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Papers by Brian Asa Omwoyo

Following the institution of the maritime proceedings by Somalia,Kenya raised preliminary objecti... more Following the institution of the maritime proceedings by Somalia,Kenya raised preliminary objections challenging both the jurisdiction of the Court and Admissibility of the Application instituting the maritime proceedings.The Court,upon hearing submissions by both Parties entered a Judgment on the Preliminary Objections.The Court, while dismissing the Preliminary Objections raised by Kenya, made findings which are integral in the development and advancement to the realms of Law of the Sea and Public International Law.

This strategy briefing is to aid the Kachin Independent Organisation in their negotiation with th... more This strategy briefing is to aid the Kachin Independent Organisation in their negotiation with the Burmese Government over the control of the Kachin State in northern Burma . This brief analyses the conflict identifying its primary and secondary actors and their respective positions and interests. The brief sets out the proposed negotiation strategy to be employed in the negotiation and the effective bargain to be used by the KIO contingent.

To indigenous peoples their ancestral roots are embedded in the lands they live in and the resour... more To indigenous peoples their ancestral roots are embedded in the lands they live in and the resources found in them. Over the years indigenous peoples have experienced discrimination and marginalisation in the society and have had their lands and resources dispossessed from them in the name of development, thus preventing them from exercising their rights.
The emergence of indigenous peoples’ rights is one of the most significant developments in the history of international human rights as it provides remedies to these historical injustices. The standard setting processes initiated by the international and regional human rights systems; the practice of international human rights bodies and specialised agencies led to a common normative understanding on the content of the rights of indigenous peoples. A two decades long negotiation process between the indigenous peoples’ movements and states was culminated by the unanimous adoption of the UN Declaration on the Rights of the Indigenous Peoples (UNDRIP) by the UN General Assembly. The adoption of the UNDRIP was a clear indication of the evolution of indigenous peoples from being objects of study to active participants in the international arena. One scholar views the adoption of UNDRIP as a fundamental affirmation of the identity and protection of indigenous peoples’ rights and is necessary to their survival.
Apart from UNDRIP, indigenous peoples’ rights are enshrined in the ILO Convention on Indigenous and Tribal Peoples No 169 and in international instruments that are not expressly for indigenous peoples but have provisions dealing with indigenous peoples issues and have been used by human rights bodies. However, despite the indigenous peoples’ rights being recognised and proclaimed in international instruments, there is no consensus on the definition of indigenous peoples and it remains unclear which peoples should be regarded as indigenous. Furthermore, the UNDRIP in its provisions accords collective rights to the indigenous peoples namely right to self-determination, land and resources and cultural integrity which create tension with the extant domestic laws and policies. States, especially those that voted against the UNDRIP, argued that it accords special human rights to indigenous people separate from the international human rights and sets unrealistic standards which would be impossible for the states to oblige with and implement. Conversely, others have argued that the UNDRIP does not attempt to bestow indigenous peoples with a set of special rights but rather it elaborates upon those fundamental human rights in the specific cultural, historical, social and economic circumstances of the indigenous peoples.
This essay analyses the regime protecting the rights of indigenous peoples and contends that some of the norms enshrined in the UNDRIP have already crystallised as part of customary international law while some are emerging as sources of future customary international laws. The essay further contends that for effective implementation of the rights enshrined in the UNDRIP there ought to be coordination between the state, indigenous peoples, United Nations human rights bodies and specialised agencies.
The essay is in three parts. Part I will discuss the issue of who are indigenous peoples and will analyse the debates on the definition of the term indigenous. Part II will discuss the status of indigenous peoples’ rights in international law and how they have been recognised by international human rights bodies and international instruments. It will analyse whether the norms enshrined in the UNDRIP have crystallised or are emerging as sources of future customary international law. Part III will discuss the mechanisms for implementing the rights of indigenous peoples. In conclusion the essay will emphasise the need for cooperation between all stakeholders in order to achieve effective implementation of the indigenous peoples’ rights.

The principle of self-determination remains the most controversial and ambiguous concept in conte... more The principle of self-determination remains the most controversial and ambiguous concept in contemporary international law. Self-determination remains a volatile norm under international law that invokes and agitates a desire for self-identity where the ‘self’ seeks to exclude itself from the others. In post Second World War, self-determination played an integral role in the decolonisation process and remains a driving force in the restructuring and redefinition of international community.
The right of self-determination of the people received wide acceptance in the international community as a right of the ‘people’ as evidenced by its usage in the UN Charter , General Assembly Resolutions , international and regional instruments and was reaffirmed by the International Court of Justice as an essential principle in contemporary international law. However, despite a range of writings on self-determination, no comprehensive meaning has been accorded to it. The meaning and scope of the concept of self-determination remains uncertain thus necessitating one scholar to aptly put it that ‘self-determination has become all things for all men.”
The right of self-determination operates in two aspects; internal and external. Internal self-determination is where the people concerned have a right to freely determine their political status and freely pursue their economic, social and cultural development within the framework of an existing state without any external interference while in external self-determination; the people concerned freely choose the territory they want to live in.
In the 1960s, self-determination played a crucial role in the decolonisation process. Despite self-determination being referred to during the decolonization period the concept was not employed for people to determine their political destiny rather it was more for the attainment of independence of colonial territories. Furthermore, during this period the realisation of the right of self-determination was limited as this right could only operate within the confines of already existing artificial colonial frontiers under the principle of uti possidetis juris. These artificial frontiers, had been arbitrarily drawn for colonial administrative purpose, fitted incompatible people together in ‘alien’ states. In the recent past, the international community has witnessed the rise of claims of the right to self-determination by groups which are a minority in the present state seeking to join a group in the neighbouring state which they believe they share a historical connection. The international community has accorded recognition to some of the group claims for self-determination while not to others.
In view of the above, this essay argues that self-determination has always been about title to territories and not about the people. The desire for a ‘self’s territorial integrity seems to prevail over that of democratic participation in the independent state.
The essay is in three parts. Part one will briefly discuss the concept of the self-determination of peoples in international law. The part will also discuss who constitutes the ‘people’. Part two will discuss the concept of self-determination and the principle of uti possidetis juris. The essay will argue on this part that the exercise of the right to self-determination of the colonial peoples was territorially limited by the principle of uti possidetis juris which had predetermined the territorial limit of exercising the right. Part three will discuss the practise of the right of self-determination in the Post-Colonial Era before concluding the essay

The doctrine of responsibility to protect, popularly referred to as R2P, has dominated internatio... more The doctrine of responsibility to protect, popularly referred to as R2P, has dominated international humanitarian debates concerning the protection of population from acts that occasion mass atrocities. The quick ascension of the doctrine of responsibility to protect from an idea to an international norm necessitated one scholar to equate the rise to ‘a blink of the eye in the history of ideas.” Under the 2005 Summit Outcome Document , a state has a primary responsibility to protect its citizens from genocide, war crimes, ethnic cleansing and crimes against humanity ; if the state is unwilling or has manifestly failed to protect its population from the four crimes, the international community has a collective responsibility, authorised by the Security Council, to protect the population of that state. A basic tenet of responsibility to protect is the concept of sovereignty as responsibility where a state enjoys its sovereignty rights of non-interference only if it protects its population from acts that could result in mass atrocities.
There is a dearth of certainty as to the status of the doctrine of responsibility to protect and whether it bears any impact in international law. The study on the status of the doctrine of responsibility to protect in international law has generated a heated debate among scholars. Some scholars have proceeded to describe the doctrine of Responsibility to protect as an emerging principle of customary international law, an emerging norm, a guiding principle and evolving norm meant to articulate how the international community should respond to humanitarian crisis in situations involving mass atrocities. However, other commentators have posited that the doctrine of responsibility to protect only qualifies as a candidate norm in the realm of international relations and is far from making any legal implication in international law. To them the doctrine is merely a political tool and is unenforceable in international law.
It is on the basis of this debate that this essay seeks to critically analyse the status of the doctrine of responsibility to protect. The essay seeks to analyse the legal framework governing the responsibility to protect and analyse whether the doctrine of responsibility to protect has developed into customary international norm. This essay intends to contribute to the debate by contending that the doctrine of responsibility to protect has not developed to the level of customary international law and thus it cannot be referred to as an emerging norm in international law. The essay further contends that the doctrine of responsibility to protect is not a novel concept in international law and that the doctrine only reaffirms and articulates extant principles of international law.
This essay proceeds in two parts. Part one discusses whether the concept of responsibility to protect qualifies as an emerging norm in international law by discussing whether responsibility to protect meets the general threshold of legality as a norm and whether it has developed to the level of customary international law. This part also discusses whether the doctrine of responsibility to protect is a novel idea in international law. Part two will discuss the application of the doctrine of responsibility to protect and whether it has presented any significant shift with respect to reacting to humanitarian crises before concluding the essay.

Drafts by Brian Asa Omwoyo

Alive to the rising numbers of refugees, immigrants and internally displaced persons in Africa, t... more Alive to the rising numbers of refugees, immigrants and internally displaced persons in Africa, the international community passed resolutions encouraging member States to ensure the protection and promotion of the human rights of these persons. Despite the refugees, internally displaced persons and migrants all sharing near similar experiences, wants, need and fear their respective characteristics and degree of enjoyment of rights and freedoms vary from each other. This article aims to analyze the status of the internally displaced persons, refugees and migrants under international law identifying their similarities and difference.

Conference Presentations by Brian Asa Omwoyo

Following the institution of the maritime proceedings by Somalia,Kenya raised preliminary objecti... more Following the institution of the maritime proceedings by Somalia,Kenya raised preliminary objections challenging both the jurisdiction of the Court and Admissibility of the Application instituting the maritime proceedings.The Court,upon hearing submissions by both Parties entered a Judgment on the Preliminary Objections.The Court, while dismissing the Preliminary Objections raised by Kenya, made findings which are integral in the development and advancement to the realms of Law of the Sea and Public International Law.

This strategy briefing is to aid the Kachin Independent Organisation in their negotiation with th... more This strategy briefing is to aid the Kachin Independent Organisation in their negotiation with the Burmese Government over the control of the Kachin State in northern Burma . This brief analyses the conflict identifying its primary and secondary actors and their respective positions and interests. The brief sets out the proposed negotiation strategy to be employed in the negotiation and the effective bargain to be used by the KIO contingent.

To indigenous peoples their ancestral roots are embedded in the lands they live in and the resour... more To indigenous peoples their ancestral roots are embedded in the lands they live in and the resources found in them. Over the years indigenous peoples have experienced discrimination and marginalisation in the society and have had their lands and resources dispossessed from them in the name of development, thus preventing them from exercising their rights.
The emergence of indigenous peoples’ rights is one of the most significant developments in the history of international human rights as it provides remedies to these historical injustices. The standard setting processes initiated by the international and regional human rights systems; the practice of international human rights bodies and specialised agencies led to a common normative understanding on the content of the rights of indigenous peoples. A two decades long negotiation process between the indigenous peoples’ movements and states was culminated by the unanimous adoption of the UN Declaration on the Rights of the Indigenous Peoples (UNDRIP) by the UN General Assembly. The adoption of the UNDRIP was a clear indication of the evolution of indigenous peoples from being objects of study to active participants in the international arena. One scholar views the adoption of UNDRIP as a fundamental affirmation of the identity and protection of indigenous peoples’ rights and is necessary to their survival.
Apart from UNDRIP, indigenous peoples’ rights are enshrined in the ILO Convention on Indigenous and Tribal Peoples No 169 and in international instruments that are not expressly for indigenous peoples but have provisions dealing with indigenous peoples issues and have been used by human rights bodies. However, despite the indigenous peoples’ rights being recognised and proclaimed in international instruments, there is no consensus on the definition of indigenous peoples and it remains unclear which peoples should be regarded as indigenous. Furthermore, the UNDRIP in its provisions accords collective rights to the indigenous peoples namely right to self-determination, land and resources and cultural integrity which create tension with the extant domestic laws and policies. States, especially those that voted against the UNDRIP, argued that it accords special human rights to indigenous people separate from the international human rights and sets unrealistic standards which would be impossible for the states to oblige with and implement. Conversely, others have argued that the UNDRIP does not attempt to bestow indigenous peoples with a set of special rights but rather it elaborates upon those fundamental human rights in the specific cultural, historical, social and economic circumstances of the indigenous peoples.
This essay analyses the regime protecting the rights of indigenous peoples and contends that some of the norms enshrined in the UNDRIP have already crystallised as part of customary international law while some are emerging as sources of future customary international laws. The essay further contends that for effective implementation of the rights enshrined in the UNDRIP there ought to be coordination between the state, indigenous peoples, United Nations human rights bodies and specialised agencies.
The essay is in three parts. Part I will discuss the issue of who are indigenous peoples and will analyse the debates on the definition of the term indigenous. Part II will discuss the status of indigenous peoples’ rights in international law and how they have been recognised by international human rights bodies and international instruments. It will analyse whether the norms enshrined in the UNDRIP have crystallised or are emerging as sources of future customary international law. Part III will discuss the mechanisms for implementing the rights of indigenous peoples. In conclusion the essay will emphasise the need for cooperation between all stakeholders in order to achieve effective implementation of the indigenous peoples’ rights.

The principle of self-determination remains the most controversial and ambiguous concept in conte... more The principle of self-determination remains the most controversial and ambiguous concept in contemporary international law. Self-determination remains a volatile norm under international law that invokes and agitates a desire for self-identity where the ‘self’ seeks to exclude itself from the others. In post Second World War, self-determination played an integral role in the decolonisation process and remains a driving force in the restructuring and redefinition of international community.
The right of self-determination of the people received wide acceptance in the international community as a right of the ‘people’ as evidenced by its usage in the UN Charter , General Assembly Resolutions , international and regional instruments and was reaffirmed by the International Court of Justice as an essential principle in contemporary international law. However, despite a range of writings on self-determination, no comprehensive meaning has been accorded to it. The meaning and scope of the concept of self-determination remains uncertain thus necessitating one scholar to aptly put it that ‘self-determination has become all things for all men.”
The right of self-determination operates in two aspects; internal and external. Internal self-determination is where the people concerned have a right to freely determine their political status and freely pursue their economic, social and cultural development within the framework of an existing state without any external interference while in external self-determination; the people concerned freely choose the territory they want to live in.
In the 1960s, self-determination played a crucial role in the decolonisation process. Despite self-determination being referred to during the decolonization period the concept was not employed for people to determine their political destiny rather it was more for the attainment of independence of colonial territories. Furthermore, during this period the realisation of the right of self-determination was limited as this right could only operate within the confines of already existing artificial colonial frontiers under the principle of uti possidetis juris. These artificial frontiers, had been arbitrarily drawn for colonial administrative purpose, fitted incompatible people together in ‘alien’ states. In the recent past, the international community has witnessed the rise of claims of the right to self-determination by groups which are a minority in the present state seeking to join a group in the neighbouring state which they believe they share a historical connection. The international community has accorded recognition to some of the group claims for self-determination while not to others.
In view of the above, this essay argues that self-determination has always been about title to territories and not about the people. The desire for a ‘self’s territorial integrity seems to prevail over that of democratic participation in the independent state.
The essay is in three parts. Part one will briefly discuss the concept of the self-determination of peoples in international law. The part will also discuss who constitutes the ‘people’. Part two will discuss the concept of self-determination and the principle of uti possidetis juris. The essay will argue on this part that the exercise of the right to self-determination of the colonial peoples was territorially limited by the principle of uti possidetis juris which had predetermined the territorial limit of exercising the right. Part three will discuss the practise of the right of self-determination in the Post-Colonial Era before concluding the essay

The doctrine of responsibility to protect, popularly referred to as R2P, has dominated internatio... more The doctrine of responsibility to protect, popularly referred to as R2P, has dominated international humanitarian debates concerning the protection of population from acts that occasion mass atrocities. The quick ascension of the doctrine of responsibility to protect from an idea to an international norm necessitated one scholar to equate the rise to ‘a blink of the eye in the history of ideas.” Under the 2005 Summit Outcome Document , a state has a primary responsibility to protect its citizens from genocide, war crimes, ethnic cleansing and crimes against humanity ; if the state is unwilling or has manifestly failed to protect its population from the four crimes, the international community has a collective responsibility, authorised by the Security Council, to protect the population of that state. A basic tenet of responsibility to protect is the concept of sovereignty as responsibility where a state enjoys its sovereignty rights of non-interference only if it protects its population from acts that could result in mass atrocities.
There is a dearth of certainty as to the status of the doctrine of responsibility to protect and whether it bears any impact in international law. The study on the status of the doctrine of responsibility to protect in international law has generated a heated debate among scholars. Some scholars have proceeded to describe the doctrine of Responsibility to protect as an emerging principle of customary international law, an emerging norm, a guiding principle and evolving norm meant to articulate how the international community should respond to humanitarian crisis in situations involving mass atrocities. However, other commentators have posited that the doctrine of responsibility to protect only qualifies as a candidate norm in the realm of international relations and is far from making any legal implication in international law. To them the doctrine is merely a political tool and is unenforceable in international law.
It is on the basis of this debate that this essay seeks to critically analyse the status of the doctrine of responsibility to protect. The essay seeks to analyse the legal framework governing the responsibility to protect and analyse whether the doctrine of responsibility to protect has developed into customary international norm. This essay intends to contribute to the debate by contending that the doctrine of responsibility to protect has not developed to the level of customary international law and thus it cannot be referred to as an emerging norm in international law. The essay further contends that the doctrine of responsibility to protect is not a novel concept in international law and that the doctrine only reaffirms and articulates extant principles of international law.
This essay proceeds in two parts. Part one discusses whether the concept of responsibility to protect qualifies as an emerging norm in international law by discussing whether responsibility to protect meets the general threshold of legality as a norm and whether it has developed to the level of customary international law. This part also discusses whether the doctrine of responsibility to protect is a novel idea in international law. Part two will discuss the application of the doctrine of responsibility to protect and whether it has presented any significant shift with respect to reacting to humanitarian crises before concluding the essay.

Alive to the rising numbers of refugees, immigrants and internally displaced persons in Africa, t... more Alive to the rising numbers of refugees, immigrants and internally displaced persons in Africa, the international community passed resolutions encouraging member States to ensure the protection and promotion of the human rights of these persons. Despite the refugees, internally displaced persons and migrants all sharing near similar experiences, wants, need and fear their respective characteristics and degree of enjoyment of rights and freedoms vary from each other. This article aims to analyze the status of the internally displaced persons, refugees and migrants under international law identifying their similarities and difference.