(2018) 2 African Human Rights Yearbook
53
inhabitants of the borderland,17 it cannot be used to further larger
territorial claims in defiance of internationally accepted boundaries.
Examples of such impermissible claims are the former claims of Libya
to the Aouzou strip, of Nigeria to the Bakassi Peninsula, of Somalia to
Djibouti and Northeast Kenya, of Morocco to Mauritania and currently
to the Western Sahara, and of République du Cameroun to the former
Southern British Cameroons.
Secession is a pure fact situation, a meta-juridical phenomenon.
The international community may acknowledge it as a matter of
realism when made effective. International law deals with
decolonisation but not with secession. It neither concedes nor denies a
right to secede.18 It imposes no general prohibition of secession, which
does not necessarily mean there is a right of secession. The nearest
thing to prohibition of secession is the conditional protection of state
territory available under the principle of territorial integrity. Secession
disrupts the Westphalia state system. State expansionism revives
imperialism, which had long been rejected because it also imperils the
Westphalia state system.19 The object of the principle of territorial
integrity is therefore to secure respect for the preservation of the
territorial status quo of states. International law does not encourage
secession, or even unions. It rejects annexation and territorial
aggrandisement as invalid and inimical to international peace and
security. Yet, international law cannot prevent state fission any more
than it can prevent consensual fusion.
The basic argument against the applicability of self-determination
within sovereign states leading to secession20 is that it would conflict
with and be contrary to the principle of territorial integrity. Secession
and territorial integrity appear to be conflicting norms. In reality, that
is not always the case. Where secession is legitimate, a new state
emerging from an existing one through self-determination, there is
only an apparent conflict between both norms. Furthermore, a state
may suffer part of its territory to secede. The breach of the principle of
territory integrity in that case is not contrary to international law.
The practice of the UN and its members in the matter of secession
has been inconsistent. In Africa, anti-secession rhetoric is often
repeated and the principle of territorial integrity is usually proclaimed.
But neither the Organisation of African Unity (OAU) Charter nor the
AU Constitutive Act condemn nor proscribes secession in any member
state. They do not because that would be interfering in the internal
affairs of a member state. None of those documents exclude a legitimate
17
18
19
20
M Weller Autonomy, self-determination and conflict resolution (2007); J Baker
(ed) Sovereignty matters: locations of contestation and possibility in indigenous
struggles for self-determination (2005).
Reference by the Governor in Council concerning Certain Questions relating to
the Secession of Quebec from Canada 115 International Law Reports 536; 1998
Can. Sup. Ct. LEXIS 39.
R Emerson From empire to nation (1960); S Touval The boundary politics of
independent Africa (1972).
J Faundez ‘International law and wars of national liberation: use of force and
intervention’ (1989) 1 Revue Africaine de Droit International Comparé 85, 90.