THE RIGHT TO SELF-DETERMINATION AND THE PURPORTED SECESSION OF WESTERN TOGOLAND: A REPLY TO MARTIN WAANA-ANG by Frederick Agaaya Adongo

It is no news that in Ghana today there is an incessant and ever-present attempt fueled by a secessionist group, namely the Homeland Study Group Foundation, to declare the Western Togoland as an independent state. In considering the legal implications of this attempt as far as international law is concerned, Martin Waana-ang of the KNUST Faculty of Law, in an apposite and thought-provoking legal masterpiece posited that the attempted secession from Ghana is unfounded in international jurisprudence. He traced the historical antecedents that culminated in the inclusion of the Trans-Volta Togoland as part of the territory of Ghana. Whereas I agree with him substantially, I wish to add a few words of my own to the discussion, while dissenting in part from the opinion proffered by my colleague. In so doing, I shall examine the right to self-determination in juxtaposition with the attempt to declare the Western Togoland as an independent state to determine whether or not international jurisprudence permits such secession.

Before I proceed to deal with the substance of this essay, permit me to express a few misgivings with respect to the opinion given by my colleague, Martin Waana-ang. I disagree with Martin for the view expressed that even if the right to secede exists and the Western Togoland successfully secedes, meeting the criteria of statehood as espoused in the 1933 Montevideo Convention on the Rights and Duties of States will be a “possible hurdle”. Although he did not say anything more, save his general view as expressed above, it can be gleaned from the circumstances that implicitly inherent in his argument is the suggestion that if the Western Togoland successfully secedes, it may not properly be regarded as a state because it may find it difficult meeting the criteria of statehood as outlined in the famous Montevideo Convention. If that is the trajectory of his argument, with much diffidence, I disagree with him.

I express this dissent because the criteria of statehood based on effectiveness as stated in the Convention can now properly be regarded as obsolete in light of the direction of modern enquiry in international jurisprudence on statehood. A cursory look at contemporary international law reveals that there are other criteria of statehood namely; self-determination, legality of the formation of the ‘state’ and non-violation of human rights in the formation of the ‘state’ in question.

In view of contemporary trends in international law, the late Prof. Emmanuel Yaw Benneh (may his soul rest in perfect peace) in his article Statehood, Territory, Recognition and International Law posited that self-determination is a “separate criterion of statehood, although in a limited sense”. In so saying, the learned professor was influenced largely by James Crawford who argued that “the principle of self-determination does not qualify the operation of the principle of effectiveness, but operates as a distinct and overriding criterion, suspending Statehood until the constitutional and governmental structure is consistent with the principle of self-determination”. Hitherto, Professor Fawcett had opined that “to the traditional criteria for the recognition of a regime as a new State must now be added the requirement that it shall not be based upon a systematic denial in its territory of certain civil and political rights, including in particular the right of every citizen to participate in the government of his country, directly or through representatives elected by regular, equal and secret suffrage”. All of these prove the point that international jurisprudence recognizes as a separate criterion of statehood the principle of self-determination.

Also, on the basis of the non-use of force principle encapsulated in Article 2(4) of the United Nations Charter, Prof. Benneh argued forcefully in his characteristic masterly style of writing that any state borne out of the use of force will be a supervening illegality and cannot be regarded as a state. This is so even if it fully satisfies the criteria in the Montevideo Convention.

Again, Prof. Benneh argued that “respect for human rights as well as other ‘requirements’ have become recognised as relevant criteria for Statehood in the modern law”. As such, any so called state borne out of a widespread violation of human rights such as ethnic cleansing shall not be recognized as a state.

On another level, the deficiency of the Convention that makes reliance on it in this age retrogressive and backward-looking is the fact that history is replete with several instances of ‘states’, such as Southern Rhodesia, which satisfied the factual requirements of statehood according to the Convention but were never recognized as such. On the other side of the spectrum, there were other states which did not fully satisfy the requirements as enumerated in the Convention but were nevertheless regarded as states. A clear example is the case of Guinea-Bissau before Portuguese recognition.

Based on the foregoing analysis, it can conveniently be concluded that the Montevideo Convention by no means provides exhaustive criteria for determining statehood. A state properly so called must therefore be formed having regard due to the right to self-determination, non-use of force and human rights. Hence, a state can be internationally recognized, although it may not satisfy the factual requirements expressed in the Montevideo Convention, in much the same way as a state may not be recognized although it may appear to satisfy the criteria in the Convention.

One other view expressed by Martin that I find difficult accepting is the proposition that the “smallness” of the Western Togoland may make its international recognition a supervening challenge. It is trite learning that the size of a population is wholly immaterial in determining statehood. If one were to argue on the basis of the Montevideo Convention, it becomes abundantly clear that the Convention makes no mention of the size of a population that must occupy a given territory to make such a territory recognizable as a state. A bulk of the available literature on the subject, including opinions expressed by well-known international law jurists such as Prof. D.J Harris, support the contention that the size of a population or the landmass of the territory is non-essential in determining statehood. Thus, Prof. Benneh is fast to conclude that “[a] crucial element may well turn on the recognition of an entity as a self-determination unit rather than on size”. Therefore, a populated country such as China, a country with a huge landmass such as Russia and a “backyard garden like Togo”, to use Prof. Benneh’s phrase, all qualify as states and are accorded with the rights and responsibilities of states.

The last misgiving that I would express in respect of Martin’s article is his suggestion that a seceded state needs the recognition of the ‘parent state’ to become a valid state. Quite obviously, it is very unlikely that the parent state would be happy with the secession from it. If the parent state was involved in some atrocious acts which amounted to the exceptional circumstances that may warrant secession (to be discussed later in this article) against the seceded state prior to secession, one should not expect the seceded state to be recognized by the parent state.

Lest I leave you with a false impression, I am far from meaning that it cannot happen. It may happen that the parent state may recognize the statehood of the seceded state. However, that should not in any way be a determining factor of the statehood of the seceded state, provided it satisfies the criteria of statehood as already outlined above. It is enough if the seceded state is recognized by the larger international community. But as Prof. Emmanuel Yaw Benneh observed, “the reaction of African States to the secessionist attempts by Katanga, Biafra and Northern Somaliland show a consistent refusal to recognise the exercise of self-determination through secession”. Therefore, the attempted secession by the Western Togoland may similarly be met with scorn and skepticism in the international front, and that is what we should be taking into consideration, not recognition from the parent state.

Reverting to the crux of the matter, it is not doubtful that the intellectual engine that engineered the quest for independence by many colonized nations was the principle of self-determination. The right to self-determination not only gave colonized states the right to gain their independence, but also imposed a duty erga omnes on the colonial masters to grant independence to their colonies. The right of peoples to self-determination is basically a right in the international legal regime which recognizes the need to allow a group of people in a particular territory to be able to determine their future; politically, economically, culturally and otherwise. In one sense, one can say, as did James Crawford, that “self-determination is, at the most basic level, a principle concerned with the right to be a State”. 

It is beyond the scope of this paper to examine the history surrounding the evolution of the right to self-determination. But it is worthy to note that the concept of self-determination was the subject matter of a number of international law cases. The principle was succinctly encapsulated in the opinion of Judge Dillard in the Advisory Opinion of the International Court of Justice in the Western Sahara case ICJ GL No 61, [1975] ICJ Rep 12, ICGJ (ICJ 1975) wherein he stated thus: “the pronouncements of the Court thus indicate,… that a norm of international law has emerged applicable to the decolonization of those non-self-governing territories which are under the aegis of the United Nations. It should be added that the force of these pronouncements is in no way diminished by virtue of the theoretically non-binding character of an advisory opinion…  It is for the people to determine the destiny of the territory and not the territory the destiny of the people”. Elsewhere he noted that a territory cannot change hands without the consent of the people.

Upon a perusal of the historical background of the right to self determination, it can be seen that at the developing stage of the principle of self-determination, it was applicable only in colonial contexts. As such, it was thought that the right to self-determination expires upon the attainment of political independence. Thus, self-determination, as it were, was considered to be the logical equivalent of the right to gain independence from colonial rule. But today the concept is much larger in scope than it was then. This reality was profoundly recognized by Prof. Richard Falk who argued as follows: “At this stage, it is too late to put the genie of self-determination back in its colonialist bottle. Too many additional claims have now been validated; too large a meaning has been invested in the language of self-determination”. 

In effect, contemporary international law admits other possible circumstances under which the right to self-determination may be exercised. In fact, it must be noted, albeit cautiously, that the International Court of Justice in the Western Sahara case elevated the principle above merely independence from colonial rule when it referred to self-determination as “the need to pay regard to the freely expressed will of peoples”. The Nicaragua case and the Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory case (known also as the Wall Opinion) have also demonstrably underscored that self-determination is not confined in the colonial warehouse. Self-determination can therefore be regarded as a right in continuum which extends even beyond independence from colonial imperialism. It can equally be applied to a group of people who have never at all been colonized.

Of particular importance to the foregoing analysis is that arresting and breath-taking dictum of Judge Wildhaber in his concurring opinion in the case of Loizidou v. Turkey, (Merits), 18.12.1996, ECHR. Judge Wildhaber espoused succinctly as follows: “Until recently in international practice the right to self-determination was in practical terms identical to, and indeed restricted to, a right to decolonization. In recent years a consensus has seemed to emerge that peoples may also exercise a right to self-determination if their human rights are consistently and flagrantly violated or if they are without representation at all or are massively underrepresented in an undemocratic and discriminatory way. If this description is correct, then the right to self-determination is a tool which may be used to reestablish international standards of human rights and democracy”.

The African Charter on Human and Peoples Rights has also taken affirmative cognizance of the fact that self-determination can be applied in post-colonial and non-colonial contexts. The Charter provides in Article 20(1) thus: “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”. Particularly important is Article 20(2) which provides that “Colonized or oppressed peoples shall have the right to free themselves from the bonds of domination by resorting to any means recognized by the international community”.

The conclusion that follows as a logical consequence from the above postulations is that in this age, it is now untenable to argue that the right to self determination can only be applied in colonial contexts. Any person who holds such a view today may be described as one who, in his obstinate self-assurance, has shut his ears to all better knowledge and is thereby deprived of access to the deep wells of knowledge on the right to self-determination which were dug deep by contemporary international law trends.

Proceeding therefrom, one crucial issue that is worth considering is whether the reference to ‘peoples’ in the international instruments and decisions of courts on the right to self-determination means the entirety of the population within a particular existing state or even a section of the populace in that state.

The Canadian Supreme Court had a momentous occasion to comment on the issue in the Reference by the Governor-General concerning Certain Questions relating to the Secession of Quebec from Canada case (hereinafter referred to as the Quebec case) when it noted thus: “It is clear that “a people” may include only a portion of the population of an existing state. …the reference to “people” does not necessarily mean the entirety of a state’s population”. Therefore, it does not have as a requirement for the exercise of the right to self-determination that the whole of Ghana, for instance, must be involved. In such circumstances, only a particular section of an existing state can assert this right. Accordingly, the right can be exercisable by the Western Togoland, which is but a small fraction of Ghana, provided other essential factors (which will be discussed later) are present.

The principle of self-determination has gained worldwide acceptance. It is expressed in varying language in a number of international instruments. Notably, Article 1(1) of the International Covenant on Civil and Political Rights (ICCPR) provides that “all peoples have the right of self-determination. By virtue of that right they freely determine their political status and freely pursue their economic, social and cultural development”. At least a cursory mention is made of the principle in the United Nations Charter, the 1960 Declaration on the Granting of Independence to Colonial Countries and Peoples, the 1970 Declaration on Principles of International Law Concerning Friendly Relations, the African Charter on Human and Peoples Rights, the International Covenant of Economic, Social and Civil Rights, among other international agreements. In this light, it is not surprising that in the East Timor case, the International Court of Justice affirmed that “[t]he principle of self-determination has been recognized by the United Nations Charter and in the jurisprudence of the Court … [and] is one of the essential principles of contemporary international law”. 

Considering the high threshold of importance that international jurisprudence attaches to this right, it is not out of place to argue that the principle of self-determination has attained the status of a jus cogens norm. Jus cogens as defined in Article 53 of the 1969 Vienna Convention on the Law of Treaties is “a peremptory norm of general international law… accepted and recognised by the international community of States as a whole as a norm from which no derogation is permitted and which can be modified only by a subsequent norm of general international law having the same character”. 

With this background, it is necessary to determine whether or not the right to self-determination is not without any limitation to the extent that it is regarded as a jus cogens norm.

An examination of international jurisprudence reveals that one clear limitation to the right of self-determination is the principle of uti possidetis juris. This is a principle of international law which seeks to protect the boundaries of states that were already demarcated as at the attainment of independence. The principle operates to freeze the territorial boundaries as at the time of independence, thereby maturating colonial administrative boundaries into international frontiers. The essence of this doctrine is to push further away the precipitation of hostilities that may result from any attempt to re-demarcate national boundaries.

In the Frontier Dispute (Burkina Faso/Republic of Mali) I.C.J. Reports 1986, p. 554, the Chamber of the International Court noted that “[t]he principle (uti possidetis juris) is not a special rule which pertains solely to one specific system of international law. It is a general principle, which is logically connected with the phenomenon of the obtaining of independence, wherever it occurs”. This principle finds expression in Article 111(3) of the Organization of African Unity Charter which calls for “[r]espect for the sovereignty of and territorial integrity of each State and for its inalienable right to independent existence”. 

The uti possidetis juris principle was re-affirmed in the Cairo Resolution of 1964 on the Intangibility of Existing Borders. It is premised on the concept of territorial sovereignty of states. As such, once the delimitation of territories had been concluded at independence, whatever the means of delimitation was, everyone is enjoined to respect it, whether or not one is satisfied with it. Accordingly, Judge Huber, commenting on the numerous means by which territories may be delimited and the need for strict compliance with the delimited boundaries noted in the Island of Palmas case that “[t]erritorial sovereignty is, in general, a situation recognized and delimited in space, either by so-called natural frontiers as recognized by international law or by outward signs of delimitation that are undisputed, or else by legal engagements entered into between interested neighbours, such as frontier conventions, or by acts of recognition of States within fixed boundaries”.

In fact, Judge Koroma in the Kosovo case opined that “[t]he principles of the sovereignty and territorial integrity of States prevail over the principle of self-determination”. Accordingly, he further indicated that “[n]ot even the principles of equal rights and self-determination of peoples as precepts of international law allow for the dismemberment of an existing State without its consent”. As such, Malcolm Shaw rightly identified that “the UN has always strenuously opposed any attempt at the partial or total disruption of the national unity and territorial integrity of a country”.

In examining the justification for the concept of uti possidetis, one can say that it seeks to proscribe “recriminations, enmity and rancour which may be carried over from the past” relating to the delimitation of boundaries prior to independence, to adopt the words of George Francois JSC in the case of New Patriotic Party v. Attorney General (31st December Case) [1993-94] 2 GLR 35. It seeks to consign to the archives of history, never again to be resurrected, all sentiments borne out of the delimitation of boundaries before the attainment of independence.

In very elaborate terms, the International Court of Justice examined the rationale for the principle of uti possidetis, suggesting implicitly that it is an exception to the principle of self-determination in the Frontier Dispute in the following terms: “The essence of the principle (uti possidetis) lies in its primary aim of securing respect for the territorial boundaries at the moment when independence is achieved… At first sight this principle conflicts outright with another one, the right of peoples to self determination. In fact, however, the maintenance of the territorial status quo in Africa is often seen as the wisest course, to preserve what has been achieved by peoples who have struggled for their independence, and to avoid a disruption which would deprive the continent of the gains achieved by much sacrifice. The essential requirement of stability in order to survive, to develop and gradually to consolidate their independence in all fields, has induced African States judiciously to consent to the respecting of colonial frontiers, and to take account of it in the interpretation of the principle of self-determination of peoples”. 

Moving on, one may ask whether under international law secessionist self-determination is available as of right to any group of persons, and in our own circumstances, the Western Togoland.

Judicial decisions, international agreements and opinions expressed by international law jurists on the subject are incongruent and irreconcilable. There is so much diversity of thought on the issue and it is not clear whether international law favours secessionism. Some argue that international law is neutral on the subject, but will validly recognize a state which is borne out of a successful secession. Others argue that secessionist self-determination is available outright. However, the majority of opinions expressed appear to agree, and rightly so, that secessionist self-determination is not available as and when a particular group wishes to exercise it, except in some exceptional cases.

On this issue, recourse can be had to the dissenting opinion of Judge Koroma in the Kosovo case. In outright rejection of the majority opinion that the mere declaration of independence per se did not violate any international law rule, Judge Koroma unequivocally noted as follows: “International law does not confer a right on ethnic, linguistic or religious groups to break away from the territory of a State of which they form part, without that State’s consent, merely by expressing their wish to do so. To accept otherwise, to allow any ethnic, linguistic or religious group to declare independence and break away from the territory of the State of which it forms part, outside the context of decolonization, creates a very dangerous precedent. Indeed, it amounts to nothing less than announcing to any and all dissident groups around the world that they are free to circumvent international law simply by acting in a certain way and crafting a unilateral declaration of independence, using certain terms. The Court’s Opinion will serve as a guide and instruction manual for secessionist groups the world over, and the stability of international law will be severely undermined”. 

The opinion of Judge Koroma in the Kosovo case is in tandem with the decision of the Supreme Court of Canada in the Quebec case. Therein, the court noted that “international law does not specifically grant component parts of sovereign states the legal right to secede unilaterally from their ‘parent’ state”. This was affirmed somewhat in the Aaland Islands dispute where it was remarked that “[p]ositive international law does not recognize the right of national groups, as such, to separate themselves from the State of which they form a part by the simple expression of a wish”. 

The Commission of Rapporteurs in the Aaland Islands dispute indicated further that “[t]o concede to minorities, either of language or religion, or to any fractions of a population the right of withdrawing from the community to which they belong, because it is their wish or their good pleasure, would be to destroy order and stability within states and to inaugurate anarchy in international life; it would be to uphold a theory incompatible with the very idea of the state as a territorial and political unity”.

To me, this line of thought is the soundest postulation and I side with practitioners in this school of thought. Taking our own country for example, one can imagine the chaos and disorderliness that will result from attempts to secede by the numerous ethnic groups if the right to secession was available outright. Ghana as we have it today was not always a single unit. It was a number of territories that were brought together to form present day Ghana, namely the Gold Coast Colony, the Northern Protectorate, the British Togoland and the Ashanti kingdom. The same may be the situation in many other countries all the world over. If there is a possibility of succession at will, perhaps each of these territories may wish to secede. When that happens, numerous problems will follow, including principally issues relating to the demarcation of territories, the distribution of natural and state resources among many other issues. It is therefore not surprising that in their enviable sagacity, many of the international law jurists and judges argue against secession at will.

But does the foregoing presuppose that under no circumstance can the right to secessionist self-determination be available? Of course not! As we may have noticed already, some exceptional circumstances may give rise to the right to secede. In my perusal of the literature, I have identified three exceptional cases that may warrant unilateral secession from an existing state.

The first exceptional circumstance was identified in the Aaland Islands dispute, where it was explained that ‘[t]he separation of a minority from the State of which it forms part and its incorporation in another State can only be considered as an exceptional solution, a last resort when the State lacks either the will or the power to enact and apply just and effective guarantees [of religious, linguistic and social freedom]”. Thus, where it is evident that the state is oppressing the minority group that seeks to secede and attempts at resolving same prove futile, the group can have recourse to secession as a last resort.

The African Commission on Human and Peoples Rights in the case of Katangese Peoples’ Congress v Zaïre also enunciated another exceptional circumstance that may warrant unilateral secession from an existing state. The Commission stated that the Katangese people could secede only in instances of “concrete evidence of violations of human rights to the point that the territorial integrity of Zaire should be called into question’ or if there would be ‘evidence that the people of Katanga are denied the right to participate in Government as guaranteed by Article 13 (1) of the African Charter”. Therefore, in cases of a widespread violation of human rights which meets the threshold provided in this case, secession may be relied on as a last resort.

In the Quebec case, a third exception was identified which was formulated thus: “…when a people is blocked from the meaningful exercise of its right to self-determination internally, it is entitled, as a last resort, to exercise it by secession. The Vienna Declaration […] requirement that governments represent “the whole people belonging to the territory without distinction of any kind” adds credence to the assertion that such a complete blockage may potentially give rise to a right of secession.”

By means of this remedial secession doctrine the right of external self-determination arises only in “the most extreme of cases and, even then, under carefully defined circumstances” as enunciated above, and is not a right available and exercisable at will.

Now, based on the above extrapolations, to determine whether the people of Western Togoland are entitled to the right to secede, all of the following questions must be answered in the affirmative. But the answers can be seen as I have already demonstrated above, which will again be provided.

  1. Is the right to self-determination applicable in non-colonial contexts? Yes.
  2. Does international law proscribe secessionist self-determination at will? Yes.
  3. Does international law recognize the right to secede in exceptional circumstances? Yes.
  4. Does the situation of the Western Togoland in Ghana meet any of the exceptional circumstances that may warrant secession as enumerated above? I leave that to my readers to answer.

If the answer to the fourth question is in the negative, the right to secede cannot be exercised by the Western Togoland based on the international jurisprudence adumbrated above. The Homeland Study Group Foundation may choose to “exercise a variant of self-determination that is compatible with the sovereignty and territorial integrity” of Ghana, as the Commission advised in the Katangese Peoples’ Congress v. Zaïre. They can choose to resort to the negotiation table with the Ghanaian authorities to seek fair compromise if they think there are any grievances worth addressing.