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!