(2018) 2 African Human Rights Yearbook
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African Commission has been unwilling to interpret the right of selfdetermination in a way that would, in its view, trump the principle of
territorial integrity. The Commission has thus declined to uphold even
what would seem to be legitimate and compelling external selfdetermination claims on the reasoning that the result would be the
impairment of the integrity of the territory concerned. The instinctive
reasoning of the Commission seems to be that in any situation of
tension between the competing values of self-determination and
territorial integrity, the latter must always prevail.
This article examines the contest between these two norms in the
African continent. It explores and interprets the primary texts
governing them, and critiques their interpretation by the Commission.
Ultimately, it demonstrates how the normative power of selfdetermination is constrained by the principle of territorial integrity and
the Commission’s limited understanding of the two principles.
2
2.1
SELF-DETERMINATION
Peoples’ aspirations, hopes and dignity
Self-determination is a fundamental right in contemporary international law. It creates aspirations and hopes for dependent and other
oppressed peoples. The norm quickly evolved from a political principle
to a universal human right that gives expression to certain fundamental
values of the international community and for that reason it is of
international concern. It is embodied in articles 1(2) and 55 of the UN
Charter and finds expression in a number of UN human rights
instruments as well as in article 20 of the African Charter. It has two
interconnected aspects, internal and external.
When a community of people within a country claims internal selfdetermination it is asserting two things: (i) a right to autonomy within
the state, that is, the right of the community freely to determine its
constitutional political status (the form of state), and (ii) a right to
regulate its own affairs in pursuit of its economic, social and cultural
development.1 These matters are purely of domestic concern. By
contrast, external self-determination or ‘complete self-determination’
is a territorial concept. It is about the right of a people freely to assert
sovereign control over territory as an independent state and a subject of
international law. The territorial dimension of self-determination is
governed above all by international law. This is so because it concerns
the birth of a new state in the community of states and therefore
impinges on world order and the Westphalia state system on which
contemporary world order is based. There are at least four theories of
international relations relevant to external self-determination. One
theory insists that territorial sovereignty is more important than
national self-determination. Another theory holds that self1
L Sohn ‘Models of autonomy within the United Nations framework’ in Y Dinstein
(ed) Models of autonomy.