RECOGNITION IN INTERNATIONAL LAW; A MYTH OR REALITY (A CASE STUDY OF BIAFRA)

RECOGNITION IN INTERNATIONAL LAW; A MYTH OR REALITY (A CASE STUDY OF BIAFRA)

ABSTRACT

State recognition is one of the oldest practice in international relations, and one of the most vexed concepts in international law since the middle ages, political communities have interacted with each other as sovereign, territorial states under an accepted system of rules. Determining which entity is to be recognized as state subject to these rules has hence been a basic component of international relations. As such, it is one of the most common discussed topics in the international law literatures.

This research will explore the limits of the doctrine of non-recognition in international law within a framework of the Nigerian-Biafran civil war.

The study seeks to examine the politics involved in the practice of recognition by the community of nations and whether the non-recognition of a state can be the death knell of that sovereignty in the light of states that come into existence through secessionary character.

The contention is that the practice of recognition has changed over time. Evidently the interplay between the major powers and their supporters continues to frustrate, legally and politically, the emergence of new states from existing members of the community. Because conflicts

are continually erupting around the world and evolving states often lay claims to sovereignty, the community of nations should take another look at the practice of recognition of new entities.

 

CHAPTER ONE

INTRODUCTION

• Background to the Study

The term ―recognition implies a process whereby a person or an entity admits to the existence or the being of another person, entity or state of affairs. The Chambers Twentieth Century Dictionary defines the concept as a sign, token or indication of acknowledgment of a thing or a state of being in relation to nation state.¹

State recognition is one of the oldest practice in international relations, and one of the most vexed concepts in international law since the middle ages, political communities have interacted with each other as sovereign, territorial states under an accepted system of rules. Determining which entity is to be recognized as state subject to these rules has hence been a basic component of international relations. As such, it is one of the most common discussed topics in the international law literatures.²

Recognition of statehood grants an entity international legal personality and binds it to comfort it according to the rules established by international law in its relations with other states and peoples. At the same time, it makes the entity eligible to enter into treaties and alliances with other states as well as to participate in the development and enforcement of international law. Most importantly recognition is an affirmation of an entity‘s right to territorial sovereignty and integrity and its right to exercise coercive jurisdiction within this territory.

The right and powers attached to statehood make it desirable for a political entities to attain such a status, at the same time the expectation that each new state will abide by the rule of international law makes it desirable to include as many qualified political entities as possible in so far as this will further the goals of peace and stability.³

While in conformity with the above the Monte Video Convention of 1933 made a preliminary attempt to codify specific descriptive criteria for statehood thus:

• Permanent Population
• Define territory
• Functional government able to control the territory
• Capacity to enter into relation with other state voluntarily

2 Maraina O. Secession, Statehood and Recognition: Princeton University pdf document available at http://psujja.files.wordpress.com/2012/04/secession.final.pdf. Accessed on 27/2/20131 McDonald, A.M. (1972) Chambers Twentieth Dictionary, 1 & A Constable Ltd., p. 1128

 

Together these four requirements defined a state and presumably any entity aspiring independent statehood that met these criteria would automatically be regarded as a state under international law.

However and unfortunately the present practice of recognition is not in conformity with the above criteria. According to the present recognition an entity is considered a state to the extent that other state recognized it as such, since new state cannot exercise right and obligation against state that do not recognize it. For example taking into consideration the case of Palestine, applying the Montevideo criteria for statehood, it becomes clear that Palestine should be considered a state and also be recognized, as it has a permanent population, concentrated in a defined territory, a functional representative In this setting, this thesis will explore the limits of the doctrine of recognition and statehood within a framework of a tragic case study.

That tragedy is the Nigerian-Biafran civil war, which was fought from 1967 to 1970 to preserve the unity of Nigeria, a state viewed as the “Giant of Africa.” As Sircar had implied, Nigeria was “a model democracy and a show piece of British colonial efforts.”[1] To other African states, Nigeria was their hope for strong black representation in the international community.

 

3 Erticle 3 of Monte video Convention (1933)

 

Thus, when Biafra’s claim to a right of independence was made, it resuscitated the controversy over arbitrary colonial demarcations, which had been accepted by the African states for the sake of maintaining stability within the continent.

This study is not an attempt to delve into a legalistic investigation of recognition or non-recognition. Neither is it a grand debate on the issues involved in the civil war. Rather, it is a modest attempt to examine whether the question of non-recognition of the Biafran state by the international community served as the death knell of that state’s sovereignty.

 

1.2 Statement of Problem

As stated above, state recognition is one of the oldest practice in international relations, and one of the most vexed concepts in international law since the middle ages, hence the states practices in relation to the concept is marred with some problems. Some of those problems are stated as follows:

1. the first problem is that in the last centuries, the criteria of statehood were mainly based on legitimacy of state, which was expressed through recognition. For example the Montevideo convention defined four elements as requirement in order to claim statehood. The UN was born and created as a subject of international law, and the UN charter redefined international law and coming to an end resulting in the creation of many new states in Africa, Asia, South America, the breakdown of the so called communist, Soviet Union which has lead to another wave of state creation hence the issue of recognition.

The Biafran civil war is a classic example of the politics involved in the practice of state recognition by the community of nations. Within the community of nations “entities blessed with recognition as independent States by their sister States in the world community are reluctant to permit part of their population and territory to be removed from their boundaries.”[2] In view of this fact, the study will draw some of its ideas from scholarly opinion regarding secession and recognition in 15Lee Buchheit, Secession: The Legitimacy of Self-Determination (New Haven: Yale University Press, 1978),

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international law. The method of analysis employed to investigate Biafra’s recognition will be mostly historical in content.

 

1.3 Purpose of the Study

Most research concerning the Nigeria-Biafran civil war centers on the origin, nature and causes of the war, civilian suffering, and the means of gaining unity in order to prevent the fragmentation of Nigeria and the loss its privileged role in Africa. There is very little material that deals extensively with aspects of recognition of Biafra, in particular, or the possibility of a Biafran state, or any other state, emerging from Nigeria.

In 1967, Lt. Col. Odumegwu Emeka Ojukwu, then leader of Biafra, was accused of inciting secession for his personal gain. Yet in 1994, the actions of the Northern military leaders in Nigeria can very well incite another Biafra. Northern military leaders have continued to maintain hegemony in the affairs of state, exacerbating the animosity between the other ethnic groups because of what they perceive to be Northern domination of the rulership of the country.

Since Nigeria’s independence in 1960, military purges have been used to rectify contradictions caused by multi-ethnic tensions and divisiveness. There is a widespread belief among scholars that “ethnic hostilities hastened the path to civil war.”[3] The vast array of literature cites cultural differences as the cause of conflict, along with the British system of indirect rule which maintained the separateness and encouraged the status quo as the other principle contributor. Even today, scholars point to the ethnic differences as a major source of controversy and tension within the society.

This study therefore, will not attempt to give a detailed analysis of the civil war. Much literature exists in that area. Instead, an attempt is

 

• Research Questions

2. What were the circumstances that led to Biafra’s claim to right of secession, especially within the context of civil war?
3. What are the limits of the doctrine of nonrecognition and statehood?
4. What are rules of international law relating to the secession of states?

 

• Scope and Limitation of the Research

The scope of this research covers the concept of state recognition under international law in accordance with the provisions of the various international and regional legal instruments.

This research draws of the politics regarding Biafran civil war in the practice of state recognition by the community of nations. Within the community of nations “entities blessed with recognition as independent States by their sister States in the world community are reluctant to permit part of their population and territory to be removed from their boundaries.[4] In view of this fact, the study will draw some of its ideas from scholarly opinion regarding secession and recognition in international law. The method of analysis employed to investigate Biafra’s recognition will be mostly historical in content.

 

• Justification

The justification of this work is that it would be of great importance to its readers such as judges, justices and all members of the bar in relation to the knowledge of the current trend of state recognition under international law. It will help lawyers who are practicing international law. The work brings out the reforms brought through the modern practice of state recognition. This work will be of great help to lecturers and students of international law in Nigeria and the world over.

 

• Literature Review

There are plethora of current existing literatures on the overall meaning, nature and scope of the concept of self-determination under international law. Some of these materials would be used as source of acquiring data and informational and be reviewed accordingly.

The problem of recognition under international law is because perhaps it is a subject of a far flung practice of states, of many practice and enormous literature. It is obvious that many scholarly literatures have been written on the topic. This is because the subject is quite refreshing and topical. Even though a lot was elicited on this topic and abundance literature was also in place, most of the existing literature on this field either by time and current happening or as a result of oversight did not cover some important aspects; for example the requirement of having one standard criteria of recognition as in the case of statehood. In this piece of research, it is proposed to review some literature with a view to finding out the extent to which other scholars have studied, the filed on the one hand and on the other hand, to examine lapses or lacunae in their argument or presentation and further development that have taken place which they did not include in their discussions.

According to William⁵, International law is dominated by two competing theories of state recognition, with the ―declaratory‖ view currently in prominence but possibly just beginning its decline in favor of the ―constitutive‖ view. However, if indeed the constitutive view is gaining ground, then its slow and partial re-emergence is forcing us to rethink the nature of the state in international law. The constitutive theory states that recognition of an entity as a state is not automatic. A state is only a state when it is recognized as such and other states have a considerable discretion to recognize or not.

• Scope of study

The study contains four major chapters. Chapter II presents background information on colonial and post-independence conditions in Nigeria and explains the roots of the crisis which provided the setting for the subsequent conflict. Chapter III explores the legality of Biafran secession, the doctrine of self-determination and the status of belligerency and insurgency in international law. This chapter also addresses the charter provisions of organizations such as the United Nations and the Organization of African Unity. Chapter IV examines the validity of statehood for Biafra within the requirements of statehood in international law. This chapter also examines the politics of the process of recognition of Biafra and from the analysis finds a case for Biafra’s recognition. Chapter V, the final chapter, summarizes the thesis’ attempt to show that non-recognition did play a major role in the death of the Biafran Republic.

5 William, W. (2010), Sovereignty: two Competing Theories of State Recognition, University of The Hague, Netherlands

 

CHAPTER TWO

CONCEPTUAL CLARIFICATION OF KEY TERMS

[2] 13Parbati K. Sircar, ’The Crisis of Nationhood,” International Studies 10 (1966-68): 245.

[3] 4P.C. Lloyd, ‘The Ethnic Background to the Nigerian Crisis,” in Nigerian Politics and Military Rule Prelude to the Civil War, ed. S.K. Panther-Brick (New York: Oxford University Press. 1970), 3.

[4] 5Lee Buchheit, Secession: The Legitimacy of Self-Determination (New Haven: Yale University Press, 1978), 27

RECOGNITION IN INTERNATIONAL LAW; A MYTH OR REALITY (A CASE STUDY OF BIAFRA)

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