Timothy William Waters, a professor at Indiana University Maurer School of Law, is the author of numerous articles on self-determination.  

DAYS before it began voting for independence, Africa’s soon-to-be newest country hosted a modern Pharaoh who, not long ago, sent armies to crush its bid for freedom. In a visit to South Sudan’s capital, Juba, just before the week-long referendum began, Sudan’s President Omar Hassan Al-Bashir vowed to respect the region’s right to form a new country: “We cannot deny the desire and the choice of the people of the south,” said Al-Bashir. “This is their right.”

 Sudan’s leader didn’t always talk this way. His new magnanimity follows decades of grinding, wasting struggle pitting the Arab Muslim-dominated government against Christian and animist southerners, in a bid to control their oil-rich land and impose Islamic law onthem. Millions died; thousands were enslaved.  (Al-Bashir has also been indicted for genocide in Darfur.) Pressure from the United States produced the 2005 agreement that gave the South autonomy and led to this week’s referendum. There have been some violent incidents, but nothing like the slaughter of the past. Mostly voters have calming registered their overwhelming desire for independence. Yet only months ago, experts still feared a return to full-scale war if Sudan’s rulers again hardened their hearts.

 Instead there was Al-Bashir, saying these extraordinary things. Though the causes are complex, Khartoum’s acquiescence has made the difference between war and peace. The diplomatic pressure from the US and African states has all been focused on ensuring Sudan’s government allows the vote to proceed and respects the outcome, rather than reverting to war. This holds an important lesson about the sources of violent conflict within states, and shows that the world needs a radically new approach to secession.

Although Al-Bashir acknowledged southerners’ right to secede, it’s a right most peoples don’t have. Since the Second World War, territorial integrity has been a pillar of our international order: states’ borders can’t be changed without their consent. Even the creative diplomacy leading to the 2005 agreement needed Sudan’s signature.

The problem is all the states that aren’t willing. Preventing interstate wars of conquest is clearly positive, but the belief that fixed frontiers reduce internal violence is more assumed than proven. Challenging borders is thought to open Pandora’s box – but what if borders are the problem?

Fixed borders create permanent minorities and majorities. Democracy doesn’t necessarily help – a minority can be voted down forever. Rights don’t provide adequate protection – they must be negotiated, and without the fallback of exit, minorities get sub-optimal deals. And although borders are inviolate, majorities often consider separatism treasonous and use violence to prevent it. 

Some argue that tolerance is dangerous: Leaders who are willing to give minorities a deal fear that flexibility only leads to more demands. After all, Al-Bashir is haplessly presiding over the division of his country. Yet countries that acknowledge their people’s right to leave are often the most peaceful – Britain or Canada, for instance – and even countries with fractious populations can match tolerance with prosperity; Belgium is in almost permanent existential crisis, but no one is calling out the tanks. It is often oppressive countries – China, Burma – that are hardest on their own secession-minded citizens. Some separatists are violent; but few started that way, only turning to violence after being rebuffed.

True, some states are too fragile to withstand talk of secession – but that’s just another way of saying their own people don’t want to live in them. And it is not true that tolerant states are doomed to dissolve: The fact that Quebecois and Scots know they could leave helps them stay. Khartoum’s present acquiescence allows the South leave; generosity decades ago might have convinced it to stay.

So, how can we incentivize leaders to act like the new Al-Bashir instead of the old one? We need to make the ad hoc approach taken in Sudan permanent, with a rule empowering communities to negotiate secession. Territorially compact, self-defined communities should have the right to vote in plebiscites to form new states. Claimants would need to commit to human rights and negotiation with the government, as South Sudan did. But they would enjoy international supervision, and make their claim as a right.

This idea isn’t new: During the First World War, Woodrow Wilson advanced the radical notion that people define their political community, not the other way around. The principle of self-determination shattered empires, but then was gutted by territorial integrity. With a global norm of democracy now in place, it’s time to give this revolutionary idea another look.

A right of secession won’t solve every conflict, and would make some worse. But it could bring a net decline in violence, since states could no longer treat separatism as a pretext for oppression, just as decolonization norms delegitimized European colonial empires. Nor would this lead to endless fracturing: While some minorities would secede, others would use their leverage to negotiate better terms for staying.                                                                                             

And it would be more just: The right to rule oneself has value all its own. For decades, Sudan has been a charnel house for its captive peoples. This week, at long last, some of them have begun to get out. Life will not be easier – they will still have almost no paved roads, safe water or health care – and their new state may yet descend into violence, sparked either by renewed resistance the North or internal ethnic divisions. New borders are no guarantee. But they are a chance.

For the real danger to peace is not peoples’ desire to form new states. It is the willingness of the present powers in this world to resist that desire with violence. Chaos and death are not consequences of opening Pandora’s box – they are the box. We have stumbled onto that truth in Sudan, after 40 years and Niles of blood. We should not have to learn it all over again, in every war, and every generation.

Professor Paust asks, rhetorically, how attacking Al Qaeda in Yemen could be an attack on Yemen as such. But saying that selective targetings of non-state actors on the territory of another state is not an attack on that state ‘as such’ makes those last two words do an awful lot of work, work not everyone thinks they can do. As Professor Paust notes, the ‘non-attack’ position is hardly a consensus view, and I don’t think that’s surprising, because the actions he describes are in fact a physical incursion of exactly the kind that would be an attack but for the particular target. Of course, we do that kind of contextualization all the time — self-defense itself is a contextual justification for the use of force. But here, little separates the two scenarios except the subjective beliefs of the state undertaking to use force (here, the US responding to a non-state attack) and facts that, inevitably, will be very contested. This is why I mentioned the complexity of evidence, meaning what truth value we can assign to the claims of actors undertaking such strikes.

 The US actions would be an attack on Pakistan but for the intention to strike non-state actors. The status and presence of such actors involve very complex claims, the truth-value of which will not be immediately available to Pakistani decision-makers. As Professor Paust notes, the US doesn’t need to give notice, but precisely because the US doesn’t need to explain what it’s doing, this means that, from the Pakistani perspective, these are just missiles coming in over the horizon. Just as the US need not wait to respond to the non-state actors’s attacks, surely Pakistan has a right, under theories of self-defense, to respond to incoming missile fire without having to inquire about the nature of the intended target. It would seem strange to hold Pakistan responsible for a good-faith response. Thus my point was not about the US’ right (which I think is clear) but rather Pakistan’s: Pakistan might (also) have a legitimate claim to respond in self-defense notwithstanding the US’s intentions and actions.

 Not to acknowledge this requires us to accept one state’s characterizations of its subjective intentions and of complex facts in an inevitably post hoc re-reading of what the other state could have known when it responded. And doing that implicates problems of differential power in interpreting such claims. In his intial post, Professor Paust mentions a scenario involving attacks over the US-Mexican border. I’d vary that scenario to bring my point out: if it were a missile strike by the Mexican government against Mexican rebels (with US citizenship, why not) in Arizona undertaken without US authorization, it is hard to imagine the US accepting that this would not be an attack on the United States ‘as such.’ I take it the US could legitimately react, without delay or notice, in self-defense. At least, it would claim that right.

 The rest of Professor Paust’s analysis makes sense to me, and would be consistent with what I’m outlining here — which is to say, consistent in highlighting the logical problem that reading the available texts leads us to; apart from noting, as you also do, that they are hardly uniform, I agree that they mostly tend the way you say, but I see some very interesting, counter-intuitive implications in that: an odd conjunction in which two states might find themselves firing into each other’s territory, both operating in good faith under theories of self-defense. An interstate war of mutual self-defense, if you will.

Related EJIL:Talk! Links

http://www.ejiltalk.org/are-us-attacks-in-pakistan-an-armed-attack-on-pakistan-a-response-to-timothy-waters/

http://www.ejiltalk.org/the-united-states-use-of-drones-in-pakistan/