The Newly Independent State of South Sudan – Should We Rethink the Right to Secession?

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It would be remiss of us not to note the birth of South Sudan as the world’s newest State. South Sudan gained independence from the Republic of Sudan last Saturday (9 July) and was admitted to the United Nations yesterday as the 193rd member of the UN. Independence was the result of a referendum held earlier this year in which 99% of the South Sudanese population voted for independence. South Sudan is the second African State (after Eritrea) to split from its parent state after such a referendum (which in both cases have followed a lenghty conflict).  Back in 1964, the Organization of African Unity adopted its famous resolution (see p. 17) in which it:

SOLEMNLY DECLARES that all Member States pledge themselves to respect the borders existing on their achievement of national independence.

That resolution was often interpreted as prioritising the principle of stability of boundaries and of territorial integrity over the right of self determination. Indeed, it has often been used as an argument in favour of the view that the right of external self-determination (i.e a right to secession) does not exist for minority groups or outside the colonial context. On its face though that resolutions does not speak to relationship between the State and its constituent entities but rather to the relationship between States. Nothing in the resolution itself precludes the possibility of changes in those colonial boundaries (either through inter-State adjustments or through the granting of independence by States to particular parts of the State). Having said this, it is nonetheless clear, that the mood – in Africa and elsewhere – was largely to confine the principle of self determination – at least in so far as might confer a right or entitlement to secession – to the colonial or quasi colonial situations (i.e contexts of racist or alien domination). But Sudan (and indeed Eritrea before it) suggest that there might be cases where African states are willing to consider secession (though only when tired out by lenghty wars!). The question then is whether we should rethink the principle of external self determination to allow not just for the possibility of secession but a right  of secession. I would like to draw readers attention to two posts of earlier this year in which the authors do call for this. Timothy Waters, writing just after the South Sudan independence argued that:

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.

In response Stephen Tierney, reviewing developments in the Balkans and in Sudan, stated that:

 . . . the intervention in Southern Sudan and the creation of a  timeline to an independence referendum perhaps no longer strikes us as being the radical development which it surely is. But after these processes it does seem that we must re-think the standard trope of the post-war world which has sought to circumscribe the application of self-determination as mere toolkit for decolonisation.

It seems therefore that we don’t have a renewal of the right of self-determination as the moral philosophers have argued for, but we do have a principle that refuses to disappear. Self-determination – however much the international community tries to disguise it behind the veneer of state dissolution etc. – re-emerges, case by case, in situations of deep ethnic conflict, to unsettle international actors particularly in cases where there is sufficient energy for international intervention. And in such situations we seem to see a subtle re-balancing of emphasis away from the inevitable default of territorial integrity, and towards the legitimacy of disaffected peoples seeking to exercise constituent power by the mobilisation of direct democracy.

But I think key questions remain about admitting a right to secession – after a referendum or plebiscite. Would such a rule promote stability, peace and indeed justice in international affairs? Perhaps South Sudan and Eritrea should not have had to go through lenghty wars to get their vote for independence? Which communities ought to get a right to vote for independence? Could a rule even be designed which would give some clarity to the groups that are entitled? After all, there are thousands of ethnic groups all across Africa, some very small. Nigeria alone has about 300. Would the fact that the interpretation and application of  such a rule would always be contentious not mean that we will nonetheless have conflict (armed conflict) resulting from the existing of the rule itself? On the other hand, might the existence of the rule not have prevented many conflicts that have in fact taken place in Africa and elsewhere? Afterall, the absence of a right to secession has not prevented groups from trying.

The independence of South Sudan suggests that allof these are questions that international lawyers need to continue thinking about. But for now, for the South Sudanese, it’s a time of jubilation and a time for congratulatons!

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Gautam says

July 16, 2011

I think it might be possible to justify the independence of South Sudan not under a new rule of international law which allows for a right to secession (the scope and contours of this right would be highly controversial, to say the least), but under existing international law.

The major legal bar to a right to external self-determination is the territorial integrity of States. If one admits, to start with that the South Sudanese constitute a "peoples" (meeting both the objective and the subjective criteria), one can then rely upon an a contrario reading of UNGAR 2625(XXV), according to which only those States have a right to territorial integrity who are possessed of a government "representing the whole people". Both Kosovo (arguments of sui generis aside) and South Sudan appear to be situations where there has been a widespread failure of governance, and corresponding human rights violations. Thus, it would seem that the "remedial" right of secession, which springs from 2625(XXV), and has hitherto been discussed only as a theoretical possibility, is now becoming a part of international practice.

Kibrom Tesfagabir says

July 16, 2011

Dear Dapo A.

Your thoughts are well taken.

Let me make a comment in relation to your comparison of South Sudan with Eritrea. I do not think one can relate the secession of South Sudan with that of Eritrea. The Eritrean case may not be considered as one of session. As you might know the GA adopted a resolution, in early 50s, which federates Eritrea with Ethiopia. The resolution treated Eritrea and Ethiopia as two separate states as they were during the Italian colonial period (you can refer to the Eritrea-Ethiopia Boundary Commission Decision as to the different treaties that Italy signed with Ethiopia). In 1962 Ethiopia abrogated the Federal arrangement and put Eritrea as one of its provinces. The international community did nothing to stop Ethiopia’s action. Eritreans then had to take arms to win their independence (as opposed to racial subjugation).

Ethiopia, legally speaking, had never been "a parent state" of Eritrea. The Eritrean case was a question of de-colonization as opposed to secession.

Wojciech Kornacki says

July 20, 2011

Dapo, you pose some very good questions.

While international law does not prohibit secession, as the Canadian Supreme Court recognized in Reference re: Secession of Quebec, there is no clear cut right to secession. Just like states do not want to recognize cases of self-determination, they avoid identifying examples of secession. For example, ‘everyone’ agreed that Kosovo was a very unique situation and its facts were not applicable elsewhere. We must also recognize that we are talking about remedial secession, one that places at its origin violations of human rights.

The problem is that there is no international mechanism for minority groups to claim independence or autonomy, and establish a new entity through peaceful means when their human rights are gravely jeopardized. Perhaps, this is why there are so many conflicts around the world. On the other hand, allowing individual groups to separate just based of inconclusive plebiscites (Quebec voted twice on independence, in both cases over 50% of its population desired to remain in Canada, versus East Timor, Kosovo and South Sudan, over 80% wanted to leave) could lead to thousands of new states, and many, many new armed conflicts. Until various forms of autonomy became more commonly used, the ‘secession or nothing’ approach led to numerous armed struggles. As Abulof recognized, while secession addresses only a small part of self-determination, it casts a long shadow over it. In either case, states are masters of international law, and won't allow various non-state actors to dismember them without a good reason.

Currently as its stands, based on my research, there are 4 elements that each minority group must undergo even to be considered by the international community to ‘qualify’ to enjoy the external aspect of self-determination. They are: 1) the group must be in a specific location, 2) it must be denied the internal aspect of self-determination, 3) when oppressed, it must express its will to exist, and 4) the state oppression must be brutal.

While there is a general preference for sanctity of state borders, the Friendly Relations Declaration, in part, recognizes:

Nothing in the foregoing paragraphs shall be construed as authorizing or encouraging any action which would dismember or impair, totally or in part, the territorial integrity or political unity of sovereign and independent States conducting themselves in compliance with the principle of equal rights and self-determination of peoples as described above and thus possessed of a government representing the whole people belonging to the territory without distinction as to race, creed or colour

Helsinki Act reiterates this position. While many scholars argue as to what is exactly meant by this, there comes a point where through brutal oppression of various groups, the state may lose legitimacy over a portion of its territory where each minority is located. Perhaps, this is why many states declare now that Qadafi is not a legitimate leader of Libya, and that Bashar al-Assad’s regime has lost legitimacy. Essentially, this means that both governments are not representative, and violate the internal aspect of self-determination of its people. As such, in some instances redrawing state border to allow a particular minority group to exist would more accurately reflects state legitimacy. Kosovo Albanians had to wait for over a decade to have the borders redrawn. South Sudanese had to wait even longer. In the case Sudan, the government of Sudan lost legitimacy over its Southern part by constantly making war on various groups living in the South. Should we think about a better way to achieve the same result?