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Self-Determination and Territorial Integrity: Southern Cameroons and the Republic of Cameroun

Document Cited in Related
Vincent
Pages629-653
DOI10.3366/ajicl.2019.0294
Published date01 November 2019
Date01 November 2019
INTRODUCTION

In October 2016, a crisis that morphed into a civil war1 started in Cameroon because of the perception of marginalisation of the Anglophones (People of Southern Cameroons2) by the Francophone dominated Republic of Cameroun, and especially because of the form of the state. Since the independence of British Southern Cameroons in 1961 that led to it joining the Republic of Cameroun as a federated territory in respect of GA Resolution 16083 up to its eventual illegal integration into said Republic,4 the people of the territory now known as the North West and South West Regions5 have continuously complained of marginalisation, discrimination and colonialism as is attested by informed literature. This is what is commonly known in the said literature as the Anglophone problem.6 The conflict that started in 2016 is/was but one in a series of how the problem manifested itself, as it had especially been brought to domestic and international jurisdictions. There is the famous case in the Federal High Court of Nigeria in Abuja7 brought by twelve individuals for themselves and the Peoples of Southern Cameroons against the Federal Republic of Nigeria represented by its Attorney General. They alleged that the Republic of Cameroun had violated their right to self-determination under the African Charter on Human and Peoples’ Rights (the African Charter or ACHPR) and wanted an order requiring Nigeria as a state party to the African Charter, which it had incorporated into Nigerian law,8 to take their case to the International Court of Justice (ICJ) and the United Nations General Assembly (UNGA) for prosecution to bring to a conclusion the claims of the People of Southern Cameroons to self-determination and independence.9 They also wanted a perpetual injunction restraining the government of the Federal Republic of Nigeria and its agents from treating or continuing to treat or regard Southern Cameroons and the peoples of the territory as an integral part of the Republic of Cameroun.10 The plaintiffs believed that under Article 20 of the African Charter,11 Nigeria has a legal duty to take up the claims of the People of Southern Cameroons for self-determination and independence.12 It is interesting that the court ruled that it had jurisdiction to determine the case. By this, it accepted a legal duty on Nigeria as a state party to the African Charter to assist a people under foreign domination in line with Article 47 of the Charter.13 The proceedings, however, were stayed because the parties arrived at a settlement in which Nigeria accepted to take the case of the People of Southern Cameroons to the ICJ and the UNGA.14

There is also the case in the African Commission on Human and Peoples’ Rights (the Commission or ACmHPR).15 Unfortunately, the government of Cameroon has failed to implement the recommendations of the Commission, a failure that is a contributing factor to the civil war. The Commission had called for constructive dialogue between the government and the representatives of the People of Southern Cameroons.16 The complainants had alleged that Southern Cameroons was forcefully and unlawfully annexed by the Republic of Cameroun by establishing:

its colonial rule there, complete with its structures, and its administrative, military and police personnel, applying a system and operating in a language alien to the Southern Cameroon … and continues to exercise a colonial sovereignty over Southern Cameroon to this day.17

According to the complainants, this would be contrary to Articles 1918 and 20 of the ACHPR.19 Contrary to these allegations and legal issues raised by the complainants, the Commission decided to look at the case as one for the exercise of external self-determination in the form of secession. According to the Commission, it did not have jurisdiction over the issues of ‘ “illegal and forced annexation, or colonial occupation of Southern Cameroon by the Respondent State,” since they fall outside its jurisdiction rationae temporis’.20 Having found violations of some articles of the African Charter by the government,21 the Commission still went ahead to reject what it considered as claims for secession. One of its justifications was that Cameroon is a member of the OAU/AU and the ACHPR, meaning that the territorial integrity of Cameroon could not be called to question. The main issue that we consider is whether the respect for territorial integrity/uti possidetis as understood in international law is the same under the African Charter, that is, is the right of self-determination of peoples subject to the respect for territorial integrity of the state? Is territorial integrity in international instruments applicable to sub-state groups? Notably, the African regional system does not make a difference between territorial integrity and uti possidetis (section II). As the following will show, the position under general international law (section III) is different from the African regional system's understanding (section IV). Despite this difference, it will be seen that the decision of the Commission was controversial because, the situation of Southern Cameroons, with its population considered as a ‘People’ under international law with the right to self-determination is unique (sections V). Though we look at the case in terms of secession because the Commission did so, we will partly conclude that the situation of Southern Cameroons is reminiscent of that of Eritrea that was termed ‘third world colonialism’ TERRITORIAL INTEGRITY AND <italic>UTI POSSIDETIS</italic> AS TWO SIDES OF SAME COIN IN AFRICA

African colonial entities gained independence respecting territorial integrity in line with resolution 1514.22 The territories owned by former colonial powers were passed over to the new entities intact: uti possidetis. These territories passed over to the new entities had to be protected: territorial integrity. Uti possidetis can thus be defined as that notion that shows the territory that was transferred from one entity to another. As the ICJ emphasised in the Burkina Faso v. Mali case, ‘by becoming independent, a new State acquires sovereignty with the territorial base and boundaries left to it by the colonial power’,23 that is, the colonial master could only give what it possessed; in other words, colonial masters could ‘transfer only the territorial extent of its own competence’.24 Territorial integrity, on the other hand, is the notion that protects said transferred territory. Because of this, ‘it would be incorrect to fuse together the notions of territorial integrity and uti possidetis.’25 According to Malcolm Shaw, territorial integrity ‘protects the territorial definition of independent States’, while uti possidetis ‘constitutes a principle explaining how the territorial definition of States has arisen in particular situations’. He considers uti possidetis to be a:

principle of transition linked to the transmission of sovereignty from one entity to another and provides a bridging mechanism … Once a new state has come into existence, territorially defined in the light of uti possidetis, its territory as an independent state is protected by virtue of the principle of territorial integrity.26

Despite the two international law notions being different, they have been fused together in Africa where uti possidetis encompasses territorial integrity. In their decision certifying colonial borders, the African heads of state linked the principle to territorial integrity by acknowledging the OAU Charter's proclamation of territorial integrity and sovereignty of states.27 In its consideration of uti possidetis in Africa, the ICJ said that the

Charter of the Organization of African Unity did not ignore the principle of uti possidetis but made only indirect reference to it in Article 3, according to which member States solemnly affirm the principle of respect for the sovereignty and territorial integrity of every State.28

 It must therefore be concluded that the Constitutive Act of the AU also makes such a fusion in its Article 4, as it goes further by not only affirming sovereign equality and interdependence,29 but actually proclaiming respect for colonial borders.30 In the Ogiek case, by linking the OAU decision certifying colonial borders31 to the respect of territorial integrity and prohibition of the right of ethnic groups to secede from states, the African Court of Human and Peoples’ Rights fused territorial integrity and uti possidetis.32 Therefore our treatment of territorial integrity should be taken to also mean uti possidetis. Because of the artificiality of the borders of the new post-colonial African states inherited from colonial states, there was a need for peace among them which was seen as only possible if these borders were made intangible through uti possidetis, that is states were not to claim the colonially inherited territories of other states because of ethnic or other affinities

The relationship between the right of peoples to self-determination and the sanctity of the territory of states is a hostile one. This is because, despite the importance of self-determination of peoples, a state has the right to prevent a breakup of its national territory or threats to its territorial integrity. Since territorial integrity is an international law principle, the question arises whether it is applicable in contexts of self-determination, since with independent sovereign states, self-determination struggles are considered domestic affairs of states. Hence, the relevance of our question: Is territorial integrity/uti possidetis in international law applicable to sub-state groups?

 TERRITORIAL INTEGRITY AND SELF-DETERMINATION IN INTERNATIONAL LAW

Prima facie, the answer...

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