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TABLE OF CONTENTS
LIST OF CASES
LIST OF STATUTES
LIST OF ABBREVIATIONS
CHAPTER TWO: THE RIGHT TO SELF-DETERMINATION IN INTERNATIONAL LAW
CHAPTER THREE: THE IMPLEMENTATION OF THE RIGHT TO SELF-DETERMINATION
CHAPTER FOUR: SOUTHERN CAMEROON QUEST FOR SELF-DETERMINATION AND INTERNATIONAL LAW
CHAPTER FIVE: SUMMARY OF FINDINGS, CONCLUSION AND RECOMMENDATIONS
This research project is dedicated to my parents Mr. Agbor Dickson Agbor and Mrs Agbor Lucy Ako
I wholeheartedly praise God almighty for the courage and force, which has enabled me to complete this work. This work is the collective inputs and efforts of many people.
I direct a very special appreciation to my supervisor, Prof Alvine Boma; I truly appreciate her academic skills and calibre, her perfect mastery of the pedagogic; I candidly appreciated her being my supervisor in an extremely challenging research as this one. Her availability, guidance, encouragements and the subtile approach in making me realize where I faulted was the silent force that had always thrust me forward in the fulfillment of this work.
I want to acknowledge my eminent Lectures of the department namely; prof Boma Alvine prof Fonyam, prof Irene Samalang, Dr. Sone Patience Bar Nkongho Felix Agbor Balla ,etc for the knowledge they have impacted in me throughout my study in the University of Buea.
My sincere gratitude goes to my Co-supervisors Mr Akamin Patrick PhD researcher and Bar. Abilabi Colbert(Ph.D award pending) for their relentless efforts despite their busy academic schedules dedicated their time to my research project.
Special thanks equally goes to my beloved family. Thanking most especially my parents Mr Agbor Dickson Agbor and Mrs Agbor Lucy Ako, my siblings Agbor Fitzgerald Ashu, Agbor John Njock, Agbor David, Agbor Pauline, Takang Melvis , Agbor Miriam and Agbor Constance Ebot for their moral and financial support throughout my studies. This support has made me the person I am today
This research seeks to examine the right to self-determination by so doing emphasis have been laid on the case of Southern Cameroon by tracing the origin of the quest for self-determination by the Southern Cameroonians. Despite all efforts made by the Southern Cameroonians for their right to self-determination to be recognized, the international community seems to give a deaf ear to this call. The overall purpose of this study is to examine the extent to which the Southern Cameroonians have the right to self-determination. This research or this study adopt a doctrinal approach methodology which is in line with Orthodox legal research. Findings therefore reveals that the quest for self-determination by the Southern Cameroonians is still to gain an international recognition though it is strongly argued that the divide between the Anglophone and francophone Cameroonians was a colonial creation. Conclusively this researcher argues that a return to the 1961 federal constitution will go a long way to address the Anglophone problem in Cameroon and thus put an end to the persistent call by Southern Cameroonians for the recognition of their right to self-determination.
It is therefore recommended that the structure of the country should be built on the 1961 Federal Constitution and the country should return to a two state federation as conceived in the Foumban Constitutional Conference.
LIST OF CASES
The South West African Decolonization cases (1949-1971)
Western Sahara, Advisory opinion,1975 I.C.J Reports 12
Ethiopia v. South Africa
Liberia v. South Africa
The case concerning East Timor (Portugal v. Australia),1995 I.C.J Reports
Accordance with International Law of Unilateral Declaration of Independence in Respect of Kosovo, 2010 I.C.J Reports 403
Southern Cameroon v. la Republic du Cameroun, Banjul Communique no 266/200
LIST OF STATUTES
The Atlantic Charter(1941)
The Universal Declaration of Human Rights
The United Nations Charter(1945)
The International Covenant on Civil and Political Rights(ICCPR) and the International Covenant on Economic, Social and Cultural Rights(ICESCR)( 1996)
The Friendly Relations Declaration (1970)
Resolution 2131(XX), (1965)
Resolution 36/103 (1981)
Resolution 41/128 (1986)
LIST OF ABBREVIATIONS
Abbildung in dieser Leseprobe nicht enthalten
Self-determination is an indispensable ideology of modern day society and political systems. Its importance has promoted scholars, legal researchers and politicians into examining the rationale behind the concept, its exhibition and implementations. The concept of self-determination found its way into international relations as a consequence of the Westphalia Treaty,1648. it grew in popularity with the French and American Revolutions of the 18th century. By 1945, it became a cardinal principle of the United Nations, enshrined into article 1(2) and 55 of the UN Charter as a core principle of the UN but with a rather political overtone. It later assumed a force of law with the coming into force of the International Covenant on Civil and Political Rights (ICCPR) and the International Covenant on Economic, Social and Cultural Rights (ICESCR) whose common article 1 uphold the right to self-determination. Hence, this work canters principally on the analysis of the standard account on self-determination, with particular emphasis on secession and the Southern Cameroon independence claim
1.2 Background to the study
The right of people to self-determination is a cardinal principle in modern International Law. It is commonly referred to as jus-cogens1 rule, binding, as such, on the United Nations as authoritative interpretation of the charters norms. The right to self-determination was first expressed in the 1860’s and spread rapidly thereafter. During and after World War One the principle was encouraged by both Vladimir Lenin2 and United States president Woodrow Wilson in his 14points3
During World War Two the principle was included in the Atlantic Charter4 signed on 14th August 1941 by Franklin D.Rosevelt President of the U.S.A and Winston Churchill prime minister of the United Kingdom. The right to self-determination was recognized as an international legal right after it was explicitly listed as a right in the U.N Charter. Chapter one, Article one, part two states that the purpose of the UN charter is “to develop friendly relations among nations based on respect for the principle of equal rights and self- determination of peoples and to take appropriate measures to strengthen Universal peace’’. Essentially, the right to self-determination is the right of a people to determine its own destiny. In particular, the principle allows a people to choose its own political status and to determine its own form of economic, cultural and social development.
The right to self-determination is one of the most contentious and complex issues in international law. In spite of the contentiousness, the right to self-determination plays a vital role today in the new world. This concept has undergone hibernation from a political or moral principle to becoming a right on its own. The complexity of the right to self-determination can be seen from its implementation which is almost not attainable. It becomes more of rhetoric than practice. Analyzing the right to self-determination is like opening a veritable Pandora’s Box, because in all the nooks and crannies of this planet there are calls, for the right to self-determination.5
There are two types of Self-determination; we have internal and external self-determination. Internal self-determination is the right of the people of a state to govern themselves without outside interference. External self-determination on the other hand is the right of people to determine their own political status and to be free of Alien domination, including formation of their own independent states. In another interpretation, the right to self-determination means what is called internal self-determination which is the right of people to freely choose their own political, economic, and social system. This is the right of peoples to self-determination once they have achieved statehood or state-like formation. The right to self-determination is enshrined in the UN Charter, universal declaration of human rights, the African Charter on Human and People’s Rights , and the preamble of Cameroon’s constitution6.This right of self-determination as an International Human Right is the subject matter of our analysis.
1.3 Statement of the Problem
The right to self-determination is one of the most important, yet contentious, principles of international law. It has served as a powerful slogan and a vital justification for the independence of many peoples, most significantly the independence of colonial peoples. In fact, the colonial context is what comes to mind when the right to self-determination is brought up. This right has equally served as a foundation or pretext for state intervention and aggression. At the same time, it is conversely used as a shield against intervention or even mere critique from other states. The right to self-determination is an international human right which enable peoples to choose their form of development and freedom yet there still exist several states clamoring for their right to self-determination and international recognition but the UN seems to do nothing about enforcing this right. We have states like the Catalonia's in Spain, the southern Cameroonians in the Republic of Cameroon, the Kurds and so on
1.4 Research Questions
The questions I will be answering in this research are:
- How is the right to self-determination protected in international law?
- How is the right to self-determination enforced?
- To what extend do southern Cameroon have the right to self-determination?
- What are the policy recommendations that can be made on the southern Cameroon claim for self-determination?
1.5 Objectives of the Study
The aim(s) of this research are twofold, the general and specific.
1.5.1 General Objectives of the Study
This study seeks to examine the implementation of the right to self-determination in international law by paying particular attention to the southern Cameroon case. To do so, we shall review both International and Regional legal instruments.
1.5.2 Specific Objectives of the Research
- To examine how the right to self-determination is protected in international law.
- To access the enforceability of the right to self-determination.
- To analyse the extent to which southern Cameroon has a right to self-determination.
- To propose policy recommendations on the southern Cameroon question on self-determination.
This research adopts the doctrinal research methodology which is largely on content analysis of data. The data for this study have been divided into primary and secondary data; primary data shall be gotten from the UN Charter, the African Charter on Human and People’s Rights7, and the Cameroon, constitution of 1996 while the secondary data will be gotten from textbooks, journal, articles, magazines and the internet sources.
1.7 Area and Scope of the Study
This research will focus only on the right to self-determination as an international human right claim paying particular attention to the southern Cameroon experience. This research is limited to the right to self-determination from when the UN Charter was established to present date.
1.8 Justification of the Study
The right to self-determination is safeguarded by the UDHR, THE ICCPR and even the African Charter on Human and Peoples’ rights as an international human rights claim owned by everyone by virtue of our humanity. Unfortunately, this right is hardly enforced. This has caused some scholars to argue that the right to self-determination is a political right which the world’s court8 chooses when and where to enforce. It is against this background that this study is situated.
This research is equally embark on as a requirement in partial fulfillment for the award the Bachelor of Law Degree (LLB) of the University of Buea.
1.9 Significance of the Study
This research topic, on self-determination is a sensitive one. It is strictly a political and an academic activity but its importance cuts across the academic field.
The research may be helpful to Lecturers, lawyers and even those interested in this area of law.
It may also be used to improve on the human rights situation of the country It may provide the nationalist with a better platform to present their argument.
1.10 Definition of Key Terms
The word right can legally be defined or understood as, that which is proper under Law, morality or ethic to know what is right from wrong, something that is due to a person by just claim, legal guarantee, or moral principle (the right of liberty) or a power, privilege or immunity secured to a person by Law.
Self-determination is a contentious issue but for the purpose of this research, the definition afforded by the Encyclopedia Britannica is alluded to9. It defines it as “the process by which a group possessing a certain degree of national consciousness, form their own state and choose their own government”. By interpretation, this means the right to form an autonomous governing state within an existing nation (internal self-determination) or right to secede and form another state bound by international law (external self-determination) .
c. Human right
The freedoms; immunities and benefits that according to modern values (especially at an international level), all human being should be able to claim as a matter of right in the society in which they live.
This research is structured into five chapters.
Chapter one present the introductory overview of the entire study. The elements that shall be featuring here include; the introduction, background information, statement of the problem , the research question, objectives of the study, research methodology, the area and scope of the study, a literature review, a look at some significance of the work, justification of the work, definition of key terms and a synopsis of the entire work
Chapter two shall seek to examine how the right to self-determination is protected in international law.
The third chapter shall access the enforceability of the right to self-determination
Chapter four shall analyse the extent to which southern Cameroon has a right to self-determination.
Chapter five shall propose some policy recommendations on the southern Cameroon question on self-determination..
CHAPTER TWO: THE RIGHT TO SELF-DETERMINATION IN INTERNATIONAL LAW
This chapter shall seek to examine how the right to self-determination is protected in International Law. By so doing, we shall analyze both the United Nations legal frame works such as the UN Charter and other UN Resolutions and those of the African Union in a bid to provide answer to research question one and equally addressing specific objective one.
2.2 THE UNITED NATIONS AND THE PROTECTION OF THE RIGHT TO SELF-DETERMINATION
2.2.1 The UN charter
The mention of self-determination in the Charter is found in articles 1(2) and 55, and although not expressly mentioned it constitutes the foundation for the chapters concerning the non-self-governing territories and the trusteeship system. In the first article the purposes of the organization are articulated. Article 1(2) specifically, speaks of friendly relations, the principle of peoples’ equal rights and self-determination and universal peace. Article 55 is part of the chapter concerning international economic and social cooperation. Even back when the UN was created there was an awareness of the inequalities in terms of wealth and development in the world. And this situation has only deteriorated immensely ever since and today the gap between the rich and the poor countries in the world is wider than ever. This is being emphasized and reemphasized constantly by the UN. In this article the importance of friendly relations and the principle of the equal rights and self-determination of peoples are restated. In addition, this article expresses the UN’s task to promote social and economic development, find solutions to international economic, social and health problems as well as to endorse international cultural and educational cooperation and last but not least protect human rights and fundamental freedoms. Since, as pointed out above, the inclusion of self-determination in the UN Charter was surrounded by much controversy; the language used was vague to please all parties. To begin with, the term principle, as opposed to right, of self-determination was used, indicating it was not a strictly legal right at first. Remarkably, in the French version of the UN Charter the term “right”, “droit”, is used. Secondly, its concept, scope and the definition of terms such as “peoples” are not clear. That is to say that there are different opinions among commentators regarding what the drafters of the Charter had in mind when creating the text. While there can be said to exist a consensus on the development of the status of self-determination from a principle into a rule of law, there is no consensus on its initial importance10.
Some authors, like Hannum, are of the opinion that self-determination as a principle was still weak and contentious at the time of the creation of the UN11 and that it developed and grew stronger as time passed and especially with the process of decolonization. Others, such as Ove Bring, while they do share the same views about the development of the principle, and later right, place a bigger emphasis on its importance at the time of the creation of the UN. Bring looks at it from a very different perspective stating that self-determination is part of the foundation of the UN system as it is part of the provisions of the Charter that express the goals and purposes of the UN.
In 1955 a historic event took place as the first conference of African-Asian States was held in Bandung. The conference was characterized by a strong feeling of solidarity among the participating States and a common drive in the struggle against colonialism, imperialism and racism and the fight for independence, world peace and social and economic cooperation. The spirit of unity, solidarity and consensus regarding the above mentioned goals is of often referred to as the Bandung Spirit. These developments and the fact that the African and Asian States for the first time in history took such a strong stand and demonstrated such determination would reflect on the development of the right to self-determination pushing the emphasis further in the direction of the colonial context12. The position taken by the socialist countries implied a focus on external self-determination meaning liberation from racist regimes and colonial rule. The position taken by the Third World is basically consistent with the socialist position and boiled down to mainly three questions, namely “(1) the fight against colonialism and racism; (2) the struggle against the domination against any alien oppressor illegally occupying a territory…; (3) the struggle against all manifestations of neocolonialism and in particular the exploitation by alien Powers of the natural resources of developing countries.”13 The Western countries, after initially opposing decolonization and the notion that the principle of self-determination as expressed in Article 1(2) of the UN Charter imposed any specific obligations on States eventually yielded to the demands from the socialist countries and the Third World. After these developments the Western countries started putting the emphasis on the internal aspect of self-determination, meaning the right of a State to freely choose a system of government that fully correlates with the will of the people of that State. The Western countries linked the principle of self-determination to human rights which for the West primarily, if not exclusively, meant civil and political rights and so the right to self-determination was regarded as the very essence of democratic freedom and as essential for providing a government with democratic legitimacy.14
2.2.2 The International Covenant on Civil and Political Right(ICCPR) and The International Covenant on Economic, Social and Cultural rights(ICESCR)
The most important legal texts concerning human rights on the international level are the International Covenant on Civil and Political Rights (ICCPR) and the International Covenant on Economic, Social and Cultural Rights (ICESCR), although the West and the developing world each have a distinctly different opinion on which covenant is more important. Nevertheless, both of the two covenants, adopted in 1966, are important from a legal point of view due to the high number of signatures and to the customary nature of some of their contents. Self-determination is a key right in these instruments and in human rights law. What must be remembered here is the context in which these two covenants were adopted. In the year 1966, the voice of Third World countries was loud and the impact of the decolonization wave was at its peak The first article of the two International Covenants reads as follows: “
1. All peoples have the right to self-determination. By virtue of the right they freely determine their political status and freely pursue their economic, social and cultural development.
2. All peoples may, for their own ends, freely dispose of their natural wealth and resources without prejudice to any obligations arising out of international economic co-operation, based on the principle of mutual benefit, and international law. In no case may people be deprived of its own means of subsistence.
3. The State Parties to the present Covenant, including those having responsibility for the administration of Non-Self-Governing and Trust Territories, shall promote the realization of self-determination, and shall respect that right, in conformity with the provisions of the Charter of the United Nations”15
The question is what the implications of the human rights law aspect of the right to self-determination are. To answer this question we must first assess the status and meaning of this right as a human right. To begin with, it is a collective right and thus cannot be invoked by individuals through the individual petition procedures which the First Optional Protocol to the Covenant on Civil and Political Rights provides for. The question whether self-determination is a legal right only in the colonial context is raised also in the human rights area of international law. The content of the right in this area seem to resonate with that in the domain of public international law. The numerous UN Resolutions, including the Declaration on Granting Independence to Colonial Peoples (Resolution 1514), have naturally been equally important for the interpretation of the right as in the area of public international law. The opinion of the International Law Commission is that the right to self-determination has a universal application. Most significant is however the practice of the UN Human Rights Committee. This Committee, established under the Covenant on Civil and Political Right, commented on the right to self-determination by interpreting article 1 of the covenant. The Committee has stated that the realization of the right is “an essential condition for the effective guarantee and observance of individual human rights”16. The Committee also makes a distinction between external and internal self-determination. The former encompasses, in the opinion of the Committee, the obligation of a State to take action in its foreign policy in consistence with the realization of self-determination for areas under colonial or racist domination and the latter is directed towards its own people. For internal self-determination the question of democracy, a political structure that enables citizens to participate in the governance of their country, is of great importance and is naturally linked to the provisions of the Covenant on Civil and Political Rights. The exact meaning of external and internal self-determination will be explained below.
Finally, we have to keep in mind the principles of territorial integrity and uti possidetis which forbid any attempt at the dismantling of a sovereign State. Since these principles belong in the domain of customary international law, the fragmentation of a sovereign State is prohibited also in the context of human rights law.17
2.2.3 The Friendly Relations Declaration
The Declaration on Principles of International Law concerning Friendly Relations and Cooperation among States in Accordance with the Charter of the United Nations (GA Resolution 2625 (XXV), 1970), as the title reveals, stipulates the principles of international law concerning relations among States. This declaration is highly important in the area of international public law and is one of the most important legal instruments concerning the right to self-determination. Its immense importance can be attributed to many factors. First of all, the contents of this declaration are of a strictly legal nature. Secondly, it was adopted unanimously (with no vote), expressing the States’ consensus on the issues in the declaration and can therefore be said to express the opinio juris of States. These two facts, its legal nature and the opinio juris, make it one of few UN Resolutions to have a distinct legal status18, keeping in mind that, just as in the case of the Declaration on Colonial Peoples (Resolution 1514), it is not legally binding as such. It does however hold the nature of customary international law. Ove Bring states that in order for a GA Resolution to constitute customary international law two criteria must be fulfilled: firstly the Resolution must be adopted by consensus or “without a vote” and secondly the text must clearly affirm legal principles of a general scope and applicability19. With the adoption of this declaration the legal principles set forth in the Charter of the UN were, to an extent, elaborated either affirming or interpreting and clarifying them in a legally authoritative manner. One example of these principles is the principle of non-intervention the scope of which is given a better definition in the declaration. Another is the prohibition of the use of force that is stipulated in article 2(4) of the Charter20
The significance of the declaration not only lies in the fact that it helps both affirming and interpreting certain legal principles in international law. The declaration is also a perfect reflection of the two areas of tension concerning the right to self-determination.
Firstly, the declaration, especially if one studies the drafting work leading up to its adoption, illustrates the incompatibility of the two sides of the right to self-determination. On the one hand a State’s sovereignty, territorial integrity, political independence, unity etc. are not only presented as principles of basic importance in international law but almost as sacred and inviolable principles. On the other hand the declaration deals thoroughly with the right to self-determination from the reverse perspective, that is peoples’ right to govern themselves, which in certain cases directly collides with the territorial unity of an independent State.
The second area of contention concerns the different positions taken by the West and the Third World. The differences are not many and may not be noticed in the declaration at first glance. They become more apparent if one studies the work and discussions that took place before all States agreed on a final draft of the declaration and subsequently adopted it unanimously.
2.2.4 Other UN Resolutions
The right to self-determination and rules of international law related to it are addressed in countless Resolutions, both in those of the Security Council and those of the General Assembly. The Friendly Relations Declaration and the Declaration on the Independence of Colonial Peoples might be two of the most important Resolutions and of a distinct legal nature, but these are not the only significant Resolutions adopted in the UN. To begin with there are numerous Resolutions regarding specific situations and specific conflicts. There are also declarations concerning the right, or aspects of it, in general and which are not linked to a certain people or specific circumstances. In this context the Declaration on the Inadmissibility of Intervention in the Domestic Affairs of States and the Protection of Their Independence and Sovereignty (GA Resolution 2131(XX), 1965) is of interest. It has been followed by many GA Resolutions that recalled and reaffirmed its importance. Other GA Resolutions, that do not necessarily have the same strong legal status as the Friendly Relations Declaration and Resolution 1514, or any legal status at all, include numerous Resolutions on non-interference in the internal affairs of States like the Declaration on the Inadmissibility of Intervention and Interference in the Internal Affairs of States (Resolution 36/103, 1981). There are also countless Resolutions prohibiting unilateral economic measures as a means of political and economic coercion against developing countries.
Yet another important GA Resolution that is linked to self-determination and the issues mentioned above is the Declaration on the Right to Development, the GA Resolution 41/128 of December 1986. The importance of this declaration is most noteworthy in the area of human rights law and in the framework of the UN system. While this collective right that to a large extent belongs to the area of economic, social and cultural rights clearly has been and still is the subject of high importance on the UN agenda one cannot yet speak in terms of a legal right in international law21. The right to development is based on the idea of self-determination, including economic self-determination, and the free disposal of one’s natural resources. Furthermore, it is connected to the UN Charter, especially art 55, to Friendly Relations Declaration and other texts and principles, containing the notion of international cooperation. These issues have been developed and are evoked, almost exclusively, by Third World advocates and countries.
2.3 THE Right to Self -Determination under the African Union
3.3.1 The African Charter on Human and Peoples’ Rights
The African Charter on Human and Peoples’ Right (also known as the Banjul Charter) is an international human rights instrument that is intended to promote human rights and basic freedoms in the African continent.
The relevant article that guarantees or protects the Right to self-determination is Article 20 in its sub 1,2 and 3.
Article 20(1) states that “All peoples shall have the right to existence. They shall have 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.”
Article 20(2) goes further to state that “Colonized or oppressed peoples shall have the right to free themselves from the bonds of domination by resorting to any means recognized by international community”
To further protect the Right to self-determination at the Regional level, the African Charter in its Article 20(3) stipulates clearly that “All peoples shall have the right to the assistance of the State Parties to the present Charter in their liberation struggle against foreign domination, be it political, economic or cultural.
The African Charter on Human and Peoples Right recognizes and protect the right to self-determination as an inalienable right, Article 2 of the charter states that “Every individual shall be entitled to the enjoyment of the rights and freedoms recognized and guaranteed in the present Charter without distinction of any kind such as race, ethnic group, colour, sex, language, religion, political or any other opinion, national and social origin, fortunes, birth or any status.
CHAPTER THREE: THEIMPLEMENTATION OF THE RIGHT TO SELF-DETERMINATION
In this chapter, we shall be looking at the implementation of the right to self-determination, by so doing, we shall look at the effort made by the International Court Justice (ICJ)22 in enforcing the right to self-determination and also we shall equally look at the applicability of the Court’s findings in cases of self-determination through secession. To accompany this task, we shall look at practical cases where the right to self-determination was enforced in a bid to answer research question two and equally address specific objective two.
3.2 THE SOUTH-WEST AFRICA DECOLONIZATION CASES (1949-1971)
The referral of a question on the international status of South-West Africa (now Namibia) to the Court by the General Assembly in December 1949 marked just the start of what was to become a long and intricate judicial process.23 That legal process extended for a period of over three decades. The findings made by the Court on the international status of this territory in that first advisory opinion, paved the way for many of the actions which were undertaken later by the General Assembly, the Security Council, and certain concerned States, in compelling South Africa, the Mandatory Power, to secure the process leading to Namibia’s independence. From 1949 until 1971 the Court remained actively engaged with different legal issues concerning the decolonization process of South-West Africa24, issuing four advisory opinions and two judgments25.
The South-West Africa Decolonization cases were instrumental not only in clarifying important legal aspects of the process of exercise by the peoples of South-West Africa of their right to self-determination, but also with regard to the understanding of the right to Self-determination for non-self- governing territories and its place within the corpus of general public international law. However, the legal proceedings surrounding the decolonization process caused a huge controversy when in 1966, by the President’s casting vote, the Court found that Liberia and Ethiopia could not be considered to have established any legal right or interest in the subject matter of their claims against South-Africa.26 Eventually, the process of the decolonization of Namibia ended on 21 March 1990 with the independence of that territory.
The importance of the case law of the Court with regard to the development and interpretation of the right of the people of South West Africa to self-determination is manifold. First, through its advisory opinions delivered to the General Assembly and Security Council of the UN, the Court clarified the aim and scope of the right of the people of Namibia to self-determination and the related obligation incumbent upon other States not to recognize the illegal situation created by the Mandatory Power, South Africa, arguably including also the effective occupation of that territory. Second, by adding its powerful voice to the international condemnation of the policy of apartheid as practised by South Africa in Namibia the Court contributed to linking respect for fundamental human rights with the right to self-determination.
3.3 WESTERN SAHARA(ADVISORY OPINION OF 16 OCTOBER 1975)
On 13 December 1974 the General Assembly adopted resolution 3292 (XXIX) requesting the Court for an advisory opinion on the issue of Western Sahara. The General Assembly reaffirmed the right of the population of the Spanish Sahara to self-determination in accordance with the Decolonization Declaration of 1960 and considered that the persistence of a colonial situation in Western Sahara jeopardized stability and harmony in the north-west African region.27 The advisory opinion was necessary for the General Assembly in any further steps it was to take on this issue in view of the conflicting territorial claims that the Kingdom of Morocco and Mauritania had towards this territory. As the Court itself noted, the opinion was sought for a practical and contemporary Purpose, namely, in order that the General Assembly be in a better position to decide on the policy to be followed for the decolonization of Western Sahara.28
In the Court’s opinion the right of that population to self-determination constituted a basic assumption of the questions put before it.29 It further noted that the Decolonization Declaration was complemented by General Assembly resolution 1541(XV) which contemplated three possibilities for the decolonization process of non-self-governing territories, namely (a) emergence as a sovereign independent State; (b) free association with an independent State; or (c) integration with an independent State.30 The validity of the principle of self-determination, defined as the need to have due regard to the freely expressed will of peoples, was, in the view of the Court, not affected by the fact that in certain cases the General Assembly had dispensed with the requirement of consulting the inhabitants of a given territory.31
The Court was of the opinion that the decolonization process envisaged by the General Assembly was one which respected the right of the population of Western Sahara to determine their future political status by their own and freely expressed will.32 Further, the Court acknowledged that the General Assembly was left with a measure of discretion with regard to the forms and procedures by which the right to self-determination was to be realized.33 In its advisory opinion of 16 October 1975 the Court mentioned two important requirements for the exercise of the principle of self-determination, namely that the expression thereof be (a) free, i.e. be taken without outside interference and, (b) genuine, i.e. be the expressed will of the people of the territory concerned.34 Furthermore, the Court drew attention to the 1970 Friendly Relations Declaration, which besides the three options of emergence as a sovereign independent State, association and integration, included also ‘any other political status freely determined by a people’.35 Those findings were in line with the position of the General Assembly itself, as expressed in its numerous resolutions, including those concerning Western Sahara.
3.4 EAST TIMOR(PORTUGALV. AUSTRALIA, JUDGMENT OF 30 JUNE 1995)
Portugal, the administering Power for the territory of East Timor, instituted proceedings against Australia on 22 February 1991 concerning ‘certain activities of Australia with respect to East Timor’. The subject-matter of the dispute was an agreement entered into by Indonesia and Australia for the exploration of the continental shelf of the so-called ‘Timor gap’. Portugal contended that Australia had, by its conduct, ‘failed to observe…the obligation to respect the duties and powers of (Portugal as) the administering Power of East Timor…and... the right of the people of East Timor to self-determination and the related rights .36 Related rights in this case included the right to territorial integrity and unity and permanent sovereignty over natural wealth and resources, as corollaries of the right to self-determination of peoples. As a consequence, Australia had to cease infringing the relevant international norms and it owed reparation to the people of East Timor and to Portugal.37 While acknowledging that ‘Portugal’s assertion that the right of peoples to self-determination, as it evolved from the Charter and from United Nations practice, has an erga omnes character, is irreproachable’,38 the Court did not go any further in setting out what exactly entailed that erga omnes character. Thus, the Court missed the opportunity to clarify the scope of erga omnes obligations with regard to the right to self-determination. Had the Court decided to pronounce even obiter on this issue, it would have helped to bridge to some extent the gap between what Bruno Simma has called the world of the ‘ought’ and the world of the ‘is’.39 In any case, the publicity given to the issue of East Timor simply by bringing it before the ICJ, coupled with the renewed efforts of the international community, brought about the UN-supervised popular referendum of 30 August 1999, where the East Timorese people voted for their independence from Indonesia.40 Thus, although the Court concluded that it had no jurisdiction to entertain the case,41 it could be said that the legal proceedings before it seem to have had a positive impact on the solution of the problem of East Timor.42
3.5 Advisory Opinion on Kosovo’s Declaration of Independence (October 2008)
On 17 February 2008 Kosovo declared its independence after almost nine years of UN administration. The Serbian reaction was immediate; Serbian officials asked the Security Council and the Secretary-General of the UN to declare that act as illegal. However, the latter’s inaction in taking a position regarding this issue and the recognition of Kosovo by other States seemingly left open only the judicial venue, that is, the ICJ. Thus, upon Serbia’s request as sole sponsor of the resolution, on 6 October 2008 the General Assembly of the UN adopted resolution 63/3 requesting an advisory opinion from the Court.43 The question put before the Court is the following: ‘Is the unilateral declaration of independence by the Provisional Institutions of Self Government of Kosovo in accordance with international law?’ A considerable number of articles have been published on the issue of Kosovo’s final status.44 On its face the question put before the Court is not about the right to self-determination of a people itself, but instead focuses on the manner of the declaration of a country’s independence and the processes accompanying the birth of a new State. However, the Court in many instances has chosen to interpret widely questions put to it or to deal with related issues in the course of providing its answer, so it is not unlikely that the Court could pass upon some yet unresolved questions regarding the right to self-determination outside a decolonization context.
As already noted, Kosovo’s case is entirely distinct from the other cases discussed so far, since it clearly does not lend itself to the legal framework applicable in a decolonization process.45 On the contrary, it is a specific case where the people of a territory enjoying a special status declares its independence from the parent State, despite strong opposition from the latter. The circumstances of the issuance by the Kosovar authorities of their declaration of independence, the character of the Kosovo problem, shaped by the violent disintegration of Yugoslavia, a decade-long of State sanctioned discrimination and denial of self-determination starting with the revocation of autonomy of Kosovo in 1989, the ethnic cleansing campaign against Kosovar Albanians which was brought to an end by the NATO military intervention of 1999, and an extended period of international administration under Security Council Resolution 1244 (1999) of almost nine years make the claim of the people of Kosovo to independence a clearly exceptional and complex case. It bears mentioning that an attempt to resolve Kosovo’s final status through a Security Council resolution in the summer of 2007 failed to get the necessary support.
Interest in this case is quite high due to the fact that two equally important principles of international law seem to be competing, namely the right to self-determination of peoples, including the right to secede, and that of territorial integrity.46 Finding a balance in the perpetual clash between the right of a people to freely determine their political status as an expression of external self-determination and the preservation of a State’s borders as an expression of the principle of territorial integrity is no easy task. The true challenge for the Court will be to interpret these interrelated concepts correctly, in particular in view of the importance of respect for human rights and considerations of legitimacy. Although a large number of the States participating in the written proceedings have explicitly urged the Court to construe the question narrowly,47 were the Court to dwell into the issue of the right to self-determination, it would perforce contribute to clarifying the right to self-determination of peoples through secession.
3.6 PLACE OF SECESSION UNDER INTERNATIONAL LAW
There is certainly a need for a principled international response to demands for self- determination through secession.48 The neutral position and ambiguous language employed by the UN with regard to self-determination through secession is present in the 1992 Agenda for Peace Report, where the Secretary-General stated: ‘The United Nations has not closed its door. Yet if every ethnic, religious or linguistic group claimed statehood, there would be no limit to fragmentation, and peace, security and economic well-being for all would become ever more difficult to achieve.’49 That notwithstanding, this same document tries to give some guidance regarding the interface between competing principles of equal importance. According to the Secretary-General:
The sovereignty, territorial integrity and independence of States within the established international system, and the principle of self-determination for peoples, both of great value and importance, must not be permitted to work against each other in the period ahead. Respect for democratic principles at all levels of social existence is crucial: in communities, within States and within the community of States. Our constant duty should be to maintain the integrity of each while finding a balanced design for all.50
While the political organs of the UN have professed and adopted a neutral position vis-à-vis the issue of secession, unless that is in violation of peremptory norms of international law, the Court on the other hand has to decide with finality any such issues brought before it. In that sense the Court cannot remain neutral and its decisions necessarily have broad repercussions for the development and interpretation of related rules and principles.
Self-determination disputes in the 21st century mainly occur under circumstances where a part of a population in a multi-ethnic State openly expresses its aspiration to internal self-determination, that is a high or higher degree of autonomy, or in the extreme case its claim to external self determination and statehood. Regardless of the extent of such demands, practice shows that attempts of this nature are usually met with stringent, if not outright violent measures by the central government. While until 1914 secession was the most conspicuous and probably the most common method of the creation of new States, State practice since 1945 shows the extreme reluctance of States to recognize or accept unilateral secession outside the colonial context.51 The high degree of sensitivity involved in these issues and the dearth of cases seem to have steered many writers into adopting the view that secession is neither legal, nor illegal under international law.
other views for or against secession have also been expressed.63Case law on these issues is also scarce and thus barely conclusive. Notwithstanding the general paucity of cases, the case of Quebec stands out in that it squarely addresses the issue of the right to self-determination through secession. That case was decided by the Canadian Supreme Court in 1998.52 In dealing with the place of external self-determination in international law that court noted:
In summary ,the international law right to self-determination only generates, at best, a right to external self-determination of former colonies; where a people is oppressed as for example under foreign military occupation; or where a definable group is denied meaningful access to the government to pursue their political, economic, social and cultural development. In all three situations the people in question are entitled to right to external self-determination because they have been denied the ability to exert internally their right to self-determination.
CHAPTER FOUR: SOUTHERN CAMEROON QUEST FOR SELF-DETERMINATION AND INTERNATIONAL LAW
The following chapter aims at determining whether the claim of self-determination by former southern Cameroonians is justifiable in international law. By so doing, we shall be answering research question three in a bid to address specific objective three.
The principle of self-determination of peoples was embodied as a central purpose of the United Nations in its Charter in 1945. One of its aims was “... to develop friendly relations among nations based on respect for the principle of equal rights and self-determination of peoples and to take other appropriate measures to strengthen universal peace ...”53 Minority groups have often relied on the principle of self-determination as espoused in the UN charter to seek for autonomy. The resolution 1514 (XV) of 14 December 1960, containing the Declaration on the Granting of Independence to Colonial Countries and Peoples, states: “All peoples have the right to self-determination; by virtue of that right, they can freely determine their political status and freely pursue their economic, social, and cultural development.”54 In this light self-determination is therefore tied into aspects of life – political, economic, social, and cultural, and is ultimately about how we choose to live, and allow others to live together on this planet. On 7 February 1995, the UN General Assembly adopted a resolution regarding the “Universal realization of the right of peoples to self-determination,” in which the General Assembly reaffirms “the importance, for the effective guarantee and observance of human rights, of the universal realization of the right of peoples to self-determination” and welcomes “the progressive exercise of the right to self-determination by peoples under colonial, foreign or alien occupation and their emergence into sovereign statehood and independence”.55 Interestingly, since 1995 to present, these issues continue to be highly relevant as many groups of peoples around the world strive for the fulfillment of this basic right of self-determination.
4.2 THE BASIS FOR THE CALL FOR SELF-DETERMINATION IN SOUTHERN CAMEROON
4.2.1 The Violation of the Terms of the Foumban Constitutional Conference
The Foumban Constitutional conference was held on 17th -21st of July 1961 aiming at bringing together the leaders and delegation of the two Cameroons, that is president Amadou Ahidjo of La Republic du Cameroun and Prime Minister John Ngu Foncha of Southern Cameroon to a round table discussion on the format on which they were going to administer the re-united states of Cameroon.
In preparation for this conference political leaders from Southern Cameroons, Native Authority Councils, as well as traditional rulers held a convention in Bamenda in June same year. In their deliberations a common agreement was reached for negotiations with their counterpart from East Cameroun. They agreed amongst other things to a “loose federation and a clear distinction to be made between the rights of the state and that of the federation in order to preserve the local autonomy of the state and its power.56
At the Foumban Conference, there were 25 delegates in attendance from the Southern Cameroons and 12 from La Republic du Cameroon. The delegates from La Republic du Cameroun presented the Southern Cameroons delegation with a pre-conceived constitution not different in character from the provisions of the Fifth French Republic of 1958, for deliberation.57 Southern Cameroons delegates “emphasized constitutional conceptions derived from the United States, Canada and Britain”.58 Due to the poor bargaining position of the Southern Cameroons delegates, most of the agreed points arrived at the Bamenda Conference were simply ignored. Ahidjo, the then president of La Republic du Cameroun accepted those suggestions he could from the Southern Cameroons delegates and rejected those that were not in line with his preferred policy of establishing a strong central government. This was a clear indication that the union was not going to be beneficial to the southern Cameroonian since as from the very first day they were treated with a lot of bad faith by their francophone counterpart.
Delegates from Southern Cameroons came out of the conference totally disappointed as they saw themselves as losers, and also because their request for “a quota of ministerial portfolios for Southern Cameroons and the bi-camera legislature which would have safeguarded regional interests in the federation was rejected by Ahidjo”. Thus the constitution that was produced at Foumban did not meet the aspirations of the people of Southern Cameroons. It created a highly centralized federal system according very limited power to the states. The outcome therefore was an unequal union between the two Cameroons which was totally in favour of Ahidjo’s La Republic du Cameroun .
To further worsen things for the Southern Cameroonians, the 1972 Constitutional amendment repealed the Federal constitution and the House of Chief which was a constituent organ of the southern Cameroon legislature as agreed in Foumban in 1961 and replaced it with a new unitary constitution which was highly centralized and concentrated power in the president. This was however in total violation of clause 1 article 47 of the Foumban Constitution which upholds the unity and integrity of the Federation . Constitutional amendments were not normally supposed to be done by way of a referendum since as clause 3 article 47 of the Foumban Constitution stipulated that “proposals for revision shall be adopted by simple majority vote of the members of the federal assembly, provided such majority includes a majority of representatives of each of the federated states”.59
The president by this constitution was seen as an active and powerful chief rather than a figure head. He was to be head of state, armed forces and was not accountable to the legislature for his actions. He appointed ministers, governors, judges and high level civil servants who were entirely dependent on his favour to remain in office. The Federal constitution recognized the equal status of both the French and English languages as the working languages of the Federation. With the advent of the Adhijo’s dictated unitary state in 1972, the French language was seen as a more superior language to the English language. This was evident by article 59 of same Unitary Constitution which provides that the revised constitution shall be published in French and English, but with the French text being authentic.
The content of the new constitution was significantly different to what Foncha had promised Southern Cameroonians. To further frustrate the wishes and expectations of the Southern Cameroonians, Ahidjo never submitted the constitution for final approval to a constituent assembly composed of Francophones and Anglophones representatives as mandated by Clause 3 Article 47 of the Foumban constitution.
The final version of the Constitution left no room for legal secession from the federation, although some southern Cameroonians wanted the said constitution to out rightly provide for peaceful withdrawals from the federation in case a need arise.60 Due to the ill-treatment of the Anglophones at Foumban, there is a general argument that the marginalization of Anglophones started at Foumban and is still evident till date. This has generally led to the birth of the protracted Anglophone problem in Cameroon and it is contended that if the root causes of this problem are not addressed, then the state of Cameroon should be ready for a full blown conflict within the shortest period of time considering the escalation of the said Anglophone problem at the moment.
4.2.2 Socio-economic Discrimination Against the Anglophones as the basis for the quest for Self-determination for Southern Cameroon
The socio-economic discrimination of the Anglophones minorities in Cameroon has help to fan the flames of the Anglophone problem in the country, this has steadily help changed the ideology of the Anglophones who before now saw the return to the 1961 federal constitution as the only major solution to the prevailing Anglophone problem in the country. But as time unfold, this ideology has totally changed and the majority if not all of the Anglophones are now asking for total independence from the East dominated francophone regions of the country. Some of the elements that account for the socio-economic discrimination of the Anglophones minority in Cameroon shall be discuss succinctly herein below.
To start with, the Anglophones are systematically discriminated against in the admission of students into professional schools and other higher institution of learning, such as the National School of Administration and Magistracy (ENAM) where the Anglophone sections have been abolished except for the recently created department of Common Law following the 2017 reforms in a bid to address the grievances of the Anglophones minority in the country. This reform is still not welcomed since as most of the trainers in this school are francophones who know little or nothing on the Common law system of education and most of the trainees if not all are children of Anglophones elites who are hardly accountable to their constituencies and are answerable only to the French dominated government that appointed them. Higher Teachers' Training Colleges (ENS and ENSET) are other places where Anglophones are discriminated upon. Most candidate declared successful for the competitive entrance examination into these schools are usually francophones despite the fact that some of these schools are located in the backyard of major Anglophones towns such as ENS Bamenda(at Bambili) , ENSET Kumba and Bambili. The adverse effects of this discrimination felt more by the Anglophones students who are compelled to be by taught these francophone trainees teachers who are mostly unable to communicate in the queen’s language and lack a mastery of the Anglo-Saxon system of education. As such, Anglophone youths are forced to travel abroad at great financial costs to themselves and to their families in search of higher education, which is of good quality and consistent with their basic education. .
In September 1983, the minister of National Education promulgated an order modifying the Anglophone General Certificate of Education (GCE) examination by making it similar to the Baccalaureate, a French examination in Cameroon.61 This was a deliberate attempt to adulterate the Anglo-Saxon system of education strongly supported by the Anglophone Communities in Cameroon. Another burning issue is the issue of language. Article 1(3) of the 1996 constitution of Cameroon as revised out rightly provides that French and English are the official languages of the country, both languages having the same status. Unfortunately evidence on ground shows that the writers of this constitution did not intend a literal interpretation of Article 1(3). French is seen as a superior language to its English counterpart, in fact it is generally agreed that French is the military language in the country , questions for most competitive entrance examination in the country are usually in the French language and the methodology expected to be used in answering these questions is usually the French methodology. Also most legislations are usually in the French language and the burden is usually on the person who which to use such legislations to engage an interpreter for help. A glaring example of such legislation is the OHADA Law which was predominantly in French and this led to the common law lawyers protest in 2016 calling for the immediate translation of the OHADA Laws into English.
Again the underdevelopment of the Anglophone region can best explain the discrimination against the Anglophones minority in the country despite the fact that this region is a strong hold of rich natural resources in the country. Oil was discovered in 1973 off the coast of southern Cameroon and this led to the establishment an oil public corporation known by its French acronym as SONARA.62 This corporation is predominantly staffed by Francophones, even though the oil exploitation, production and transformation take place in Anglophone Cameroon and no Anglophone has ever headed this corporation. Also oil-derived revenues and taxes are paid to the state directly in Yaounde in the Francophone area not to the host Limbe city council, money which would have been used for the development of oil production town of Limbe. Also despite the fact that the lone oil refinery is found in Anglophone city, the oil reserve from this refinery is kept in the francophone city of Douala.63 This in particular created a consciousness among the Anglophone population who now feel they are been recolonised and marginalised and thus looked at as second class citizens of their own country.
The two main sea ports in Anglophone Cameroon ( Limbe and Tiko) have been abandoned infavour of the Douala and the Kribi sea ports which are located in francophone Cameroon. As of the moment, there is no single airport in operation in Anglophone Cameroon. The Tiko, Bafut and Mamfe air ports have been abandoned infavour of the Douala, Yaounde and maroua airports all located in Francophone Cameroon.
To worsen things, The government announced the privatisation of the CDC in 1994 which was a growing enterprise in southern Cameroon and equally the second highest employer after the state in the country, the state needed to put in more resources to this corporation so that it will grow and carter for the developmental needs of the region . Unfortunately, this was the reverse.64 However the protest mounted by the Anglophone Movements condemning privatisation of C.D.C made the regime to withdraw its decision on the C.D.C privatisation.65
According to Ihims66, prominent positions in the country are always reserved for the Francophone and for more than 32 years since reunification, ministries such as those in charge of Territorial Administration (until 2018 when the first ever Anglophone was appointed to this ministerial position), the Armed Forces, Finance, Foreign affairs, Commercial and Industrial Development just to name this few have never been headed by Anglophones. In the Foreign Service, Anglophones rarely get appointed as Cameroon's Ambassador to London, Washington, New York, Lagos or Paris. These key diplomatic posts are reserved for Francophone.67 Even the few Anglophones that are appointed to subordinate ministerial and administrative positions are die hearted supporter of the central government in Yaounde and are mostly members of the ruling Cameroon People Democratic Movement(CPDM) Party, thus appointments are strictly base on a partisan basis. Anglophones leaders vying for the respect of the rights of Anglophones are constantly arrested by the Biya regime on the pretest that most of the meetings held by these leaders are unauthorized and it is even tantamount to imprisonment to publicly discuss the Anglophone problem in the country.
Faced with this domination by the Francophone in complicity with the regime in Yaounde, it is but normal that the Anglophones felt marginalized and discriminated upon and are now calling for a total separation from the francophone dominated la Republic du Cameroun.
4.3 EFFORTS MADE BY SOUTHERN CAMEROONIANS TO ATTAIN SELF-DETERMINATION
4.3.1 Southern Cameroons National Council and UNPO
Another body which has helped to internationalize the Anglophone case is the Unrepresented Nations and Peoples Organization (UNPO) in The Hague. From inception in 1993 the Southern Cameroons National Council embarked on a mission to resolve the Anglophone problem through diplomacy. In December 2004 the Southern Cameroons was admitted as a member of the Unrepresented Nations and Peoples Organisation (UNPO). The UNPO is an international organization of “Nations, Peoples and Minorities striving for recognition and protection of their identity, culture, human rights and their environment”.68 UNPO member nations and people are bound by the UNPO Covenant: to uphold the principles of self-determination of all nations, peoples,democracy and rejection of totalitarianism, internationally accepted human rights standards, promotion of non-violence and the rejection of terrorism as Instrument of policy, and the protection of the national environment. Its members are indigenous peoples, occupied nations, minorities and independent states of territories that have joined together to protect their human and cultural rights, preserve their environment and to find nonviolent solutions to conflicts which affect them.69
SCNC, leaders in presenting their case for the admission of Southern Cameroons as a member of UNPO, based their arguments on the fact that Southern Cameroons had a distinct colonial history. They argued that it existed firstly as a League of Nations Mandate and, secondly, as a Trust Territory of the United Nations under United Kingdom administration. Thirdly, they argued that Southern Cameroons became self-governing with an elected executive government and legislature in 1954 and that through constitutional evolution, the Southern Cameroons attained a ministerial form of government and a bicameral legislature in 1957. By 1960, Southern Cameroons was gearing for full independence, but independence was granted by joining either Nigeria or French Cameroon. The two-state federation of (equal status) which the UN sponsored between Southern Cameroons and La Republic du Cameroun only resulted in the latter annexing of Southern Cameroons. La Republic du Cameroun’s initial acceptance of the federation was a mere political ploy to execute its hidden agenda of occupying the Southern Cameroons.70
To qualify for membership of UNPO, people affected must share a common history and cultural heritage. The struggle of the people must be geared towards the protection of their basic human rights and the safeguarding of their environment. UNPO’s mission is:
To empower the dispossessed, the disenfranchised to gain autonomy and participate in decision making within the nation-state to which they belong or in the case of a people, who through annexation and foreign occupation, have lost their nation, nationality, legal and legitimate place within the community of sovereign nations, to regain their sovereign independence.71
Southern Cameroons’ application for membership into UNPO was granted on the basis that their territory had been annexed by La Republic du Cameroun. The admission of Southern Cameroons as a member of UNPO has opened doors that were previously closed to them as an annexed and colonized people. Through UNPO, Southern Cameroons has been able to address certain organs of the UN concerning the plight of the peoples of Southern Cameroons by letting the international community know of the situation of Anglophones in Cameroon.
4.3.2 Southern Cameroons National Council and the UNCHR
The participation of leaders of the Southern Cameroons National Council at the 61st session of the UNCHR was made possible by their admission as a member of UNPO and the support they received from the International Federation for the Protection of the Rights of Ethnic, Religious, Linguistic and Other Minorities (IFPRERLM), a New York based Non-Governmental Organization (NGO) enjoying observer status with the UN. Their mission to the UNCHR was to “create some awareness that a former United Nations Trust Territory, the Republic of Cameroon, in gross violation of international law and United Nations Resolutions, has annexed, colonized and occupied, the Southern Cameroons, another former United Nations Trust Territory”.72 In the submission made by IFPRERLM, on behalf of Southern Cameroons, they argue that the Mandate and Trusteeship Agreements were binding international instruments, which created objective border regimes. They argue that “it defined territory under international control”, and to define “a territory means to define its boundaries” and a boundary established by treaty acquires a permanent character.73 From the League of Nations’ perspective they argued that it is a fact of history and international law that there were two separate Cameroons, with international boundaries, two separate cultures, two separate colonial histories, two separate Trusteeship Agreements and two separate peoples. According to them, the present exercise of sovereignty by La Republic du Cameroun over Southern Cameroons should be recognized as a form of colonial rule. Therefore, decolonisation of the Southern Cameroons is the central issue. The people of Southern Cameroons cannot lose their right to self-determination by virtue of the takeover of their territory by La Republic du Cameroun.74
To justify their arguments they alluded to the fact that in Africa there are two Congos and three Guineas, which are different in background, historically, culturally and legally, because of their colonial heritage, have maintained their respective and distinct personalities. Therefore, they see no justification why the two Cameroons should be together for the mere reason of commonality of name when, in reality, they are different. They concluded by saying that the people of Southern Cameroons believe that their right to self-determination is to restore the Southern Cameroons which existed as a “UN Trust Territory under the British Administration, became a self-governing entity in 1954, adopted its constitution in 1960, attained independence on October 1, 1961 and went into a UN-sponsored federal union with La Republic du Cameroun as equal partners.”75 Furthermore, they argued that what La Republic du Cameroun did to Southern Cameroons is what Ethiopia did to Eritrea, the consequences of which constitute part of the sad history of the abusive use of state sovereignty. The people of Southern Cameroons seek international understanding, support, intervention and mediation to end the occupation of Southern Cameroons by La Republic du Cameroun.76 The delegation representing the Cameroon government at the UNCHR was headed by Cameroon’s Ambassador to Switzerland. In exercising their right of defense, they registered their objections to the claims of the SCNC stating that Cameroon is a country in which many groups, ethnic, religious and linguistic cohabit, since its independence in January 1960.77 Historically, they argued, the referendum of 1961 consecrated the attachment of that Anglophone part under the mandate of Britain to the state of East Cameroon which is inhabited mostly by Francophones. This was organized under the supervision of the UN which recognized the results. The delegation added that, through consultation and consent, the political forces of the nation decided, after the referendum of 1972, to go from a federal to a unitary state, now made up of two Anglophone regions and eight Francophone regions.78 They concluded their argument by appealing to the commission not to open its doors to a “secessionist and terrorist” organization like the SCNC that wants to destabilize the peace that reigns in Cameroon. By putting the Anglophone problem in the international arena, the Anglophone leaders were pushing for the recognition of the injustices to the Anglophones.
4.3.3 Southern Cameroons at the African Court
In 2003 a group of Southern Cameroonians, acting under the umbrella of the SCNC and SCAPO, took the Southern Cameroons case to the African Commission of Human and Peoples’ Rights. The complainants were represented by Prof. Carlson Anyangwe, as Lead Counsel, and the law firm of Akinlawon Ajomo of Lagos, Nigeria, as plaintiff. In their submission to the African Commission they complained that the rights accorded to peoples under the African Charter on Human and Peoples’ Rights have, for the people of the Southern Cameroons, been suppressed by La Republic du Cameroun (the Respondent State) through domination and colonization in violation of the Charter.79 One of the basic objectives of the international trusteeship system, as stated in Article 76 (b) of the UN Charter:
To promote the political, economic, social, and educational advancement of the inhabitants of the trust territories, and their progressive development towards self-government or independence as may be appropriate to the particular circumstances of each territory and its peoples and the freely expressed wishes of the peoples concerned, and as may be provided by the terms of each trusteeship agreement.80 Based on this view the Anglophone elites argued that, according to the trusteeship agreement, Southern Cameroons was to be prepared for self-government by the British, but up to 1960 the Southern Cameroons, though under international tutelage, was administered by Britain as part of her nearby colonial territory of Nigeria. But its distinct identity and personality, separate from Nigeria, remained unquestionable. UN Resolution 224 (III) of 18 November 1948 protected the Trust Territory from annexation by any colonially-minded neighbour.81 It was on this premise that the African Commission declared the case admissible before it. It is equally against this backdrop that the Southern Cameroons is constantly calling on the UN to recognized and institute their right to Self-determination which is consistent with the United Nations Charter and its resolutions.
CHAPTER FIVE: SUMMARY OF FINDINGS, CONCLUSION AND RECOMMENDATIONS
5.1 SUMMARRY OF FINDINGS
The research findings showed that Anglophone Cameroonians have been subjected to varying degrees of discrimination because of their minority status. The dominant French language has been used as a power tool to achieve cultural capital to the disadvantage of the Anglophones who could not speak French. These research findings raise the question of unfairness suffered by virtue of not knowing how to speak the dominant or politically preferred language. In fact, it is generally held that French is the military language of the country.
The research findings show that the government has used various strategies to neutralize the Anglophone movements. Some of these strategies include: stigmatization, criminalization, arrest, torture and detention without trial. The government often arrests Anglophone leaders, detains and releases them without charge, undermining the judicial system in Cameroon. In a country governed by law, citizens cannot be arrested and then released without being charged.
This research also showed that new technologies of persuasion have helped to reinforce the claims of a sovereign Anglophone nation. It found that due to the Cameroon Government’s restrictions on public protest and a state controlled media, Anglophone voices critical of the government can still be heard over the Internet. Anglophone Cameroonians at home and in the Diaspora have penetrated this new virtual social space of cyberspace and have created institutions in cyberspace that sustain the Anglophone nation.
To sum it up, Anglophones and Francophones have more in common than they can acknowledge. Since the reunification of the two Cameroons, so much more has taken place between the Anglophone and Francophone in terms of intermarriages, investments, migration, and lifestyle issues that the dichotomy between the two has become blurred. The findings show that Anglophone and Francophone youths tend to enjoy the same music and food, and they are influenced by the American culture of hip hop. The thesis found that, in spite of the fact that language is one of the factors that Anglophone nationalism is built on, the wide use of Pidgin English and Francanglais tends to blur the difference between an Anglophone and a Francophone. Language use in Cameroon functions as a tool to divide as well as unite the people. Again Anglophones and Francophones tend to watch the same programmes on television, irrespective of the language in which the series is broadcast. It is on this premise that this researcher argues that the solution to the Anglophone problem in Cameroon is not secession. The solution lies in change of power and the political will of the regime to share the national cake in all fairness. In fact, the Anglophone cry in Cameroon is similar to that of other francophone regions in the country that lack same needs. It has been agued by some Francophones that there is a need for a change in Cameroon considering the fact that power is centred only in the hands of a particular ethnic group82 in the country.
It is recommended that they should be a return to the 1961 Federal Constitution of the country in a bid to recognise the equal status of the two Cameroons who freely merged in 1961 to form a single country so as to maintain peace and development in the country.
It is equally recommended that the regime in Yaoundé should do all what it takes to meet the needs of its citizens so as to attain emergence by 2035.The Anglophone themselves who are divided on the course should take a unanimous take since as it often said ‘ together we stand and divided we fall’.83
Finally if the terms of the Foumban constitutional conference are respected, the so called ‘Anglophone problem in Cameroon’ shall be permanently put to rest and there will be peace , harmony and unity than ever before.
Ngoh .v Cameroon History since 1800
Jörg Fisch, A History of the Self-Determination of Peoples. The Domestication of an Illusion. Cambridge University Press, 19th December 2015,
Castellino, J “Territorial Integrity and the "Right" To Self-Determination: An Examination of the Conceptual Tools”, Brooklyn Journal of International Law, 2008.
Castellino, J and Gilbert, J “Self-Determination, Indigenous Peoples and Minorities” 2003 Macquarie Law Journal.
Dickinson, R “The Global Reach and Limitations of Self-Determination 2012 Cardozo Journal of International and Comparative Law 367 – 398.
Dickinson, R “Twenty-First Century Self-Determination: Implications Of The Kosovo Status Settlement For Tibet” 2009 Arizona Journal of International Comparative Law
Hannum, Hurst, Rethinking self-determination, in McCorquodale, 2000,
Titanji, ED “The Right of Indigenous Peoples to Self-determination versus Secession:One coin, two faces?” 2009 African Human Rights Law Journal.
Anye. F.E.,’ Issues Of Minority Rights In The Context Of Political Liberalization: The Case Of Anglophone Cameroon’ Ph.D Thesis submitted to the university of Witwatersrand.
www.camweb./do southern Cameroon have the right to self-determination
https://www.lewrockwell.com/.../bevin-chu/the-myth-of-checks-and-bala, visited 22/04/2018.
http://www.en.wikipedia.org/wiki/Separation_of_powers, visited, 03/05/2018.
Judiciary of England and Wales, ‘Judicial review’, http://www. judiciary. gov. uk/you -and-the-judiciary/judicial-review, visited,03/05/2018.
1 Jus Cogens rules refers to certain fundamental,overriding principles of international law, from which no derogation is ever permitted
2 Vladimir Lenin was a Russian Communist revolutionary and a political theorist, He served as head of government of Soviet Russia from 1917-1924 and of the Soviet Union from 1922 - 1924
3 Jörg Fisch, A History of the Self-Determination of Peoples. The Domestication of an Illusion. Cambridge University Press, 19th December 2015, Page 11.8.
4 The Atlantic charter was a policy statement issued during World War two on 14 August 1941, which defined the Allied goals for post World War
5 Agbor Nkongho Felix, Do southern Cameroonians have the right to self-determination, see generally www.camweb.
6 Law No.96/6 of 18th January 1996 to amend the constitution of 2nd June 1972as revised by Law No.2008/001 of 14th April 2008.
7 By virtue of Article 20 of the African Charter on Human and People’s Rights.”All peoples shall have right to existence. They shall have 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. Colonized or oppressed peoples shall have the right to free themselves from the bonds of domination by resorting to any means reorganized by the international community.”
8 The ICJ
9 The Encyclopedia Britannica, 2003 pg. 2341.
10 Hannum, Hurst, Rethinking self-determination, in McCorquodale, 2000, p. 205
11 Hannum even laid the emphasis rhetorically on the number of times the term self-determination is used in the Charter stating for instance that the term is mentioned “only twice”
12 Cassese, Antonio, Self-Determination of Peoples – A Legal Reappraisal, Cambridge University Press, Cambridge, 1995, p. 44
15 Art. 1in the ICCPR and the ICESCR
16 6 General Comment 12, cited in Shaw, 2000, p. 217
17 Shaw.M., International Law , Chambridge University Press,200.p 215-218
22 This is the world’s Court
23  ICJ, International Status of South-West Africa, Advisory Opinion of 11 July 1950, ICJ Reports 1950, p. 128. The questions put forward by the General Assembly were the following: Eventually, the process of the decolonization of Namibia ended on 21 March “What is the international status of the Territory of South-West Africa and what are the international obligations of the Union of South Africa arising there from, in particular: (a) Does the Union of South Africa continue to have international obligations under the Mandate for South-West Africa and, if so, what are those obligations? (b) Are the provisions of Chapter XII of the Charter applicable and, if so, in what manner, to the Territory of South-West Africa? (c) Has the Union of South Africa the competence to modify the international status of the Territory of South-West Africa, or, in the event of a negative reply, where does competence rest to determine and modify the international status of the Territory?”
24 ICJ, South West Africa Cases (Ethiopia v. South Africa; Liberia v. South Africa), (Second Phase), Judgment of 18 July 1966, ICJ Reports 1966, p. 6.
25 The South-West Africa Decolonization cases refer to the four advisory opinions and the two judgments that were issued with regard to the problems surrounding the decolonization process of South-West Africa(Namibia)
26 See South West Africa Cases (Ethiopia v. South Africa; Liberia v. South Africa), Second Phase,
27 General Assembly Res. 3292 (XXIX) of 13 December 1974.
28 ICJ, Western Sahara, Advisory Opinion of 16 October 1975, ICJ Reports 1975, p. 20, par. 20
30 See also General Assembly Res. 1541 of 15 December 1960, UN Doc. A/4684 (1960)
31 Western Sahara, p. 33, par. 59.
36 ICJ, East Timor (Portugal v . Australia), ICJ Reports 1995, p. 92, par. 1
37 East Timor, Application of 22 February 1991, par. 32. Available at: http://www.icj-cij.org/docket/files/84/6809.pdf (last accessed on 5 July 2018).
38 East Timor, ICJ Reports 1995, p. 102, par. 29.
39 B. Simma, Does the UN Charter provide an Adequate Legal Basis for Individual or Collective Responses to Violations of Obligations erga omnes?, in: Delbrück, J. (ed.), The Future of International Law Enforcement, New Scenarios-New Law?, Berlin: Duncker Humblot, 1993, p. 126.
40 After the referendum of 30 August 1999 the transitional government was entrusted to the United Nations Transitional Administration of East Timor (UNTAET), which was established on 25 October 1999. UNTAET administered the territory until 20 May 2002 when East Timor became officially independent.
41 East Timor, ICJ Reports 1995, p. 106, par. 38. In paragraph 29 of the judgment the Court had already stated that it could not rule on the lawfulness of the conduct of a State when its judgment would imply an evaluation of the lawfulness of the conduct of another State which is not a party to the case, even if the right in question were a right erga omnes.
42 Rosenne’s The World Court: What It Is and how It Works, 6th completely revised edition by T.D. Gill, Leiden: Martinus Nijhoff Publishers, 2003, p. 193.
43 The General Assembly resolution was adopted by a recorded vote of 77 in favor to 6 against, with 74 abstentions. For more information see UN Doc. GA/10764, available at:http://www.un.org/News/Press/docs/2008/ga10764.doc.htm accessed on 5th July 2018.
44 See the following articles: R. Müllerson, Precedents in the Mountains: On the Parallels and Uniqueness of the Cases of Kosovo, South Ossetia and Abkhazia, Chinese Journal of International Law (2009), Vol. 8, No. 1, pp. 2-25; J. Bing Bing, The Independence of Kosovo: A Unique Case of Secession?, Chinese Journal of International Law (2009), Vol. 8, No. 1, pp. 27–46; P. Hilpold, The Kosovo Case and International Law: Looking for Applicable Theories, Chinese Journal of International Law (2009), Vol. 8,
45 The author should disclose here his involvement in this case as Co-Counsel and Coordinator for the Albanian legal team No. 1, pp. 47–61; B. Muharremi, Kosovo's Declaration of Independence: Self-Determination and Sovereignty Revisited, Review of Central East European Law, 2008, Vol. 33, No. 4, pp. 401-435.
46 In the first phase of the written proceedings in this case 36 Member States to the UN, including Venezuela filing one week after the 17 April 2009 deadline, filed their submissions, while 14 States Member to the UN participated in the second phase. Kosovo also submitted its arguments in both rounds. The public hearings in this case are scheduled to open on 1 December 2009. For more information see ICJ Press Release No. 2009/27 of 29 July 2009, available at: http://www.icj-cij.org/docket/files/141/15349 accessed 5 July2018
47 Besides a number of States supporting Kosovo’s independence, the group of States maintaining this position included also Serbia itself.
48 A. Buchanan, A Principled International Legal Response to Demands for Self-Determination, in Identity, Self-Determination and Secession, I. Primoratz and A. Pavković, Ashgate, 2006, pp. 139-154.
49 An Agenda for Peace:Preventive diplomacy, peacemaking and peace-keeping, Report of the Secretary-General pursuant to the statement adopted by the Summit Meeting of the Security Council on 31 January 1992, UN. Doc. A/47/277 - S/24111, par. 17.
50 An Agenda for Peace:Preventive diplomacy, peacemaking and peace-keeping, Report of the Secretaryon 31 January 1992, UN. Doc. A/47/277 - S/24111, par. 20.
51 See J. Crawford,The Creation of States in International Law, 2ndedition, Oxford University Press: New York, 2007, p.375 and 415.
52 Reference re Secession of Quebec,  2 S.C.R. 217. See also the amicus briefs by 5 experts, namely T.M. Franck, R. Higgins, A. Pellet, C. Tomuchat, M.N. Shaw in ‘L’Integrite territoriale du Québec dans l’hypothese de l’accession à la souveraineté’, Commission d’Etude des Questions Afferentes à l’Accession du Quebec à la Souveraineté, Assemblée Nationale, Exposés et Etudes, Volume 1 (1992), pp. 377-461;online at:http://www.uni.ca/library/5experts.htmlt accessed on 5th July 2018.
53 “UN General Assembly resolution 1514 (XV), Declaration on the Granting of Independence to Colonial Countries and Peoples, 947th plenary meeting, 14 December 1960”, 20 April 2005. Accessed at http://www.unhchr.ch/html/menu3/b/c_coloni.htm
54 UN General Assembly resolution 49/148, Universal realization of the right of peoples to self-determination, Forty-ninth session, 7 February 1995, 20 April 2006. Accessed at http://www.unhchr.ch/Huridocda/Huridoca.nsf/(Symbol)/A.RES.52.113.En?Opendocument
56 See Victor N., The History of Cameroon Since 1800, Limbe Press Book
57 See Anye.F.E.,’ Issues Of Minority Rights In The Context Of Political Liberalization: The Case Of Anglophone Cameroon’ Ph.D Thesis submitted to the university of Witwatersrand.
58 See Ngoh op cit at P 67
59 Konings P. and Nyamnjoh B.F.,’ The Anglophone Problem in Cameroon’ 1997 P 42
61 Ibid at P.117
62 Ibid P 193
64 Ibid 212
66 Ihims J., The Administrative structure in Cameroon, 2004
68 5 “Covenant establishing the Unrepresented Nations and Peoples Organisation”, 13 March 2006. Accessed at http://www.unpo.org/news_detail.php?arg=01par=212 visited on the 3 of July 2018
70 “Press Briefing following the Admission of Southern Cameroons into UNPO under the Chairmanship of Chief Ette Otun Ayamba – National Chairman of SCNC”, The Southern Cameroons News, No 15 of Friday 04 Jan. 2006
72 “The UN Vetted Document and Presented by Nfor N. Nfor to the 61st Session of the UN Commission on Human Rights; at Geneva”, The Southern Cameroons News, Wednesday 30 March, 2005, which Provoked the Government’s Representative to React on Thursday 31 March 2005.
73 “NGO focuses on the Rights of a People to Self Determination and Its Application to people Under Colonial or Alien Domination or Foreign Occupation in Southern Cameroons”, 6 March 2006. Accessed at http://www.unpo.org/news_detail.php?arg=59par
77 Ibid. 494 “ Right of Reply by the Cameroon Government”, The Southern Cameroons News, No. 16 of Wednesday, 13April 2005
79 The Banjul Communiqué: 37th Session of the African Commission on Human and Peoples Rights, Communication No. 266/200
80 Ngoh, Victor, Constitutional Developments in Southern Cameroons 1946 -1961: From Trusteeship to Independence, 1990, p. 58
81 4 The Banjul Communiqué: 37th Session of the African Commission on Human and Peoples Rights, Communication No. 266/200
82 The Beti Clan
83 Tthe Anglophones are not united in the path to follow to achieve their aim of fighting for Anglophone autonomy. There are factions that advocate outright secession for Anglophones, while other groups stand for federation, and within these groups that support federalism, there are those that support federation with two states and others want ten states federation. Pro-government Anglophone elites are in favour of the government’s policy on decentralization. The analysis in this study revealed that in spite of some minor differences between Anglophones and Francophones, the similarities between the two far outweigh their differences
- Quote paper
- Agbor Dickson Agbor (Author), 2018, The right to self-determination in Southern Cameroon, Munich, GRIN Verlag, https://www.grin.com/document/497402