certain civil and
political rights, including in particular the right of every citizen to participate in the government
of his country, directly or through representatives elected by regular, equal and secret suffrage.
This principle was affirmed in the case of Rhodesia by the virtually unanimous condemnation of
the unilateral declaration of independence by the world community, and by the universal
withholding of recognition of the new regime which was a consequence.
It would follow then that the illegality of the rebellion was not an obstacle to the
establishment of Rhodesia as an independent State, but that the political basis and objectives of
the regime were, and that the declaration of independence was without international effect. 25

Clearly, Fawcett‟s view is largely supportive of the position taken by the UN and
OAU that self-determination has a role within the context of the creation of Statehood.
As such, member - States of both organisations were obliged not to recognise Southern
Rhodesia as an independent State. However, to equate, as Fawcett does, self-
determination with democratic governance and transform that into a criterion of
Statehood is always likely to be a source of great controversy, especially beyond the
colonial context. Indeed some African scholars have challenged the equation of
democratic governance with exercise of self-determination. As suggested by Makau:
„The transplantation of the narrow formulation of Western Liberalism cannot adequately
respond to historical reality and the political needs of Africa. 26 In truth, African States
themselves have not adopted that equation and Statehood, for purposes of UN and OAU
admissions, has been attributed even where there was the absence of liberal democratic
rule of law or governance. The post - Cold War situation might yet affect the practice of
African States. Elsewhere, it already has through the conditions for diplomatic
recognition the European Union imposed on the former republics of Yugoslavia and the
Soviet Union.27
Even for self-determination as a distinct criterion of statehood a critical question
appears to be is the extent of the application of the right to self-determination.28 Is the
right applicable for instance, in a non-colonial context? To what self-determination units?
While a strong position has been taken by nearly all States against the denial of self-
determination to dependent peoples and colonial territories, some uncertainty remains as
to the application of the right in a non-colonial context, where national unity, political
independence and territorial integrity of existing States are concerned. The cases of
Biafra and Katanga, where independent Statehood was not acknowledged can be
explained along these lines. So also the Kurds (in Iran, Iraq, Turkey), the Somalis (in
Kenya, Ethiopia), the Nagas (in India), the Abkhazians (in Georgia), Russians
(in Latvia) and the Chechens (in Russia). Arguably, the right to self-determination was
extended to the Palestinians, the inhabitants of South West Africa (Namibia) and South
Africa - all non-colonial situations -but this is inconclusive of the practice asserted.
Against this background the Ethiopian Constitution of 1994 is significant for the future

25
Fawcett, 41 B.Y.l.L (1965-1966) pp.112-113.
26
„Conflicting Conceptions of Human Rights: Rethinking the Post Colonial State; American Society
of International Law, Proceedings, (1995) p. 487. See also Ezeta Chinedu, op. Cit; p.9
27
See infra.
28
See Casesse, op. Cit.
practice of African States. Its significance is all the more hightened since it has at least
arguably raised the possibility of the application of the right to self-determination through
secession. This is so because that Constitution permits the autonomous units the „right of
free secession' from the Ethiopian State. By virtue of Article 39 of the Constitution:
„Every nation, nationality and people in Ethiopia has an unconditional right to self-
determination, including the right to secession.‟
This was probably also the case with the former USSR Constitution for by Article 72
of that Constitution, the Soviet republics had „the right of free secession'. The USSR Law
on Procedure for Deciding Secession of a Union Republic of 3 April 1990, buttressed
Article 72 of the Constitution by providing in Article 2: „A decision on the secession of a
Union republic from the USSR shall be adopted by a free manifestation of the will of the
peoples of the Union Republic by means of a referendum‟
It may also be that self-determination might yet be invoked by some State or States
in a non-colonial context to support intervention on behalf of an insurgency against an
existing State; but it would be difficult to sustain statehood in such circumstances where a
right to self-determination has not been internationally acknowledged.

Statehood and Illegality

The issue of illegality affecting the creation of a new State may now be examined.
The question is whether Statehood will be acknowledged where a claimant-state is tainted
with illegality. Practice here is somewhat inconsistent. This is exemplified, for instance,
by the Rhodesia case where UDI was condemned as an `illegality' and the Security
Council through its Resolution 216 of 12 November, 1965 (1965) called upon all States
`not to recognise this illegal racist-minority regime in Southern Rhodesia and to refrain
from rendering any assistance to this illegal regime'. Security Council Resolution 217
(1965) of 20 November 1965 specifically stated that the UDI had `no legal validity and
referred to the Smith government as an „illegal authority'.
Another instance afforded by practice is the refusal of African States to recognise
the Transkei a self-governing „Bantustan‟ whose purported independence from South
Africa was founded on the Status of the Transkei Act, 1976. This purported grant of
independence as well as the Bantustan policy were condemned by the General Assembly
through its Resolution 31/6A of 27 October 1976. That resolution also rejected the
independence' of the Transkei as „invalid'.
But African States practice may not be altogether consistent. Thus, for instance, a
number of African States have continued to recognise the Republic of China (Taiwan) in
spite of U.N. resolutions recognising the Peoples‟ Republic of China as the sole Chinese
State.
The issue of illegality affecting Statehood may also be examined through the non-use
of force principle. There seems overwhelming support for the view that modern
international law outlaws the use or threat of use of force. This is by virtue of Article 2,
paragraph 4, of the Charter of the United Nations. Some opinion even suggests that the
prohibition is jus cogens 29. It follows then that, use of force designed to acquire territory
is clearly illegal. For this reason, the Security Council in its Resolution 242 (1967) of 22

29
See Judge Sette-Camara (Separate Opinion), Case Concerning Military and Paramilitary Activities in
and against Nicaragua, I.C.J. Reports (1986), p.14 199.
November 1967 on the Israeli occupation of Arab territories, emphasised „the
inadmissibility of the acquisition of territory by war' and the undertaking of all Member
States of the United Nations „to act in accordance with Article 2 of the Charter'. Security
Council Resolution 252 (1968) reaffirmed the „illegality' and stated that it considered all
legislative and administrative measures taken by Israel which tended `to change the legal
status of Jerusalem' to be invalid and ineffective to make any such alteration. States have
affirmed their adherence to this fundamental principle of international law through other
instruments. Thus, the 1970 Declaration of Principles of the United Nations General
Assembly categorically provides:

The territory of a State shall not be the object of military occupation resulting from the use of
force in contravention of the provisions of the Charter. The territory of a State shall not be the
object of acquisition by another State resulting from the threat or use of force. No territorial
acquisition resulting from the threat or use of force shall be recognised as legal ...

Not surprisingly, the Security Council in its Resolution 662 of 9 August 1990
declared as „null and void' the Iraqi occupation and purported annexation of Kuwait
during the Gulf conflict. The Council also called upon all States not to recognise the
annexation and to refrain from any action or dealing that might be interpreted as an
indirect recognition of the annexation.
It must of course, be noted that a more controversial question relating to use of force
is presented by actions and claims that seek to justify a State's right to use force to eject a
State in unlawful possession of territory. Indeed, in a number of situations the argument
has been made that use of force directed against a State in unlawful possession of
territory is lawful. That argument was made by India to justify its invasion of Goa in
1961. India claimed further that the territory had been under the „illegal domination of
Portugal for 450 years and consequently that its liberation was legal'. It is interesting that
similar claims have been made in the context of the Israeli occupation of Arab territories,
the occupation of Namibia by South Africa and the invasion of the Falkland
Islands/Malvinas by Argentina. But Iraq's claim to Kuwait as „lost' Iraqi territory was not
accepted by the United Nations Security Council as a legal justification for its invasion in
August 1990. Whatever else, it is not easy to dismiss the argument for the 1970
Declaration of Principles provides that the prohibition of use of force is not aimed at
guaranteeing de facto unlawful possession of territory.
So far, however, the cases examined deal only with acquisition or annexation of
territory by existing States. The question remains therefore whether the prohibition of
recourse to force is capable of preventing an effective territorial unit, the creation of
which was a violation of that prohibition, from becoming a State. The Case of the former
Yugoslavia appears to demonstrate such a possibility of denial of Statehood to an entity
established as a result of the illegal use of force. This is by virtue of Security Council
Resolution 757 (1992) of 30 May 1992 which rejected any `territorial gains or changes
brought about by violence' in the former Yugoslavia. The resolution also affirmed that
the borders of Bosnia and Herzegovina were „inviolable'. To buttress this position, the
States participating in the Conference on Security and Co-operation in Europe on 3
September 1991 rejected any „territorial gains or changes within Yugoslavia brought
about by violence'.
By contrast, Bangladesh‟s independent Statehood was acknowledged by the
international community even though this was brought about by the territorial changes to
Pakistan consequent upon Indian military intervention in 1971.30
There can understandably be apprehension that an entity the creation of which was
by use of force, with or without external assistance, should be admitted to Statehood.
Thus, the „State‟ of Nagorna - Karrabakh - an enclave within Azerbadjan - which was
purported to have been created with the support of Armenian forces has not been
recognised by any State. So also the Turkish Republic of Northern Cyprus which was
declared to have been established in 1983 following the invasion of northern Cyprus by
Turkey in 1974 has not been recognised by any State.31 It seems unlikely too that any
territorial changes in the Great Lakes Region of Africa brought about by Rwandese (or
other external) forces will be acceptable to African States and the international
community. But that apprehension, it would appear, does not extend to cases where a
right to self-determination can be internationally acknowledged or determined. The
position has been stated by Crawford:

Illegality of intervention in aid of independence of a self-determination unit does not

then, as a matter of law, impair the status of the local unit. On the other hand, semble,
where a State illegally intervenes in and foments the secession of a part of a
metropolitan State, other States are under the same duty of non-recognition as in the
case of illegal annexation of territory. An entity created in violation of the rules
relating to the use of force in such circumstances will not be regarded as a State. 32

But Crawford's position is controversial as far as the legality of foreign military support
on behalf of a self-determination unit. This is reflected in a statement by Judge Schwebel,
in his dissenting opinion, in the Nicaragua Case:

....It is lawful for a foreign State or movement to give to a people struggling for self-
determination moral, political and humanitarian assistance; but it is not lawful for a foreign
State or movement to intervene in the struggle with force or to provide arms, supplies or
other logistical support in the prosecution of armed rebellion. 33

Statehood and Human Rights

The incidence of grave breaches of human rights caused by States acting against
their citizens or against those in their jurisdictions has created widespread apprehension
in the international community. Consequently, international law has responded through a
vast number of international and regional instruments to afford legal protection of human
rights, in general and specific terms. It therefore becomes a matter of great interest
whether an entity the creation of which was a violation of human rights, for example,
ethnic cleansing, can become a State. The relation between statehood and human rights
therefore has substantial connexions with both self-determination and illegality. But
30
See Harris, Cases and Materials on International Law 4th Ed; pp. 112 -113, 847.
31
See Security Council Resolution 541 (1983), which deplored „the purported secession of part of the
Republic of Cyprus; resolved that the declaration was „legally invalid‟ and called upon „all States not to
recognise any Cypriot State other than the Republic of Cyprus‟.
32
. Crawford, p.118.
33
. I.C.J. Reports (1986),
apart from self-determination as a specific human right, practice in this area is
undeveloped. The situation in Eastern Europe and in particular the former Yugoslavia
following the collapse of the USSR appears to be an isolated instance where the relation
between Statehood and observance of human rights has been acknowledged.
The Guidelines on the Recognition of New States in Eastern Europe and in the
Soviet Union promulgated by the European Community (now European Union) on 16
December 1991, is explicit on the special requirements for recognition by Member States
of the Union. These include:-

....respect for the provisions of the Charter of the United Nations and the commitments
subscribed to in the Final Act of Helsinki and in the Charter of Paris, especially with regard
to the rule of law, democracy and human rights;

....guarantees for the rights of ethnic and national groups and minorities in accordance with
the commitments subscribed to in the framework of the CSCE;

....respect for the inviolability of all frontiers which can only be changed by peaceful
means and by common agreement;

....acceptance of all relevant commitments with regard to disarmament and nuclear non-
proliferation as well as to security and regional stability;

....commitment to settle by agreement, including where appropriate by recourse to

arbitration, all questions concerning State succession and regional disputes.34

Clearly, then, respect for human rights as well as other „requirements‟ have become
recognised as relevant criteria for Statehood in the modern law. This position itself was
reinforced by the Declaration on Yugoslavia which required the acceptance by all the six
Yugoslavia republics of „the provisions laid down in the draft Convention especially
those in Chapter II on Human rights and rights of national or ethnic group under
consideration by the Conference on Yugoslavia'.35
It is significant that the four republics - Bosnia-Hercegovina, Croatia, Macedonia and
Slovenia accepted the obligations, but not Serbia and Montenegro. 36 In any case, the
conclusion must be that a new rule is probably emerging, prohibiting entities from
claiming statehood if their creation is in violation of human rights and rights of national
or ethnic groups, or that if they lack the commitment or capacity to act as responsible and
legitimate States.

TERRITORY
Territory, as we have already seen, is one of the essential attributes of Statehood.
Judge Jessup captured its essence in the following terms: „The reason for the rule that
34
. Guidelines on the Recognition of New States in Eastern Europe and in the Soviet Union, European
Political Cooperation, Press Release 129/91, reprinted in 31 ILM 1486, 1487.
35
. Declaration on Yugoslavia, ibid., 31 ILM 1485, 1486.
36
. See 31 ILM 1501-17.
one of the necessary attributes of a State is that it shall possess territory is that one
cannot contemplate a state as a kind of disembodied spirit ...(T)here must be some
portion of the earth's surface which people inhabit and over which its Government
exercises authority'.37

Traditional international law itself underlined recognition of the importance of territory

by classifying the various modes of its acquisition. Be that as it may, the emergence of
„new' States and the entitlements arising from the right of self-determination have also
had a profound impact on the subject especially since the questions arising therefrom
cannot be adequately explained in terms of the traditional modes.

Consequently, the problems of acquisition of territory by already existing states as well as

„new' States have to be re-examined.

1. THE TRADITIONAL MODES OF ACQUISITION

Accretion, occupation, cession, conquest (annexation) and prescription are often
cited as the traditional modes of acquisition of territory by already existing States. 38 Of
these modes, accretion and occupation give original title, while cession, conquest and
prescription give derivative title. The categorisation of the various modes is based on
Roman law notions of property and ownership and possession thereof, but international
law has taken cognisance of them and the notion of title was readily at hand for
application to the principle of territorial sovereignty. That analogy is of course fraught
with some difficulty. This must be the case since title to land in municipal law tends to
be absolute, in international Law, title to territory can only be relative. However, more
crucial to the present discussion is the impact of modern rules of international law on
territorial acqusition.

2. THE IMPACT OF MODERN RULES OF INTERNATIONAL

LAW ON TERRITORIAL ACQUISITION

a. Non-Use of Force Principle

Contemporary international law, by virtue of Article 2, paragraph 4, of the UN
Charter places a categorical ban on the „threat or use of force against the territorial
integrity or political independence of any State'. This ban is reinforced by the 1970
Declaration of Principles which provides:

The territory of a State shall not be the object of military occupation resulting from the use
of force in contravention of the provisions of the Charter. The territory of a State shall not
be the object of acquisition by another State resulting from the threat or use of force. No
territorial acquisition resulting from the treat or use of force shall be recognised as legal ...

Consequently, conquest followed by annexation cannot give title to territory in

37
. SCOR 383rd Meeting, 2 Dec. 1948, p.41. Quoted in Crawford, pp.37-38.
38
. See Shaw, op.cit., Chapter 8, pp.284-294.
contemporary international law. Practice has affirmed this rule as we have seen
elsewhere. The only controversy appears to be whether force can be legitimately used
against territory in unlawful possession of a State. To some extent, the controversy was
evident when India invaded and annexed Goa in January 1961. The merits of the Indian
position appear to have been very decidedly in favour of use of force to retake Indian
territory then in unlawful occupation by Portugal. However, it is interesting that in the
ensuing debate, a majority of the Security Council took the view that the Indian action
was illegal.39 That, of course, did not put an end to Indian occupation of the disputed
territory. In fact, recognition was eventually extended to Indian title to Goa even by
Portugal in 1974.
From the standpoint of contemporary international law, title to territory by action
contrary to Article 2, paragraph 4 of the Charter is rightfully viewed as unlawful.
However, it may be, as in the Goan situation, that the international community will
examine critically the concrete situation and upon ascertainment of the factual conditions
accord recognition. Jennings' view on this point reflects with some accuracy the problem
exemplified by the Goan situation:

The traditional procedure by which the law is adjusted to fact - by which indeed, the law
when occasion requires may seem to embrace illegality - is the procedure of recognition. In
the present context recognition is apt not only because title is ex hypothesis a matter that
concerns States in general, but also because the principal effect of the change in the law
concerning force, is to make the use of force itself a matter of concern to States generally
and not only to the States immediately involved. This is a reversal of the previous position
in regard to the use of force when it could be said that `the validity of the title of the
subjugating State does not depend upon recognition on the part of other States. Nor is a
mere protest of a third State of any legal weight'. 40

b. The Principle of Self-Determination: The ICJ and African States Practice

The principle of self-determination noted in the United Nations Charter-(Articles 1
and 55) - and emphasised in the 1948 Universal Declaration of Human Rights, the 1960
Declaration on the Granting of Independence to Colonial Territories and Peoples, the
1966 International Covenant on Human Rights and the 1970 Declaration of Principles of
International Law can now be regarded as a rule of international law. This means that
contemporary international law will not recognise territorial changes in contravention of
the principle of self-determination.
The matter of the relation between territory and self-determination itself came before
the ICJ in the Western Sahara Case.41 The General Assembly of the United Nations had
sought the opinion of the Court to determine inter alia, the question of the legal ties
between the territory of Western Sahara (formerly Spanish Sahara) and Morocco and
Mauritania. In the course of rendering its opinion, the Court had occasion „to recall
briefly the basic principles governing the decolonisation policy of the General Assembly'.
It did this through several passages of the opinion of which some deserve to be quoted at
length for present purposes:
39
. UN Doc.S/5033; SCOR 988th Mtg., 18 Dec. 1961, 26-27 (7-4:0).
40
. Oppenheim, International Law Vol.1, 8th Ed., p.573.
41
. I.C.J. Reports (1975) p.12.
 The principle of self-determination as a right of peoples and its application for the purpose
of bringing all colonial situations to a speedy end, were enunciated in the Declaration on
the Granting of Independence to Colonial Countries and Peoples, General Assembly
resolution 1514 (XV) ...The above provisions, in particular paragraph 2, thus confirm and
emphasise that the application of the right of self-determination requires a free and genuine
expression of the will of the peoples concerned .... (para.55).
General Assembly resolution 1514(XV) provided the basis for the process of
decolonisation which has resulted since 1960 in the creation of many States which are
today Members of the United Nations. It is complemented in certain of its aspects by
General Assembly resolution 1541(XV) .... Thus principle VII of resolution 1541 (XV)
declares that: „Free association should be the result of a free and voluntary choice by the
Peoples of the territory concerned expressed through informed and democratic processes'
.... (para.57).
The validity of the principle of self-determination, defined as the need to pay regard
to the freely expressed will of peoples, is not affected by the fact that in certain cases the
General Assembly has dispensed with the requirement of consulting the inhabitants of a
given territory. Those instances were based either on the consideration that a certain
population did not constitute a „people' entitled to self-determination or on the conviction
that a consultation was totally unnecessary, in view of special circumstances .....(para.59).

The Court in its Majority Opinion concluded on the question referred to it that upon
examination of the materials and information presented to it the legal ties that existed did
not establish any tie of territorial sovereignty between the territory of Western Sahara and
the Kingdom of Morocco or the Mauritanian entity'.42 Moreover, the Court did not find
„legal ties of such a nature as might affect the application of resolution 1514(XV) in the
decolonisation of Western Sahara and, in particular, of the principle of self-determination
through the free and genuine expression of the will of the peoples of the territory'.43
It is significant that the Majority Opinion relied on the „right of [the Spanish Sahara]
population to self-determination' as the „basic assumption of the question put to it'.44
Having thus taken this approach, it seemed pointless for the Court to examine the
Moroccan position that the „the General Assembly has not finally settled the principles
and techniques to be followed, being free to choose from a wide range of solutions in the
light of two basic principles: that of self-determination indicated in paragraph 2 of
resolution 1514(XV), and the principles of the national unity and territorial integrity of
countries, enunciated in paragraph 6 of the same resolution ....'45
It follows from the position taken by the Court that by virtue of the principle of self-
determination, a people from a colonially defined territorial unit may freely determine
their own political unit. Judge Dillard in his Separate Opinion would even go beyond that
proposition to suggest that self-determination remains in all cases the „cardinal principle'
which cannot be overridden by territorial claims of third-States.46 This view of the matter
42
. Ibid., para.162.
43
. Ibid.
44
. Ibid., p.36.
45
. Ibid., p.29.
46
. Ibid., p.120 n.1
itself appears to find support not only in African States practice but in international
practice. In the case of East Timor (formerly Portuguese Timor), both the General
Assembly (Resolution 3485) and the Security Council (Resolution 384) in 1975 called
upon Indonesia to withdraw from the former Portuguese territory which it invaded in
December 1975. These resolutions also called upon all States to allow the people of East
Timor, in furtherance of their right to self-determination, to decide their own future.
At the same time, care must be taken in interpreting the Court's Opinion too broadly.
While the application of the principle of self-determination to colonial situations appear
to enjoy widespread acceptance, it would be a source of some controversy to seek to
apply that principle in a non-colonial context, for example, to existing States so as to
displace the right , presumptively, of the territorial sovereign to cede territory under
whatever treaty or arrangement is deemed appropriate..

The Principle of the Territorial Integrity of States

The principle of the territorial integrity of States is a norm of international law. It is
implied in a framed reference to the Charter of the United Nations: Article 2, paragraph
4, prohibits the threat or use of force against the territorial integrity and political
independence of States; Article 2, paragraph 7, forbids interference within the domestic
jurisdiction of States. Some opinion even suggests that the principle of territorial integrity
is co-ordinate to self-determination though, as with Judge Petren, in his separate Opinion,
in the Western Sahara Case, the precise legal relations between the two principles
remained undeveloped. The position was thus, in his view, de lege ferenda.47
The principle of territorial integrity of States itself has been given elaboration in the
1970 Declaration of Principles of International Law. The Declaration decries „any action
which would dismember or impair, totally or in part, the territorial integrity or political
unity of sovereign and independent States conducting themselves in compliance with the
principles 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.‟ Moreover, the Declaration provides:

Every State shall refrain from any action aimed at the partial or total disruption of the
national unity and territorial integrity of any other State or country.

It will appear also that the principle of territorial integrity applies to the territory of a
colony for as the Declaration provides:

The territory of a colony or other non-self-governing territory has, under the Charter, a
status separate and distinct from the territory of the State administering it; and such
separate and distinct status under the Charter shall exist until the people of the colony or
non-self-governing territory have exercised their right of self-determination in accordance
with the Charter, and particularly its purposes and principles.

The status of the „territorial integrity' principle, so far as it relates to self-

determination units which are not States deserves further clarification. This is especially

47
. Ibid., pp.79-80.
so since, as pointed out by Crawford, „the question is a definitional one which bears on
the relation between an asserted general principle of law (self-determination) and a
possible exception to it (the territorial integrity rule)' and „it is necessary to the existence
of the former that the latter be capable of enunciation at least in reasonably precise terms
- otherwise the exception would destroy the rule'.48 The problem has not been altogether
neglected as was reflected in the opinion of the I.C.J on the relationship between the uti
possidetis and self-determination in the Frontier Dispute Case.49

The Rule on Intangibility of Frontiers (Uti Possidetis,) :

The ICJ and African States Practice
The principle of Uti possidetis developed initially among the Latin - American States
to maintain the administrative divisions of the Spanish Empire in South America. But the
principle has come to be adopted by African States to counter the inherent instability of
frontier revisions. Article 111 (3) of the OAU Charter calls for the „Respect for the
sovereignty of and territorial integrity of each State and for its inalienable right to
independent existence‟. This principle is reinforced by the Cairo Resolution of 1964 on
the „Intangibility of Existing Borders‟. The Resolution provides that the Organisation:

Considering that the borders of African States, on the day of their independence
constitute an intangible reality:

1. Solemnly re-affirms the strict respect of the principles laid down in Article 111,
paragraph 3, of the Charter of the Organisation of African Unity.

2. Solemnly declares that all member States pledge themselves to respect the
frontiers existing on their achievement of national independence.

The African States interpretation of the uti possidetis itself found expressed in the
Frontiers Case when the Chamber of the Court was called upon to delimit the land
boundary between Burkina Faso and Mali. There, the court referring to the above-
mentioned texts held that it could not disregard the principle of uti possidetis, which
together with the theory of intangibility had become a rule of law as it applied to Africa.
Moreover as was stated by the Court: „The fact that the new African States have
respected the territorial status quo which existed when they obtained independence must
therefore be seen not as a mere practice but as the application in Africa of a rule of
general scope which is firmly established in matters of decolonisation‟50
But the Court‟s opinion went further than that when it considered the relationship
between territorial integrity of the colonially defined territory (the uti possidetis) and self-
determination. The Court stated:

The essence of the principle (uti possidetis) lies in its primary aim of securing respect for
the territorial boundaries at the moment when independence is achieved ..... At first sight
this principle conflicts outright with another one, the right of peoples to self-

48
. Crawford, op.cit., pp.379-380.
49
. I.C.J. Reports (1986), p.554.
50
Ibid., p. 556. Emphasis added.
 determination. In fact, however, 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. The essential requirement of stability
in order to survive, to develop and gradually to consolidate their independence in all
fields, has induced African States judiciously to consent to the respecting of colonial
frontiers, and to take account of it in the interpretation of the principle of self-
determination of peoples. Thus the principle of uti possidetis has kept its place among the
most important legal principles, despite the apparent contradiction which explained its
coexistence along side the new norms.51

Certain observations follow from this passage. Interestingly, the Court, though
initially recognising the „apparent contradiction' between the two principles, ultimately
expressed a view of the co-existence of those principles. It did not express a conclusion
on the uti possidetis as an exception to , or limitation on, the principle of self-
determination. This must be the case since the application of the principle of self-
determination to post-independence situations is itself a matter of some controversy.
Indeed, the reaction of African States to the secessionist attempts by Katanga, Biafra and
Northern Somaliland show a consistent refusal to recognise the exercise of self-
determination through secession. In that case, the Ethiopian Constitution of 1994 which
mentions the right of self-determination of the autonomous units is significant. Its
significance is all the more increased as practice in Africa as has been suggested hitherto
reinforced the approach of emphasising the principle of the uti possidetis and
consequently the widespread disapproval of the attempted creation of secessionist States.
Then, again, the admission of Eritrea into the OAU poses a question for African
States practice. Is the admission itself an exception or a departure from the uti possidetis
rule? Probably not, as there is no evidence to suggest otherwise. Indeed, the OAU
throughout the conflict between Ethiopia and Eritrea affirmed the territorial integrity of
Ethiopia, nor did it at any time treat Eritrea as a self-determination unit. It may therefore
be, as in the Goan situation, that African States and the international community
examined critically the concrete situation brought about by the defeat of Ethiopian forces,
and upon ascertainment of the factual conditions accorded recognition to Eritrea as an
independent State52

51
. Ibid., pp. 556-557.
52
The approach whereby International Law has in such situations ultimately „faced the facts‟ and, by
a
process of general recognition, acknowledge the changed situation is adopted by Jennings. See
Oppenhein, International Law, Vol. 1, (Jennings : 8th Ed.)p. 573.
RECOGNITION
Within the field of international law the competing ideas of recognition based on
constitutive and declaratory theories are increasingly perceived as irrelevant to the
question of Statehood.53 It is, for example, rejected that the legal existence of a State
depends on the will and consent of already existing States. States do not regard
unrecognised States as exempt from international law nor do they refrain from
intercourse with them. Equally, it is widely suggested that recognition entails certain
benefits not otherwise available to unrecognised States. In some situations, for example,
where the facts are unclear, recognition is said to provide strong evidence of statehood.54
Looking back over the practice of States, it is useful to point out that the grant of
independence by the previous sovereign to colonial territories does not raise difficulties
concerning their recognition as new States. Examples are numerous: Ghana, Nigeria,
Cote d‟Ivoire, Tanzania, Kenya etc. The position is quite otherwise where the new State
gains its independence against the wishes of the previous sovereign, whether by secession
or revolution. It may be that in this latter case, the previous sovereign will ultimately
recognise the new State, as in the case of Portugal's recognition of Guinea-Bissau in
1974. Whether other States similarly recognise would depend on certain facts usually
framed by reference to the criteria of Statehood.55
On the other hand, as we have seen in the Southern Rhodesian case, the principle of
self-determination qualifies the operation of the principle of effectiveness; so also it
would appear certain principles and norms of international law, for example, respect for
human rights and the rights of ethnic, religious or linguistic groups, and respect for the
inviolability of all frontiers,56 would be emphasised upon rather than empirical criteria
formulated in Article 1 of the Montevideo convention. The refusal of African States to
recognise the Bantustans was based, inter alia, on the illegality in international law of the
Apartheid system.57

53
. See Brownlie, „Recognition in Theory and Practice', 53 B.Y.I.L (1982), Dugard, Recognition and
the United Nations (1987).
54
Recognition of States is distinguished from recognition of governments. Recognition of
governments only becomes an issue following „illegal‟ changes in government. Since no government has
any right to be recognised, political considerations appear to predominate usually in the decision whether or
not to grant recognition. See Harris, Cases and Materials on International Law 4th Ed., pp. 143-148;
Gallaway, Recognises Foreign Governments (1978)
55
See, e.g. U.S Practice, Digest of U.S. Practice in International Law (1976), pp. 19 - 20; for U.K.
practice,
102 HC Deb. Col. 977,. Written Answers, 23 October, 1986.
56
. See Conference on Yugoslavia Arbitration Commission: Opinions on Questions Arising from The
Dissolution of Yugoslavia, Jan. 11, 1992 and July 4 1992, 31 I.L.M 1488. See also the E.U.
Guidelines on the Recognition of New States in Eastern Europe and the Soviet Union, 16 December
1991.
57
Note the terms of UN General Assembly Resolution 31/6C adopted by a vote of 134 to 0, with 1
abstention (USA) which:
i. Strongly condemns the establishment of Bantustans as designed to consolidate the in human
policies of apartheid, to destroy the territorial integrity of the country, to perpetuate white
minority domination and to disposses the African people of South Africa of their inalienable
rights;
 That of course, does not suggest that African States have always been consistent for
there are situations, as with the Republic of Taiwan, where some African States have
continued their recognition of that Republic in spite of UN resolutions recognising the
People‟s Republic of China as the sole Chinese state. Then, again, what is the African
policy on recognition generally? Do African States recognise de facto states as the United
Kingdom does?58 Or does the OAU recognition of the Sahara Arab Democratic Republic
indicate an emergence of States practice of recognising de jure States as a rule; or is it an
exception? African States practice so far does not show any consistent practice. This
may be so especially where law and politics intersect in the matter of recognition of
States.

CONCLUSION
The study was initiated to examine the question of Statehood in Africa. With the
decolonisation process now over and the emergence of the phenomenon of „failed States‟;
the question assumes an especial importance. In dealing with the problem, we started by
examining the criteria for statehood in international law. The ultimate scope was to
arrive at a clear idea as to whether international law adequately addresses the problem.
Firstly, from the analysis in the preceding pages, it became clear that the criteria for
statehood as formulated by Article 1 of the Montevideo Convention have become
inadequate for dealing with cases thrown up in recent inter-State practice; it became
necessary therefore to deal with the problem in the light of this practice.
Secondly, from the analysis, a question arises whether the other criteria which have
emerged from developing practice provide a basis for conceptualising and reconstructing
more viable States.
Basically, as we have seen, Statehood has been affected by the development of
certain legal principles, including self-determination, illegality, non-use of force and
human rights. Of primary concern here has been self-determination. The principle of
self-determination operates as such in decolonisation situations to transfer legal
sovereignty to recognisable self-determination units even where the empirical evidence
suggests otherwise. Both the Congo and Guinea-Bissau cases provided illustrations
where doubts over the extent of control of territory did not prevent indepent Statehood
from being achieved. The principle, thus recognised, is also capable of preventing an
effective territorial unit, the creation of which was a violation of that principle, from
becoming a State. This was very much evident in the Southern Rhodesian case.
But the principle of self-determination as such has its attendant difficulties and these
occur when the principle is sought to be applied beyond the colonial context where
national unity, political independence and territorial integrity are concerned. It must, of
course, be remembered that in virtue of self-determination, „all peoples have the right
freely to determine, without external interference, their political status and to pursue their
economic, social and cultural development…..‟ Is the right then available to minorities,

ii Condemns the declaration of „independence‟ of the Transkei and declares it invalid;

iii Calls upon all Governments to deny any form of recognition to the so-called independent
Transkei and to refrain from having any dealings with the so-called independent Transkei or other
Bantustang
58
See Harris, Cases and Materials on International Law, 4th Ed; pp.142 - 143
indigenous peoples, different ethnic groups or nationalities to secede from existing States
and achieve independent Statehood? Would any extension of the right to these groups of
peoples resolve the problems of ethnicity and the crisis of the nation - State in Africa
today?
Taking as our starting point the views of States, there appears no reason to suggest
that individual States and indeed the United Nations are prepared to admit of the
possibility of the extension of the right to self-determination beyond the colonial context.
The evidence available points to that conclusion.59 It therefore becomes a matter of great
interest, at least in the African context, that the 1994 Ethiopian Constitution, Article 39,
appears to admit of the possibility of the right to secessionist self-determination. If that is
so, how then do we resolve the apparent contradiction? Do we have the emergence of a
new rule, or is it an exception?
To arrive at an answer to these questions, it is worth considering the argument that
under the Ethiopian Constitution, as the former USSR Federal Constitution, the right to
withdraw or secede from the federation appears to flow from a right existing from the
time of the voluntary union of the autonomous regions or constituent republics into a
federation. The existence of that right may not be indicative of the existence of the right
to self-determination based on international law and capable of transferring legal
sovereignty to the autonomous units.60 It is for this reason that the principle of uti
possidetis has been applied in the case of dissolution of federations as, for example, in the
former Yugoslavia and the USSR. In respect of the former, this was stated as much by
the Administrative Tribunal established by the European Union at its Extraordinary
meeting of Foreign Ministers on 27 August, 1992, that „whatever the circumstances, the
right to self-determination must not involve changes to existing frontiers at the time of
independence (uti possideits juris).
Reflecting on Article 39 of the Ethiopian Constitution, Professor Aberra Jembere, at
a symposium organised by the International Association of Constitutional Law in Tokyo,
September 1995, expressed himself against the right of secession to a people of an
independent state. He writes:
As long as all rights and freedoms are guaranteed to the people by the Constitution
and institutional protection of the same is provided thereby, there is no justification
for inclusion of an article in the Constitution to provide for the so-called right of
secession. A constitutional provision to this effect could serve as a pretext to disrupt
the national unity and territorial integrity of the nation. It would also be a dangerous
trend not only for Ethiopia but for other countries as well. No such provision is
provided in the Constitution of any democratic country. 61

In truth, States are not prepared to envisage any development in the direction of
broadening the scope of application of the right to self-determination to encompass
secession from the existing State; any development would be more in the direction of the
right to internal self-determination. The autonomy status granted to the Palestinians to
enjoy self-government and the possibilities that exist for extending the scope of self-

59
See the conclusions of the World Conference on Human Rights (Vienna 1993), as well as meeting of the
United Nations Human Rights Commission (Geneva 1994).
60
See Asbjorn Eide, „In Search of Constructive Alternatives to Secession‟ in Tomuschat (ed.), Modern Law
of Self-Determination, (1993), p. 139, 153 - 154
61
Aberra Jembere, „The Functions and Development of Parliament in Ethiopia‟. Constitutionlism in Africa
- A Quest for Autochthonous Principles (1996), p. 63, at p.79.
government points to that conclusion.62
Autonomy as such is invested with ultimate value in international law. As suggested
by Gudmundur Alfredsson: „Self-control by a group over its internal affairs is probably
the most effective means of protecting the dignity and identity of diverse groups within
States. It is essential for placing them on equal footing with other parts of society, and it
is as good a guarantee as groups can hope for with nation-States dominating the domestic
and international legislative processes‟63
The process of internal self-determination can even be seen in the perspective of a
downplay of „State sovereignty, in favour of human rights, popular sovereignty and a
democratic system of government,‟64 Concerning this internal aspect of self-determination,
Thornberry has suggested: „with the virtual ending of cold-war polarities, a „democratic
order is demanded in Eastern Europe, Saharan and sub-Saharan Africa, Latin America
and parts of Asia and has the aspect of
a general claim, the various dimensions of which are emphasised through the matrix of
different cultural systems. The point is that the achievement of independence has not
proved to be enough for authentic expression of people‟s rights‟.65
The theme of democratic participation and good governance equated with legitimate
governance runs through critical thinking on the crisis of the nation-State in Africa today
and the argument that pleading for such governance smells of „western liberalism‟
appears no longer sustainable. To be sure, a new era of democratic governance has
already began in Africa and the challenge to and the task of international law in the
twenty-first century exists exactly in consolidating this development. This may itself
maximise possibilities of accommodation between majorities and minorities in African
societies, producing a self-determination that unites where it would otherwise divide.

62
The Agreement between Israel and the Palestinian Liberation Organisation signed on 13
September 1993
(Declaration of Principles on Interim Self-Government Arrangements) assures recognition by the
parties of UN Security Council Resolution 242 and 338, the development of Palestinian autonomy
on the West Bank and the Gaza Strip for a transitional period of 5 years. The agreement also
contemplates negotiations to take place concerning the permanent status of the territories occupied
by Israel in 1967. While the Agreement recognises Palestinians as a people, it however, contains
no explicit reference to a possibility of the creation of an independent State of Palestine.
Moreover, various rules in the Agreement appear to show that the Israeli position is that the
permanent status of the Occupied Territories can never go beyond limited autonomy. For the text
of the Agreement, see 32 ILM 1525 (1993).
63
Gudmundur Alfredsson, „The Right of Self-Determination and Indigenous Peoples‟ in Tomuchat
(ed.)
Modern Law of Self-Determination (1993), p. 52
64
Allan Rosas, „Internal Self-Determination; in Tomuschat (ed.). op -cit, p. 229.
65
Patrick Thornberry, „The Democratic or Internal Aspect of Self-Determination with some
Remarks on
Fedealism; in Tomuschat (ed.) op. Cit, p. 101 at pp. 120 - 121.