ICJ Advisory Opinion on Kosovo: An African Perspective
The advisory opinion of the International Court of Justice (ICJ) on 22 July 2010 http://www.icj-cij.org/docket/files/141/15987.pdf affirming that, 'general international law contains no applicable prohibition on declarations of independence' and that 'the declaration of independence of the 17th of February 2008 did not violate general international law' could not have come at a more pivotal time for Africa and its ramifications is bound to have a profound impact on Africa. Perhaps unlike any other continent, Africa currently has more conflicts or civil wars within its geographical area than any other continent in the world. In this respect it is my considered view that the ICJ's advisory opinion should herald a sea change in the legality of disputes in Morocco and the status of the disputed territory of Western Sahara, Angola and its disputed territory of Cabinda, the civil wars in Côte d'Ivoire, Democratic Republic of Congo (Congo DR), Sudan and Somalia. Whilst we should err on the side of caution and indeed exercise caution in interpreting and analysing the ICJ's advisory opinion which was based on the request of Serbia through the United Nations (UN) General Assembly Security Council of the UN to the ICJ which is the UN's highest judicial organ on the specific question lex specialis on the legality in International Law of Kosovo's Unilateral Declaration of Independence (UDI). Which is why the ICJ in its advisory opinion states that, 'in the present case, however, the Court has not been asked to give an opinion on whether the declaration of independence is in accordance with any rule of domestic law but only whether it is in accordance with international law. The Court can respond to that question by reference to international law without the need to enquire into any system of domestic law'. The Court states further that, in determining the jurisdictional issue of whether it is confronted with a legal question, it is not concerned with the political nature of the motives which may have inspired the request or the political implications which its opinion might have'.
The ICJ unlike a domestic court couched the ratio of its advisory opinion in such a way that it only specifically addressed the legality of the UDI in International Law and gave no indication, an obiter or in general terms lex generalis ancillary and related issues on the legality of the status of the Kosovo and on the legality of the secession of an autonomous territory from a sovereign nation. Hence for emphasis the ICJ states, the General Assembly '… does not ask about the legal consequences of that declaration. In particular, it does not ask whether or not Kosovo has achieved statehood. Nor does it ask about the validity or legal effects of the recognition of Kosovo by those States, which have recognized it as an independent State.
Furthermore the ICJ unlike the domestic courts of a host common law jurisdictions and to a certain extent civil law jurisdictions is generally not bound by the precedent - the principle of stare decisis in its previous advisory opinion, decisions or ruling. In fact Article 59 of ICJ statute states that, 'The decision of the Court has no binding force except between the parties and in respect of that particular case'. In other words the ICJ advisory opinion is not a carte blanche charter to secessionist movements nor does it answer or address the issue of a sovereign nation's territorial integrity vis-à-vis claims of self-determination. In as much as this is not a ruling or judgment of the ICJ it does carry a lot of weight and could be quite persuasive in influencing countries that have not recognised Kosovo and also to an extent how counties deal with their internal territorial claims and disputes. Hence this is why the ICJ states in this case that, 'The advisory jurisdiction is not a form of judicial recourse for States but the means by which the General Assembly and the Security Council, as well as other organs of the United Nations and bodies specifically empowered to do so by the General Assembly in accordance with Article 96, paragraph 2, of the Charter, may obtain the Court's opinion in order to assist them in their activities. The Court's opinion is given not to States but to the organ which has requested it Nevertheless, precisely for that reason, the motives of individual States which sponsor, or vote in favour of, a resolution requesting an advisory opinion are not relevant to the Court's exercise of its discretion whether or not to respond. In fact the advisory opinion does not serve as a precedent for future cases but it may be persuasive in future ICJ decisions.
The legality of sovereign nations in Africa cannot be divorced from the colonial era. The recognition by the United States (US) following President Abraham Lincoln proclamation to the US congress in 1862 at the height of the US civil war of the predominantly freed slaves black republic nations of Haiti (UDI 1804) and Liberia (UDI 1847) provided legitimacy to the sovereignty of these republics. It is quite remarkable at that time given that these were pioneer republics populated mainly by freed black African slaves and indigenous black people. The Berlin Conference of 1884 which demarcated the present day borders of African countries by the main colonial powers Great Britain, Portugal, France, Spain and Germany is also significant as this was not an exercise famously known as the partition of Africa was not undertaken with the consent of the people of Africa. The dominance of global super powers it should be noted is quite evident in shaping in international law in recognising the legality of sovereign nations. Hence a country's legitimacy and recognition in International Law is fait accompli if it enjoys a majority of support and recognition of the so called super powers. This could in certain cases be just and fair and in certain cases unjust and unfair as in the cases of Southern Rhodesia (now Zimbabwe), South West Africa (Namibia) and Eritrea. These cases will be discussed further in this discourse. More so in today's world much as it was in the 18th Century and during the era of imperialism and colonialism diplomatic recognition by majority of the nations that are members of the International Community of Nations and the UN as well admission to membership of international and regional governmental organisations confers de jure legitimacy while for a country recognised by some a minority of nations whose legitimacy in international law can be deemed as de facto. After a period of time de facto recognition becomes de jure recognition. It is for this reason that Southern Rhodesia's UDI from the United Kingdom in 1965 by its then minority white government was totally rejected by the international community and not recognised in International Law. In contrast Eritrea UDI in 1991 effectively ensuring it's succession from Ethiopia after a long drawn conflict which began in 1961 was recognised by the International Community and valid in International Law.
In order to understand the background of the recent African conflicts and civil wars post the 1990s and what I see as the relevance of the ICJ's Kosovo advisory opinion it is quite evident that issues of historical, political and legal context of the colonial struggle in Africa comes to play particularly the strict adherence to the legal doctrine of uti possidetis juris or uti possidetis de jure by the African Union (AU) the successor body the Organisation of African Unity (OAU) the intergovernmental group of all African Countries as stated in its charter. Paul R. Hensel, Michael E. Allison and Ahmed Khanani in their paper Territorial Integrity Treaties, Uti Possidetis, and Armed Conflict over Territory - presented at the 2006 Shambaugh Conference "Building Synergies: Institutions and Cooperation in World Politics," University of Iowa, 13 October 2006 quoting the Black's Law Dictionary defines the legal doctrine of uti possidetis juris or uti possidetis de jure as “The doctrine that old administrative boundaries will become international boundaries when a political subdivision achieves independence” The basic principle dates to Roman times and takes its name from the Latin phrase “uti possidetis, ita possideatis,” or “as you possess, so may you possess”. According to Hansel, Allison and Khanani the modern uti possidetis doctrine emerged after the decolonisation of Latin Africa, which has also influenced the doctrine in Africa. Article 2 of the OAU charter states inter-alia, the OAU shall have the following purposes, 'to defend [the African States'] sovereignty, their territorial integrity, and independence", Article 3 of OAU Charter: "The Member States, in pursuit of the purposes stated in Article 2, solemnly affirm and declare their adherence to the following principles... 3. Respect for the sovereignty and territorial integrity of each State and for its inalienable right to independent existence." Article 3 of the AU Constitutive Act states and reaffirms the Article 2 of the OAU charter that "The objectives of the Union shall be to... (b) defend the sovereignty, territorial integrity and independence of its Member States", Article 4 of AU Constitutive Act: "The Union shall function in accordance with the following principles: (b) respect of borders existing on achievement of independence".
Hansel, Allison and Khanani state further that the distinction between violent and general territorial integrity obligations appears to be important. Most notably, the principle is enshrined in the OAU's 1963 charter and 1964 Cairo Declaration, in which the African leaders pledged “to respect the frontiers existing on their achievement of independence''. The ICJ's 1986 judgment in the Mali-Burkina Faso Frontier Dispute case describes the global applicability of uti possidetis as follows: "The territorial boundaries which have to be respected may also derive from international frontiers which previously divided a colony of one State from a colony of another, or indeed a colonial territory from the territory of an independent State, or one which was under protectorate, but had retained its international personality. There is no doubt that the obligation to respect pre-existing international frontiers in the event of State succession derives from a general rule of international law, whether or not the rule is expressed in the formula of uti possidetis."
Hansel, Allison and Khanani suggest that Africa had important advantages over Latin America in that the transition to independence was more orderly, most borders were already set by international treaties, and most borders were not as ill-defined or based on contradictory documents, although numerous grounds for potential problems remain, such as the potential for irredentist conflicts over colonial-era borders that divide members of a single ethnic group or tribe. More sceptically Hansel, Allison and Khanani citing Prescott (1987: 105) note that the 1964 OAU declaration was meant to prevent the emergence of territorial disputes in Africa, but concludes that unfortunately that the OAU has not succeeded in that intention. To Hansel, Allison and Khanani the emphasis was on preventing war over territory, while still allowing peaceful transfers of territory by mutual agreement; as will be seen, this approach is consistent with the Latin American application of uti possidetis. They posit that the borders between European colonies in Africa were often unnatural, cutting across traditional ethnic or linguistic groups and producing ill-fitting multiethnic colonial entities. As a result, leaders in the region chose to avoid uncertainty and conflict by preserving their existing colonial boundaries; it was feared that allowing challenges to any African borders on the grounds of illegitimacy could lead to the emergence of challenges against virtually every African border for the same reason.
Similar provisions invoking the uti possidetis doctrine is stated in Intergovernmental Organisations and regional grouping of African Nations such as the Organization of the Islamic Conference (OIC) Charter Article II, the Economic Community of West African States (ECOWAS) Protocol on Non-Aggression (1978-present, although now superseded by the 1999 Protocol Relating to the Mechanism for Conflict Prevention, Management, Resolution, Peacekeeping and Security when that comes into effect (Articles 1 and Article 2 of the 1978 and 1999 protocol), ECCAS Protocol Relating to the Establishment of a Mutual Security Pact in Central Africa/COPAX Protocol (Article 3), Southern African Development Council (SADC) Protocol on Politics, Defense, and Security Cooperation in contemporary Africa, the Non-Aligned Movement 1955 the Bandung Principles and the Harare Commonwealth Declaration of on 20 October 1991 reaffirming the core values and principles of the Commonwealth stating that, 'We believe that international peace and order, global economic development and the rule of international law are essential to the security and prosperity of mankind'. The OAU charter in pursuance of adhering to the doctrine of uti possidetis juris or uti possidetis de jure were influenced by the Article 2 (4) of UN Charter: "All Members shall refrain in their international relations from the threat or use of force against the territorial integrity or political independence of any state, or in any other manner inconsistent with the Purposes of the United Nations."
Failed Dispute Resolution Mechanisms
Historically the OAU and its successor body the AU has according to George Mukundi Wachira in his paper, African Court on Human and Peoples' Rights: Ten years on and still no justice published by the Minority Rights Group International 2008 quoting Maluwa, T., 'The peaceful settlement of disputes among African states, 1963–1983: some conceptual issues and practical trends', 38 International Comparative Law Quarterly has preferred to tackle disputes and problems on the continent through non-confrontational means such as mediation, arbitration, conciliation and use of the good offices of African leaders. This it is acknowledged was often at the expense of human rights, which was not deemed by the founding fathers emerging from the anti-colonial struggle has not of particular importance.
This is evident in the armed conflicts in Nigeria (civil war from 1967 to 1970), Côte d'Ivoire (civil war 2002 to 2004) where the country is effectively divided into two with the government controlled south and rebel territory in the North and if it was not was not for the unlawful attacks (resulting in the unfortunate deaths of three Togolese officials) on the Togo's national football team during this year's African Nations Cup I would not have known of the dispute in Cabinda which is a province of Angola, a legal dispute which predates Angola Independence in 1975. Furthermore the conflict in Congo has effectively been since 1996, Somali conflict since the 1990s and that of Sudan in Darfur, Southern Sudan since 2003. The case of Western Sahara is a case in point as the ICJ in its advisory opinion on Western Sahara (1975) held that the indigenous Sahrawi population were the true owners of the land, held a right of self-determination and any resolution of the conflict had to have the expressed consent of the Sahrawis' to have be legally – Morocco and Mauritania. This again is similar to the fate of the then South West Africa now Namibia with the then illegal occupation of the Apartheid South African regime. Indeed in the Kosovo case, the ICJ consistently cited its decision in the Namibia (1971) case, stating, that 'During the second half of the twentieth century, the international law of self-determination developed in such a way as to create a right to independence for the peoples of non-self-governing territories and peoples subject to alien subjugation, domination and exploitation'. The ICJ states further in the Kosovo case, 'The Court has already noted…that one of the major developments of international law during the second half of the twentieth century has been the evolution of the right of self-determination'. Whilst the ICJ in the Kosovo case did not concern itself with the principle of self-determination as provided in Articles 1 and 55 of the UN charter and lately in Article 1 of the UN International Covenant on Civil and Political Rights and also in Articles 20 and 22 of the African Charter, it is relevant to the facts in issue and indeed cannot be divorced from it. It is also relevant that the ICJ made copious reference to this principle as stated above.
A paradigm shift
The history of armed conflicts cannot be ignored and African governments cannot remain passive or resort to the strict adherence of the doctrine of non-interference in internal and national affairs and defence of territorial integrity. This only seeks to delay the problems in the short term and not preventing in the long term the resulting often bloody civil wars and internal armed conflicts as meaningful and constructive dialogue and negotiations are never high on the agenda of the African governments. Whilst these armed conflicts appear distinct in character, the factors precipitating reveal a common thread of remote and immediate factors notably the demise of a dictator leading a government as in the cases of Côte d'Ivoire in 1993 (Felix Houphouet-Boigny), Somalia in 1999 (Mohamed Siad Barre) and Zaire now Congo DR in 1997 (Mobutu Sese Seko). It is an undeniable fact that the oppression of a minority by a suppressive dominant group precipitates these conflicts. The absence and lack of presence of any form of functioning institutions of government is often a common feature in the areas of conflict. These conflicts result in a significant loss of lives, internal and external displacement of people resulting in refugee crisis, and the threats to regional stability, security, socially, politically and economically.
The preponderance of social, economic and political implications of resolving conflicts and civil wars cannot be over emphasised given the factors involving in fostering these conflicts. The ICJ in its advisory opinion has shown that the law does not act in vacuum nor does it act in vain which follows long held legal maxims of equity. Government cannot continue to act with impunity subvert, undermine and thwart the democratic will and mandate of the peoples where they have voted in a free and fair plebiscite that they want to succeed – that will and mandate can be denied. It is essential that African governments create accountable institutions of political autonomy to their constituent units backed by a strong legal framework. In countries like Nigeria where a federal system exists in all but name it is quite lamentable that whilst the Bruce Willis 2003 Tears of the Sun movie envisaged the current militant armed conflict in the Niger Delta, the state institutions did not. In fact despite the so called devolved political autonomy with the creation of more constituent states and a plethora of quasi non-governmental organizations (quangos) and government parastatals at local, state and federal levels there has been no significant improvement of the lives of the citizens of the Niger Delta as evidenced in the continued degradation of their environment, the wanton depletion of state funds through the endemic corruption of the area's rich oil and gas resources. In short the government in all but name has no direct impact on the lives of its citizens. This is trend common to areas of conflict in Africa.
It crystal clear that the African approach to dispute resolution in areas where there are armed conflicts often involving genocide, ethic cleansing and gross violations of International law in respect of International Humanitarian Law, International Human Rights Law and International Criminal Law has abjectly failed the continent and African leaders need to emerge with a more coherent legal framework tacking into cognisance the latest developments in Public International Law and subsidiary specialist areas of the International Humanitarian Law, International Human Rights Law and International Criminal Law. This should not just be based on rhetoric but on taking concerted actions, measures and steps in endorsing the rule of law and the adoption into domestic law of international covenants, treaties and agreements based on International Law. It should also be in enforcing the structure of intergovernmental institutions and tribunals particularly the African Court of Human Rights and the Courts of the Regional bodies - ECOWAS, SDAC, Common Market for Eastern and Southern Africa (COMESA), Economic Community of Central African States (ECCAS), Arab Mahgreb Union (AMU) and the Community of Sahel-Saharan States (CEN-SAD).
*Omoba Oladele Osinuga Esq. an International Criminal Lawyer works in the Mission of a leading International Governmental Organisation in Europe writes from Dagenham Essex UK.