Although minority rights are of a tremendous significance, whereby individual citizens are made to achieve parity with other individual citizens of a state, the territorial definitional na- ture of ‘peoples’ per se may lend itself to a somewhat different interpretive significance, which
will feature more prominently in the present analysis.87 As well as comprising a dominant vari-
able in the equation of statehood, territorialism is also a predominant feature of a ‘people’ that collectively seeks to assert, define, advocate and implement collective self-government within the established framework of an existing sovereign state, at least in the first instance. Such proce- dures are likely to prove contentious, and difficulties in their implementation may be widely evidenced. Particularly in the newer, postcolonial states, where human and financial capital may be limited and infrastructures are likely to be considerably underdeveloped, the achieve- ment of full measures of ‘self-determination’ is a particularly challenging, perpetual task.
It must be stated, however, that although statehood is a most specific legality, both univer- sal in scope and widely accepting of definitional criteria rooted in, the Montevideo Convention, in particular, the phenomenon of universal statehood certainly evidences the capacity for it to prove discordant with local realities. Governance, government, hegemony, acquiescence and effectiveness are all socio-juridical terms with particular meanings and practical implications. Although many, perhaps even most, states arising from colonial situations in the period follow- ing the two world wars have emerged into nominally effective and tangibly functional, if not underdeveloped, territorial state entities, the sustainability of these circumstances may be lim- ited. To this end, it may be recalled that the postcolonial entities under consideration surely could not be considered ‘nation-states’ per se in the same manner as colonising states could lay greater claim to such composition.
86Id. at 157.
87 In the following chapter, the ‘minorities’ concept is more fully integrated into the overall legal analysis, in that the evaluation of the ‘collective groupings’ to be found in certain geographic regions, such as sub- Saharan Africa, may also be found within established postcolonial state borders.
There is an expectation in international law that states will uphold the requirements of sovereign equality associated with statehood, in particular the concepts of independence, terri-
torial integrity, effectiveness, pacta sunt servanda and, increasingly, an expectation of some
measure of accountability in terms of a state’s administrative procedures. By this measure, again largely shaped through an understanding that Montevideo Convention criteria, are the most readily established criteria of statehood, a large percentage of ex-colonial territories have emerged into independent states and will be able to demonstrate continually the fulfilment of these criteria, and, as such, the question of statehood will not arise. As discussed in the previous chapter, a state recognised by other states and fulfilling the general legal criteria for statehood is, quite simply, a state.
The question, however, of collective groupings is complicated by a certain amalgam of circumstances, whereby a geographically-contiguous ‘people’ has a right to internal (and poten- tially external) self-determination, a ‘minority’, not typically being subject to internal territorial definition or demarcation has a right to parity with the majority, and an ‘indigenous people’ has direct access to a particular set of rights and privileges systemically designed to preserve particu- lar traditions and patterns of behaviour. In those circumstances where the tension between the ‘state’ and its component parts becomes extreme, particularly in those circumstances whereby the postcolonial context produces a reality fraught with a complicating set of social, economic and geopolitical pressures, coercive governmental behaviour may be directed against potions of
its citizenry, as matters of policy, or of evidenced practice.88
Under such circumstances, the ‘collective groupings’ being examined in this chapter find their most obvious definition through the commonality of an inherent desire to rectify these situations and to achieve, in the main, a measure of self-administration (i.e., self-determination of peoples, to which the internal and postcolonial external forms share a common juridical pedigree), parity with other citizens (i.e., minority rights), or recognition as an established, dif- ferentiated group with distinct linguistic, cultural and social characteristics (i.e., indigenous peoples’ rights).
The ability to invoke successfully collective rights by collective groupings is practically limited by the capacity of the collective grouping to define persuasively and advocate its claims. In short, the collective grouping must be recognised, primarily within the state in question, and, with ancillary measure, by the international community of states. This study has focused in the main on sub-Saharan Africa as its practical reference point because, as will be elaborated in chapter four, sub-Saharan Africa is a widely diverse and dynamic region for the consideration of collective groupings generally. What can be said with certainly is that, in the sub-Saharan Af- rican context, the legacy of colonialism is shared by the likes of the administrative structures formed in e.g. Accra, Ghana and Dakar, Senegal as well as those in e.g. Khartoum, Sudan and Kinshasa, DR Congo. Although such situations would reflect profoundly different sets of cir- cumstances in terms of economic development, social stability and effective territorial admini-
88 As a reference point, it should not go overlooked that this study is written from a perspective generally seeking to incorporate the effects of postcolonial circumstances into an analytical legal framework. As ob- served by one commentator: “As with the end of slavery, the end of colonial rule seemed a hopeless ven- ture at the start and an inevitable outcome by the end. The precipitous end of colonial rule resulted partly from the devastating civil wars among the European colonial powers from 1914 to 1945, which literally bled the colonial powers, exhausted from economically, and discredited them morally. Still, the triumph was one of mass political action and the awakening of vast publics around the world to the ideals of self- rule. Without glossing over the tragic violence, cynicism, political failure, and despotism that often re- placed imperialism, we can marvel at the phenomenal and positive spread of the Enlightenment ideal of government by consent.” Cf. J.D. Sachs, The End of Poverty 362-363 (2005).
stration, the underlying point is that the universalism of statehood is projected not only into in- ter-temporal European and post-colonial circumstances, but also develops with a similar dy- namism, as colonialism becomes more of a historical relic and postcolonial statehood is increasingly forced to address substantive claims of collective rights. Thus, while fundamentally rejecting racism and négritude outright, it cannot go overlooked that the smaller and more inte- grated, rather prosperous capitals of Accra and Dakar are faced with considerably less compli- cated factual circumstances, in terms of territorial administration, than in Khartoum and Kinshasa. It seems likely that geography plays a formative role in this comparison, in that one pan-African commonality, however, is a definitional form largely shaped by a tendency to- wards profound economic underdevelopment, sprawling geographic reach and certain evi-
dence of discordance in municipal affairs,89 but the scope and extent of such malfeasance is
considerably more tangible, and therefore more juridically significant in the latter of such cir- cumstances.
There are, therefore, obvious, workaday circumstances of administrative deficiency, coupled with the quintessence of systemic dysfunction which may well lend credibility to claims of collective rights under the aforementioned three main forms of ‘collective groupings’ (under which ‘self-determination’ is loosely grouped with ‘minority rights’ and ‘indigenous peoples’ rights’). Self-determination is particularly relevant in postcolonial states, in particular, those having long since been the subject of speculation on the forms functional incorporation
into the global state system.90 Although this formulation lends credence to the notion that col-
lective groupings may be judicially formed in both complicated and uncomplicated factual cir- cumstances alike, care should be taken when formulating an overall conceptual picture to avoid assuming factual circumstances in situations on the ground, which are, in fact, worse than they may otherwise appear at first glance. As one commentator has stated:
[T]here remains the possibility that a particular people may be treated systematically by the central government in such a way as to become, in effect, non-self-governing with respect to the rest of the state. By analogy with GA Resolution 1514 (XV), Principle IV, if they are arbi- trarily placed in a position of subordination, the question of external self-determination is surely raised. Measures grossly discriminating against the people of a territory on grounds of ethnic origin or cultural distinctiveness may effectively single out and thereby define the terri- tory concern as non-self-governing according to existing criteria, reinforcing or even consti- tuting the case for external self-determination by the people of that territory.
But situations of internal colonization are very much the exception. In the normal case it is clear that ethnic or cultural distinctiveness of groups within the state, whether or not it qualifies those groups as ‘peoples’ for the purpose of the principle of self-determination in interna- tional law, does not entitle them to secede from the state of which they are part. Despite this, there is a growing acceptance that, for real equality to be achieved for such groups within the state, measures of a collective kind may be necessary. These can include measures of local autonomy, provisions for separate representation in legislative and executive bodies at central or regional levels, land rights (especially in the case of indigenous groups with his- torical links to areas of land) and so on.91
89 Indeed while the Ghanan and Senegalese circumstances are comparatively preferable, the fragility of this reality is unquestionable, as Côte d’Ivoire certainly would have otherwise been viewed as a paragon of stability in the decades immediately following its independence from France.
90Cf. W.V. O’Brien and U.H. Goebel, United States Recognition Policy Toward the New Nations, in W.V. O’Brien (ed.), The New Nations in International Law and Diplomacy 98 (1965) [hereinafter O’Brien and Goebel]: “… [t]he emergence of so many states, virtually all in Asia and Africa, has naturally caused speculation on the effect of all of these non-Western states on international law and diplomacy. One side of this subject, and possibly the most important in the long run, concerns the behavior of the new nations themselves. It is still rather early, however, to develop this side in depth.”
Thus, although neo-colonialism is unlikely to be widespread, the possibility for the phe- nomenon to exist, or for evidence to exist that factual circumstances have been driven by that phenomenon, cannot necessarily be excluded. Surely such circumstances would be of greater practical and administrative dysfunction than would be otherwise observed in postcolonial states lacking sustainable economic and social development, but otherwise exhibiting a level of social cohesion sufficient so as to continue to reinforce the validity and legitimacy of the state it- self. The juridical examination of modern territorial statehood undergoes a perpetual state of critical evolution, as law is both defined by, and dependent upon, human behaviour, particu- larly in circumstances whereby collectivités submit credible claims for recognition to the states of which they are citizens. Such claims need not necessarily be minded to have been invoked in re- sponse to circumstances of neo-colonialism per se, although they may well serve to document substantial and fundamental violations of individual and collective human rights.
It may be the case that neo-colonial circumstances, or situations of ‘internal colonisation’ would correspond most closely with situations likely to be found on the outermost cultural and geographic extremes of postcolonial states, e.g. South Sudan and Darfur, the eastern part of the Democratic Republic of Congo, easternmost Chad, and in many of the northernmost regions of
the West African states.92 The sub-state entity may be faced with a power structure concentrated
around the apparatus of a central government in a distant capital. The collective grouping will in theory be making claims to this government, from which, again theoretically, a response will be forthcoming. In practice, however, the capacity for such inter-societial administrative function- ality will be limited. Indeed in the case of Darfur or the eastern part of the DR Congo, such for- malities are purely fictional. To complicate matters further, the international law governing collective groupings is particularly definitional in character, with an implication of subsequent vagueness revolving around the notion of sub-state collective rights as human rights, while hu- man rights litigation is the subject of municipal law in the first instance, before emerging onto the international plane, following the exhaustion of local remedies.
When collective rights are unlikely to be recognised as such by the encompassing state in question, and the international community as a whole and by extension, the concept of ‘internal self-determination’ fails the test of sustainability. This is a different phenomenon than that of a regional or national government, e.g. Quebec, asserting that the central government has failed to negotiate in good faith on its claims for (external) self-determination. Rather, it is more akin to the circumstance whereby particular measures of internal self-determination prove insufficient to achieve an effective level of self-administration. In the most extreme of circumstances on the Alston (ed.), Peoples’ Rights 64-65 (2001), emphasis added.
92 The situation in Darfur is particularly challenging as it may eventually be proven to have a genocidal character; however, the Security Council, following an International Commission on Inquiry, concluded that genocidal intent could not be definitively linked to the central government. See Report of the Interna- tional Commission of Inquiry on Darfur to the United Nations Secretary-General, 25 January 2005, not issued as a UN document, available from http://www.un.org/News/dh/sudan/com_inq_darfur.pdf, at para 640. But cf. Sudan ‘backs’ Janjaweed fighters, BBC News, 18 October 2006, available from
http://news.bbc.co.uk/1/hi/world/africa/6060976.stm: “A man identified only as ‘Ali’ told the BBC's Newsnight programme that Sudanese ministers gave express orders for the activities of his unit, which included rape and killing children. ‘The Janjaweed don't make decisions. The orders always come from the government,’ he said. ‘They gave us orders, and they say that after we are trained they will give us guns and ammunition.’ ‘Ali’ - who is now seeking asylum in Britain - said the men who had trained them were wearing the uniforms of the Sudanese military, adding that Interior Minister Abdul Rahim Muhammad Hussein was a ‘regular visitor’.” See also Case Concerning the Arrest Warrant of 11 April 2000 (Democ- ratic Republic of the Congo v. Belgium 2002 ICJ Rep. 3.
ground, a tangible measure of ‘internal self-determination’ could even be measured by a cease- fire or other cessation of hostilities, particularly involving activities directed against civilian populations. As such, the positive definition of a ‘collective grouping’ is largely dependent upon the argument underlying a collective grouping’s self-identification, and the general political climate governing the interactions between governmental capital and political Hinterland. It seems to be unlikely that in the most extreme factual situations (i.e., those most akin to ‘internal colonisation’), the achievement of group rights by collective groupings will come to fruition without a fundamental change in factual circumstances on the ground. Internal self- determination, then, could well be a difficult proposition to imagine. Indeed, it may be an ut- terly incredible proposition, as should be seen from Darfur. Yet, in addition, the notion that ex- ternal self-determination would act as a panacea when the attainment of internal self- determination appeared unlikely or problematic, seems similarly difficult to comprehend. As Christian Tomuschat writes:
It is abundantly clear, therefore, that international practice from Africa, the continent where the greatest number of incongruities between ethnic lines and State boundary lines can be observed, strongly speaks against acknowledging a right of secession being enjoyed by ethnic groups. In fact, in countries like Nigeria, where roughly 250 linguistic and ethnic groups exist, and Cameroon, where the number of indigenous languages rises to more than 120, the appli- cation of that legal proposition would lead to nonsensical results through infinite fragmenta- tion which could hardly be stopped at any given point if no additional criteria were
introduced, such as the viability of a potential State entity. Yet, the available texts do not mention such additional requirements—quite obviously because it was never thought that the assertion of self-determination could end up in such a chaotic state of affairs. This, again, confirms that the presumed premise—the existence of an unlimited right of secession for every ethnic group—must be wrong.93
A situation develops whereby, in the most extreme postcolonial circumstances, the achievement of any measure of internal self-determination seems farcical, yet the threshold to
external self-determination is held restrictively high. The point remains that collectivités will con-
tinue to bring an onus on the state, supported if need be, through actions by the international
community,94 determining that these circumstances do exist and that a remedy is required. The
greatest problem with this formulation is that the potential for the most extreme factual situa- tions on the ground to retain that status is considerable.
However, an emerging point worthy of greater consideration is the reality that notions of sovereignty have considerably and tangibly evolved since the historical period of absolute sov- ereignty associated with classical legal positivism. Indeed, as can be easily observed, one of the most significant developments, at the outset of the 21st century, has been action by the United Nations to reinforce the linkages between rights and responsibilities, both between states and individuals.
93 C. Tomuschat, Secession and self-determination, in M.G. Kohen (ed.), Secession: International Law Per- spectives 29 (2006).
94 U.S. Secretary of State Colin Powell testified before the Senate Foreign Relations Committee on 9 Sep- tember 2004 that genocide was occurring in Darfur, although whether this action has served the Darfur people well is perfectly questionable, in that it has proven to be of little practical effect in the years follow- ing its pronouncement. This action further follows that taken in the House of Representatives in
H.Con.Res. 467 (21 July 2004), resolving that Congress “declares that the atrocities unfolding in Darfur,