Tuesday, January 11, 2011

Legal Contours of Sudanese Secession

On Sunday, southern Sudanese men and women went to the polls on the first day of a weeklong secession referendum. The referendum, part of 2005 peace agreement between the government of Sudan and South Sudanese armed groups, will almost certainly endorse secession. Sudan’s President, Omar Bashir, has vowed to respect the referendum’s outcomes. South Sudan is expected to declare its independence—becoming the first new state since Kosovo or, arguably, Abkhazia—and the United States has already assured the nascent state that it will extend recognition—that all important totem of statehood.

South Sudan’s impending statehood is interesting for, among other things, its non-conformity with principles of international law. First, the secession referendum likely violates the modern conception of self-determination. Second, South Sudan’s independence violates the principle of uti possidetis juris.

Self-determination has evolved from its post-World War I status as a principle guaranteeing statehood to constituent peoples of the Austro-Hungarian empire to its post-World War II status as a principle guaranteeing statehood to peoples under colonial subjugation (subject to uti possidetis juris) to its modern status as a principle that guarantees territorial integrity subject to the wishes of the whole population of a state. That is, self-determination today does not vest a people with a right to statehood unless the whole population of whatever state in which the people in question reside consent to the carving up of the state.

Uti possidetis juris is a principle of territorial integrity that emerged through decolonization in South America and Africa. It has since become a principle of general applicability in international law. Essentially, uti possidetis juris declares that the administrative or colonial frontiers of a colony become its international frontiers upon decolonization and that those frontiers are inviolable. Thus, the map of Africa is little changed since decolonization. Additionally, the AU is—and its predecessor was—particularly wedded to this notion for seemingly obvious policy reasons.

South Sudanese independence violates both of these principles. Only individuals born in South Sudan before decolonization or their progeny are eligible to vote in the referendum. This necessarily bars the rest of Sudan’s populace from passing on whether its country ought to be carved up. It therefore violates self-determination as it is presently understood.

Likewise, South Sudan’s independence will violate the principle of uti possidetis juris. Sudan was administered as a single colony—much to Egyptian chagrin—by the British.* Though the British affected separate administrations for the Muslim north and Christian south, the territory was a single cohesive unit. More importantly, at independence, Sudan emerged from colonial subjugation as a single territorial entity, with its colonial border transformed into international frontiers. The separation of South Sudan from the rest of Sudan thus disrupts the territorial integrity of Sudan, violating the principle of uti possidetis juris.

None of the above is to suggest that South Sudan’s independence is illegal or unlawful. On the contrary, South Sudan’s emergence as a state is both lawful and consensual. The government of Sudan, through a peace agreement following a bloody civil war, has consented to the separation of the south of its country subject to the 60% approval of the Southerners. The emergence of South Sudan as an independent state is thus remarkably similar to the process by which Eritrea achieved independence. As such, it seems to confirm that Africa will in fact tolerate secession, even secessions following the use or threat of force, so long as the metropolitan state agrees—or is forced to agree—to the severance of territory.

Such a process is rather uncontroversial under international law. However, the fact that two such secession processes have proved successful in the nearly twenty years since Somaliland declared its independence, suggests a potentially emergent regional norm of international law whereby Africa recognizes violent, contentious secession, subject to the above constraints, but not non-violent dissolution in conformity with broader principles of international law.

* Note: the type of administration was actually a British-Egyptian condominium. However, Britain effectively administered Sudan as imperial possession with only pretextual Egyptian influence. The distinction, however, is of no moment to a discussion of territorial boundaries.

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