1 See Cassese, Antonio, Self-Determination of Peoples: A Legal Reappraisal (1995)Google Scholar.

2 Declaration on Principles of International Law Concerning Friendly Relations and Co-operation Among States in Accordance with the Charter of the United Nations, GA Res. 2625 (XXV), annex (Oct. 24, 1970).

3 Vienna Declaration and Progamme of Action, para. 2, UN Doc. A7CONF.157/23 (July 12, 1993).

4 Accordance with International Law of the Unilateral Declaration of Independence in Respect of Kosovo, Advisory Opinion (Int’l Ct. Justice July 22, 2010). ICJ documents cited in this essay are available on the ICJ Web site, http://www.icj-cij.org.

5 “ [N]o general prohibition against unilateral declarations of independence may be inferred from the practice of the Security Council.” Id., para. 81.

6 Id., para. 79 (citing Legal Consequences for States of the Continued Presence of South Africa in Namibia (South West Africa) Notwithstanding Security Council Resolution 276 (1970), Advisory Opinion, 1971 ICJ Rep. 16, paras. 52–53 (June 21); East Timor (Port. v. Austl.), 1995 ICJ Rep. 90, para. 29 (June 30); Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, Advisory Opinion, 2004 ICJ Rep. 136, para. 88 (July 9)).

7 Id., para. 82.

8 The referendum was stipulated under the Comprehensive Peace Agreement of 2005, which formally ended a twenty-year civil war between the government in Khartoum and the south’s Sudan People’s Liberation Movement Army. See Comprehensive Peace Agreement Between the Government of the Republic of Sudan and the Sudan People’s Liberation Movement/Sudan People’s Liberation Army (Jan. 9, 2005), at http://www.aec-sudan.org/docs/cpa/cpa-en.pdf Google Scholar.

9 The second Afro-Arab summit, held in Sirte, Libya, on October 10, 2010, rejected the potential secession and underlined the importance of protecting Sudan’s territorial integrity, explaining that the failure to do so would lead to the disintegration of the whole continent. See http://www.afro-arabsummit.com.

10 Constitutive Act of the African Union, Art. 4(b), July 11, 2000, OAU Doc. CAB/LEG/23.15. The founding documents and other treaties, conventions, and instruments of the African Union, as well as some instruments of its predecessor organization, the Organization of African Unity (OAU), are available at http://www.africa-union.org/root/au/Documents/Treaties/treaties.htm.

11 Jean Ping, AU Chairperson, Remarks at the UN High Level Meeting on Sudan (Sept. 24, 2010), at http://blogs.ssrc.org/sudan/.

12 International Labour Organization, Convention Concerning Indigenous and Tribal Peoples in Independent Countries (No. 169), June 27, 1989, af http://www.ilo.org/ilolex/ [hereinafter ILO Convention No. 169]. For an overview of the ILO’s concern with indigenous peoples, see Luis, Rodriguez-Piñero, Indigenous Peoples, Postcolonialism, and International Law: The ILO Regime (1919–1989) (2005)Google Scholar.

13 Declaration on the Rights of Indigenous Peoples, GA Res. 61/295, annex (Sept. 13, 2007).

14 Id., Art. 3 (“Indigenous peoples have a right to self-determination. By virtue of that right they freely determine their political status and freely pursue their economic, social and cultural development.”). The Declaration on the Rights of Indigenous Peoples also affirms indigenous peoples’ rights to autonomy and self-government, culture, traditional knowledge, development, education, social services, the environment, and ownership of traditional lands and natural resources.

15 ILO Convention No. 169, supra note 12.

16 Id., pmbl., para. 5.

17 Notably, the World Bank Operational Manual, OP 4.10 (July 2005), at http://go.worldbank.org/2G5SSZAET0, also recognizes the customary rights of indigenous peoples over lands and resources, and affirms the principle of their “free, prior, and informed consultation” in relation to bank-funded projects affecting them. See also Committee on the Elimination of Racial Discrimination, General Recommendation No. 23, Indigenous Peoples, para. 5 (Aug. 18, 1997), Report of the Committee on the Elimination of Racial Discrimination, UN GAOR, 52d Sess., Supp. No. 18, Annex V, UN Doc. A/52/18 (1997), calling upon states, inter alia, to “recognize and protect the rights of indigenous peoples to own, develop, control and use their communal lands, territories and resources.”

18 American Declaration of the Rights and Duties of Man, May 2, 1948, 43 AJIL Supp. 133 (1949). The conventions and other instruments of the Inter-American system are available at http://wwwl.umn.edu/humanrts/iachr/iachr.html.

19 American Convention on Human Rights, Nov. 22, 1969, 1144 UNTS 123.

20 See Record of the Current Status of the Draft American Declaration on the Rights of Indigenous Peoples, Twelfth Meeting of Negotiations in the Quest for Points of Consensus (Washington, D.C., Nov. 30-Dec. 2, 2009), OAS Doc. GT/DADIN/doc.334/08 rev. 5 (Dec. 3, 2009) (draft Article 3).

21 Convention for the Protection of Human Rights and Fundamental Freedoms, Nov. 4, 1950, ETS No. 5, 213 UNTS 221.

22 African Charter on Human and Peoples’ Rights, June 27, 1981, 21 ILM 58 (1982).

23 In the preamble to the African Charter, the African states both reaffirm the pledge that they made in Article 2 of the OAU Charter, see infra note 31, “to eradicate all forms of colonialism from Africa” and affirm that they are conscious “of their duty to achieve the total liberation of Africa” and to eliminate colonialism, neocolonialism, and apartheid. Id., pmbl., paras. 3, 8.

24 Common Article 1 of the International Covenant on Economic, Social and Cultural Rights, Dec. 16, 1966, 993 UNTS 3 [hereinafter ICESCR], and International Covenant on Civil and Political Rights, Dec. 16, 1966, 999 UNTS 171 [hereinafter ICCPR], provides:

• 1.

  1. 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.

• 2.

  2. All peoples may, for their own ends, freely dispose of their natural wealth and resources without prejudice to any obligations arising out of international economic cooperation, based upon the principle of mutual benefit, and international law. In no case may a people be deprived of its own means of subsistence.

• 3.

  3. The States Parties to the present Covenant, including those having responsibility for the administration of Non-Self-Governing and Trust Territories, shall promote the realization of the right of self-determination, and shall respect that right, inconformity with the provisions of the Charter of the United Nations.

25 See Willem van, Genugten, Protection of Indigenous Peoples on the African Continent: Concepts, Position Seeking, and the Interaction of Legal Systems, 104 AJIL 29, 38–43 (2010)Google Scholar.

26 Ouguergouz, Fatsah, The African Charter on Human and Peoples’ Rights: A Comprehensive Agenda for Human Dignity and Sustainable Democracy in Africa 205 (2003)Google Scholar.

27 Id. at 209.

28 See, for example, Legal Resources Foundation v. Zambia, Comm. No. 211/98, Afr. Comm’n on Hum. & Peoples’ Rts. [achpr], 14 Ann. Activity Rep. (2000-01)Google Scholar, and the series of cases against Mauritania, Malawi African Association v. Mauritania, Comm. No. 54/91, Amnesty International v. Mauritania, Comm. No. 61/91, and Union Interafricaine des droits de l’homme v. Mauritania, Comm. No. 98/93 (all in achpr, 13 Ann. Activity Rep. (1999-2000)Google Scholar), in which the commission found some discriminatory practices against certain sectors of the Mauri tanian population, but insufficient evidence to show domination of one section of die population against another. The commission’s decisions are available at http://www.achpr.org/english/_info/List_Decision_Communications.html.

29 Soc. & Econ. Rts. Action Center v. Nigeria, Comm. No. 155/96, para. 58, achpr , 15 Ann. Activity Rep. (2001–02), Annex V (reported by Dinah Shelton at 96 AJIL 937 (2002)).

30 Section 235 (“Self-Determination”) of the 1996 Constitution of South Africa makes this point clear in a national context: “The right of the South African people as a whole to self-determination, as manifested in this Constitution, does not preclude, within the framework of this right, recognition of the notion of the right of self-determination of any community sharing a common cultural and language heritage, within a territorial entity in the Republic or in any other way, determined by national legislation.”

31 OAU Charter, May 25, 1963, 2ILM 766 (1963).

32 Id., Art. 3(6).

33 Id., Art. 3(3); see also Border Disputes Among African States, OAU Doc. AHG/Res. 16(1) (July 17–21, 1964), at http://www.africa-union.org/root/au/Documents/Decisions/hog/bHoGAssembly1964.pdf (reaffirming commitment to the principle of territorial integrity and respect for colonial frontiers).

34 “[T]he 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. T h e 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.” Frontier Dispute (Burk. Faso/Mali), 1986 ICJ Rep. 554, para. 25 (Dec. 22).

35 Algiers Declaration, OAU Doc. AHG/Decl. 1 (XXXV), at 3 (July 12–14, 1999), at http://www.africa-union.org/root/au/Documents/Decisions/hog/9HoGAssembly1999.pdf.

36 See Jallow, Hassan B., The Law af the African (Banjul) Charter on Human and People’s Rights 28 (2007)Google Scholar.

37 See Report of the Rapporteur, OAU Ministerial Meeting on the Draft African Charter on Human and Peoples’ Rights, OAU Doc. CAB/LEG/67/3/Draft Rapt. Rpt (II), at 4 - 5 (1980); see also N. A. M., Fanana, The Peoples’ Rights Under the African Charter on Human and Peoples’ Rights, 10 Lesotho L.J. 48 (1997)Google Scholar; Kiwanuka, Richard N., The Meaning of People” in the African Charter on Human and Peoples’ Rights, 82 AJIL 80 (1988)Google Scholar.

38 Report of the African Commission’s “Working Group of Experts on Indigenous Populations/Communities 72–73 (2005), at http://www.achpr.org/english/Special%20Mechanisms/Indegenous/ACHPR%20Report%20ENG.pdf Google Scholar.

39 Ouguergouz, supra note 26, at 206, 253.

40 Katangese Peoples’ Congress v. Zaire, Comm. No. 75/92, achpr , 8 Ann. Activity Rep. (1994–95).

41 Id., para. 4.

42 The commission seemed to suggest, id, para. 6, that as long as everyone was being treated equally (poorly), no particular group had the right to escape:

43 Article 13 specifies: “Every citizen shall have the right to participate freely in the government of his country, either directly or through freely chosen representatives in accordance with the provisions of the law.”

44 Resolution on the Military, achpr Res. 10(XVI)94 (Nov. 3, 1994), in achpr , 8 Ann. Activity Rep. (1994–95).

45 See, for example, the Resolutions on the Situation in Comoros, achpr Res. 34(XXV)99, and on the Situation in Niger, achpr Res. 35(XXV)99, in achpr, 12 Ann. Activity Rep., Annex IV (1998–99).

46 Jawara v. Gambia, Comm. Nos. 147/95 & 149/96, paras. 72–73, achpr, 13 Ann. Activity Rep., Annex V (1999–2000).

47 Kevin Mgwanga Gunme v. Cameroon, Comm. No. 266/2003, achpr, 26 Ann. Activity Rep. (2008–09).

48 The African Charter allows the filing of an actio popularis. Id., para. 67; see Malawi African Ass’n v. Mauritania, Consolidated Comms. 54/91, 61/91, 98/93, 164/97–196/97, & 210/98, achpr, 13 Ann. Activity Rep., Appendix V (1999–2000).

49 In all, the applicants claimed violations of African Charter Articles 2 - 6 , 7(1), 9–13, 17(1), 19–22, 23(1), 24, and 26.

50 Malawi African Ass’n v. Mauritania, para. 91; Modise v. Botswana, Comm. No. 97/93, 14achpr, 14 Ann. Activity Rep. (2000–01). On this issue, the commission agreed that some of the alleged violations occurred before the Charter entered into force, but noted that the effects continue to the present day and thus that the case was admissible. Kevin Mgwanga Gunme v. Cameroon, para. 96.

51 Noting that English is one of the official languages of Cameroon, the commission found in Kevin Mgwanga Gunme v. Cameroon that the failure to register companies whose articles of association were in English constituted discrimination in violation of Charter Article 2. Likewise, the ratification of the treaty “Organisation pour l’harmonization des Droits d’Affaires en Afrique,” which specified a preference for the French language, resulted in discrimination. The commission also found violations of the right to life, Article 4, as a result of the failure of the government to investigate and redress police killings of demonstrators; Article 5, torture; Article 6, prolonged arbitrary detention; Article 7, right to a fair trial, due to the transfer of prisoners to the north, trial before military tribunals, and failure to conduct the trials in a language that the defendants could understand; Article 10, right to association; Article 11, right to assembly; and Article 26, independence of the judicary. The commission did not find violations of Articles 3, 9, 12, 13, 17, or 19–24. Id., para. 214. As to Article 13, the right to participate in government, the commission held that the article guarantees participation, but not equal participation or representation, in government and the public administration. The facts showed such participation, with the consequence that no violation had occurred.

52 Id., para. 153.

53 The UN plebiscite went to the heart of the complaint because the applicants asserted that southern Cameroonians were given only two options: merger with francophone northern Cameroon or merger with Nigeria. Independence was not a choice presented to them. Id., paras. 2–4.

54 Id., para. 168.

55 Id., para. 169.

56 Id., para. 176.

57 Id.

58 See Final Report and Recommendations, International Meeting of Experts on Further Study of the Concept of the Rights of Peoples, unesco Doc. SHS-89/CONF.602/7 (1990).

59 Id., para. 22.

60 Kevin Mgwanga Gunme v. Cameroon, para. 179.

61 The commission candidly recognized that postcolonial Africa has not been free of domination and ethnic conflict, although it does not constitute colonialism “in the classic sense.” Id., para. 181. The commission found that the solution to such problems lies in recognition of the claims of subordinate groups, like those involved in the present case, and in the good faith participation in regional dispute settlement mechanisms like the commission’s complaint procedure. See, e.g., id., paras. 181, 199.

62 Id., para. 190.

63 Id.

64 In this respect the African Commission’s opinion tracks much of the work of the United Nations, which defined the right of self-determination in the context of foreign subjugation, domination, or exploitation in the Declaration on the Granting of Independence to Colonial Countries and Peoples, GA Res. 1514 (XV) (Dec. 14, 1960). The General Assembly also affirmed the obligation of states to transmit information to the committee on non-self-governing territories if the territory “is geographically separate and is distinct ethnically and/or culturally from the country administering it.” Id., Princ. IV.

65 The commission’s specific recommendations were that the state abolish discriminatory linguistic practices in business and the judiciary, locate national projects equitably throughout the country, compensate companies discriminated against, engage in a constructive dialogue to resolve the constitutional issues, and reform the judicial council. Unusually, it also addressed recommendations to the complainants, including that they transform themselves into political parties, abandon secession efforts, and engage in constructive dialogue with the government.

66 The joined cases were Sudan Human Rights Organisation v. Sudan, Comm. No. 279/03, and Center on Housing Rights and Evictions v. Sudan, Comm. No. 296/05, in achpr, 28 Ann. Activity Rep. (2009–10)Google Scholar [hereinafter Sudan cases].

67 Article 22 provides:” 1. All peoples shall have the right to their economic, social and cultural development with due regard to their freedom and identity and in the equal enjoyment of the common heritage of mankind. 2. States shall have the duty, individually or collectively, to ensure the exercise of the right to development.”

68 Sudan cases, supra note 66, para. 220.

69 Id., para. 221.

70 Id., para. 223.

71 See infra notes 79–94 and accompanying text.

72 See infra notes 95–103 and accompanying text.

73 ICCPR Article 1 provides:

• 1.

  1. 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.

• 2.

  2. All peoples may, for their own ends, freely dispose of their natural wealth and resources without prejudice to any obligations arising out of international economic co-operation, based upon the principle of mutual benefit, and international law. In no case may a people be deprived of its own means of subsistence.

• 3.

  3. The States Parties to the present Covenant, including those having responsibility for the administration of Non-Self-Governing and Trust Territories, shall promote the realization of the right of self-determination, and shall respect that right, in conformity with the provisions of the Charter of the United Nations.

Article 27 provides:

The efforts of indigenous peoples to invoke ICCPR Article 1 through complaints brought under the treaty’s Optional Protocol have been unsuccessful because the Human Rights Committee considers that its jurisdiction is limited to individual rights to the exclusion of collective rights of peoples. Lubicon Lake Band v. Canada, Comm. No. 167(1984, UN Doc. CCPR/C/38/D/167/1984 (Mar. 26, 1990).

The Committee explained its views in General Comment No. 23, The Rights of Minorities, para. 3.1, UN Doc. CCPR/C/21/rev.l/Add.5 (1994):

See also Human Rights Committee, General Comment No. 12, Right to Self-Determination of Peoples (Mar. 13, 1984), reprinted in UN Doc. HRI/GEN/l/Rev.9 (Vol. I), at 183 (2008).

74 See Committee on the Elimination of Racial Discrimination, General Recommendation No. 23, supra note 17, para. 4 (calling on states to take certain measures to recognize and ensure the rights of indigenous peoples); see also Committee on the Elimination of Racial Discrimination, General Recommendation No. 21, Right of Self-Determination, Report of the Committee on the Elimination of Racial Discrimination, UN GAOR, 51st Sess., Supp. No. 18, Annex V, UN Doc. A/51/18 (Mar. 8, 1996), calling the right to self-determination of peoples “a fundamental principle of international law” having an internal aspect that permits all peoples to pursue freely their economic, social, and cultural development and to participate in the conduct of public affairs, and an external aspect that involves each people determining its political status. Id., paras. 1, 4. The committee cautioned, however, that “international law has not recognized a general right of peoples unilaterally to declare secession from a State.” Id., para. 6.

75 See S. James, Anaya, Indigenous Peoples in International Law (2d ed. 2004)Google Scholar; S. James, Anaya & Robert A, Williams Jr., The Protection of Indigenous Peoples ‘Rights over Lands and Natural Resources Under the Inter-American Human Rights System, 14 Harv. Hum. Rts.J. 33 (2001)Google Scholar; Thornberry, Patrick, Indigenous Peoples and Human Rights (2002)CrossRefGoogle Scholar; Hitchcock, Robert K., International Human Rights, the Environment, and Indigenous Peoples, 5 Colo. J. Int’l Envtl. L. & Pol’y 1 (1994)Google Scholar; William Andrew, Shutkin, Note, International Human Rights Law and the Earth: The Protection of Indigenous Peoples and the Environment, 31 Va. J. Int’l L. 479 (1991)Google Scholar; Swepston, Lee, A New Step in the International Law on Indigenous and Tribal Peoples: ILO Convention 169 of 1989, 15 Okla. City U. L. Rev. 677 (1990)Google Scholar; Ibarra, Mario, Traditional Practices in Respect of the Sustainable and Environmentally Sound Self-Development of Indigenous People, UN Doc. E/CN.4/Sub.2/1992/31/Add. 1 (May 1, 1992)Google Scholar; Wiessner, Siegfried, Rights and Status of Indigenous Peoples: A Global Comparative and International Legal Analysis, 12 Harv. Hum. Rts. J. 57 (1999)Google Scholar.

76 Quoted in Indigenous People, the United Nations and Human Rights 46 (Pritchard, Sarah ed., 1998)Google Scholar.

77 The declaration, supra note 13, provides as follows:

78 Declaration Article 26 provides:

• 1.

  1. Indigenous peoples have the right to the lands, territories and resources which they have traditionally owned, occupied or otherwise used or acquired.

• 2.

  2. Indigenous peoples have the right to own, use, develop and control the lands, territories and resources that they possess by reason of traditional ownership or other traditional occupation or use, as well as those which they have otherwise acquired.

• 3.

  3. States shall give legal recognition and protection to these lands, territories and resources. Such recognition shall be conducted with due respect to the customs, traditions and land tenure systems of the indigenous peoples concerned.

79 Special Rapporteur on the Situation of Human Rights and Fundamental Freedoms of Indigenous People, S. James, Anaya, Report on the Situation of Indigenous Peoples in Nepal, paras. 62–69, UN Doc. A/HRC/12/34/ Add.3 (2009)Google Scholar.

80 Inter-Am. Comm’n on Hum. Rts., Report on the Situation of a Segment of the Nicaraguan Population of Miskito Origin, OAS Dec. OEA/Ser.L/V.II.62, doc. 10 rev. 3, pt. IIB, para. 9. (1983). Materials from the commission are available at http://wwwl.umn.edu/humanrts/iachr/iachr-index.html.

81 Id., para. 11.

82 Article 21 of the American Convention, supra note 19, establishes that “everyone has the right to the use and enjoyment of his property.”

83 Inter-Am. Comm’n on Hum. Rts., Report on the Situation of Human Rights in Ecuador, OAS Doc. OEA/Ser.L/V/II.96, doc. 10 rev. 1 (1997).

84 Mayagna (Sumo) Awas Tingni Cmty. v. Nicaragua, 2001 Inter-Am. Ct. H.R. (ser. C) No. 79 (Aug. 31, 2001). The decisions of the Court are available at http://wwwl.umn.edu/humanrts/iachr/iachr.html.

85 Id., para. 148.

86 Id., para. 149.

87 Id., para. 153. On December 18, 2008, the Court reported compliance with the Awas Tingni judgment.

88 Yakye Axa Indigenous Cmty. v. Paraguay, 2005 Inter-Am. Ct. H.R. (ser. C) No. 125 (June 17, 2005).

89 Sawhoyamaxa Indigenous Cmry v. Paraguay, 2006 Inter-Am. Ct. H.R. (ser. C) No. 146 (Mar. 29, 2006).

90 Saramaka People v. Suriname, Preliminary Objections, Merits, Reparations, and Costs, 2007 Inter-Am. Ct. H.R. (ser. C) No. 172 (Nov. 28, 2007) (reported by Marcos Orellana at 102 AJIL 841 (2008)).

91 The Committee on Economic, Social and Cultural Rights monitors compliance with the ICESCR, supra note 24.

92 See Committee on Economic, Social and Cultural Rights, Consideration of Reports Submitted by States Parties Under Articles 16 and 17 of the Covenant, Concluding Observations on Russian Federation, para. 11 (Dec. 12, 2003), UN Doc. E/C.12/1/Add.94 (expressing the committee’s concern for the “precarious situation of indigenous communities in the State party, affecting their right to self-determination under article 1 of the Covenant”).

93 ICESCR, supra note 24, Art. 1.

94 Saramaka People v. Suriname, para. 93.

95 See, e.g., Mayagna (Sumo) Awas Tingni Cmty. v. Nicaragua, supra note 84, para. 148 (noting “[t]hrough an evolutionary interpretation of international instruments for the protection of human rights, taking into account applicable norms of interpretation and pursuant to article 29(b) of the Convention—which precludes a restrictive interpretation of rights—, it is the opinion of this Court that article 21 of the Convention protects the right to property in a sense which includes, among others, the rights of members of the indigenous communities within the framework of communal property”).

96 Centre for Minority Rts. Dev. (Kenya) v. Kenya, Comm. No. 276/2003 (Afr. Comm’n on Hum. & Peoples’ Rts. Feb. 4, 2010).

97 Report of the African Commission’s Working Group of Experts on Indigenous Populations/Communities, supra note 38.

98 Centre for Minority Rts. Dev. (Kenya) v. Kenya, para. 173.

99 Id., para. 199.

100 Id., para. 266.

101 Id., para. 274 (citing Soc. & Econ. Rts. Action Center v. Nigeria, supra note 29, paras. 56–58).

102 Report of the African Commission’s Working Group of Experts on Indigenous Populations/Communities, supra note 38; see also ILO Convention No. 169, supra note 12 (“Consultations carried out in application of this Convention shall be undertaken, in good faith and in a form appropriate to the circumstances, with the objective of achieving agreement or consent to the proposed measures.”).

103 Centre for Minority Rts. Dev. (Kenya) v. Kenya, para. 290.

104 Declaration on the Right to Development, Art. 3, GA Res. 41/128 (Dec. 4, 1986).

105 Written Statement of the Government of the Arab Republic of Egypt, para. 34, Accordance with International Law of the Unilateral Declaration of Independence in Respect of Kosovo, Advisory Opinion (Int’l Ct. Justice July 22, 2010).

106 Id, paras. 46–47.

107 See supra notes 80–81 and accompanying text.