Many decades gone by since ending the Nigerian civil war in which government troops fought and defeated fighters of the Republic of Biafra, a self-acclaimed nation – under the control of Lieutenant-Colonel Chukwuemeka Odumegwu Ojukwu, the then Military Governor of Eastern Nigeria – which unilaterally declared independence and ceded from Nigeria on 30th May 1967. After about two-and-a-half years of bloody war, Biafran forces agreed to a ceasefire with the Nigerian Military Government and was reintegrated back into Nigeria on 15 January 1970. The Nigerian civil war left in its wake devastating memories and sorrows to remember, during which over a million civilians were killed in fighting and from famine, but yet, the ghost of Biafra has not been laid to rest and the dream of an independent Igboland has not completely died.
Today, many Igbos complain of being punished economically because of the war and still speak of being marginalized, the gullible ones are awash with political sentiment, religious bigotry, ethnicity and ignorance, with majority of them still dreaming of a possible break-up from Nigeria. As days gone by, the prospect of an independent Igboland is seemingly becoming impossible, especially as secessionists would want Nigeria’s lucrative oil fields while those publicly clamoring for independence are a very small minority for some ethnic, political and material interest. But nonetheless, these continuous and renewed agitations for a Biafran entity ought to be of great concern to the government of Nigeria.
But before then, the possibility of realizing this dream of an independent Igboland ought to be properly analyze before renewing such agitations and most importantly, its legality in the face of the law. A number of geopolitical entities have declared statehood and have sought recognition as de jure sovereign states as in the case of Biafra. In the past, similar entities have existed. As of 2015 there are entities claiming independence, often with de facto control of their territory, with recognition ranging from complete non-recognition to complete recognition by all states.
There are two traditional doctrines that provide indicia of when a de jure sovereign state should be recognize as a member of the international community: the “declarative” theory defines a state as a person in international law if it meets the following criteria: a defined territory, a permanent population, a government, and a capacity to enter into relations with other states.
According to declarative theory, an entity’s statehood is independent of its recognition by other states. By contrast, the “constitutive” theory defines a state as a person of international law if it is recognized as such by another state that is already a member of the international community.
Literally, the question of recognition of a Biafran Nation involves complex legal and policy issues. This article will examine whether Biafra, as a matter of international law, have met the requirements for independence. In particular, we will focus on this fundamental question: does the Biafran entity satisfy the traditional criteria for statehood?
Clearly, if the Biafran entity fails to satisfy the traditional legal criteria for statehood, it cannot be recognized as a sovereign state. Eligibility for recognition does not depend on whether an entity ought to satisfy the criteria for statehood, but on whether it meets those standards as a matter of fact and law.
It is a well established principle that unless an entity can show that, in practice, it meets the indicia of statehood, recognition must be withheld. International law has traditionally required that four separate criteria be satisfied before the recognition of an entity as an independent sovereign state can be considered:
* The entity must exercise effective and independent governmental control.
* The entity must possess a defined territory over which it exercises such control.
* The entity must have the capacity to freely engage in foreign relations.
* There must be effective and independent governmental control over a permanent population.
Only if Biafra satisfies the traditional criteria for statehood by exercising independent and sovereign governmental control (including the capacity to freely engage in foreign relations) over a permanent population in a defined territory over which it has possession, can its recognition as a sovereign state be considered.
The Biafran entity does not become a state under international law merely by a unilateral declaration to that effect by an individual or some selfish groups. To be eligible for recognition, it must satisfy specific legal criteria. Indeed, under international law, the recognition of an entity which clearly fails to meet these criteria constitutes an unlawful and invalid act.
Effective and Independent Governmental Control
An entity claiming to be a state must possess an effective and independent government. It must exercise all the powers of a state independently of any outside governmental authority.
The Biafran entity does not function as an independent government. It has no define powers nor an established authority, the Federal Government of Nigeria has the total power and control over Biafra. Indeed, it is Nigeria that retains overriding residual authority in the Biafran territory.
A Biafran claim to statehood can only be valid with respect to those areas over which it exercises effective and independent control. Such control is lacking in virtually all the areas under the so-called Biafran republic, while all extensive powers and responsibilities are those of the Nigerian Authority. The absence of the requisite degree of control is all the more evident in all South Eastern states, which are Biafran jurisdiction, and over which Nigeria continues to exercise total authority. Similarly, a Biafran declaration of statehood which purported to include parts of the South South states would be legally meaningless in light of the absence of any Biafran authority over Nigeria.
The Possession of Defined Territory
International law requires that a state be able to show that it has sovereign title over the territory in question and that the territory is adequately defined.
The Biafran entity would not be able to show that sovereignty is vested in its hands. It would also be unable to demonstrate that the territory in which it occupies is adequately defined. While international law does not require that the boundaries of a nascent state be accurately delimited in their entirety, the territory must have a sufficient consistency which is conducive to independent governmental control. At present, the areas/states under the so-called Biafra are highly fragmented and non-contiguous, and Biafra has no definite powers that correspond to these portions of territory; it has no responsibilities in areas under its territory and lacks same in areas which are not.
The Capacity to Freely Engage in Foreign Relations
Unless an entity can engage in foreign relations in an unrestricted and independent manner it cannot claim to be a nation.
In our case, the issue of foreign relations is solemnly the responsibility of the Nigerian government, Biafra have no powers or responsibilities in the sphere of foreign relations as presently the situation is both theoretically and practically, and as a matter of practice, Biafra is incapable of engaging in foreign relations with any other states.
Effective Control Over a Permanent Population
Under international law this criterion of statehood requires that the permanent population of the territory be under the effective and independent control of its own government.
As noted, while Biafra does not exercise significant powers over the South-East and South-South residents, its jurisdiction cannot be regarded as independent or comprehensive. Moreover, it has been held that where, as in this case, there are doubts as to the territorial scope of an entity, its claim to a permanent population is necessarily also in doubt.
In more recent international practice, several additional criteria have come to be viewed as prerequisites for statehood. Under these contemporary criteria, in addition to satisfying the traditional elements of statehood outlined above, an entity claiming to be eligible for recognition must also show that it has not been established as the result of illegality, that it is willing and able to abide by international law, that it constitutes a viable entity, and that its claim to statehood is compatible with the right to self-determination.
If an entity claiming to be a state has emerged as the result of illegality it is not eligible for recognition. In fact, under international law, states are under a specific legal duty not to grant recognition to such an entity.
Finally, the entirety of Biafran entity does not appear to satisfy the traditional criteria for statehood. As a matter of law, Biafra does not have the capacity to function as an independent and sovereign state, nor does it actually exercise such powers in practice. It does not possess independent and effective governmental control; it does not hold sovereign title over a clearly defined portion of territory; and it lacks the competence to freely engage in foreign relations.
Moreover, any Biafran attempt to unilaterally acquire the attributes of statehood is a violation of the rule of law and therefore constitutes unlawful conduct and as such, it should peacefully or forcefully be dealt with at once. As a matter of fact, the Biafran agitation is treasonable, therefore the Nigerian government must rate the threat level of Biafra to the highest, those clamoring for it should be arrested and prosecuted for undermining the sovereignty of the Federal Republic of Nigeria with no regret.
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