Self-determination is a peoples' right to freely determine their political, economic and
cultural destiny without external interference. However, the cultivation of a culture of
respect for self-determination remains the greatest challenge to post-colonial Africa.
Dictatorships and other oppressive regimes very substantially affected Africa's efforts to
develop a culture of constitutionalism and respect for the right of peoples to selfdetermination.
Most African countries typify the failed effort of trying to establish an
enduring democracy and respect for the right of peoples to take part in the government.
After five decades of transition from colonialism to constitutional democracy, most
African peoples are still under the yoke of governments they consider undesirable or
oppressive. This work primarily sets out to investigate if the denial of the right of peoples
to self-determination justifies the use of force to secure such a right. Since
independence, Africa has experienced armed rebel groups seeking either to effect
radical transformation of the whole state or to separate from the state to which they
belong in order to create a new state. In the main, this study explores the extent to
which rebel groups acting on behalf of peoples are or are not allowed to use force for
the attainment of self-determination.
The thesis begins with an historical development of the right to self-determination in
international law. It initially examines how self-determination has developed from a
political principle to a legal right. Despite the fact that self-determination is one of the
core principles of the UN Charter, there are still many controversies over its precise
meaning, scope and application. The thesis considers the two aspects of selfdetermination:
external self-determination and internal self-determination. The external
aspect implies the right of people to form a new, sovereign and independent state,
whereas the internal aspect implies the right of people to participate in the political
framework of an existing state.
The thesis also assesses the state of the academic literature over the right of peoples to
self-determination, with a view to determining whether the right can be used by a group
of people whose internal self-determination has been denied to effect secession from
the state. It advocates that, outside the colonial context, the right of self-determination
does not equal to a "right to secession and independence". The thesis argues, however,
that in exceptional circumstances such as gross violations of human rights and the
denial of internal self-determination, people should be endowed with a right to
secession in the manifestation of a right to unilateral secession as a remedy of such
injustices.
The thesis further turns to the mechanisms for the protection of the peoples' right to
self-determination, the problems and challenges in Africa. The challenges do not only
include the legality of the use of force by rebel groups and national liberation
movements in seeking to attain self-determination, but also the right of other states to
assist them in their struggles. The work probes the nature of international law and
critically assesses whether the persistent denial of demands for self-determination led to
calls for drastic remedies, including the use of armed force. Before this theory is
critically assessed, the thesis defines the differences between national liberation
movements and rebel groups. It argues that as far as self-determination struggles are
concerned, there must be representative organisations acting on behalf of people
whose right of self-determination has been denied.
In the light of these contentions, the study examines the general ban on the use of force
as laid down by the UN Charter, and finds that the Charter does not expressly refer to
self-determination as a situation where people may resort to the use of force for the
attainment of such a right. It then turns to the history of and circumstance surrounding
the use of force, examines the jus ad bellum regarding "liberation struggles", and
concludes that the use of force by national liberation movements against colonial and
racist regimes has strong theoretical foundations and support in state practice.
Outside of the colonial and apartheid contexts, however, the argument that rebels acting
on behalf of oppressed peoples may legitimately use force in pursuit of selfdetermination
thus remains ambiguous. In that context, this thesis examines the
practice relating to the use of force by rebel groups and the laws of war provisions that
apply in civil wars, and concludes that none of them proves that the international
community of states accepts rebels' right to use force as a legal entitlement.
Finally, based on the lessons learned from and lacunae identified in all norms relating to
the enforcement mechanisms of the right of self-determination, this study concludes
with a set of suggestions and recommendations. / LLD (Law), North-West University, Potchefstroom Campus, 2015
| Identifer | oai:union.ndltd.org:netd.ac.za/oai:union.ndltd.org:nwu/oai:dspace.nwu.ac.za:10394/15828 |
| Date | January 2014 |
| Creators | Zikamabahari, Jean De Dieu |
| Source Sets | South African National ETD Portal |
| Language | English |
| Detected Language | English |
| Type | Thesis |
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