An Analysis of the Concept of ‘Self-Determination’ in International Law:
The Case of South Sudan
by
Prince Charles Zimuto
Student number: 200910005
Submitted as full requirements for the degree of Master of Laws (LLM) at the
University of Fort Hare in the Republic of South Africa
Supervisors: Dr. K Moyo and Mr. A van Coller
Summary
This research intends to investigate the scope and applicability of the concept of ‘selfdetermination’ outside the context of decolonisation using South Sudan as a case study.
Demands for the exercise of the right to self-determination are widespread. These are
vehemently resisted by states who view the concept of ‘self-determination’ as a potential source
of territorial disintegration. International instruments which provide for the right to selfdetermination also discourage the impairment of the territorial integrity of states in the name of
self-determination. The problem faced in international law is therefore how to balance the right
to self-determination with the principle of territorial integrity. The study reveals that the general
understanding is that outside the context of decolonisation the right to self-determination may be
exercised within the territorial boundaries of a state without compromising the territorial
integrity of a state. The internal exercise of the right to self-determination entails human rights
protection, participation in the political affairs of the state and autonomy arrangements. This
general understanding is however problematic where a state systemically violates the rights of its
people and denies them political participation in the affairs of the state. The people of South
Sudan found themselves in such a situation from the time when Sudan gained independence from
British colonial rule. Despite a number of negotiations with the government of Sudan, the
people of South Sudan continued to be marginalised and their rights violated with impunity.
They then demanded to exercise their right to self-determination externally and eventually they
seceded from Sudan through the framework created by the Comprehensive Peace Agreement of
2005. In the light of the secession of South Sudan from Sudan this study proposes a remedial
self-determination approach to the understanding of post-colonial self-determination. In terms of
this approach when people are denied the right to exercise their right to self-determination
internally, or their rights are deliberately and systemically violated, they may exercise their right
to self-determination externally and secede.
Key words: self-determination; secession; South Sudan; Sudan; territorial integrity;
decolonisation; Islamisation; post-colonial; gross violations of human rights.
ii
Declaration
I, Prince Charles Zimuto, hereby declare that all the work contained herein is my own original
work; that all ideas that are not mine have been duly acknowledged and referenced according to
the referencing guide of the University of Fort Hare; and that this dissertation has not been
previously submitted in its entirety or in part to any other university towards any other degree.
Candidate: Prince Charles Zimuto
Signature: ______________________
Date: 17 August 2015
iii
Acknowledgements
My appreciation goes to my supervisors Dr K Moyo and Mr A van Coller whom despite their
busy schedules dedicated their time to my project. The importance of their comments,
constructive criticisms and guidance cannot be overemphasized. It is worth mentioning that Mr
van Coller also taught me Public International Law, while I was doing my LLB Degree. His
teachings back then inspired me to undertake post graduate studies in International Law. Even
though he was a strict lecturer, I know that I benefited more from his class than any other class
that I have ever attended.
I would like to thank the Faculty of Law at the University of Fort Hare for enabling me to attend
the Nelson R Mandela Faculty of Law Research Seminar held in East London from the 23rd to
the 24th of May 2014. I would also like to thank the members of the Faculty of Law for their
input during the presentation of my research proposal on 4 July 2014. Instead of just appreciating
and complimenting my efforts, they set the bar higher and pushed me to do better.
The Govan Mbeki Research and Development Centre (GMRDC) enabled me to attend numerous
post graduate research training seminars and workshops. The GMRDC also funded in part my
research project through the Supervisor Linked Bursary and the Masters Fee Waiver Programme.
Special thanks to my family especially my parents, Angelica and Francis Zimuto for teaching me
life’s lessons, which I would have never learnt from textbooks.
I have also benefited greatly from the support and encouragement of my friends and fellow
colleagues most notably: Athi Ludlolo, Ntandokayise Ndlovu, Thabang Nkomo, Sikhulile
Maphosa, Roden Mashaya, Nonyaniso Nkutu, Lorraine Hlatshwayo, Nyasha Musorowegomo,
Max Hlatshwayo, Andiswa Busakwe, Millicent Moyo, Clarence Siziba, Sergio Masiza, Gcobisa
Ncaza, Lindsay Ndlovu, Mlungisi Rwentela, Nomfundo Xokiyana, Whitney Zuma, Ezekiel
Madovi, Sithathu Ndedwa, Thamsanqa Sibanda, Hlonela Lolwana, Siviwe Caza, Melvin
Hlatshwayo, Nobuntu Gcule, Lerato Mati, Andrew Maphosa, Precious Moyo, Nathi Njokweni,
Babalwa Mbedu, Nokuzola Mohotsi, Nosiphiwo Mdutyana, Nwabisa Yawa, Phakamisa Yazini,
Java Mama, Lawrence Hlatshwayo, Barbara Opperman, and The Drummond Family.
iv
Table of Contents
Summary...................................................................................................................................... ii
Declaration.................................................................................................................................. iii
Acknowledgements .................................................................................................................... iv
Table of Contents......................................................................................................................... v
Abbreviations............................................................................................................................. vii
CHAPTER 1 ................................................................................................................................... 1
INTRODUCTION .......................................................................................................................... 1
1 1 Background ............................................................................................................................ 1
1 2 Problem statement ................................................................................................................. 4
1 3 Research questions ................................................................................................................ 5
1 4 Hypothesis ............................................................................................................................. 5
1 5 Research objectives ............................................................................................................... 6
1 6 Thesis statement .................................................................................................................... 6
1 7 Literature review.................................................................................................................... 7
1 8 Significance of the study ....................................................................................................... 9
1 9 Methodology.......................................................................................................................... 9
1 10 Scope and limitations of the study....................................................................................... 9
1 11 Delineations ....................................................................................................................... 10
1 12 Chapter outline .................................................................................................................. 10
CHAPTER 2 ................................................................................................................................. 12
THE CONCEPT OF ‘SELF DETERMINATION’ IN INTERNATIONAL LAW ..................... 12
2 1 Introduction ......................................................................................................................... 12
2 2 The origins and development of the concept of ‘self-determination’ ................................. 12
2 3 Self-determination and decolonisation ................................................................................ 15
2 4 The legal status of the concept of ‘self-determination’ in international law ....................... 21
2 5 Self-determination and the territorial integrity of states ...................................................... 27
2 6 Self-determination and secession ........................................................................................ 34
2 8 Summary.............................................................................................................................. 37
CHAPTER 3 ................................................................................................................................. 39
SELF-DETERMINATION IN THE CONTEXT OF SOUTH SUDAN ...................................... 39
3 1 Introduction ......................................................................................................................... 39
3 2 Background of the political and economic situation in Sudan since independence ............ 39
3 3 The impact of gross violations of human rights .................................................................. 41
3 3 1 Gross violations of human rights in South Sudan ......................................................... 43
v
3 4 Peace initiatives to solve the South Sudan problem ............................................................ 50
3 4 1 The 1972 Addis Ababa Peace Agreement..................................................................... 50
3 4 2 The 1986 Koka Dam Agreement .................................................................................. 51
3 4 3 The 1992 Abuja Sudanese Peace Negotiations ............................................................. 53
3 4 4 The 1994 IGAD Declaration of Principles .................................................................... 54
3 4 5 The 1996 Sudan Political Charter ................................................................................. 56
3 4 6 The 1997 Sudan Peace Agreement................................................................................ 57
3 4 7 The 1998 Sudan Constitution ........................................................................................ 58
3 4 8 The Comprehensive Peace Agreement ......................................................................... 59
3 5 The secession of South Sudan ............................................................................................. 62
3 6 Summary.............................................................................................................................. 64
CHAPTER 4 ................................................................................................................................. 65
THE POST-COLONIAL CONCEPTION OF SELF-DETERMINATION ................................. 65
4 1 Introduction ......................................................................................................................... 65
4 2 The applicability of self-determination in a post-colonial scenario .................................... 65
4 3 The continuum of self-determination: the relationship between internal self-determination
and external self-determination ................................................................................................. 69
4 4 The scope of internal self-determination ............................................................................. 71
4 4 1 Human rights ................................................................................................................. 72
4 4 2 Democracy and meaningful participation in the political affairs of the state ............... 73
4 4 3 Autonomy ...................................................................................................................... 74
4 5 The scope of external self-determination ............................................................................ 76
4 6 Towards a new understanding of self-determination: Remedial self-determination theory 77
4 7 Summary.............................................................................................................................. 82
CHAPTER 5 ................................................................................................................................. 84
CONCLUSION ............................................................................................................................. 84
BIBLIOGRAPHY ......................................................................................................................... 89
vi
Abbreviations
ABC
Abyei Boundaries Commission
AU
African Union
CERD
Committee on the Elimination of Racial Discrimination
CPA
Comprehensive Peace Agreement
DRC
Democratic Republic of Congo
FFAMC
Fiscal and Financial Allocation and Monitoring Commission
HRC
Human Rights Committee
ICCPR
International Covenant on Civil and Political Rights
ICERD
International Convention of the Elimination of all forms of Racial Discrimination
ICESCR
International Covenant on Economic, Social and Cultural Rights
ICJ
International Court of Justice
ILO
International Labour Organisation
KPC
Katangese Peoples’ Congress
NATO
North Atlantic Treaty Organisation
NCP
National Congress Party
NIF
National Islamic Front
OAU
Organisation of African Unity
vii
PDF
Popular Defence Force
SFRY
Socialist Federal Republic of Yugoslavia
SPLA
Sudan People’s Liberation Army
SPLM
Sudan People’s Liberation Movement
SPLM B.G.G. Sudan People Liberation Movement Bahrel Ghazal Group
SSIM
South Sudan Independence Movement
UDHR
Universal Declaration of Human Rights
UN
United Nations
UNDRIP
United Nations Declaration on the Rights of Indigenous Peoples
USSR
Union of Soviet Socialist Republics
viii
CHAPTER 1
INTRODUCTION
1 1 Background
This research intends to investigate the scope and applicability of the concept of ‘selfdetermination’ outside the context of decolonisation, using South Sudan as a case study. The
origins of self-determination can be traced back to the French Revolution of 1789.1 It was
however in the 20th century that the concept “gained real currency”.2 Former American President
Woodrow Wilson, in his speech to the American Congress in 1918, warned that: “Selfdetermination is not a mere phrase. It is an imperative principle of action which statesmen will
henceforth ignore at their peril.”3 In contrast Wilson’s secretary of state said:
“The phrase is simply loaded with dynamite. It will raise hopes which can never be
realized. It will, I fear, cost thousands of lives. In the end it is bound to be discredited, to
be called the dream of an idealist who failed to realize the danger until too late to check
those who attempt to put the principle in force. What a calamity that the phrase was ever
uttered! What misery it will cause!”4
The concept of ‘self-determination’ means different things to different people.5 Consequently, a
number of meanings have been attached to the concept.6 The concept of ‘self-determination’ has
been relied upon by various groups around the world fighting for a wide range of causes. 7 For
Woodrow Wilson the concept of ‘self-determination’ meant government by consent.8 Some
scholars support this conception of self-determination arguing that self-determination must be
understood as the right to democratic government.9 Vogel puts this conception as follows:
“The new understanding of self-determination that has emerged may be restated as a right
to self-determination that serves the well-being of groups who define themselves as a
1
Fazal and Griffiths “A State of One’s Own: The Rise of Secession since World War II” 2008 The Brown Journal
of World Affairs 199 201.
2
Lino “The Politics of Inclusion: The Right of Self-determination, Statutory Bills of Rights and Indigenous
Peoples” 2010 Melbourne University Law Review 839 845.
3
Levy The Intermarium: Wilson, Madison, & East Central European Federalism (2007) 130.
4
Lansing The Peace Negotiations (2005) 100.
5
Melandri “Self-determination and State-building in International Law: The Need for a New Research Approach”
2014 Journal of Conflict & Security Law 1 3.
6
Castellino “Territorial Integrity and the ‘Right’ to Self-Determination: An Examination of the Conceptual Tools”
2008 Brooklyn Journal of International Law 503 513.
7
Tierney “The Search for a New Normativity: Thomas Franck, Post-modern Neo-tribalism and the Law of Selfdetermination” 2002 European Journal of International Law 941 942.
8
Dedering “Petitioning Geneva: Transnational Aspects of Protest and Resistance in South West Africa/Namibia
after the First World War” 2009 Journal of Southern African Studies 785 786.
9
Davis “Indigenous Struggles in Standard-Setting: The United Nations Declaration on the Rights of Indigenous
Peoples” 2008 Melbourne Journal of International Law 439 459.
1
people by addressing the conditions under which they live and are governed through an
on-going process of negotiation of the terms on which they live with their neighbors”10
The concept of ‘self-determination’ was interpreted during decolonisation as the right to freedom
for colonised people.11 Thus, after World War II, the concept was invoked by colonised peoples
in their struggle for independence.12 As a result, today some states regard the concept of ‘selfdetermination’ as limited to the granting of independence to colonised peoples.13 India’s
reservation to common Article 1 of the International Covenant on Civil and Political Rights14
(ICCPR) and the International Covenant on Economic, Social and Cultural Rights15 (ICESCR) is
noteworthy:
“With reference to article 1 of the International Covenant on Economic, Social and
Cultural Rights and article 1 of the International Covenant on Civil and Political Rights,
the Government of the Republic of India declares that the words ‘the right of selfdetermination’ appearing in [this article] apply only to the peoples under foreign
domination and that these words do not apply to sovereign independent States or to a
section of a people or nation--which is the essence of national integrity.”16
All over the African continent peoples have been demanding the right to self-determination.17
For instance, pressure groups are agitating for the break-away of Cabinda from Angola, Caprivi
from Namibia, Zanzibar from Tanzania, Barotse from Zambia and Matabeleland from
Zimbabwe, just to mention a few. African heads of states, however, normally place great
emphasis on the principle of the territorial integrity of states.18 They insist on a conception of
self-determination which limits the application of self-determination to situations of colonialism,
10
Vogel “Reframing Rights From the Ground Up: The Contribution of the New U.N. Law of Self-determination to
Recovering the Principle of Sociability on the Way to a Relational Theory of International Human Rights” 2006
Temple International & Comparative Law Journal 443 446.
11
Roach “Minority Rights and an Emergent International Right to Autonomy: A Historical and Normative
Assessment” 2004 International Journal on Minority and Group Rights 411 421.
12
Medina “An Unsatisfactory Case of Self Determination: Resolving Puerto Rico's Political Status” 2010 Fordham
International Law Journal 1048 1053.
13
Pitty and Smith “The Indigenous Challenge to Westphalian Sovereignty” 2011 Australian Journal of Political
Science 121 127.
14
International Covenant on Civil and Political Rights (1966) UN Doc A/6316.
15
International Covenant on Economic, Social and Cultural Rights (1966) UN Doc A/6316.
16
The reservations and responses of states with regards to the right to self-determination as it is enshrined in the
International Covenant on Civil and Political Rights and the International Covenant on Economic, Social and
Cultural Rights: https://treaties.un.org/Pages/ViewDetails.aspx?src=TREATY&mtdsg_no=IV3&chapter=4&lang=en#EndDec (accessed 4 July 2014).
17
Hansungule “The African Charter on Human and Peoples Rights: A Critical Review” 2000 African Yearbook of
International Law 265 271.
18
Hasani “Uti Possidetis Juris: From Rome to Kosovo” 2003 The Fletcher Forum of World Affairs 85 88.
2
apartheid and racism.19 Whenever people agitate for self-determination, states generally become
concerned about possible secession and political instability. 20 States will thus oppose any calls
for self-determination,21 resulting in violence of unprecedented levels,22 in an effort to preserve
their territorial integrity.23 States thus view the concept of ‘self-determination’ as a potential
source of territorial disintegration.24
Groups agitating for self-determination cite economic, political and cultural marginalization as
their grievances.25 Marginalization and exclusion from meaningful political and economic
participation in the affairs of the state is one of the causes of conflict in Africa.26 In the case of
South Sudan, the demand for self-determination was, inter alia, based on economic
marginalization, exclusion from political participation27 and the denial of religious freedom of
the people of South Sudan.28 The marginalisation of the people of South Sudan by the central
government of Sudan was a continuation of the British colonial policy of treating African ethnic
groups as inferior to Arabs.29 South Sudan, as a result, has never had proper, adequate and
modern infrastructure essential for the proper governance of the region.30
19
Thio “Battling Balkanization: Regional Approaches Toward Minority Protection Beyond Europe” 2002 Harvard
International Law Journal 409 452.
20
Coulter “The Law of Self Determination and the United Nations Declaration on the Rights of Indigenous Peoples”
2010 UCLA Journal of International Law and Foreign Affairs 1 4.
21
Porter “Pursuing the Path of Indigenization in the Era of Emergent International Law Governing the Rights of
Indigenous Peoples” 2002 Yale Human Rights & Development Law Journal 123 175.
22
Lee and Lee “Positivism in International Law: State Sovereignty, Self-Determination, and Alternative
Perspectives” 2010 Asian Yearbook of International Law 1 11.
23
Shelton “Self-Determination in Regional Human Rights Law: From Kosovo to Cameroon” 2011 American
Journal of International Law 60 60.
24
Lone “The Creation Story of Kashmiri People: The Right to Self-Determination” 2009 The Denning Law Journal
1 23.
25
Dicklitch “The Southern Cameroons and Minority Rights in Cameroon” 2011 Journal of Contemporary African
Studies 49 49.
26
Mhango “Governance, Peace and Human Rights Violations in Africa: Addressing the Application of the Right to
Self-Determination in Post-Independence Africa” 2012 African Journal of Legal Studies 199 206.
27
Murray and Maywald “Subnational Constitution-Making in Southern Sudan 2006 Rutgers Law Journal 1203
1203.
28
Van der Vyver “Cultural Identity as a Constitutional Right in South Africa” 2003 Stellenbosch Law Review 51 58.
29
Badmus “Contesting Exclusion: Uneven Development and the Genesis of the Sudan’s Darfur War” 2011 Journal
of Alternative Perspectives in the Social Sciences 880 881.
30
Steinitz “Internationalized Pro Bono and a New Global Role for Lawyers in the 21st Century: Lessons from
Nation-Building in Southern Sudan” 2009 Yale Human Rights & Development Law Journal 205 209.
3
The marginalisation of the people of South Sudan led to the rise of rebel movements31 and two
civil wars which were characterised by slavery, the destruction of social, economic and cultural
life, death and displacement of civilians.32 By way of example, the second civil war internally
displaced thousands of the people of South Sudan and they sought refuge in Khartoum where the
government of Sudan in 1992 forcibly drove about 400 000 of them out to the desert, shooting all
those who offered resistance.33 The people of South Sudan were also captured into slavery by
Arab slave raiders and government officials from northern Sudan supported the practice because
of the financial reward it brought.34
Ever since the concept of ‘self-determination’ was popularised by Woodrow Wilson, concerns
have been raised over the potential of self-determination to cause political instability and
defragmentation of states.35 Critics have also raised concerns over the lack of a precise definition
of the concept of ‘self-determination’.36 There is also no consensus among scholars and
statesmen regarding the nature of the concept and its applicability outside the decolonisation
context.37 Outside the context of decolonisation it is important therefore to ascertain what may
give rise to a self-determination claim38 and what the concept of ‘self-determination’ entitles
claimants to.39
1 2 Problem statement
The study will be centred on a research problem namely: what is the nature and scope of the
concept of ‘self-determination’ in the post-colonial era? The content and application of the
31
Leonardi “Liberation or Capture: Youth in Between ‘Hakuma’, and ‘Home’ During Civil War and its Aftermath
in Southern Sudan” 2007 African Affairs 391 394.
32
Abusharaf “Competing Masculinities: Probing Political Disputes as Acts of Violence against Women from
Southern Sudan and Darfur” 2006 Human Rights Review 59 61.
33
Ayittey Indigenous African Institutions (2006) 455.
34
Rassam “International Law and Contemporary Forms of Slavery: An Economic and Social Rights-Based
Approach” 2004 Penn State International Law Review 809 810.
35
Simpson “The United States and the Curious History of Self-Determination” 2012 Diplomatic History 675 675.
36
Musafiri “Right to Self-Determination in International Law: Towards Theorisation of the Concept of Indigenous
Peoples/National Minority?” 2012 International Journal on Minority and Group Rights 481 512.
37
Sargent and Melling “Indigenous Self-Determination: The Root of State Resistance” 2012 Denning Law Journal
117 125.
38
McCracken “Abusing Self-Determination and Democracy: How the TPLF is Looting Ethiopia” 2004 Case
Western Reserve Journal of International Law 183 211.
39
Lorca “Petitioning the International: A ‘Pre-history’ of Self-determination” 2014 European Journal of
International Law 497 498.
4
concept today is controversial.40 There is a widespread view in international law that selfdetermination is a concept applicable only to people under colonial and alien domination.41 The
question is therefore, that, is the concept of ‘self-determination’ applicable outside the context of
decolonisation?42 If so, the next question is what is the post-colonial understanding of the
concept of ‘self-determination’?
Much of the controversy surrounding the scope and application of the concept of ‘selfdetermination’ stems from the clash between concept and territorial integrity.43 The challenge in
international law is how to balance the right to self-determination with the principle of territorial
integrity.44 In order to find answers to these questions, the study will investigate the
circumstances under which the concept of ‘self-determination’ was exercised in the case of
South Sudan with a view to ascertain whether this shows a new understanding of the concept in
international law.
1 3 Research questions
This research is an analysis of the concept of ‘self-determination’ in international law using
South Sudan as a case study. The following questions will be considered:
1. What is the nature and scope of the concept of ‘self-determination’ outside the context of
decolonisation?
2. What are the implications of South Sudan’s secession from Sudan on the scope of selfdetermination outside the context of decolonisation?
1 4 Hypothesis
Outside the context of decolonisation, self-determination is generally understood to mean the
right of any group of people within a state to political, cultural, economic or religious autonomy.
40
Drew “The East Timor Story: International Law on Trial” 2001 European Journal of International Law 651 658.
Omar “The Right to Self-determination and the Indigenous People of Western Sahara” 2008 Cambridge Review of
International Affairs 41 42.
42
Crow “Does UNDRIP Matter?: Indian Law in the United States and the International Right to SelfDetermination” 2014 Hibernian Law Journal 119 122.
43
Okoronkwo “Self-Determination and the Legality of Biafra's Secession under International Law” 2002 Loyola of
Los Angeles International and Comparative Law Review 63 64.
44
Mahmud “Colonial Cartographies, Postcolonial Borders, and Enduring Failures of International Law: The
Unending Wars along the Afghanistan-Pakistan Frontier” 2010 Brooklyn Journal of International Law 1 59.
41
5
Where a state engages in systemic human rights violations, self-determination should be
understood as empowering peoples to break away from that state. The secession of South Sudan
reinforces the view that self-determination may, in instances of gross human rights violations and
denial of the right to internal self-determination, lead to secession.
1 5 Research objectives
The main objectives of this research are:
i.
To ascertain the scope nature of the concept of ‘self-determination’ outside the context of
decolonisation.
ii.
To ascertain the significance of South Sudan’s secession on the post-colonial
understanding of self-determination.
iii.
To propose a new approach to understanding the concept of ‘self-determination’ outside
the context of self-determination.
1 6 Thesis statement
This study will argue that the concept of ‘self-determination’ is not limited to situations where
peoples are colonised or are under alien domination.45 Limiting the right to self-determination to
situations where peoples are colonised or are under alien domination deprives them of a remedy
in the face of gross human rights violations by a sovereign state.46 It will be argued that the
concept of ‘self-determination’ has acquired new meaning outside the context of
decolonisation.47
The concept of ‘self-determination’ can also be invoked in instances where people are denied the
right to internal self-determination.48 The primary argument in this study is that if peoples are
45
Waters “Indeterminate Claims: New Challenges to Self-Determination Doctrine in Yugoslavia” 2000 SAIS Review
Journal of International Affairs 111 119.
46
Bindal and Latika “Locating the Limits of Self-determination Beyond Shadow Lines of Nation” 2009 Sri Lanka
Journal of International Law 97 114.
47
Ostby “Will Foreign Investors Regulate Indigenous Peoples' Right to Self-Determination?” 2003 Wisconsin
International Law Journal 223 233.
48
Watson “When in the Course of Human Events: Kosovo’s Independence and the Law of Secession” 2008 Tulane
Journal of International and Comparative Law 267 277.
6
subjected to perpetual gross human rights violations49 or are denied the right to internal selfdetermination, they may elect to secede.50
1 7 Literature review
Castellino and Gilbert lament that despite the existence of a lot of literature on selfdetermination, “a precise definition remains elusive.”51 Similarly, Hehir notes that
notwithstanding the increased reliance on the concept of ‘self-determination’ by various groups
of people, its meaning and applicability is “problematic”.52 In the same vein, Barelli argues that
ascertaining the meaning and application of self-determination has been made difficult by two
reasons, namely; the ambiguity with which the concept is expressed in international legal
instruments; and the political and moral considerations which have a bearing on the application
of the concept.53 Titanji, however, argues that in the history of the concept of ‘selfdetermination’ its meaning and applicability was not disputed during decolonisation and during
this period the concept meant freedom from colonialism.54
Hannum notes that one of the questions which have sparked debates among scholars is the
recognition of the concept of ‘self-determination’ in the post-colonial era.55 Liss notes that states
and courts are unwilling to recognise the application of the concept of ‘self-determination’
beyond decolonisation.56 Oeter, however, argues that mention of the right to self-determination
49
Paolett “Rights and Duties of Minorities in a Context of Post-Colonial Self-Determination: Basques and Catalans
in Contemporary Spain” 2009 Buffalo Human Rights Law Review 159 167.
50
Malone “Seeking Reconciliation of Self-Determination, Territorial Integrity, and Humanitarian Intervention
(Introduction to Special Project: Humanitarian Intervention and Kosovo)” 2000 William and Mary Law Review 1677
1680.
51
Castellino and Gilbert “Self-Determination, Indigenous Peoples and Minorities” 2003 Macquarie Law Journal
155 156.
52
Hehir “Independence, Intervention and Great Power Patronage: Kosovo, Georgia and the Contemporary SelfDetermination Penumbra” 2009 Amsterdam Law Forum 88 88.
53
Barelli “Shaping Indigenous Self-Determination: Promising or Unsatisfactory Solutions?” 2011 International
Community Law Review 413 413.
54
Titanji “The Right of Indigenous Peoples to Self-determination versus Secession: One Coin, Two Faces?” 2009
African Human Rights Law Journal 52 59.
55
Hannum “Rethinking Self-Determination. Self-Determination in International Law” 1993 Virginia Journal of
International Law 1 31.
56
Liss “Responsibility Determined: Assessing the Relationship Between the Doctrine of the Responsibility to
Protect and the Right of Self-Determination” 2011 UCL Human Rights Review 52 55.
7
in the ICCPR and the ICESCR is proof that the concept of ‘self-determination’ is applicable
outside the context of decolonisation.57
Two forms of self-determination are identified in international law, namely, external and internal
self-determination.58 Griffioen defines internal self-determination as the right of a people to take
part in the governance of the state they live in. 59 Cole states that internal self-determination is
synonymous with democratic governance.60 Dickinson argues that internal self-determination is
synonymous with autonomy or self-governance.61
El Ouali argues that the new conception of self-determination insists on maintaining the
territorial integrity of states by promoting democracy and granting autonomy to people within a
state.62 Weldehaimanot argues that state practice shows that great importance is placed on the
principle of territorial integrity and therefore self-determination has increasingly been regarded
as entitling peoples to exercise autonomous functions within the boundaries of their state.63
Borgen in the same vein argues that today, external self-determination is widely discouraged.64
In contrast, Velasco argues that although the new conception of self-determination seems to be in
favour of internal self-determination, external self-determination is still possible.65 Knoll relying
on the remedial self-determination theory argues that a people may secede if a state denies them
the rights associated with internal self-determination.66 Similarly Grant argues that where a state
57
Oeter “Self-Determination” in Simma et al (eds) The Charter of the United Nations: A Commentary (2012) 322.
Davis “Establishing a Workable Autonomy in Tibet” 2008 Human Rights Quarterly 227 248.
59
Griffioen Self-Determination as a Human Right: The Emergency Exit of Remedial Secession (2010) 83.
60
Cole “Revolutions in the Maghreb – Resisting Authoritarianism and Accessing the Right to Self-Determination
and Democratic Governance” 2012 Comparative and International Law Journal of Southern Africa 389 390.
61
Dickinson “The Global Reach and Limitations of Self-Determination 2012 Cardozo Journal of International and
Comparative Law 367 384.
62
El Ouali Territorial Integrity in a Globalizing World: International Law and States’ Quest for Survival (2012)
305.
63
Weldehaimanot “The ACHPR in the Case of Southern Cameroons” 2012 Sur-International Journal on Human
Rights 85 98.
64
Borgen “The Language of Law and the Practice of Politics: Great Powers and the Rhetoric of Self-Determination
in the Cases of Kosovo and South Ossetia” 2009 Chicago Journal of International Law 1 8.
65
Velasco “Self-determination and Secession: Human Rights-based Conflict Resolution” 2014 International
Community Law Review 75 83.
66
Knoll “Fuzzy Statehood: An International Legal Perspective on Kosovo's Declaration of Independence” 2009
Review of Central and East European Law 361 387.
58
8
subjects its people to gross violations of human rights and denies them the right to internal selfdetermination, the people may secede from that state.67
The works cited in this literature review reveal that there is debate around the scope and
application of the concept of ‘self-determination’ outside the context of decolonisation. This
literature review also highlights that the concept of ‘self-determination’ has an “internal” and
“external” dimension. Scholars are not in agreement as to which aspect of the concept of ‘selfdetermination’ is applicable outside the context of decolonisation. This literature review
highlighted that some scholars are of the view that the post-colonial understanding of the concept
of ‘self-determination’ is synonymous with internal self-determination. On the other hand it was
revealed that other scholars are of the view that the post-colonial understanding of the concept of
‘self-determination’ should be that where peoples are denied the right to exercise their right to
self-determination “internally” they may do so “externally”. Consequently it can be said that
there is no consensus on the post-colonial understanding of the concept.
1 8 Significance of the study
The study will assist in a proper understanding of the concept of ‘self-determination’ in a postcolonial context. It is hoped that clearly defining the scope and nature of self-determination will
help guide states on how to deal with claims for self-determination. This may put an end to the
brutal suppression of peoples agitating for self-determination by states.
1 9 Methodology
This study will examine the provisions of various international law treaties relating to the
concept of ‘self-determination’. In addition, case law, textbooks and journal articles will be
consulted. This study is mainly desktop research. No empirical research will be conducted.
1 10 Scope and limitations of the study
This research will examine the nature and scope of the concept of post-colonial ‘selfdetermination’ in international law. This will be done by examining a recent exercise of the right
67
Grant “Regulating the Creation of States from Decolonization to Secession” 2009 Journal of International Law
and International Relations 11 29.
9
to self-determination by the people of South Sudan. Of particular importance are the
circumstances which gave rise to the agitation for self-determination, how the peoples of South
Sudan exercised their “right” to self-determination and how that has contributed to a new
understanding of the concept. To adequately address the issue both the external and internal
forms of the concept will be considered.
1 11 Delineations
This research does not concern its self with the debate concerning the definition of “peoples” for
the purposes of the exercise of the right to self-determination. The research will not consider
whether the various peoples agitating for self-determination all around the world have good
cause to do so or not.
1 12 Chapter outline
This study is made up of five chapters. Chapter one is the general introduction of the dissertation.
It outlines the background of the study, the problem statement, thesis statement and research
questions. It also provides the literature review, methodology and the limitations of the study.
Chapter two discusses the origins and development of the concept of ‘self-determination’. This
will be done in order to determine how the concept is applied in international law. The chapter
will also focus on how the concept was applied during decolonisation. This is crucial because it
will form the foundation of the post-colonial understanding of the concept which will be
discussed in chapter four. This chapter is also important in that the relationship between the
concept of ‘self-determination’ and other principles of international law such as the territorial
integrity of states will be examined. The chapter will examine the concept of ‘secession’ and its
implications for the post-colonial understanding conception of ‘self-determination’. This will be
done by examining the jurisprudence of national and international courts, provisions of
international legal instruments and writings of scholars.
Chapter three will investigate the concept of ‘self-determination’ in the context of South Sudan.
This chapter will argue that the exercise of the right to self-determination by the people of South
Sudan was prompted by gross human rights violations and the denial of the right to internal self10
determination by the government of Sudan. The chapter will investigate the concept of ‘gross
violations of human rights’ in the context of South Sudan. In addition the chapter will outline
instances where the people of South Sudan were denied the right to internal self-determination.
The chapter shall also outline and discuss the efforts by the people of South Sudan to end the
gross human rights violations perpetrated against them by the government of Sudan. The chapter
is crucial in that it outlines the circumstances under which the secession of South Sudan from
Sudan occurred. In other words the chapter will present the secession of South Sudan as a
practical application of the right to self-determination. This chapter is also important in that it
also forms the basis on which the concept of ‘self-determination’ outside the context of
decolonisation which is discussed in chapter four must be understood.
Chapter four will establish the post-colonial understanding of the concept of ‘self-determination’.
The chapter proposes the remedial self-determination theory approach to the post-colonial
understanding of the concept of ‘self-determination’. The argument put forward in this chapter is
that the post-colonial understanding of self-determination is generally understood to be
synonymous with the right to internal self-determination. This chapter, however, argues that
when peoples are denied their right to internal self-determination or where the state commits
gross violations of human rights against its people, it ceases to be representative of such people
and secession becomes a possible option. Chapter four also argues that the secession of South
Sudan from Sudan should be regarded as a practical application of the new understanding of the
concept of ‘self-determination’.
Chapter five is the final chapter of the study. The chapter presents the findings and conclusions
of the study.
11
CHAPTER 2
THE CONCEPT OF ‘SELF DETERMINATION’ IN INTERNATIONAL LAW
2 1 Introduction
This chapter examines the concept of ‘self-determination’ as it is applied in international law.
The key question in this chapter is what is the meaning of the concept of ‘self-determination’? In
order to answer this question, the chapter will examine the jurisprudence of national and
international courts, provisions of international legal instruments and writings of scholars in
order to ascertain how they address the concept of ‘self-determination’.
The chapter will proceed in six main sections. First, the chapter will investigate the origins and
development of the concept. Second, the chapter will focus on how the concept was applied
during decolonisation. Third, the chapter will investigate the legal status of self-determination in
current international law. Fourth, the chapter will highlight how the concept of ‘selfdetermination’ has been applied outside the context of decolonisation. Fifth, the relationship
between the concept and the principle of the territorial integrity of states will be examined. Sixth,
the chapter will examine the concept of ‘secession’ and its implications for the post-colonial
conception of self-determination, followed by the conclusion.
2 2 The origins and development of the concept of ‘self-determination’
The concept of ‘self-determination’ is thought to have been conceptualised by former American
President Woodrow Wilson.68 The origins of the concept, however, can be traced back to the
French Revolution of 1789.69 Woodrow Wilson did not invent the term self-determination.
Wilson borrowed the term from the Bolsheviks,70 who saw the concept as an avenue to bring
imperial rule to an end.71 It is noteworthy that Wilson never made his ideas on the concept
68
Ferdous “Self-Determination: Idea and Pragmatism” 2007 Asian Affairs 29 29.
Vidmar “Montenegro’s Path to Independence: A Study of Self-Determination, Statehood and Recognition” 2007
Hanse Law Review 73 74.
70
The Bolsheviks were members of a political party in Russia called the Bolshevik Party formed in 1903. The party
played a major role in the Russian Revolution and advocated for the establishment of socialism in Russia. See:
https://www.marxists.org/glossary/orgs/b/o.htm (accessed 8 November 2014).
71
Manela The Wilsonian Moment, Self-Determination and the Origins of Anti-Colonial Nationalism (2007) 42.
69
12
clear.72 In other words, he avoided providing a precise definition of what self-determination
meant and what it entitled the beneficiaries to.
In the period between the French Revolution and the end of World War 1, the concept of ‘selfdetermination’ was largely regarded as a mere political principle.73 It is noteworthy that the
Covenant of the League of Nations74 contains no express reference to the right to, or concept of
‘self-determination’. The League of Nations’ handling of the Aaland Islands question in 1920
may also be recalled and applied.75
The Aaland Islands (the Islands) had long been regarded as part of Finland although they were
mostly inhabited by people of Swedish origin.76 In the period between 1809 and 1919, the
Islands were under the control of Russia. When World War I ended, separatist movements in the
Islands indicated that they wanted the Islands to be united with Sweden.77 Finland responded by
thwarting the separatist movements.78
In 1920, the Council of the League of Nations, at a meeting held in London, resolved to appoint
a Commission of Jurists to give an opinion on the question of the Islands. In its report, the
Commission of Jurists refused to recognise the principle of self-determination as a legal rule.
The report referred to self-determination as a principle which “plays an important part in modern
political thought, especially since the Great War.”79 However, the report went on to state that:
“The recognition of this principle in a certain number of international treaties cannot be
considered as sufficient to put it upon the same footing as a positive rule of the Law of
Nations.”80
72
Throntveit “The Fable of the Fourteen Points: Woodrow Wilson and National Self-Determination” 2011
Diplomatic History 445 450.
73
Pails “Self-Determination, the Use of Force and International Law: An Analytical Framework” 2001University of
Tasmania Law Review 70 71.
74
Covenant of the League of Nations (28 June 1919) 108 LNTS 188.
75
“Report of the International Committee of Jurists Entrusted by the Council of the League of Nations with the Task
of Giving an Advisory Opinion upon the Legal Aspects of the Aaland Islands Questions” Official Journal of the
League of Nations Special Supplement No. 3, October 1920.
76
Diggelmann “The Aaland Case and the Sociological Approach to International Law” 2007 The European Journal
of International Law 135 136.
77
Ibid.
78
Diggelmann 2007 The European Journal of International Law 137.
79
“Report of the International Committee of Jurists Entrusted by the Council of the League of Nations with the Task
of Giving an Advisory Opinion upon the Legal Aspects of the Aaland Islands Questions” 5.
80
Ibid.
13
The first international legal instrument to make express reference to the concept of ‘selfdetermination’ is the United Nations Charter (UN Charter).81 The words “self-determination”
appear in the UN Charter twice. The first reference to the concept of ‘self-determination’ is
found in Article 1(2) which provides that the purposes of the United Nations (UN) are to:
“develop friendly relations among nations based on respect for the principle of equal
rights and self-determination of peoples, and to take other appropriate measures to
strengthen universal peace.”82
The second instance where reference is made to the concept of ‘self-determination’ is in Article
55. Article 55 of the UN Charter urges the UN to promote higher standards of living, economic
and social development, international, cultural and educational co-operation, respect for human
rights without distinction as to race, sex, language, or religion in order to create “conditions
necessary for peaceful and friendly relations among nations based on respect for the principle of
equal rights and self-determination of peoples.”
The Universal Declaration of Human Rights83 (UDHR), the first international human rights
instrument to be adopted by the UN makes no express mention of the right to self-determination.
The principle is implicitly recognised in Article 21 of the UDHR.84 The article provides that:
“1. Everyone has the right to take part in the government of his country, directly or
through freely chosen representatives.
2. Everyone has the right to equal access to public service in his country.
3. The will of the people shall be the basis of the authority of government; this will shall
be expressed in periodic and genuine elections which shall be by universal and equal
suffrage and shall be held by secret vote or by equivalent free voting procedures.”
The next section will discuss the concept of ‘self-determination’ as it was applied during
decolonisation. The section will demonstrate that during decolonisation, the concept of ‘selfdetermination’ became recognised as a legal principle.
81
Charter of the United Nations, 24 October 1945, 1 UNTS XVI.
Article 1 of the Charter of the United Nations.
83
Universal Declaration of Human Rights, United Nations General Assembly Resolution 217A (III), UN Doc A/810
(1948).
84
Epstein “Behind Closed Doors: ‘Autonomous Colonization’ in Post United Nations Era - The Case for Western
Sahara” 2009 Annual Survey of International & Comparative Law 107 130.
82
14
2 3 Self-determination and decolonisation
The decolonisation period is a useful starting point when trying to ascertain the meaning and
applicability of the concept of ‘self-determination’.85 During decolonisation, self-determination
was elevated into a legal principle.86 The various UN declarations discussed below show how the
concept of ‘self-determination’ became increasingly associated with decolonisation and how it
became to be accepted as a legal principle.
The United Nations General Assembly (UN General Assembly) in 1960 adopted the Declaration
on the Granting of Independence to Colonial Peoples87 (Resolution 1514 (XV)). Resolution 1514
(XV) came about as a result of the growing concern at the UN over the slow pace at which the
decolonisation process was taking place.88 The preamble of the resolution proclaims “the
necessity of bringing to a speedy and unconditional end colonialism in al1 its forms and
manifestations.” Thereafter the declaration provides that:
“all peoples have the right to self-determination; by virtue of that right they freely
determine their political status and freely pursue their economic, social and cultural
development.”89
The UN General Assembly in 1960 also adopted the Declaration on the Principles, which should
guide members in determining whether or not an obligation exists to transmit the information
called for under Article 73 of the UN Charter90 (Resolution 1541 XV). Resolution 1541(XV)
puts forward three possible outcomes of the exercise of self-determination. These are: emergence
as a sovereign independent state; free association with an independent state; or integration with
an independent state.91
85
Anaya Indigenous Peoples in International Law (1996) 80.
Epps “The New Dynamics of Self-Determination” 1997 ILSA Journal of International and Comparative Law 433
435.
87
United Nations General Assembly Resolution 1514 (XV), Declaration on the Granting of Independence to
Colonial Countries and Peoples A/Res/1514(XV) (1960).
88
Gold “Gibraltar at the United Nations: Caught Between a Treaty, the Charter and the ‘Fundamentalism’ of the
Special Committee” 2009 Diplomacy & Statecraft 697 698.
89
United Nations General Assembly Resolution 1514 (XV), para 2.
90
United Nations General Assembly Resolution 1541(XV), Principles Which Should Guide Members in
Determining Whether or not an Obligation Exists to Transmit the Information called for under Article 73e of the
Charter Resolution A/Res/15/1541 (1960).
91
United Nations General Assembly Resolution 1541(XV), principle VI.
86
15
Furthermore, Principle VII of Resolution 1541 (XV) states that “free association should be the
result of a free and voluntary choice by the peoples of the territory concerned.” Similarly
Principle IX of Resolution 1541(XV) states that “integration should be the result of the freely
expressed wishes of the territory’s peoples.”
Finally the United Nations Declaration on Principles of International Law Concerning Friendly
Relations and Cooperation among States (Resolution 2625XXV) adopted by the UN General
Assembly in 1970 states that:
“By virtue of the principle of equal rights and self-determination of peoples enshrined in
the Charter of the United Nations, all peoples have the right freely to determine, without
external interference, their political status and to pursue their economic social and
cultural development, and every State has the duty to respect this right in accordance with
the provisions of the Charter.”92
Apart from stating that all peoples have the right to self-determination, Resolution 2625(XXV)
also provides a “fourth option” for the exercise of self-determination.93 It states that the
emergence into any other political status freely determined by a people is one of the ways of
exercising the right to self-determination.94
In sum, it can be said that the UN General Assembly Resolutions 1514(XV), 1541(XV) and
2625(XXV) all require as a prerequisite for the exercise of self-determination, the free
expression of the will of the peoples concerned. The resolutions also highlight that the concept of
‘self-determination’ was seen as crucial in order to bring colonialism to an end.
In addition to the UN resolutions discussed above, the jurisprudence of the International Court of
Justice (ICJ), is also useful in tracing the development and application of the concept of ‘selfdetermination’ in the decolonisation context. The case concerning the Legal Consequences for
States of the Continued Presence of South Africa in Namibia (South West Africa)
92
United Nations General Assembly Resolution 2625 (XXV), Declaration on Principles of International Law
Concerning Friendly Relations and Co-operation among States in accordance with the Charter of the United Nations
A/Res/25/2625 (1970).
93
Jovet “The Fourth Option: Modern Self-Determination of Peoples and the Possibilities of U.S. Federalism” 2010
Revista De DerechoPuertorriqueño 163 164.
94
United Nations General Assembly Resolution 2625 (XXV), Principle of Equal Rights and Self-determination of
Peoples, para 5.
16
notwithstanding Security Council Resolution 276 (1970)95 (Namibia opinion) and the Western
Sahara, Advisory Opinion96 (Western Sahara case) confirm and illustrate the application of the
concept of ‘self-determination’ in a colonial context.97
South West Africa, now Namibia, was a German colony from 1884 to 1915. After World War I,
Germany was forced to surrender the colony of South West Africa to the Allies. The territory
was given to the Union of South Africa to administer under the mandate system of the League of
Nations.98 When the League of Nations was dissolved, South Africa presented at the UN General
Assembly a proposition that it will annex South West Africa.99 In response, the UN General
Assembly adopted Resolution 2145 (XXI) which terminated South Africa’s mandate.100
Thereafter the presence of South Africa in South West Africa was declared illegal by the United
Nations Security Council (UN Security Council).101
The UN Security Council adopted Resolution 284102 requesting the ICJ to prepare an advisory
opinion on the legal consequences for states of the continued presence of South Africa in
Namibia, notwithstanding Security Council Resolution 276.103 The ICJ stated that the purpose of
the mandates system was to provide non-self-governing territories, with the necessary guidance
so that they may be able to manage their own affairs.104 The ICJ went on to state that the
principle of self-determination is applicable to non-self-governing territories.105
The ICJ also made reference to Article 73 of the UN Charter which makes provision for member
states of the UN accept as a “sacred trust” the responsibility to assist non-self-governing
95
Legal Consequences for States of the Continued Presence of South Africa in Namibia (South West Africa) (1970)
Advisory Opinion 1971 I.C.J Reports 16 (Namibia Opinion).
96
Western Sahara, Advisory Opinion 1975 I.C.J Reports 12 (Western Sahara case).
97
Fromherz “Indigenous Peoples' Courts: Egalitarian Juridical Pluralism, Self-Determination, and the United
Nations Declaration on the Rights of Indigenous Peoples” 2008 University of Pennsylvania Law Review 1341 1359.
98
Mandate of 17 December 1920 for German South West Africa.
99
United Nations General Assembly Official Records, U.N. Doc. A/C.4/41 (1946).
100
United Nations General Assembly Resolution 2145(XXI), The Question of South West Africa A/RES/2145
(XXI) (1966).
101
Security Council Resolution 276(1970) on the Situation in Namibia S/RES/276 (1970).
102
Security Council Resolution 284 (1970) on Namibia S/RES/284 (1970).
103
Security Council Resolution 276(1970).
104
Namibia Opinion para 46.
105
Namibia Opinion para 52.
17
territories in attaining self-government.106 The ICJ held that the sacred trust was created in order
to promote the self-determination and independence of the peoples of the non-self-governing
territories.107 Consequently, the ICJ held that South Africa should withdraw from the territory of
Namibia and that the occupation was a violation South Africa’s international obligations.108
From the pronouncements made by the ICJ in the Namibia opinion it is clear that selfdetermination at that time was a concept applicable to non-self-governing territories and
territories under colonial rule. Furthermore, it seems that the ICJ’s view is that the exercise of
self-determination and independence of non-self-governing territories go hand in hand or are
interrelated. In other words the ICJ understood the concept of ‘self-determination’ to mean
achieving a full measure of self-government and ultimately the independence of the entity under
the mandate system or colonial rule.
In the Western Sahara case the ICJ had to decide whether at the time of Spanish colonisation,
Western Sahara was terra nullius and whether there were any legal ties between Western Sahara
and Morocco or Mauritania.109 Under the League of Nations’ mandate system, Spain was the
administering power of Western Sahara. The UN General Assembly in 1966 adopted a resolution
in which it requested Spain to hold a referendum with regard to the question of selfdetermination for the people of Western Sahara.110 Morocco and Mauritania started making bids
for the territory and the referendum had to be postponed.
The UN General Assembly adopted Resolution 3292(XXIX) requesting the ICJ to give an
advisory opinion on whether Western Sahara at the time of colonisation by Spain was terra
nullius and the nature of the legal ties between Western Sahara, the Kingdom of Morocco and
the Mauritanian entity.111 An ICJ opinion was crucial in order to spell out the rights of Morocco
106
Ibid.
Namibia Opinion para 53.
108
Namibia Opinion para 118.
109
Western Sahara Advisory Opinion para 15.
110
United Nations General Assembly Resolution 2229 (XXI), Question of Ifni and Spanish Sahara A/RES/2229
(XXI) (1966).
111
United Nations General Assembly Resolution 3292 (XXIX), Question of Spanish Sahara A/RES/3292 (XXIX)
(1974).
107
18
over the territory of Western Sahara at the time of colonisation so as to enable the UN General
Assembly to determine ways in which to speed up the decolonisation of the territory.112
In order to answer the questions before it, the ICJ saw it necessary first, to examine the principles
of decolonisation as they are enshrined in the various UN General Assembly resolutions. 113 The
first resolution examined by the Court was Resolution 1514(XV). The ICJ highlighted that
Resolution 1514(XV) emphasises the need to bring colonialism to an end and in so doing
requires that the exercise of the right to self-determination be freely made by the peoples
concerned.114 The ICJ went on to examine Resolution 1541(XV) and observed that the
provisions of Resolution 1541(XV) also emphasise the free expression of the will of the people
who wish to exercise their right to self-determination.115 Finally the ICJ examined Resolution
2625(XXV) and also observed that the resolution demands that the will of the peoples concerned
must be taken into account in all endeavours aimed at bringing colonialism to an end.116 Most
importantly, the ICJ went on to define self-determination as “the need to pay regard to the freely
expressed will of peoples.”117
After examining the UN General Assembly resolutions dealing with decolonisation the ICJ went
on to analyse several resolutions which make specific reference to the decolonisation of Western
Sahara. The ICJ began with Resolution 2229(XXI),118 which invited the administering power to
put in place procedures necessary for holding a referendum so as to enable the people of Western
Sahara to exercise their right to self-determination freely. Thereafter, the ICJ focused on
Resolution 2983(XXVII), which reaffirms that the UN has the crucial role of facilitating the
process whereby the peoples of Western Sahara will freely express their wishes.119 The ICJ went
on to examine Resolution 3162(XXVIII) which reaffirms the UN General Assembly’s
112
Western Sahara Advisory Opinion para 42.
Western Sahara Advisory Opinion para 52.
114
Western Sahara Advisory Opinion para 55.
115
Western Sahara Advisory Opinion para 57.
116
Western Sahara Advisory Opinion para 58.
117
Western Sahara Advisory Opinion para 59.
118
United Nations General Assembly Resolution 2229 (XXI) (1966).
119
United Nations General Assembly Resolution 2893(XXVII), Question of Spanish Sahara A/RES/2983 (XXVII)
(1972).
113
19
commitment to ensuring that the principle of self-determination is applied in a manner that will
ensure that the wishes of the people of Western Sahara are freely expressed.120
The ICJ observed that Resolution 2229(XXI), Resolution 2983(XXVII) and Resolution
3162(XXVIII) placed huge emphasis on the importance of letting the people of Western Sahara
decide their future.121 The ICJ also noted that these resolutions were adopted by the UN General
Assembly despite the fact that Morocco and Mauritania each insisted that Western Sahara is a
part of their respective territories.122
The ICJ went on to discuss Resolution 3292(XXIX), which reaffirms the right of the people of
Western Sahara to self-determination123 and the need to bring colonialism to a speedy end.124
The ICJ highlighted that the UN General Assembly’s position is that when embarking on the
process of bringing colonialism to a speedy end, the people of Western Sahara must be consulted
and be allowed to express their wishes with regard to their future political status.125
The ICJ found that Western Sahara was not terra nullius and that there were some legal ties
between the “Mauritanian entity” and the Western Saharan territory.126 These ties were,
however, found to be of no negative effect on the exercise of self-determination by the people of
Western Sahara.127 The pronouncements made by the ICJ in the Western Sahara case indicate
that self-determination was understood to be entitling all peoples under colonial or alien
domination the right to freely choose their future political status.
The next section is going to discuss the legal status of the concept of ‘self-determination’ in
international law. The section will investigate whether there is a right to self-determination in
international law. If so, the chapter will ascertain the nature or attributes of the right.
120
United Nations General Assembly Resolution 3162 (XXVIII), Question of Spanish Sahara A/RES/3162
(XXVIII) (1973).
121
Western Sahara Advisory Opinion para 64.
122
Western Sahara Advisory Opinion para 65.
123
Third paragraph of the preamble.
124
Preamble of the resolution.
125
Western Sahara Advisory Opinion para 70.
126
Western Sahara Advisory Opinion para 152.
127
Western Sahara Advisory Opinion para 162.
20
2 4 The legal status of the concept of ‘self-determination’ in international law
A significant number of UN General Assembly resolutions make explicit reference to “the right
to self-determination”. UN General Assembly Resolutions 1514 and 2625 are significant in that
they
were
both
adopted
unanimously
by
the
UN
General
Assembly.
Despite the fact that UN General Assembly resolutions are not binding, the unanimous adoption
of Resolutions 1514 and 2625 indicates an acceptance by states that there exists a right to selfdetermination.128 UN General Assembly resolutions are also significant in the formation of
customary international law.129
Several other international legal instruments also make explicit reference to “the right to selfdetermination.” To begin with, common Article 1 of the International Covenant on Economic,
Social and Cultural Rights130 (ICESCR) and the International Covenant on Civil and Political
Rights131 (ICCPR) provides that:
“All peoples have the right of self-determination. By virtue of that right they freely
determine their political status and freely pursue their economic, social and cultural
development.”
The Helsinki Final Act adopted at the Conference on Security and Co-operation in Europe132 in
1975 also refers to self-determination as a right. The purpose of the Helsinki Final Act was to
encourage the promotion of human rights, peace and security amongst the signatory states.133
Principle VIII provides that:
“By virtue of the principle of equal rights and self-determination of peoples, all peoples
always have the right, in full freedom, to determine, when and as they wish, their internal
and external political status, without external interference, and to pursue as they wish
their political, economic, social and cultural development.”
The African Charter on Human and Peoples’ Rights134 makes mention of the right to selfdetermination in article 20(1). The article provides that:
128
Hannum Autonomy, Sovereignty, and Self-determination: The Accommodation of Conflicting Rights (1996) 45.
Ferreira et al “Formation and Evidence of Customary International Law” 2013 UFRGS Model United Nations
Journal 182 194.
130
International Covenant on Economic, Social and Cultural Rights UN Doc A/6316 (1966).
131
International Covenant on Civil and Political Rights UN Doc A/6316(1966).
132
Conference on Security and Cooperation in Europe: Final Act of Helsinki, 1 August 1975.
133
Rhodes “The OSCE Human Dimension at a Crossroads” 2007 Helsinki Monitor 275 275.
134
African Charter on Human and Peoples’ Rights (1981) O.A.U Doc.CAB/LEG/67/3, rev.5 p58.
129
21
“All peoples shall have the right to existence. They shall have the unquestionable and
inalienable right to self-determination. They shall freely determine their political status
and shall pursue their economic and social development according to the policy they have
freely chosen.”
The United Nations Declaration on the Rights of Indigenous Peoples135 (UNDRIP) mentions the
right to self-determination in the context of indigenous peoples. There is very little distinction
between article 3 of the UNDRIP and common Article 1 of the ICESCR and the ICCPR besides
that in the UNDRIP the holders of the right are indigenous peoples. 136 Article 3 of the UNDRIP
provides that:
“Indigenous peoples have the right to self-determination. By virtue of that right they
freely determine their political status and freely pursue their economic, social and cultural
development.”
Article 4 further provides that:
“Indigenous peoples, in exercising their right to self-determination, have the right to
autonomy or self-government in matters relating to their internal and local affairs, as well
as ways and means for financing their autonomous functions.”
The Vienna Declaration and Program of Action137 provides in its Article 2 that:
“All peoples have the right of self-determination. By virtue of that right they freely
determine their political status, and freely pursue their economic, social, and cultural
development.”
Now that it has been established that there exists a right to self-determination in international
law, the question is what is the legal status of this right? There is a view in international law that
the concept of ‘self-determination’ has the status of a jus cogens norm. It is therefore important
to consider what a jus cogens is. Article 53 of the Vienna Convention on the Law of Treaties
defines jus cogens as a peremptory norm of international law. A peremptory norm of general
international law is one that is:
“accepted and recognized by the international community of States as a whole as a norm
from which no derogation is permitted and which can be modified only by a subsequent
norm of general international law having the same character.”138
135
United Nations General Assembly Resolution 61/295, United Nations Declaration on the Rights of Indigenous
Peoples, U.N Doc A/RES/61/295 (2007).
136
Koivurova “From High Hopes to Disillusionment: Indigenous Peoples’ Struggle to (Re) Gain Their Right to SelfDetermination” 2008 International Journal on Minority and Group Rights 1 15.
137
Vienna Declaration and Program of Action, U.N Doc. A/CONF. 157/23 (1993).
22
One of the reasons why the concept of ‘self-determination’ is regarded as having the status of a
jus cogens norm is put forward by Hector Gros Espiell, former Special Rapporteur of the Sub
Commission on Prevention of Discrimination and Protection of Minorities as follows:
“In present-day legal theory the idea that self-determination is a case of jus cogens is
widely supported, whether because it is held that the character of jus cogens is an
attribute of the principle of self-determination of peoples or because it is considered that
this right, being a condition or prerequisite for the exercise and effective realization of
human rights, possesses that character as a consequence thereof.”139
That self-determination is a jus cogens norm is also confirmed by official pronouncements on the
protection of fundamental human rights.140 Self-determination is believed to be part of those
fundamental rights which have had the characteristic of jus cogens attributed to them by official
statements made by government representatives.141 In that regard the statements made by
participants at the UN Conference on the Law of Treaties in 1968 are noteworthy.142
The representative of the then Union of Soviet Socialist Republics (USSR) stated that although
there may not be consensus on the list of norms that are considered to be jus cogens, it cannot be
denied that self-determination is a jus cogens norm.143 The representative of Cuba stated that the
principles laid down in Article 1 of the UN Charter form part of the rules of jus cogens.144
Similarly the representative of Madagascar stated that peremptory norms can be found in the
principles set forth in the UN Charter.145 The representative of Cyprus stated that self-
138
Vienna Convention on the Law of Treaties UN Doc. A/CONF.39/27 (1969).
The Right to Self Determination: Implementation of United Nations Resolutions UN
DocE/CN.4/Sub.2/405/Rev.11980.
140
Cassese International law (2005) 66.
141
Cassese 65.
142
UN Conference on the Law of Treaties - Meetings of the Committee of the Whole:
http://legal.un.org/diplomaticconferences/lawoftreaties-1969/1st_sess_e.html (accessed 16 November 2014).
143
UN Conference on the Law of Treaties - Fifty-Second Meeting; 294.
http://legal.un.org/diplomaticconferences/lawoftreaties-1969/docs/english/1stsess/a_conf_39_c1_sr52.pdf (accessed
16 November 2014).
144
Meetings of the Committee of the Whole: Fifty-Second Meeting; 297.
145
UN Conference on the Law of Treaties - Meetings of the Committee of the Whole: Fifty-Third Meeting; 301.
http://legal.un.org/diplomaticconferences/lawoftreaties-1969/docs/english/1stsess/a_conf_39_c1_sr53.pdf (accessed
16 November 2014).
139
23
determination is a norm of jus cogens because it is an important component of the principle of
sovereign equality of states.146
The Netherlands’ written submission to the ICJ in Accordance with International Law of
Unilateral Declaration of Independence in Respect of Kosovo147 (Kosovo Advisory Opinion) is
also worth noting. In its submission, The Netherlands stated that:
“the obligation to respect and promote the right to self-determination as well as the
obligation to refrain from any forcible action which deprives peoples of this right (to selfdetermination) is an obligation arising under a peremptory norm of general international
law”148
The concept of ‘self-determination’ also has an erga omnes character. The ICJ in the Case
Concerning The Barcelona Traction, Light And Power Company, Limited149 (Barcelona Traction
case) defined obligations erga omnes as obligations of a state towards all other states.150 In
addition the ICJ stated that obligations erga omnes are obligations which “all States can be held
to have a legal interest in their protection.”151
It is important to note the pronouncements made by the ICJ in The Case Concerning East
Timor152 (East Timor case) and the Legal Consequences of the Construction of a Wall in the
Occupied Palestinian Territory opinion153 (Wall opinion) on the erga omnes character of selfdetermination. In the East Timor case the ICJ was called upon to decide whether there was a
breach of the right to self-determination of the people of East Timor by Australia. East Timor
was a colony of Portugal. The Portuguese withdrew from the East Timor in 1975 and Indonesia
occupied the territory. In 1976 Indonesia incorporated East Timor into its territory.
146
UN Conference on the Law of Treaties - Meetings of the Committee of the Whole: Sixty-Fourth Meeting; 370.
http://legal.un.org/diplomaticconferences/lawoftreaties-1969/docs/english/1stsess/a_conf_39_c1_sr64.pdf
(accessed 16 November 2014).
147
Accordance with International Law of Unilateral Declaration of Independence in Respect of Kosovo, 2010 I.C.J.
Reports 403 (Kosovo Advisory Opinion).
148
Written Statement of the Netherlands, 17 April 2009 paragraph 3.2.
149
The Case Concerning the Barcelona Traction, Light and Power Company, Limited Judgment, 1970 I.C.J. Reports
3 (Barcelona Traction case).
150
Barcelona Traction Case para 33.
151
Ibid.
152
The Case Concerning East Timor (Portugal v. Australia), 1995 I.C.J Reports 90 (East Timor case).
153
Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, Advisory Opinion 2004
I.C.J. Reports 136 (Wall opinion).
24
The Security Council adopted Resolution 384 which required all states to respect the right of the
people of East Timor to self-determination.154 The Security Council also adopted Resolution 389
in which it demanded Indonesia to withdraw from the territory of East Timor.155
The UN General Assembly adopted Resolution 32/34 in which the incorporation of East Timor
into Indonesia was held to be void since the people of East Timor had not freely exercised their
right to self-determination.156
According to Portugal, Australia had failed to observe the right to self-determination of the
people of East Timor by concluding an agreement with another state (Indonesia) for the
exploitation of resources in the territory of East Timor.157 Australia argued that Portugal’s
argument meant that the ICJ would have to decide whether the conduct of Indonesia was lawful
or not, without Indonesia’s consent.158 The ICJ stated that it is not empowered to entertain a
dispute between states where those states have not consented to the Court’s jurisdiction.159 The
ICJ upheld Australia’s argument and held that in order to ascertain whether Australia had
violated the right to self-determination of East Timor it has to also rule on the conduct of
Indonesia.160 It could not however proceed because Indonesia had not consented to the
jurisdiction of the ICJ.161
Despite rejecting Portugal’s argument, the ICJ made an important pronouncement on the concept
of ‘self-determination’. In that regard, the Court stated that:
“In the Court's view, Portugal's assertion that the right of peoples to self-determination, as
it evolved from the Charter and from United Nations practice, has an erga omnes
character, is irreproachable. The principle of self-determination of peoples has been
recognized by the United Nations Charter and in the jurisprudence of the Court it is one
of the essential principles of contemporary international law.”162
154
Security Council Resolution 384(1970) on East Timor S/RES/384 (1975).
Security Council Resolution 389 (1976) on East Timor S/RES/389 (1976).
156
United Nations General Assembly Resolution 32/34, Question of East Timor A/RES/32/34 (1977).
157
East Timor Case para 10.
158
East Timor Case para 24.
159
East Timor Case para 26.
160
East Timor Case para 28.
161
Ibid.
162
East Timor Case para 29.
155
25
In the Wall opinion, the ICJ was requested by the UN General Assembly to provide an advisory
opinion on the legal consequences arising from the construction of a wall by Israel in Palestinian
territory.163 After World War I the League of Nations gave Britain the Mandate to govern the
Territory of Palestine. In 1947, after Britain had announced its intentions to terminate the
Mandate, the UN General Assembly adopted Resolution 181(II).164 Resolution 181(II)
recommended that the territory of Palestine be partitioned so as to create two independent states,
one Arab and the other - Jewish. The Plan of Partition was rejected by Arab states and the Arab
population in Palestine and thereafter Israel declared its independence in 1948. In 1967 Israel
occupied Palestinian territories which were under the British Mandate.
This led the UN Security Council to adopt a resolution calling upon Israel to withdraw from the
Palestinian territories it had occupied.165 In an attempt to resolve the situation, Israel and the
Palestine Liberation Organisation signed several agreements providing for the transfer of powers
exercised by the Israeli military to Palestinian authorities.166 The success of the transfer has been
limited by certain events which took place after the signature of the agreements.167 One of these
events is the construction project embarked upon by Israel. In 2002 and 2003, the Israeli Cabinet
approved several Government Decisions which provided for the construction of a barrier in parts
of the Palestinian Territory and Jerusalem.168
The ICJ, referring to its East Timor decision reaffirmed that self-determination was a right erga
omnes.169 The ICJ went on to state that the construction of the wall in Palestinian Territory by
Israel was a violation of the Palestinian right to self-determination and that Israel had breached
its obligation to respect that right.170 Furthermore, the ICJ called upon Israel to “comply with its
obligation to respect the right of the Palestinian people to self-determination.”171 Most
163
The question on which the advisory opinion of the Court was requested is set out in resolution ES-10114 adopted
by the UN General Assembly on 8 December 2003 at its Tenth Emergency Special Session.
164
United Nations General Assembly Resolution 181 (II), Future Government of Palestine A/RES/181(II) (1947).
165
Security Council Resolution 242 (1967) on the Middle East S/RES/242 (1967).
166
Wall opinion para 77.
167
Ibid.
168
Report of the Secretary-General prepared pursuant to General Assembly resolution ES-10/13. A/ES-10/248
24 November 2003: http://unispal.un.org/UNISPAL.NSF/0/A5A017029C05606B85256DEC00626057 (accessed 3
November 2014).
169
Wall opinion para 88.
170
Wall opinion para 122.
171
Wall opinion para 149.
26
importantly the ICJ expressly mentioned that the obligation to respect the right of the Palestinian
peoples to self-determination violated by Israel has an erga omnes character.172
This section has established that there exists a right to self-determination in international law. It
has also been established that there is a view that the concept of ‘self-determination’ has the
status of a jus cogens norm and consequently has an erga omnes character. The next two sections
will discuss the relationship between the concept of ‘self-determination’ and other principles of
international law. The next section will focus on the relationship between the concept of ‘selfdetermination’ and the principle of territorial integrity.
2 5 Self-determination and the territorial integrity of states
The principle of the territorial integrity of states may be defined as the prohibition of the use of
force to alter the territory of a sovereign state.173 Territorial integrity is one of the principles upon
which world peace is heavily dependent.174 The principle of territorial integrity demands respect
for the territorial integrity of sovereign states.175 The relationship between the concept of ‘selfdetermination’ and the principle of territorial integrity lies in that external self-determination is
essentially a claim to territory.176 The right to self-determination can also be exercised internally,
that is, within the territory of a state and without compromising the territorial integrity of a
state.177
International legal instruments which provide for the right to self-determination prohibit any
violation of the territorial integrity of states as well. The UN Charter in Article 2(4) discourages
member states from violating the territorial integrity of any state through the use of force or in
other ways that are incompatible with the purposes of the United Nations. Resolution 1514(XV)
in article 6 provides that the disruption of the territorial integrity of another state goes against the
172
Wall opinion para 155.
Kornprobst “The Management of Border Disputes in African Regional Sub-Systems: Comparing West Africa
and the Horn of Africa” 2002 The Journal of Modern African Studies 369 373.
174
Bakker “The Recognition of Kosovo: Violating Territorial Integrity is a Recipe for Trouble” 2008 Security &
Human Rights 183 184.
175
Gudelevicioti “Does the Principle of Self-Determination Prevail over the Principle of Territorial Integrity?” 2005
International Journal of Baltic Law 48 64.
176
Gudelevicioti 2005 International Journal of Baltic Law 54.
177
Simon “Remedial Secession: What the Law Should Have Done, From Katanga to Kosovo” 2011 Georgia
Journal of International & Comparative Law 105 121.
173
27
purposes and principles of the United Nations. Resolution 2625(XXV) imposes a duty on states
to desist from disrupting the territorial integrity of other states.
The preamble of the Charter of the Organisation of African Unity emphasises the willingness of
member states of the then Organisation of African Unity (OAU) now African Union (AU) to
safeguard their territorial integrity. Similarly, article 2(1) (c) states that one of the purposes of the
OAU is to defend the territorial integrity of member states. Article 3(3) also emphasises the need
to abide by the principle of the territorial integrity of states by member states of the OAU. The
Helsinki Final Act also emphasises the need for respect of the principle of territorial integrity of
states.178 The African Charter on Human and Peoples Rights in article 29(5) states that every
individual has the duty to “preserve and strengthen the national independence and the territorial
integrity of his country and to contribute to its defence in accordance with the law.”
The 1990 Charter of Paris for a New Europe179 provides that:
“We reaffirm the equal rights of peoples and their right to self-determination in
conformity with the Charter of the United Nations and with the relevant norms of
international law, including those relating to territorial integrity of States.”
The Constitutive Act of the African Union spells out the objectives of the AU in article 3. One of
the objectives is to “[d]efend the sovereignty, territorial integrity and independence of its
member states.”180
Article 46(1) of the UNDRIP warns that:
“Nothing in this Declaration may be interpreted as implying for any State, people, group
or person any right to engage in any activity or to perform any act contrary to the Charter
of the United Nations or 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.”
178
Helsinki Final Act, principle IV.
The 1990 Charter of Paris for a New Europe: http://www.osce.org/mc/39516?download=true (accessed 22
November 2014).
180
Constitutive Act of the African Union, objective (b).
179
28
Finally, the Vienna Declaration and Program of Action after stating that all peoples have the
right to self-determination cautions that:
“this shall not 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 and thus possessed of a Government
representing the whole people belonging to the territory without distinction of any
kind.”181
In Africa, the general view has been that any exercise of the right to self-determination which
results in the disintegration of the territorial integrity of a state is undesirable.182 This view is not
surprising considering the various prohibitions on territorial disintegration referred to above. The
outcome of events which took place in Katanga, Biafra and Southern Cameroon are also
noteworthy. The African Commission on Human and Peoples’ Rights (African Commission) in
Katangese Peoples' Congress v Zaire183 (Katanga case) and in Kevin Mgwanga Gunme v
Cameroon184 (Southern Cameroon case) upheld the territorial integrity claims of the states
involved.
In 1960, the Katanga region attempted to break away from the Democratic Republic of Congo
(DRC), formally known as Zaire. The Katangese Peoples’ Congress (KPC) brought a claim
against Democratic Republic of Congo at the African Commission in the Katanga case. The
KPC alleged that the Katangese people had been denied the right to self-determination and they
wanted the African Commission to recognise the independence of Katanga.
The African Commission stated that it had a duty to uphold the sovereignty and territorial
integrity of Zaire.185 The African Commission justified this position by highlighting that there
181
Vienna Declaration and Program of Action, para 2.
Mnyongani “Between a Rock and a Hard Place: The Right to Self-determination versus Uti Possidetis in Africa”
2008 Comparative and International Law Journal of Southern Africa 465 475.
183
Katangese Peoples' Congress v Zaire, Communication 75/92 (Katanga case):
http://www.achpr.org/files/sessions/16th/comunications/75.92/achpr16_75_92_eng.pdf (accessed 3 November
2014).
184
Kevin Mgwanga Gunme et al v Cameroon, Communication 266/03 (Southern Cameroon case).
185
Katanga case para 5.
182
29
was no sufficient evidence of the violation of human rights before it, serious enough to warrant it
to disregard the territorial integrity of Zaire.186
The Katanga case confirms the view that the exercise of the right to self-determination which
results in the territorial disintegration of a state is regarded as undesirable. The case is also
important in that the African Commission affirmed that self-determination can be exercised
internally and in a way that is consistent with territorial integrity of states. The African
Commission stated that:
“in the absence of evidence that the people of Katanga are denied the right to participate
in government as guaranteed by Article 13.1 of the African Charter, the Commission
holds the view that Katanga is obliged to exercise a variant of self-determination that is
compatible with the sovereignty and territorial integrity of Zaire.”187
On the 30th of May 1967, the former Eastern Region of Nigeria declared its independence after
attempting to secede from Nigeria.188 The Nigerian Federal government responded by launching
a full blown war which resulted in the loss of lives and property.189 The OAU passed a resolution
appealing to the leaders of the secession movement to “co-operate with the Federal authorities in
order to restore peace and unity to Nigeria.”190 The OAU thus discouraged Biafra’s secession bid
and chose to uphold the principle of territorial integrity.191 The motivation for the OAU’s
response to the conflict has been explained by Amoo who states that the OAU “held the African
state's territorial integrity sacrosanct, and was determined to set a clear precedent against
secessionist and irredentist movements in Africa.”192
In the Southern Cameroon case a complaint was lodged with the African Commission by 14
individuals on behalf of the people of Southern Cameroon in 2003.193 The complainants alleged
186
Katanga case para 6.
Ibid.
188
Omaka “The Forgotten Victims: Ethnic Minorities in the Nigeria-Biafra War, 1967-1970” 2014 Journal of
Retracing Africa 25 26.
189
Ejike “Nigerian-Biafran War: Social and Economic Effects on the Nigeria Igbos” 2010 Oasis Journal 88 90.
190
AHG/Res. 54 (V) Resolution 3 Resolutions Adopted by the Fifth Ordinary Session of the Assembly of Heads of
State and Government Held in Algiers, From 13 To 16 September 1968.
191
Atzili “When Good Fences Make Bad Neighbors Fixed Borders, State Weakness, and International Conflict”
2007 International Security 139 145.
192
Amoo “The OAU and African Conflicts: Past Successes, Present Paralysis and Future Perspectives” 1992
Working Paper Institute of Conflict Analysis and Resolution, George Mason University 5.
193
Southern Cameroon case para 1.
187
30
that Southern Cameroons have been continuously marginalised in terms of political194 and
economic participation.195 They also alleged that the Republic of Cameroon has engaged in the
torture, killing, detention and punishment of those advocating for the self-determination of
Southern Cameroon.196 The complainants further argued that the conduct of the Republic of
Cameroon was a violation of article 20 of the African Charter on Human and People’s Rights
and that such violation entitled them to exercise their right to self-determination.197
The African Commission had to decide whether the conduct complained of violated the
provisions of the African Charter on Human and People’s Rights and if so, whether the people of
Southern Cameroon were entitled to exercise their right to self-determination and in what form.
The African Commission placed a huge emphasis on the need to preserve the territorial integrity
of Cameroon and discouraged the secession of Southern Cameroon.198 The African Commission
also stated that in line with its Katanga decision the right to self-determination as provided for in
the African Charter on Human and People’s Rights is not capable of being invoked in instances
where there is no evidence of gross violations of human rights.199 The African Commission then
recommended that the grievances alleged by the South Cameroons be addressed through “a
comprehensive national dialogue.”200
Closely related to the concept of ‘territorial integrity’ is the principle of uti possidetis. The
principle of uti possidetis provides that the borders of a new state should be the same as those of
the territorial unit that preceded it.201 In Africa, the concept of ‘self-determination’ has been
associated with claims to territory.202 The fear of territorial disintegration due to the exercise of
the right to self-determination led to the African leaders to uphold the principle of uti
possidetis.203
194
Southern Cameroon case para 8.
Southern Cameroon case para 9.
196
Southern Cameroon case para 18.
197
Southern Cameroon case para 184.
198
Southern Cameroon case para 190.
199
Southern Cameroon case para 199.
200
Southern Cameroon case para 203.
201
Shaw “Peoples, Territorialism and Boundaries” 1997 European Journal of International Law 478 502.
202
Hasani “Uti Possidetis Juris: From Rome to Kosovo” 2003 The Fletcher Forum of World Affairs 85 89.
203
Zacher “The Territorial Integrity Norm: International Boundaries and the Use of Force” 2001 International
Organization 215 229.
195
31
The OAU in 1964 adopted Resolution 16(I).204 In terms of the resolution, member states pledged
to “respect the borders existing on their achievement of national independence.”205
Article 4 of the Constitutive Act of the African Union states that the AU shall function in
accordance with the principle of “[r]espect of borders existing on achievement of independence.”
The principle of uti possidetis has been applied by the ICJ in resolving territorial disputes most
notably in Burkina Faso v Mali206 (Frontier dispute) and in El Salvador v Honduras207 (Land,
Island and Maritime Frontier Dispute). In the Frontier Dispute case the government of the then
Republic of the Upper Volta (now Burkina Faso) and the government of the Republic of Mali
submitted a frontier dispute by agreement to the ICJ.208 In terms of the agreement the two parties
agreed that their dispute be adjudicated in accordance with the principle of “the intangibility of
frontiers inherited from colonization.”209 The dispute brought by the parties required the ICJ to
determine the position of the line of the frontier between the Republic of Upper Volta and
Mali.210
The significance of the judgment lies in its discussion of the principle of uti possidetis. Most
notably, the ICJ remarked that the purpose of the principle of uti possidetis is “to prevent the
independence and stability of new States being endangered by fratricidal struggles provoked by
the challenging of frontiers following the withdrawal of the administering power.”211 The ICJ
acknowledged that the principle of uti possidetis clashes with the right to self-determination.212
The ICJ observed that in order to promote stability, African states deliberately chose to uphold
the principle of uti possidetis.213
204
Organization of African Unity, AHG/Res.16(I), Resolutions Adopted by the First Ordinary Session of the
Assembly of Heads of State and Government held in Cairo, UAR (July 17-21, 1964): http://www.africaunion.org/root/au/Documents/Decisions/hog/bHoGAssemblyl964.pdf (accessed 3 November 2014).
205
Organization of African Unity, AHG/Res.16(I), Border Disputes Among African States.
206
Frontier Dispute (Burkina Faso v Republic of Mali), 1986 I.C.J. Reports 554 (Frontier dispute).
207
Land, Island and Maritime Frontier Dispute (El Salvador v Honduras), 1992 I.C.J. Reports 351(Land, Island and
Maritime Frontier Dispute).
208
Frontier dispute para 1.
209
Frontier dispute para 2.
210
Frontier dispute para 16.
211
Frontier dispute para 20.
212
Frontier dispute para 25.
213
Ibid.
32
In the Land, Island and Maritime Frontier Dispute the Republic of Honduras and the Republic of
El Salvador through an agreement signed between them submitted a maritime boundary dispute
to the ICJ.214 The parties agreed that the colonial boundary should be left intact, but the issue was
how to identify that boundary on the ground.215 In resolving the dispute, the parties agreed that
the ICJ must apply the principle of uti possidetis.216 The significance of this case lies in that the
ICJ emphasised that a territorial boundary created by the application of the principle of uti
possidetis may not be changed without the consent of the state parties involved.217
In 1991 at the European Conference on Yugoslavia, the Badinter Arbitration Committee was
formed to decide on various issues concerning the situation in Yugoslavia.218 On the 20th of
November 1991, the Badinter Committee was asked by Lord Carrington, Chairman of the
Conference on Yugoslavia to give an opinion on whether the Serbian population in Croatia and
Bosnia – Herzegovina had the right to self-determination.219 The opinion prepared by the
Badinter Committee stated that the claims to the right to self-determination should not result in
the changing of the boundaries existing at the time of independence.220
The Chairman of the European Conference on Yugoslavia requested another opinion on the
status in international law of the boundary between Croatia and Serbia and the boundary between
Bosnia-Herzegovina and Serbia.221 The Badinter Committee in addressing the question
emphasised the importance of respecting the principle of uti possidetis and that borders can only
be changed by agreement between the parties.222
214
Land, Island and Maritime Frontier Dispute para 3.
Land, Island and Maritime Frontier Dispute para 28.
216
Land, Island and Maritime Frontier Dispute para 40.
217
Land, Island and Maritime Frontier Dispute para 58.
218
Pellet “The Opinions of the Badinter Arbitration Committee. A Second Breath for the Self-Determination of
Peoples” 1992 European Journal of International Law 178 178.
219
European Conference on Yugoslavia, Arbitration Commission Opinion No. 2: Pellet 1992 European Journal of
International Law 183.
220
Point 1 of Opinion No. 2 of the Arbitration Commission of the European Conference on Yugoslavia.
221
European Conference on Yugoslavia, Arbitration Commission Opinion No. 3: Pellet 1992 European Journal of
International Law 185.
222
Point 2 of Opinion No. 3 of the Arbitration Commission of the European Conference on Yugoslavia.
215
33
The principle of uti possidetis has, however, been described as “disastrous sword of Damocles
hanging over the exercise of self-determination, and which serves to protect the status quo
ante.”223 While the principle of uti possidetis may be crucial to the maintenance of the territorial
integrity of states224 it is important to highlight that the principle is not inviolable. Shaw
emphasises this point as follows:
“While it 'freezes' the territorial situation during the movement to independence, uti
possidetis does not prescribe a territorial boundary which can never be changed. It is not
intangible in this sense.”225
The next section shall discuss the concept of ‘secession’ in relation to the concept of ‘selfdetermination’. It will be revealed that by its very nature, secession challenges the principles of
territorial integrity and uti possidetis.
2 6 Self-determination and secession
Secession is concerned with a claim to statehood through breaking away from a sovereign
state.226 The principle of uti possidetis has been invoked in order to protect the territorial
integrity of states, however, secessionist aspirations continue to exist all around the world.227
Three notable forms of secessions exist namely; bilateral, de facto and unilateral or remedial
secession.228
Bilateral secession occurs when a sovereign state consents or grants independence to a seceding
entity through negotiation.229 An example of bilateral secession would be the secession of
Montenegro from the state of Serbia and Montenegro. The secession of South Sudan from Sudan
is also another example of bilateral secession which was preceded by a referendum. De facto
secession occurs when a seceding entity declares independence without any consent from the
223
Udombana “The Unfinished Business: Conflicts, the African Union and the New Partnership for Africa's
Development” 2003 The George Washington International Law Review 55 92.
224
Rosen “Economic and Cooperative Post-Colonial Borders: How Two Interpretations of Borders by the I.C.J. May
Undermine the Relationship Between Uti Possidetis Juris and Democracy” 2006 Penn State International Law
Review 207 215.
225
Shaw 1997 European Journal of International Law 495.
226
Cismas “Secession in Theory and Practice: The Case of Kosovo and Beyond” 2010 Goettingen Journal of
International Law 531 542.
227
Keller “Secessionism in Africa” 2007 The Journal of African Policy Studies 1 1.
228
Kreuter “Self-Determination, Sovereignty, and the Failure of States: Somaliland and the Case for Justified
Secession” 2010 Minnesota Journal of International Law 363 369.
229
Kreuter 2010 Minnesota Journal of International Law 370.
34
parent state.230 An example of de facto secession would be the de facto secession of Somaliland
from Somalia.
Remedial secession refers to secession motivated by the gross human rights violations
perpetuated by a state on its people.231 The Supreme Court of Canada in Reference re Secession
of Quebec232 (Quebec case) and the ICJ in the Kosovo Advisory Opinion discussed the
parameters of remedial or unilateral secession.
In the Quebec case one of the questions that the Supreme Court of Canada had to consider was
whether international law provides for the right to unilateral secession. 233 The Court stated that
international law makes no provision for unilateral secession and at the same time it does not
expressly prohibit it.234 It was stated that international law demands that the exercise of selfdetermination should not compromise the territorial integrity of states.235
The Court went on further to mention that where a state has made provision for the exercise of
the right to self-determination by its people, its territorial integrity ought to be respected. 236 The
Court however noted that there seems to be a view in international law that secession is an option
available where a people are denied the opportunity to exercise their right to self-determination
within the territory of the parent state.237
The Court stated that the government of Canada had facilitated the meaningful participation of
the Quebec population in the economic, political and social affairs of Canada and therefore was
in compliance with demands of the principle of self-determination.238 In conclusion, the Court
held that under international law the population of Quebec has no right to unilaterally secede
from Canada.239
230
Kreuter 2010 Minnesota Journal of International Law 371.
Cismas 2010 Goettingen Journal of International Law 545.
232
Reference re Secession of Quebec, [1998] 2 S.C.R. 217 (Quebec case).
233
Quebec case para 2.
234
Quebec case para 112.
235
Quebec case para 127.
236
Quebec case para 130.
237
Quebec case para 134.
238
Quebec case para 136.
239
Quebec case para 138.
231
35
In the Kosovo Advisory Opinion, the ICJ was faced with the task of giving an opinion on the
secession of Kosovo form Serbia. Kosovo was an autonomous province in the Republic of
Serbia. In 1999, conflicts between Kosovo’s Albanian and Serbian ethnic communities led to the
Kosovo war. The North Atlantic Treaty Organisation (NATO) intervened and the war was
brought to an end. The UN Security Council adopted Resolution 1244240 through which the
United Nations Interim Administration Mission in Kosovo was established to ensure peace and
stability in Kosovo. In 2008, Kosovo declared independence from Serbia.
After the declaration of independence, the UN General Assembly adopted Resolution 63/3
requesting the ICJ to give an advisory opinion on whether the declaration of independence was
in accordance with international law.241 The ICJ stated that the international community did not
prohibit declarations of independence in the context of the exercise of self-determination during
decolonisation.242 The ICJ noted that there were also declarations of independence outside the
context of decolonisation and state practice in relation to those cases does not reveal a
prohibition on declarations of independence.243
The ICJ went on to highlight that the declarations of independence which have been condemned
by the Security Council in the past were condemned because they were made pursuant to the
violation of norms of international law with peremptory character. 244 The ICJ refused to consider
whether the right to self-determination entitled Kosovo to create a new state and whether
international law contains a right to secession.245 The Court, however, concluded that
international law does not prohibit declarations of independence and that Kosovo’s declaration of
independence did not violate international law.246
240
Security Council Resolution 1244 (1999) on the Situation Relating to Kosovo S/RES/1244 (1999).
United Nations General Assembly Resolution 63/3. Request for an Advisory Opinion of the International Court
of Justice on Whether the Unilateral Declaration of Independence of Kosovo is in Accordance with International law
A/RES/63/3.
242
Kosovo Advisory Opinion para 79.
243
Ibid.
244
Kosovo Advisory Opinion para 81.
245
Kosovo Advisory Opinion para 82 - 83.
246
Kosovo Advisory Opinion para 84.
241
36
2 8 Summary
The chapter started off by tracing the origins and development of the concept of ‘selfdetermination’. The origins of the concept were traced back to the French revolution of 1789.
The discussion revealed that during that time, the concept was regarded as a mere political
principle. The chapter went on to examine the application of the concept of ‘self-determination’
during decolonisation. During decolonisation the concept was elevated into a legal principle. The
discussion also revealed that the concept of ‘self-determination’ became increasingly associated
with decolonisation because of the reliance on the concept by national liberation movements and
colonised peoples.
The chapter examined the legal status of the concept of ‘self-determination’ in international law.
The discussion demonstrated that there exists a right to self-determination international law. A
number of international law instruments which make explicit reference to the “right to selfdetermination” were cited. The discussion also revealed that there is also a view that the right to
self-determination has the status of a jus cogens norm. The discussion has also shown that the
ICJ has held that the right to self-determination has an erga omnes character.
The chapter also investigated the relationship between the concept of ‘self-determination’ and
the concept of ‘territorial integrity’. It was observed that the concept of ‘territorial integrity’ is an
equally important principle in international law. Two forms of self-determination were
identified. These are external and internal self-determination.
The chapter has argued that the exercise of the right to self-determination in its external form
prima facie violates the principle of territorial integrity. It was observed that many international
instruments which provide for the right to self-determination also discourage the violation of the
territorial integrity of states. An examination of the jurisprudence of the ICJ revealed that the ICJ
seems to support the internal exercise of the right to self-determination because it does not
violate the principle of territorial integrity.
The chapter went on to examine the nexus between the concept of ‘self-determination’ and
secession. It was observed that international law does not prohibit secession. It was however
37
emphasized that secession may not be permissible where people are not denied the opportunity to
exercise their right to self-determination internally, and where people are not subjected to gross
human rights violations. The next chapter will discuss the concept of ‘self-determination’ in the
context of South Sudan.
38
CHAPTER 3
SELF-DETERMINATION IN THE CONTEXT OF SOUTH SUDAN
3 1 Introduction
This chapter investigates the concept of ‘self-determination’ in the context of South Sudan. The
discussion in this chapter will examine the concept of ‘gross human rights violations’ and its
implications for people of South Sudan in the exercise of their right to self-determination. Since
the exercise of the right to self-determination by the people of South Sudan occurred outside the
context of decolonisation, an understanding of the context in which the secession of South Sudan
took place is crucial in order to formulate an understanding of the concept of ‘self-determination’
outside the context of decolonisation.
This chapter is divided into five parts. In the first part the chapter provides a brief background of
the political and economic situation in Sudan since independence in 1956. Second, the chapter
shall discuss the concept of ‘gross violations of human rights’. Third, the chapter shall
investigate the concept of ‘gross violations of human rights’ in the context of South Sudan.
Fourth, the chapter shall outline and discuss the peace initiatives which were aimed at solving the
South Sudan problem and their significance. Fifth, the chapter shall discuss the concept of ‘selfdetermination’ in the context of South Sudan. A summary of the findings of the chapter shall
conclude the discussion.
3 2 Background of the political and economic situation in Sudan since independence
The government of Sudan, had since independence from British colonial rule in 1956, refused to
economically, politically and socially develop the southern part of Sudan which is now South
Sudan.247 The marginalisation of the people of South Sudan began when Sudan was under
colonial rule and worsened after independence.248 The colonial administration deliberately
neglected South Sudan and its people whom it regarded as sub-human, hence at independence
South Sudan was an underdeveloped region of Sudan.249
247
McFarland “Africa in Retrospect: Russia, Iran and Chinese Arms Supplies to Sudan” 2010 African and Asian
Studies 462 463.
248
Deng “The Sudan Comprehensive Peace Agreement: Will It Be Sustained?” 2005 Civil Wars 244 245.
249
De Waal “When Kleptocracy Becomes Insolvent: Brute Causes of the Civil War in South Sudan” 2014 African
Affairs 347 350.
39
After independence, the new government of Sudan wanted a centralised form of government
while the people of South of Sudan demanded a federal system.250 Britain, the former colonial
master granted independence to the country under a centralised form of government,
disregarding the demands of the people of South Sudan.251
Sudan has been ravaged by two devastating civil wars for the most part of its post-independence
period.252 The first civil war began in 1955 and ended in 1972 while the second civil war began
in 1983 and ended in 2005. The causes of the first civil war, which lasted from 1955 to 1972,
were linked to the marginalisation of the people of South Sudan by the central government in
Khartoum, the capital city of Sudan but war actually began when military officers based in South
Sudan revolted against the government of Sudan in 1955.253 The officers who were mostly from
South Sudan, had refused to be transferred to the northern part of Sudan.254
The second civil war, which lasted from 1983 to 2005 was sparked by the then President
Nimeiri’s revocation of the South Sudan’s autonomy255 and the imposition of Sharia law on the
entire population of Sudan irrespective of the diverse religious convictions of the people of
Sudan.256 Sudan has consequently been labelled the “world's strictest experiment in the
implementation of full-fledged Islamic law.”257
The intensity of the fighting during the second civil war increased due to the discovery of oil in
the southern part of the country.258 The war resulted in the loss of agricultural production, the
250
Thorpe “State Building and Elite Conflict: The Potential of a Power - Sharing Structure in Sudan” 2004
International Studies Journal 43 46.
251
Wiebalck “International Humanitarian Law and the ICRC in the Republic of the Sudan” 2003 Comparative and
International Law Journal of Southern Africa 198 198.
252
Kidane “Managing Forced Displacement by Law in Africa: The Role of the New African Union IDPs
Convention” 2011 Vanderbilt Journal of Transnational Law 1 20.
253
Hessbruegge “Customary Law and Authority in a State under Construction: The Case of South Sudan” 2012
African Journal of Legal Studies 295 302.
254
Moro “Interethnic Relations in Exile: The Politics of Ethnicity among Sudanese Refugees in Uganda and Egypt”
2004 Journal of Refugee Studies 420 422.
255
Martin “Sudan’s Perfect War” 2002 Foreign Affairs 111 111.
256
Hessbruegge 2012 African Journal of Legal Studies 302.
257
Gravelle “Islamic Law in Sudan: A Comparative Analysis” 1999 ILSA Journal of International & Comparative
Law 1 22.
258
Carmody “Talisman Energy, Sudan, and Corporate Social Responsibility” 2000 Canadian Yearbook of
International Law 237 238.
40
stoppage of industrial production, loss of oil revenue, the destruction of infrastructure,
displacement and the collapse of the health and education systems.259
The next section will discuss the concept of ‘gross human rights violations’ in international law.
The section will outline the protections available in international law to people subjected to
human rights violations. It will also outline the duty of states in relation to the prevention of
gross human rights violations within its territory.
3 3 The impact of gross violations of human rights
Every human being is entitled to exercise a set of rights known as human rights or fundamental
rights.260 ‘Gross human rights violations’ refers to the systemic infringement of international
human rights law by states or state institutions.261 It is generally accepted that, inter alia, torture,
genocide and slavery constitute gross violations of human rights.262
The violation of human rights is regarded as one of the direct triggers of conflict.263 In the
African context, article 4(h) of the Constitutive Act of the African Union empowers the African
Union (AU) to intervene in a member state in situations of war crimes, genocide and crimes
against humanity. A regime which commits gross human rights violations may therefore find its
legitimacy challenged.264 Authoritarian regimes have weak human rights enforcement systems
because they believe, inter alia, that if they establish effective systems, the human rights
violations committed by that regime may be brought to light and in turn threaten the existence of
that regime.265
259
Mohammed “Economic Implications of Civil Wars in Sub-Saharan Africa and the Economic Policies Necessary
for the Successful Transition to Peace” 1999 Journal of African Economies 107 137 - 140.
260
Thoms and Ron “Do Human Rights Violations Cause Internal Conflict?” 2007 Human Rights Quarterly 674 683.
261
Smeulers and Grünfeld International Crimes and other Gross Human Rights Violations: A Multi- and
Interdisciplinary Textbook (2011) 20.
262
Ibid.
263
Thoms and Ron 2007 Human Rights Quarterly 704.
264
Buergenthal “The Contemporary Significance of International Human Rights Law” 2009 Leiden Journal of
International Law 217 223.
265
Donoho “Human Rights Enforcement in the Twenty-First Century” 2006 Georgia Journal of International and
Comparative Law 1 29.
41
Roux observes that gross human rights violations occur in three stages. 266 First, a state undergoes
political instability.267 A new government comes into power and bans all opposition parties.268
Second, the government cultivates the belief that a certain group is sub-human and deserves to be
destroyed.269 Third, is the actual commission of gross human rights violations against the
targeted group as a way of implementing that belief.270
Human rights law imposes a duty on states to respect, protect and fulfil human rights. 271 A state
has an obligation to refrain from committing human rights violations as well as ensuring that
human rights violations do not occur within its territory.272 Should human rights violations occur,
the state must investigate and, where required, prosecute the perpetrators. 273 The United Nations
Basic Principles and Guidelines on the Right to a Remedy and Reparation for Victims of Gross
Violations of International Human Rights Law and Serious Violations of International
Humanitarian Law274 not only requires the investigation and prosecution of those who commit
gross violations of human rights but their punishment if found guilty. 275 The duty to promote
human rights requires states to take measures aimed at making people aware of their rights, for
instance, by educating them.276
The duty of states to prevent gross human rights violations can also be found in UN Resolutions
and International Conventions. It is noteworthy that Article 1 of the UN Charter lists the respect
for human rights and fundamental freedoms as one of the purposes of the UN.277
266
Roux “Early Warning of Gross Human Rights Violations: An International Law Perspective” 2011 Journal of
South African Law 650 650.
267
Ibid.
268
Roux 2011 Journal of South African Law 652.
269
Roux 2011 Journal of South African Law 654.
270
Roux 2011 Journal of South African Law 658.
271
Cerone “Legal Constraints on the International Community’s Responses to Gross Violations of Human Rights
and Humanitarian Law in Kosovo, East Timor, and Chechnya” 2001 Human Rights Review 19 21.
272
Katshung “Prosecution of Grave Violations of Human Rights in Light of Challenges of National Courts and the
International Criminal Court: The Congolese Dilemma” 2006 Human Rights Review 5 7.
273
Ibid.
274
UN Basic Principles and Guidelines on the Right to a Remedy and Reparation for Victims of Gross Violations of
International Human Rights Law and Serious Violations of International Humanitarian Law.
275
Principle III, UN Basic Principles and Guidelines on the Right to a Remedy and Reparation for Victims of Gross
Violations of International Human Rights Law and Serious Violations of International Humanitarian Law.
276
Sepúlveda The Nature of the Obligations under the International Covenant on Economic, Social and Cultural
Rights (2003) 166.
277
Charter of the United Nations 24 October 1945, 1 UNTS XVI.
42
In 2001 the United Nations Security Council (UN Security Council) adopted Resolution 1366.278
Resolution 1366 imposes a duty on member states to prevent the occurrence of gross human
rights violations.279 Article 16(1) of the UN Convention against Torture and Other Cruel,
Inhuman or Degrading Treatment or Punishment (CAT)280 places an obligation on states party to
the CAT to prevent conduct by public officials or persons acting in an official capacity, which
may amount to gross violations of human rights such as cruel, inhuman or degrading treatment
within the territory under its jurisdiction.
The next section will outline the gross human rights violations committed against the people of
South Sudan by various governments which came into power in Sudan since independence. It
will be shown that the people of South Sudan have also been deliberately deprived of the basic
necessities which are necessary for human survival. Deprivation in this sense refers to conduct
which results in the shortage or inaccessibility of resources, services, opportunities and basic
needs.281
3 3 1 Gross violations of human rights in South Sudan
Gross human rights violations were committed against the people of South Sudan by the various
governments which came into power in Sudan since independence in 1956.282 The people of
South Sudan have been subjected to political and economic marginalisation, forced displacement
from their lands, religious and ethnic cleansing, imposition of Sharia law and Islamisation
policies
by
various
regimes,
which
came
into
power
after
independence.283
Also prevalent in South Sudan were arbitrary arrests, enforced disappearances, and the
intimidation of journalists and members of opposition political parties.284 These violations of
human rights are discussed below.
278
Security Council Resolution 1366 (2001) on the Role of the Security Council in the Prevention of Armed
Conflicts S/RES/1366 (2001).
279
Preamble: Security Council Resolution 1366 (2001).
280
United Nations General Assembly Resolution 39/46(1984), Convention Against Torture and Other Cruel,
Inhuman or Degrading Treatment or Punishment A/RES/39/46(1984).
281
Davidsson “Economic Oppression as an International Wrong or as Crime Against Humanity” 2005 Netherlands
Quarterly of Human Rights 173 177.
282
Wiebalck “Slavery in the Sudan: A Challenge to International Law” 1998 Comparative and International Law
Journal of Southern Africa 38 46.
283
Leo and Prodromou “(Yet Another) Crisis in Sudan: Khartoum's Religious Freedom and Human Rights Abuses”
2012 The Fletcher Forum of World Affairs 67 68.
284
Jok “State, Law, and Insecurity in South Sudan” 2013 The Fletcher Forum of World Affairs 69 76.
43
Slavery is regarded as a gross violation of human rights where by people are stripped of their
dignity and freedom – the two qualities which define human beings.285 The International
Convention to Suppress the Slave Trade and Slavery286 defines slavery as “the status or condition
of a person over whom any or all of the powers attaching to the right of ownership are
exercised.”287 Article 1(2) defines slave trade as:
“all acts involved in the capture, acquisition or disposal of a person with intent to reduce
him to slavery; all acts involved in the acquisition of a slave with a view to selling or
exchanging him; all acts of disposal by sale or exchange of a slave acquired with a view
to being sold or exchanged, and, in general, every act of trade or transport in slaves”
In 1957 the International Labour Organisation (ILO) adopted the Convention Concerning the
Abolition of Forced Labour.288 Article 1 discourages the use of forced labour as punishment for
expressing opposing political views and as a form of racial, social, national or religious
discrimination. Article 4 of the Universal Declaration of Human Rights289 (UDHR) provides that
“no one shall be held in slavery or servitude; slavery and the slave trade shall be prohibited in all
their forms.” Article 8 of the International Covenant on Civil and Political Rights 290 (ICCPR)
provides that “no one shall be held in slavery; slavery and the slave trade in all their forms shall
be prohibited.”
The government of Sudan legitimised the practice of slavery making it “common-place for
women and children to be captured and transported to Arab slave masters in the north.”291 The
Baggara tribes armed by the government of Sudan to fight the rebel Sudan People’s Liberation
Army (SPLA)292 engaged in slave raids as spoils of war.293 Those captured were subjected to
285
Popoviciu “Modern Slavery” 2013 AGORA International Journal of Juridical Sciences 174 176.
International Convention to Suppress the Slave Trade and Slavery 60 LNTS 253.
287
Article 1(1), International Convention to Suppress the Slave Trade and Slavery.
288
Convention Concerning the Abolition of Forced Labour (ILO No. 105), 320 U.N.T.S. 291.
289
Universal Declaration of Human Rights, UN Doc A/810 (1948).
290
International Covenant on Civil and Political Rights U.N. Doc. A/6316(1966).
291
Dygert “Eradicating Sudanese Slavery: The Sudanese Government and the Abuse of Islam” 2005 Regent Journal
of International Law 143 166.
292
The SPLA was an armed group formed by people from different tribes of South Sudan to fight the
marginalisation of the people of South Sudan. See: Ali, Elbadawi and El-Batahani “Sudan’s Civil War and Why has
it Prevailed for so Long?” in Collier and Sambanis (eds) Understanding Civil War: Africa (2005) 200.
293
Chong “Still Searching for a Redeemer- Enforcing the Human Right of Freedom from Slavery in Africa” 2004
Singapore Law Review 138 156.
286
44
forced prostitution and forced labour.294 Abducted girls were raped, circumcised and sold to
militia men as sex objects.295 Under the National Islamic Front (NIF), the practise of slavery
became official government policy used to destroy any aspirations for democratic rule amongst
the people. 296
There has been no meaningful infrastructure development in the South Sudan since
independence.297 The civil war in Sudan was mainly caused by the policies of economic
marginalisation of the South Sudan by the successive governments which came into power ever
since the independence of Sudan.298 It was a fight for access to economic resources because
religion and ethnicity had been deciding factors when it came to resource allocation.299
There are economic disparities between northern Sudan and South Sudan and these have been
increased by the discovery of oil.300 When oil was discovered in South Sudan, plans were made
to transport the oil via pipeline to northern Sudan instead of building refineries in South Sudan.
In outrage the Sudan People’s Liberation Movement (SPLM) and the SPLA attacked and
destroyed the pipelines and vowed to fight until equality for all has been achieved in Sudan. 301
During the second civil war, the government of Sudan deliberately dropped bombs on civilian
targets such as schools, churches, clinics and markets.302 These attacks against civilians were
authorised
by
the
government
of
Sudan
and
carried
out
by
proxy
militias.303
294
Bixler “Private Enforcement of International Human Rights Laws: Could a Small Church Group Successfully
Combat Slavery in the Sudan?” 2002 Chicago Journal of International Law 511 512.
295
Gassis “Sudan: Country of Terrorism, Religious Persecution, Slavery, Rape, Genocide, and Man-Made
Starvation” 2000 Catholic University Law Review 905 914.
296
Lobban “Slavery in the Sudan Since 1989” 2001 Arab Studies Quarterly 31 32.
297
Temin “Sudan Between Peace and War” 2011 Georgetown Journal of International Affairs 68 70.
298
Mohamed “The Problem of Uneven Regional Development in the Northern Sudan” 2006 The Fletcher Forum of
World Affairs 41 41.
299
Haynes “Religion, Ethnicity and Civil War in Africa: The Cases of Uganda and Sudan” 2007 The Round Table
305 312.
300
Williamson “Democratic Institutions in Sudan: More than Just a Promise?” 2007 Wisconsin International Law
Journal 313 322.
301
Kitissou and Yoon “Africa and Social Capital: From Human Trade to Civil War” 2014 The Journal of Pan
African Studies 146 159.
302
Gassis 2000 Catholic University Law Review 916.
303
Sharkey “Arab Identity and Ideology in Sudan: The Politics of Language, Ethnicity and Race” 2008 African
Affairs 21 38.
45
The bombing of civilians was carried out in rebel-held areas as an effort to counter any possible
attacks on oil production facilities by rebel groups.304
Islamisation refers to the various measures put in place to incorporate Islamic principles into a
state’s legal, political and social systems.305 In the case of South Sudan it is noteworthy that the
majority of the population is Christian and animist.306 When General Ibrahim Abboud came into
power in 1958, he introduced the Islamisation policy and through this policy he sought to impose
Arabic traditions, language and culture on the people of South Sudan.307 Abboud established six
Islamic seminaries and many village Qur’an schools in South Sudan that were transformed into
government primary schools.308 The ultimate goal of Islamisation was to establish a Muslim Arab nation.309 This policy ignored the fact that in terms of religion, the population in northern
Sudan practises Islam while the people in South Sudan practise various religions unrelated to
Islam.310
Under Nimeiri’s rule (from 1969 to 1985), Muslims made up the entire Ministry of Religious
Affairs.311 When Nimeiri announced his plan to make Islamic law the law of the whole of Sudan,
the country was plunged into a second civil war.312 The Islamisation policy continued under the
current
president
Omar
al-Bashir’s
rule
who
took
power
in
1989.
President Bashir’s NIF regime now National Congress Party (NCP) made it compulsory for
everyone to serve in the Popular Defence Force (PDF), an Islamist militia formed in 1989,
irrespective of age or profession.313
304
Reeves “Sudan: Humanitarian Crisis, Human Rights Abysm” 2000 Human Rights Review 80 85.
Postawko “Towards an Islamic Critique of Capital Punishment” 2002 The UCLA Journal of Islamic and Near
Eastern Law 269 271.
306
Maitre “What Sustains ‘Internal Wars’? The Dynamics of Violent Conflict and State Weakness in Sudan” 2009
Third World Quarterly 53 56.
307
Rehman “Accommodating Religious Identities in an Islamic State: International Law, Freedom of Religion and
the Rights of Religious Minorities” 2000 International Journal on Minority and Group Rights 139 160.
308
Sharkey “Language and Conflict: The Political History of Arabisation in Sudan and Algeria” 2012 Studies in
Ethnicity and Nationalism 427 436.
309
Manashaw “Genocide and Ethnic Cleansing: Why the Distinction? A Discussion in the Context of Atrocities
Occurring in Sudan” 2004 California Western International Law Journal 303 306.
310
Gravelle 1999 ILSA Journal of International & Comparative Law 3.
311
Saunders and Mantilla “Human Dignity Denied: Slavery, Genocide, and Crimes against Humanity in Sudan”
2001 Catholic University Law Review 715 719.
312
Thorpe 2004 International Studies Journal 51.
313
Cockett Sudan: Darfur, Islamism and the World (2010) 103.
305
46
The plight non-Muslims in Sudan can be summarised as follows:
“non-Muslim minorities in Sudan have been persistently subjected to religious
majoritarian tyranny by democratic and authoritarian regimes alike. This tyranny has
manifested itself not only in the tireless pursuit of an Islamic state on majoritarian
grounds and its surrogate draconian laws, but also in pervasive political, legal, religious,
cultural, and social discrimination that has left non-Muslim Sudanese second-class
citizens in their own country.”314
In 1983 special courts were established and these extended the application of Sharia law to non –
Muslims and the people of South Sudan.315 Sharia is a set of laws which govern most aspects of
the life of a Muslim.316 Sharia law and the Sharia penal code are derived from the Quran –
Islam’s holy book.317 The application and scope of Sharia law differs from one society to another
because of the different interpretations of the Quran.318 The sanctions for various criminal
offences under Sharia law include stoning, limb amputation and cane lashes.319 Women’s rights
under Sharia law are prone to violation due to practices such as arranged marriages and female
genital mutilation which are permitted under Sharia law.320 Under Sharia law a Muslim is not
permitted to marry a non-Muslim.321
The people of South Sudan were also excluded from meaningfully participating in the political
affairs of Sudan.322 In 1954, of the 800 posts that were made available in the public service, only
four junior positions were allocated to people of South Sudan.323 The government of Sudan
314
El-Gaili “Federalism and the Tyranny of Religious Majorities: Challenges to Islamic Federalism in Sudan” 2004
Harvard International Law Journal 503 536.
315
Lanham “A Paradox of Prediction: The ICC's Effect on US Humanitarian Policy in the Sudan” 2005 Eyes on the
ICC 83 86.
316
Nmehielle “Sharia Law in the Northern States of Nigeria: To Implement or not to Implement, the
Constitutionality is the Question” 2004 Human Rights Quarterly 730 737.
317
Reza “Due Process in Islamic Criminal Law” 2013 The George Washington International Law Review 1 2.
318
Muthuswamy “Sharia as a Platform for Espousing Violence and as a Cause for Waging Armed Jihad” 2014
Albany Government Law Review 347 348.
319
Nmehielle 2004 Human Rights Quarterly 753.
320
Schwartz “Modern Islam and Democracy” 2008 Regent Journal of International Law 375 383.
321
Black and Sadiq “Good and Bad Sharia: Australia's Mixed Response to Islamic Law” 2011 UNSW Law Journal
383 396.
322
Ejiogu The Roots of Political Instability in Nigeria: Political Evolution and Development in the Niger Basin
(2011) 196.
323
Nasong’o and Murunga “Lack of Consensus on Constitutive Fundamentals: Roots of the Sudanese Civil War and
Prospects for Settlement” 2005 African and Asian Studies 51 61.
47
awarded important political positions to Arabs from northern Sudan, thus marginalising blacks
from South Sudan.324
When Nimeiri came into power he established a one party state.325 Under Nimeiri’s rule, Sudan
did not conduct any free and democratic elections.326 In 1983, an organisation known as the State
Security Organisation was also established and was responsible for the arrest and torture of
members of the opposition political parties.327 Similarly president Bashir came into power
through a coup which overthrew a democratically elected government and his goal has been to
stay in power by any means. 328
Ethnic cleansing refers to the forced removal of a certain ethnic group of people often through
the use of violence from certain territory based on the belief that they do not deserve to occupy
that territory.329 Similarly, religious cleansing is the forcible removal of a religious group from a
certain territory.330 The government of Sudan on many occasions forcibly displaced whole
communities in South Sudan from their lands in order to carry out oil extraction and related
activities.331 The people of South Sudan were not only displaced in order to make way for oil
extraction. The Dinka cattle herders, Ingessana farmers and Rizeigat camel herders were forcibly
removed from their land to make way for commercial agriculture.332 Internal displacement is a
situation where the people displaced are forced to move and settle somewhere else within the
territorial boundaries of their state.333 Forcible displacement from ancestral land deprives the
324
Battiste “The Case for Intervention in the Humanitarian Crisis in the Sudan” 2005 Annual Survey of International
and Comparative Law 49 53.
325
Bantekas and Abu-Sabeib “Reconciliation of Islamic Law with Constitutionalism: The Protection of Human
Rights in Sudan's New Constitution” 2000 African Journal of International and Comparative Law 531 535.
326
Rehman 2000 International Journal on Minority and Group Rights 161.
327
Medani “Sudan” 2006 Yearbook of Islamic and Middle Eastern Law 323 335.
328
Natsios “Beyond Darfur Sudan's Slide Toward Civil War” 2008 Foreign Affairs 77 82.
329
Toal and Dahlman Bosnia Remade: Ethnic Cleansing and Its Reversal (2011) 5.
330
Ther The Dark Side of Nation-States: Ethnic Cleansing in Modern Europe (2014) 45.
331
Matthews “Sudan’s Humanitarian Disaster. Will Canada live up to its Responsibility to Protect?” 2005
International Journal 1049 1051.
332
Verhoeven “Climate Change, Conflict and Development in Sudan: Global Neo-Malthusian Narratives and Local
Power Struggles” 2011 Development and Change 679 688.
333
Hulme “Armed Conflict and the Displaced” 2005 International Journal of Refugee Law 91 93.
48
affected people of their freedom of residence.334 Civilians are usually forced to leave their homes
because of military strategies or because of the implementation of a displacement policy.335
The internal displacement of people from their lands or places of residence is prohibited in
international law. Additional Protocol II of 1977 to the 1949 Geneva Conventions336 (Additional
Protocol II) applies, if the thresholds in article 1 are attained, to armed conflict arguably such as
the two civil wars, which occurred in Sudan. Article 17 of Additional Protocol II prohibits the
displacement of civilians except in instances where their security is at risk or where such
displacement is for military reasons. Article 17 further provides that in the event that civilians are
displaced, measures must be taken to secure their well-being and living conditions. Principle 6 of
the Guiding Principles on Internal Displacement337 prohibits the arbitrary displacement of people
from their places of residence.
Members of the Janjaweed militia338 destroyed crops and livestock belonging to non-Muslims in
the South Sudan.339 Destroying crops and looting livestock was carried out in order to make the
people of South Sudan abandon their villages.340 The Bashir regime deliberately blocked UN
food aid relief to famine-hit areas in South Sudan resulting in about 2.6 million people being in
danger of starving.341
Hunger has a negative effect on the economic productivity of the people affected.342 Hunger
impedes on the exercise of human rights because without food one cannot live and consequently
334
Carleton “Constitutional Recognition of the Agrarian Collective and their Rights to Govern Mineral Resources in
South Sudan” 2012 Vienna Journal on International Constitutional Law 372 375.
335
Hulme 2005 International Journal of Refugee Law 97.
336
Additional Protocol II of 1977 to the 1949 Geneva Conventions 1125 UNTS 609.
337
Guiding Principles on Internal Displacement E/CN.4/1998/53/Add.2.
338
Janjaweed is an armed group which receives arms, training and supplies from the government of Sudan and are
used as proxy forces to fight rebel groups in Sudan. See: Brosché and Rothbart Violent Conflict and Peacebuilding:
The Continuing Crisis in Darfur (2013) 60.
339
Sackellares “From Bosnia to Sudan: Sexual Violence in Modern Armed Conflict” 2005 Wisconsin Women's Law
Journal 137 158.
340
Saunders and Mantilla 2001 Catholic University Law Review 722.
341
Brownback “End the Suffering in Sudan” 1999 Mediterranean Quarterly 1 2.
342
Niada “Hunger and International Law: The Far Reaching Scope of the Human Right to Food” 2006 Connecticut
Journal of International Law 131 134.
49
cannot enjoy human rights.343 Article 11 of the International Covenant on Economic, Social and
Cultural Rights344 (ICESCR) recognises the right to be free from hunger. Article 25(1) of the
UDHR provides that “everyone has the right to a standard of living adequate for the health and
well-being of himself and of his family, including food.” Article 14 of Additional Protocol II
prohibits the starvation of civilians as a military strategy.
Viewed holistically, the above actions of the various regimes that ruled Sudan amounted to gross
human rights violations targeted mainly against the people of South Sudan. The next section
discusses the various peace initiatives undertaken to bring an end to the two civil wars in Sudan
and the gross violations of human rights. The section will also discuss why they all failed to
bring peace and stop the gross violation of human rights in Sudan.
3 4 Peace initiatives to solve the South Sudan problem
3 4 1 The 1972 Addis Ababa Peace Agreement345
A number of agreements were signed in an effort to bring peace to Sudan and end the human
rights violations committed against the people of South Sudan but the failure to honour
commitments resulted in prolonged instability in the country.346 The first civil war came to an
end with the signing of the Addis Ababa Peace Agreement in 1972.
The Addis Ababa Agreement was important to the people of South Sudan in that Article 4
established a self-governing region within Sudan. The region which was named the Southern
Region was comprised of three Provinces namely; Bahr El Ghazal, Equatoria and Upper Nile.
The establishment of this autonomous region was significant in that international law recognises
that autonomy is one of the ways of giving effect to the internal aspect of self-determination.347
343
Yigzaw “Hunger and the Law: Freedom from Hunger as a Freestanding Right” 2014 Houston Journal of
International Law 655 683.
344
International Covenant on Economic, Social and Cultural Rights U.N. Doc. A/6316 (1966).
345
The Addis Ababa Agreement on the Problem of South Sudan:
http://peacemaker.un.org/sites/peacemaker.un.org/files/SD_720312_Addis%20Ababa%20Agreement%20on%20the
%20Problem%20of%20South%20Sudan.pdf (accessed 5 January 2015).
346
Natsios “Implementing the Comprehensive Peace Agreement in Sudan” 2005 Yale Journal of International
Affairs 89 90.
347
Âkermark “Internal Self-Determination and the Role of Territorial Autonomy as a Tool for the Resolution of
Ethno-Political Disputes” 2013 International Journal on Minority and Group Rights 5 7.
50
The people of South Sudan had always wanted to govern themselves and the Addis Ababa
Agreement provided them with that opportunity.
Article 6 provided that Arabic shall be the official language of the Sudan while English was to be
used in South Sudan. Article 32 guaranteed the citizens resident in South Sudan the right to equal
education and employment opportunities, commerce and the freedom to practice any profession
of their choice. Article 32 also provided that no law shall adversely affect these rights on the
basis of race, tribal origin, religion, place of birth, or sex.
Despite bringing peace to Sudan, the Addis Ababa Peace Agreement collapsed because it was
not able to address the problems of underdevelopment, economic and political marginalisation of
the people of South Sudan.348 Nimeiri breached the provisions of the Addis Ababa Peace
Agreement by re-drawing the northern border so that the oil fields in the south could be in the
northern territory.349 Nimeiri also revoked the autonomy granted to the Southern Region under
the Addis Ababa Peace Agreement resulting in the resumption of the civil war.350
3 4 2 The 1986 Koka Dam Agreement351
Nimeiri was ousted from office in 1985 and elections were held in 1986 but the SPLM did not
take part, citing that an agreement must be reached on the need for political transformation
before elections could be held.352 The interim administration which took over the government
after Nimeiri did not yield to these demands and elections took place in northern Sudan while in
South Sudan 37 constituencies out of 68 did not take part in the elections. 353 After the elections
the National Alliance for National Salvation, an organisation which had played an important role
348
Metelits “Reformed Rebels? Democratization, Global Norms, and the Sudan People's Liberation Army” 2004
Africa Today 65 69.
349
Maystadt, Calderone and You “Local Warming and Violent Conflict in North and South Sudan” 2014 Journal of
Economic Geography 1 3.
350
Cockett 77.
351
The Koka Dam Agreement:
http://www.incore.ulst.ac.uk/services/cds/agreements/pdf/sudan4.pdf_koka_dam_agreement (accessed 5 January
2015).
352
Willis and El Battahani “‘We Changed the Laws’: Electoral Practice and Malpractice in Sudan since 1953” 2010
African Affairs 191 207.
353
Ibid.
51
in ousting the Nimeiri regime, entered into talks with the SPLA and these talks led to the
negotiation and adoption of the Koka Dam Agreement in 1986.354
The Koka Dam Agreement was entered into between the National Alliance for National
Salvation and the SPLM.355 The preamble of the Koka Dam Agreement stated that the agreement
was brought about as a result of the recognition by the signatories that there is a need to create a
New Sudan in which everyone enjoys fundamental human rights and freedoms. The preamble
also called for the holding of a National Constitutional Conference as one of the steps to be taken
in order to create the New Sudan.
It was agreed that before the National Constitutional Conference is held, the parties must, inter
alia, declare their commitment to discuss the problems of Sudan; the state of emergency must be
lifted and the “September 1983 Laws” must be repealed.356 The proposed agenda for the
National Constitutional Conference included, inter alia, the question of religion; human rights
issues; the system of governance; uneven-development; and the issue of natural resources.357
The proposed National Constitutional Conference never took place and in 1989, the NIF led by
the current Sudanese president Omar Al Bashir seized power.358 Ever since the NIF came into
power, the human rights violations levelled against the government include the promotion of
slavery, torture, and ethnic cleansing.359 Human rights abuses by successive regimes in Sudan
were common place but under the NIF regime, human rights violations spiked.360
In response to the regime’s marginalisation policies and human rights violations, the people of
the South Sudan and the SPLA staged more uprisings against the central government.361
354
Lata Structuring the Horn of Africa as a Common Homeland: Conflict Resolution Through Multi-dimensional
Self-determination (2004) 149.
355
Preamble of the Koka Dam Agreement.
356
Point 2, Koka Dam Agreement.
357
Point 4, Koka Dam Agreement.
358
Edozie “Sudan’s Identity Wars and Democratic Route to Peace” in Saha (ed) Perspectives on Contemporary
Ethnic Conflict: Primal Violence or the Politics of Conviction? (2006) 244.
359
Lobban and Lobban “The Sudan Since 1989: National Islamic Front Rule” 2001 Arab Studies Quarterly 1 2.
360
Woodward US Foreign Policy and the Horn of Africa (2006) 43.
361
Schmidinger “Tyrants and Terrorists: Reflections on the Connection Between Totalitarianism, Neoliberalism,
Civil War and the Failure of the State in Iraq and Sudan” 2009 Civil Wars 359 372.
52
3 4 3 The 1992 Abuja Sudanese Peace Negotiations362
For the first time, the SPLM insisted on the right of the people of South Sudan to selfdetermination at the first Abuja Sudanese Peace Negotiations.363 The SPLM called for the
establishment of democracy, equality, the rule of law, autonomy and the separation of state and
religion, insisting that failure to meet these demands would entitle the people of South Sudan to
secede.364
The demands made by the SPLM were significant in that there is a link between gross human
rights violations and external self-determination which may give rise to secession.365 The
prolonged gross violation of human rights may provide the legal basis for a people to exercise
the right to external self-determination.366 When a government does not respect the human rights
of its people, it cannot insist on the territorial integrity of the state when its people choose to
exercise their right to self-determination.367 The territorial integrity of states will only be
inviolable if a government respects the human rights of its people and represents the whole
population without discrimination.368
The first Abuja Sudanese Peace Conference was held on 26 May to 4 June 1992 in Abuja,
Nigeria.369 The parties at the Abuja Peace Conference were the government of Sudan and the
SPLM.370 At the end of the Abuja Sudanese Peace Conference, the parties agreed that Sudan is a
country with different cultures, languages, and religions and arrangements must be made to
accommodate such diversity.371 The parties also agreed that national wealth must be distributed
362
The 1992 Abuja Sudanese Peace Negotiations:
http://peacemaker.un.org/sites/peacemaker.un.org/files/SD_920604_The%20Abuja%20Sudanese%20Peace%20Con
ference-Communique.pdf (accessed 5 January 2015).
363
Guarak Integration and Fragmentation of the Sudan: An African Renaissance (2011) 521.
364
Lesch “The Impasse in the Civil War” 2001 Arab Studies Quarterly 11 12.
365
Burri “The Kosovo Opinion and Secession: The Sounds of Silence and Missing Links” 2010 German Law
Journal 881 855.
366
Richardson “A Critical Thought on Self Determination for East Timor and Kosovo” 2000 Temple International
and Comparative Law Journal 101 106.
367
Paolett “Rights and Duties of Minorities in a Context of Post-Colonial Self-Determination: Basques and Catalans
in Contemporary Spain” 2009 Buffalo Human Rights Law Review 159 167.
368
Ibid.
369
Title of the 1992 Abuja 1 Sudanese Peace Negotiations communique.
370
Ibid.
371
Point 2 of the 1992 Abuja 1 Sudanese Peace Negotiations communique.
53
equally and in order to ensure such equitable distribution of wealth, a Revenue Allocation
Commission must be established.372
The second Abuja Sudanese Peace Conference was held from 26 April to 17 May 1993.373 The
parties to the conference were the SPLM and the government of Sudan.374 At the end of the
conference, the parties agreed that peace must be achieved through negotiation.375 The parties
further agreed that there must be devolution of powers between the central and state governments
and equal representation in the central government.376 The parties could, however, not agree on
the application of Sharia law. The government of Sudan insisted that Sharia law must remain the
source of legislation in Sudan.377 It is this disagreement on the application of Sharia law which
led to the collapse of the Abuja Sudanese Peace Negotiations.378 Despite the failure of the
negotiations, various issues raised by the parties at the second Abuja Sudanese Peace
Negotiations, however, informed some of the principles outlined in the IGAD Declaration of
Principles.379
3 4 4 The 1994 IGAD Declaration of Principles380
The IGAD Declaration of Principles was signed in 1994 between the government of the Republic
of the Sudan, the Sudan People’s Liberation Army-United and the SPLM.381 This was a
declaration of principles that would guide the parties in trying to resolve the Sudan conflict. 382
Principle 2 provides for the right of self-determination of the people of South Sudan to determine
their future status through a referendum. This was significant in that the right to self-
372
Point 4 of the 1992 Abuja 1 Sudanese Peace Negotiations communique.
Title of the 1992 Abuja 2 Sudanese Peace Negotiations press statement.
374
Title of the 1992 Abuja 2 Sudanese Peace Negotiations press statement.
375
Point 3(1) of the 1992 Abuja 2 Sudanese Peace Negotiations press statement.
376
Point 3(5) of the 1992 Abuja 2 Sudanese Peace Negotiations press statement.
377
Point 4(a) of the 1992 Abuja 2 Sudanese Peace Negotiations press statement.
378
Wöndu and Lesch Battle for Peace in Sudan: An Analysis of the Abuja Conferences, 1992-1993 (2000) 117.
379
Leach War and Politics in Sudan: Cultural Identities and the Challenges of the Peace Process (2012) 199.
380
The IGAD Declaration of Principles:
http://peacemaker.un.org/sites/peacemaker.un.org/files/SD_940520_The%20IGAD%20Declaration%20of%20princi
ples.pdf (accessed 5 January 2015).
381
Preamble of the IGAD Declaration of Principles.
382
Ibid.
373
54
determination is based on the idea that people within a state must be free to decide their own
social, economic, and political affairs.383
Principle 3 of the IGAD Declaration of Principles outlines seven important sub-principles which
were to be affirmed by the parties. The first sub-principle called for the recognition and
accommodation of ethnic, religious, racial and cultural diversities found in Sudan. The second
sub-principle demanded that there be laws which guarantee the political and social equality of all
the people of Sudan.
The third sub-principle stated that the rights of self-administration in the form of a federation,
autonomy or any other arrangement must be affirmed. This was important in that autonomy is
one of the ways of exercising the right to self-determination.384 Secession and independence are
thus not the only outcomes of the exercise of self-determination.385 Autonomy can be defined as
“the power of a sub-state region to regulate its own affairs by enacting legal rules but without a
transfer of sovereignty.”386
The fourth sub-principle called for the establishment of a democratic state where religious
freedom will be fully guaranteed. This was significant in that democracy helps facilitate the
exercise of self-determination through encouraging participation in the political affairs of the
state.387 The fifth sub-principle provided for the equitable division of wealth amongst all citizens
of Sudan. The sixth sub-principle stated that a new constitution must make provision for the
inclusion of human rights. The last sub-principle provided for the constitution and the laws of
Sudan to make provision for independence of the judiciary.
383
Lino “The Politics of Inclusion: The Right of Self-determination, Statutory Bills of Rights and Indigenous
Peoples” 2010 Melbourne University Law Review 839 845.
384
Binder “Autonomy as Means to Accommodate Cultural Diversity? The Case of Indigenous Peoples” 2012
Vienna Journal on International Constitutional Law 248 251.
385
Murray and Wheatley “Groups and the African Charter on Human and Peoples' Rights” 2003 Human Rights
Quarterly 213 235.
386
Anderson “Secession in International Law and Relations: What are we Talking About?” 2012 The Loyola of Los
Angeles International and Comparative Law Review 343 388.
387
Al Attar and Thompson “How the Multi-Level Democratisation of International Law-Making Can Effect Popular
Aspirations Towards Self-Determination” 2011 Trade, Law and Development 65 89.
55
Principle 4 provided that should no consensus be reached in terms of applying the sub-principles
outlined in principle 3 highlighted above, the people of South Sudan shall be entitled to
determine their political future which includes opting for independence, through a referendum.
Mancini argues that a provision in a country’s constitution which provides citizens of a state with
an option to secede is significant in that it may prompt the state to stop ignoring the demands of
marginalised people within its territory.388 The IGAD principles were, however, not a legally
binding document but principles which were to guide the peace negotiations to end the civil war
in Sudan.389
3 4 5 The 1996 Sudan Political Charter390
The 1996 Sudan Political Charter was concluded in Khartoum between the government of
Sudan, the South Sudan Independence Movement (SSIM) and the Sudan People Liberation
Movement Bahrel Ghazal Group (SPLM B.G.G.). The parties agreed that the people of South
Sudan shall determine their political status through a referendum at the end of an interim
period.391 The parties also acknowledged the cultural diversity in Sudan.392 Freedom of religion
was also affirmed and it was agreed that no religion must be imposed on any citizen of Sudan. 393
Social development was made a priority and it was agreed that the government of Sudan shall
make arrangements for confidence building and the speedy alleviation of poverty, ignorance and
illiteracy.394 It was also agreed that power and national wealth shall be equitably distributed
amongst all citizens of Sudan.395
The 1996 Sudan Political Charter has been criticized for being a sham in that it was intended to
lure the opposition parties to sympathise with the government of Sudan and isolate the SPLM. 396
It is noteworthy that the SPLM was not part of the 1996 Sudan Political Charter.
388
Mancini “Secession and Self-determination” in Rosenfeld and Sajó (eds) The Oxford Handbook of Comparative
Constitutional Law (2012) 482.
389
Keller “Understanding Conflicts in the Horn of Africa” in Sriram and Nielsen (eds) Exploring Sub regional
Conflict: Opportunities for Conflict Prevention (2004) 40.
390
The 1996 Sudan Political Charter:
http://www.incore.ulst.ac.uk/services/cds/agreements/pdf/sudan1.pdf (accessed 5 January 2015).
391
Article 3 of the 1996 Sudan Political Charter.
392
Article 7 of the 1996 Sudan Political Charter.
393
Article 8 of the 1996 Sudan Political Charter.
394
Article 9 of the 1996 Sudan Political Charter.
395
Article 10 of the 1996 Sudan Political Charter.
396
Khalid War & Peace in the Sudan (2012) 337.
56
Despite affirming the freedom of religion, the Sudan Political Charter provided that Sharia was
to be a source of law.397 The provision on the proposed referendum for the people of South
Sudan was an open ended provision which made no mention of specific dates on which the
referendum was to be held.398
3 4 6 The 1997 Sudan Peace Agreement399
On 21 April 1997 an agreement encompassing a wider group of opposition parties in Sudan and
the government of Sudan was signed.400 The preamble to the agreement states that the parties are
fully aware that the unity of the Sudan can only be achieved as a result of the free choice of the
people of Sudan and not through force or coercion. It was agreed that a referendum shall be held
for the purpose of enabling the people of South Sudan to exercise the right to selfdetermination.401
The Sudan Peace Agreement also affirmed the right of the people of South Sudan to freely
determine their political future, economic, social and cultural development.402 It was agreed that
a referendum shall be held in order to enable the people of South Sudan to exercise their right to
self-determination before the end of an interim period.403 In exercising their right to selfdetermination, the people of South Sudan were to choose between unity and secession. 404 This
provision was significant in that the right to choose between unity and secession provides a
remedy for the gross violation of their rights of people within a state.405
397
Article 6 of the 1996 Sudan Political Charter.
Khalid 339.
399
The 1997 Sudan Peace Agreement:
http://www.incore.ulst.ac.uk/services/cds/agreements/pdf/sudan2.pdf (accessed 5 January 2015).
400
The Sudan Peace Agreement which is also known as the Khartoum Peace Agreement was signed between the
government of Sudan; the South Sudan United Democratic Salvation Front (UDSF) comprising of: (a) the South
Sudan Independence Movement (SSIM); (b) The Union of Sudan African Parties (USAP); (c) the (SPLM); (d) the
Equatoria Defence Force (EDF); and (f) the South Sudan Independence Group (SSIG). See the heading of the
agreement.
401
Chapter 1, B General Principle 4: 4 of the 1997 Sudan Peace Agreement.
402
Chapter 7, Principle 10.1 of the 1997 Sudan Peace Agreement.
403
Article 10.2 of the 1997 Sudan Peace Agreement.
404
Article 10.3 of the 1997 Sudan Peace Agreement.
405
Brewer “To Break Free from Tyranny and Oppression: Proposing a Model for a Remedial Right to Secession in
the Wake of the Kosovo Advisory Opinion” 2012 Vanderbilt Journal of Transnational Law 245 276.
398
57
3 4 7 The 1998 Sudan Constitution406
Sudan has been under undemocratic rule for the most part of its post-colonial existence.407 One
of the characteristics of democracy is the presence of a constitution which guarantees
fundamental human rights and the rule of law.408 Such a constitution is important in that it
enables the meaningful exercise of the right to self-determination.409 The protection of human
rights is therefore an important aspect of the exercise of the right to self-determination.410
From 1983 to 1998, Sudan had no constitution until the government of Sudan under President Al
Bashir adopted the 1998 Sudan Constitution, which was the second constitution of Sudan since
independence.411 Article 2 of the 1998 Sudan Constitution provides that Sudan is a Federal
Republic and the federal system of government shall ensure public participation in the
government of states and fairness in the distribution of power and resources. This was important
in that the right to self-determination can be exercised through allowing people to participate in
the political affairs of their state and other matters which affect them. 412 Article 139(3)(g)
provides that South Sudan shall be governed under a transitional federal system and cease after
the exercise of the right of self-determination.
The 1998 Sudan Constitution also provided for the rights to life; nationality; freedom of
movement; religion; freedom of expression; freedom of association; preserve culture; to acquire
property; privacy; to be free from arbitrary detention; litigate; a fair trial; life and the right to
approach the Constitutional Court to enforce rights set out in the Constitution.413
406
The 1998 Sudan Constitution:
http://www.sudanembassy.ca/Docs/THE%20CONSTITUTION%20OF%20THE%20REPUBLIC%20OF%20THE%
20SUDAN%201998.pdf (accessed 5 January 2015).
407
El-Tigani “Solving the Crisis of Sudan: The Right of Self-determination versus State Torture” 2001 Arab Studies
Quarterly 41 45.
408
Olteanu “History, Present and Perspectives in Democracy” 2012 Contemporary Readings in Law and Social
Justice 519 522.
409
Feldman “Imposed Constitutionalism” 2004 Connecticut Law Review 857 881.
410
Maguire “Contemporary Anti-Colonial Self-Determination Claims and the Decolonisation of International Law”
2013 Griffith Law Review 238 246.
411
Berhanu Institutions and Investment in Sudan: Socio-economic and Institutional Foundations of Reconstruction
and Development (2011) 128.
412
Friederich “A Reason to Revisit Maine’s Indian Claims Settlement Acts: The United Nations Declaration on the
Rights of Indigenous Peoples” 2010 American Indian Law Review 497 517.
413
Article 20 – 34 of the 1998 Sudan Constitution.
58
Constitutional reforms were significant in that they addressed some of the causes of the civil war
and they also were regarded as capable of guaranteeing the unity of Sudan.414
Despite guaranteeing a number of rights, some aspects of the 1998 Constitution are worth noting.
Islamic law still remained the source of legislation.415 Article 132 empowered the President to
suspend any of the rights provided for in the Constitution.
3 4 8 The Comprehensive Peace Agreement416
The Comprehensive Peace Agreement (CPA) brought to an end the fighting between the rebels
in South Sudan led by SPLM and the Sudan government now led by the National Congress Party
– a party notorious for its adherence to and enforcement of Sharia law.417 The CPA encompasses
the Machakos Protocol; the Protocol on Power Sharing; the Protocol on the Resolution of the
Abyei Conflict; the Protocol on the Resolution of the Conflict in the Two States of Southern
Korfodan and Blue Nile; and the Protocol on Security Arrangements. These agreements are
examined in turn.
The Machakos Protocol was signed at Machakos, in Kenya on the 20th of July 2002 between the
government of Sudan and the SPLM/A.418 The parties agreed that the unity of Sudan must be a
priority and that the problems faced by the people of South Sudan can be resolved within that
framework.419 This was significant in that it reflected the general understanding of selfdetermination which emphasises that people must be free to determine their political, social and
economic status within the territorial boundaries of their states.420
414
Aalen “Making Unity Unattractive: The Conflicting Aims of Sudan’s Comprehensive Peace Agreement” 2013
Civil Wars 173 174.
415
Article 65 of the 1998 Sudan Constitution.
416
The Comprehensive Peace Agreement:
http://unmis.unmissions.org/Portals/UNMIS/Documents/General/cpa-en.pdf (accessed 5 January 2015).
417
Sheeran “International Law, Peace Agreements and Self-Determination: The Case of the Sudan” 2011
International and Comparative Law Quarterly 423 426.
418
Preamble of the Machakos Protocol.
419
Article 1.1 of the Machakos Protocol.
420
Bunick “Chechnya: Access Denied. The Chechen Case for Independence as a Critique of the Framework
Surrounding the Legal Right to Self-Determination and Secession” 2009 Georgetown Journal of International Law
985 1000.
59
The Machakos Protocol also affirmed the right to self-determination of the people of South
Sudan.421 The parties agreed that at the end of a six year interim period an internationally
monitored referendum must be conducted through which the people of South Sudan shall choose
between unity and secession.422 The option for secession was important when one considers that
secession may provide an avenue for bringing gross violations of human rights to an end.423
The Protocol on Power Sharing was signed at Naivasha, Kenya on 26 May 2004 between the
government of Sudan and the SPLM.424 The parties agreed that there shall be a decentralised
system of government in Sudan.425 The agreement also provided that a population census and
elections must be conducted throughout Sudan.426 The agreement also established a government
of national unity responsible for the proper functioning of the state and the formulation and
implementation of policies.427 The agreement also established the government of South Sudan
which was to have its own legislative, executive and judiciary and constitution.428
The Protocol on Wealth Sharing was signed at Naivasha, Kenya on 7 January 2004 between the
government of Sudan and the SPLM.429 The parties agreed that the government of national unity
must ensure the equitable distribution of wealth amongst the whole of Sudan.430 The agreement
established the National Land Commission whose function was to resolve any land disputes
between the parties.431 The agreement also established the National Petroleum Commission
responsible for the management of the petroleum sector.432 The Fiscal and Financial Allocation
and Monitoring Commission (FFAMC) was established to ensure the equitable distribution of
revenue.433
421
Article 1.3 of the Machakos Protocol.
Article 2.5 of the Machakos Protocol.
423
Farer “The Ethics of Intervention in Self-Determination Struggles” 2003 Human Rights Quarterly 382 404.
424
Title of the Protocol on Power Sharing.
425
Article 1.5.1.1 of the Protocol on Power Sharing.
426
Article 1.8 of the Protocol on Power Sharing.
427
Article 2.5 of the Protocol on Power Sharing.
428
Article 3 of the Protocol on Power Sharing.
429
Title of the Protocol on Wealth Sharing.
430
Article 1.2 of the Protocol on Wealth Sharing.
431
Article 2.6 of the Protocol on Wealth Sharing.
432
Article 3.2 of the Protocol on Wealth Sharing.
433
Article 8 of the Protocol on Wealth Sharing.
422
60
The Protocol on the Resolution of the Abyei Conflict was signed at Naivasha, Kenya on 26 May
2004 between the government of Sudan and the SPLM.434 The agreement accorded Abyei special
administrative status.435 The agreement provided that the people of Abyei will also vote in a
referendum and choose whether to retain the special administrative status granted to it or to be
part of Bahr el Ghazal.436 The agreement also established the Abyei Boundaries Commission
(ABC) which was to demarcate the borders of Abyei.437
The Resolution of the Conflict in Southern Kordofan/Nuba Mountains and Blue Nile States was
signed on 26 May 2004.438 The preamble acknowledges that the CPA needs to address the
problems faced by the Southern Kordofan and Blue Nile states. The parties agreed that the
people of the Southern Kordofan/Nuba Mountains and Blue Nile states must be consulted on the
CPA.439 It further provided that the CPA would be adopted as the final settlement of the conflict
if it is endorsed by the legislature of that particular state.440
The Protocol on Security Arrangements was signed at Naivisha, Kenya on 25 September 2003
between the government of Sudan and the SPLM.441 The parties agreed to disarm a proportional
number of their armed forces.442 It was agreed that the remaining forces must be redeployed to
other areas.443 The parties also agreed that there must be no armed group affiliated to the
signatory parties that will be allowed to operate outside the two forces.444
The next section will discuss the secession of South Sudan from Sudan.
434
Title of the Protocol on the Resolution of the Abyei Conflict.
Article 2.1 of the Protocol on the Resolution of the Abyei Conflict.
436
Article 1.3 of the Protocol on the Resolution of the Abyei Conflict.
437
Article 5.1 of the Protocol on the Resolution of the Abyei Conflict.
438
Title of the Resolution of the Conflict in Southern Kordofan/Nuba Mountains and Blue Nile States.
439
Article 3.1 of the Resolution of the Conflict in Southern Kordofan/Nuba Mountains and Blue Nile States.
440
Article 3.5 of the Resolution of the Conflict in Southern Kordofan/Nuba Mountains and Blue Nile States.
441
Title of the Protocol on Security Arrangements.
442
Article 1 of the Protocol on Security Arrangements.
443
Article 3 of the Protocol on Security Arrangements.
444
Article 7 of the Protocol on Security Arrangements.
435
61
3 5 The secession of South Sudan
On 9 July 2011 South Sudan became independent after the results of the referendum held on 9
January 2011 revealed that the people of South Sudan overwhelmingly voted for secession.445
The referendum was conducted in accordance with the provisions of the CPA and the secession
of South Sudan is thus considered a “rare example” of secession in accordance with a domestic
agreement.446 The vote for secession instead of unity has been attributed to the continuing
tension between the central government and the people of South Sudan.447 Johnson noted that the
people of South Sudan observed the way in which the provisions of the CPA were being
disregarded by the central government and they drew the conclusion that under a united Sudan,
their conditions would not change.448
In 2009, Salva Kiir Mayardit, President of the government of South Sudan in protest of the
alleged lack of fairness in oil revenue division withdrew from the government of national
unity.449 It was further alleged that the government of Sudan refused to disarm its militia based in
South Sudan.450 The government of Sudan was also accused of delaying the release of funds
required for conducting the national census which was a prerequisite for elections to take place
as stipulated in the CPA.451
In order to understand the concept of ‘self-determination’ in the context of South Sudan, the
pronouncements made in three important cases are worth noting. In Reference re Secession of
Quebec452 (Quebec case) the Supreme Court of Canada held that the right to external self-
445
Jacobs The Politics of Water in Africa: Norms, Environmental Regions and Transboundary Cooperation in the
Orange-Senqu and Nile Rivers (2012) 134.
446
Vidmar “South Sudan and the International Legal Framework Governing the Emergence and Delimitation of
New States” 2011 Texas International Law Journal 541 553.
447
Curless and Rodt “Sudan and the not so Comprehensive Peace” 2013 Civil Wars 101 113.
448
Johnson “New Sudan or South Sudan? The Multiple Meanings of Self-Determination in Sudan’s Comprehensive
Peace Agreement” 2013 Civil Wars 141 150.
449
Patey “Crude Days Ahead? Oil and the Resource Curse in Sudan” 2010 African Affairs 617 626.
450
Prendergast and Thomas-Jensen “Blowing the Horn: Washington's Failings in Africa” 2007 Foreign Affairs 59
72.
451
Santschi “Counting ‘New Sudan’” 2008 African Affairs 631 633.
452
Reference re Secession of Quebec, [1998] 2 S.C.R. 217 (Quebec case).
62
determination can be only invoked in extreme cases.453 An example of one such case is when
people are denied the opportunity to exercise their right to self-determination internally.454
Similarly, in Katangese Peoples' Congress v Zaire455 (Katanga case) the African Commission on
Human and Peoples’ Rights’ (African Commission) held that where there is no evidence of gross
human rights violations, people cannot agitate for external self-determination.456 Again in Kevin
Mgwanga Gunme v Cameroon457 (Southern Cameroon case), the African Commission held that
the exercise of external self-determination is only permissible where there are gross violations of
human rights and the denial of people to participate in their government.458
The cases discussed above indicate that the secession of South Sudan was in line with the idea
that where a state commits gross human rights violations against its people, such people may
choose to exercise their right to external self-determination and secede.459 In other words, the
right to external self-determination arises where a government deliberately violates the
fundamental rights of its people.460
The provisions of the CPA were important in that they provided the people of South Sudan with
the right to exercise their right to self-determination internally and in the event that gross
violations of human rights continued, the CPA provided the people of South Sudan with the
option to exercise their right to self-determination externally.461 The gross violations of human
rights did continue to take place after the signing of the CPA and the people of South Sudan went
on to exercise their right to self-determination in its external form through a referendum held in
2011 and seceded from Sudan.
453
Quebec case para 126.
Quebec case para 134.
455
Katangese Peoples' Congress v Zaire, Communication 75/92 (Katanga case):
http://www.achpr.org/files/sessions/16th/comunications/75.92/achpr16_75_92_eng.pdf (accessed 3 November
2014).
456
Katanga case para 6.
457
Kevin Mgwanga Gunme v Cameroon, Communication 266/03.
458
Southern Cameroon case para194.
459
Bereketeab Self-determination and Secession: The Post-Colonial State (2015) 9.
460
Pereira and Gough “Permanent Sovereignty Over Natural Resources in the 21st Century: Natural Resource
Governance and the Right to Self-Determination of Indigenous Peoples under International Law” Melbourne
Journal of International Law 451 466.
461
Sheeran 2011 International and Comparative Law Quarterly 444.
454
63
3 6 Summary
The objective of this chapter was to investigate the concept of ‘self-determination’ in the context
of South Sudan. To begin with the chapter gave an outline of the political and economic situation
in Sudan since independence from British colonial rule in 1956. It was noted that post-colonial
Sudan has been characterised by two civil wars which caused a lot human suffering. During
these two civil wars, the government of Sudan committed gross violations of human rights
against the people of South Sudan.
This chapter revealed that the concept of ‘gross violations of human rights’ refers to the serious
violations of fundamental human rights by the state or state agents. It was highlighted that the
state has the duty to investigate prosecute and punish gross violations of human rights. Despite
the prohibition of violations of human rights, and the duty imposed on state by international law
to investigate prosecute and punish gross violations of human rights, the discussion revealed a
number of human rights violations committed against the people of South Sudan by the
government of Sudan. It was noted, inter alia, that the people of South Sudan were deliberately
enslaved by Arab slave raiders from northern Sudan. The people of South Sudan were displaced
as a result of the civil wars and as a result of deliberate policies so that they make way for oil
extraction activities. Civilians and civilian targets in South Sudan were deliberately bombed by
the government of Sudan.
This chapter revealed that numerous peace initiatives where negotiated in order to bring peace to
Sudan and end the human rights violations against the people of South Sudan. A common feature
of the peace agreements was the insistence on the right of the people of South Sudan to exercise
of the right to self-determination in its internal form. Despite such agreements, the government
of Sudan continued violating the rights of the people of South Sudan.
In a referendum provided for by the CPA the people of South Sudan voted for secession from
Sudan in 2011. The chapter revealed that the people of South Sudan seceded because they were
denied the opportunity to meaningfully exercise their right to internal self-determination and that
the government of Sudan continued to commit gross human rights violations against them. The
next chapter is going to discuss the post-colonial conception of self-determination.
64
CHAPTER 4
THE POST-COLONIAL CONCEPTION OF SELF-DETERMINATION
4 1 Introduction
This chapter seeks to establish the post-colonial conception of self-determination. A remedial
self-determination approach to the post-colonial understanding of the concept of ‘selfdetermination’ is proposed. The argument in this chapter is that generally, a post-colonial
understanding of self-determination is normally associated with internal self-determination.
However, when internal self-determination does not work or where there are gross violations of
human rights, secession remains an option. The chapter also argues that the secession of South
Sudan should be regarded as a practical application of the concept.
The chapter begins by considering whether the concept of ‘self-determination’ is applicable
outside the context of decolonisation. The next section considers the continuum of selfdetermination in particular, the relationship between internal self-determination and external
self-determination. The study will thereafter discuss whether there is a new understanding of the
concept of ‘self-determination’ in international law outside the context of decolonisation. This
will be done by examining the scope of internal self-determination and external selfdetermination outside the context of decolonisation. The study also will discuss the remedial
self-determination theory and propose a new conception and application of the right to selfdetermination. In conclusion, the summary of the findings of the chapter will be outlined.
4 2 The applicability of self-determination in a post-colonial scenario
As discussed in chapter one of this study the application of self-determination in a post-colonial
context has been the subject of debate in international law. 462 In chapter two it was highlighted
that self-determination has evolved from being a political principle into a legal concept in
international law.463 The parameters of the concept, however, remain controversial especially in
a post-colonial context.464 For instance, as noted in chapter one, self-determination is often
thought to be confined to colonial situations because of its widespread reliance during
462
Section 1 2. See also: Spector “Negotiating Free Association Between Western Sahara and Morocco: A
Comparative Legal Analysis of Formulas for Self-Determination” 2011 International Negotiation 109 112.
463
Section 2 3.
464
Enonchong “Foreign State Assistance in Enforcing the Right to Self-Determination under the African Charter:
Gunme & Ors v. Nigeria” 2002 Journal of African Law 246 251.
65
decolonisation.465 A starting point to determine the applicability of the concept of ‘selfdetermination’ outside the context of decolonisation would be the reservations made by states to
the International Covenant on Civil and Political Rights466 (ICCPR) and the International
Covenant on Economic, Social and Cultural Rights467 (ICESCR) and the responses by other
states thereto in so far as they relate to the right to self-determination.
As already noted in chapter one,468 India declared that the right to self-determination as outlined
in the ICCPR and the ICESCR, is only applicable to peoples under foreign domination.
Bangladesh made a similar declaration concerning common Article 1, of these instruments,
stating that:
“It is the understanding of the Government of the People's Republic of Bangladesh that
the words "the right of self-determination of Peoples" appearing in this article apply in
the historical context of colonial rule, administration, foreign domination, occupation and
similar situations.” 469
In response to the declarations by India and Bangladesh, France objected stating that the
“reservation attaches conditions not provided for by the Charter of the United Nations to the
exercise of the right of self-determination.”470 Germany also objected to India’s reservation on
the basis that:
“The right of self-determination as enshrined in the Charter of the United Nations and as
embodied in the Covenants applies to all peoples and not only to those under foreign
domination.”471
The Netherlands noted that:
“Any attempt to limit the scope of this right or to attach conditions not provided for in the
relevant instruments would undermine the concept of self-determination itself and would
thereby seriously weaken its universally acceptable character.”472
465
Section 1 1. See also: Waters “Contemplating Failure and Creating Alternatives in the Balkans: Bosnia’s Peoples,
Democracy, and the Shape of Self-Determination 2004 Yale Journal of International Law 423 434.
466
International Covenant on Civil and Political Rights, UN Doc A/6316(1966).
467
International Covenant on Economic, Social and Cultural Rights, UN Doc A/6316(1966).
468
See 1 1 above.
469
The reservations and responses of states with regards to the right to self-determination as it is enshrined in the
International Covenant on Civil and Political Rights and the International Covenant on Economic, Social and
Cultural Rights:
https://treaties.un.org/Pages/ViewDetails.aspx?src=TREATY&mtdsg_no=IV-3&chapter=4&lang=en#EndDec
(accessed 4 July 2014).
470
Ibid.
471
Ibid.
66
Pakistan noted that India’s declaration is “incompatible with the object and purpose of the
Covenants.”473 Sweden stated that attaching conditions not provided for in international law to
the concept of ‘self-determination’ “could undermine the concept of self-determination itself and
would thereby seriously weaken its universally acceptable character.”474 In sum the objections to
India and Bangladesh’s reservations indicate that a number of states recognize that the concept of
‘self-determination’ extends beyond the colonial context.
Reference to “internal” self-determination by states and in international law also indicates that
the concept is applicable outside the context of decolonisation.475 Had the concept been only
applicable to decolonisation, no mention would have been made of internal self-determination
since during decolonisation the concept was applied in its external form. 476 It is also noteworthy
that common Article 1 of the ICCPR and the ICESCR do not refer to colonialism as a condition
for a demand for the enjoyment of the right to self-determination.
Furthermore, reference to self-determination in the Final Act of the Conference on Security and
Cooperation in Europe (Helsinki Final Act)477 also indicates that the concept is applicable
outside decolonisation.478 At the time of the adoption of the Helsinki Final Act, there was no
country in Europe under colonial domination. Consequently, it cannot be said that the right to
self-determination as it appears in the Helsinki Final Act was incorporated in order to address
issues relating to self-determination in a colonial context.479
McCorquodale and Hausler have noted that while self-determination is often associated with
decolonisation, state practice shows that the concept is applicable outside the decolonisation
context.480 They put forward the example of the unification of Germany and the dissolution of
472
Ibid.
Ibid.
474
Ibid.
475
Raic Statehood and the Law of Self-Determination (2002) 227.
476
Ibid.
477
Conference on Security and Cooperation in Europe: Final Act of Helsinki, 1 August 1975.
478
Raic Statehood and the Law of Self-Determination 231.
479
Ibid.
480
McCorquodale and Hausler “Caucuses in the Caucasus: The Application of the Right of Self Determination” in
Green and Waters (eds) Conflict in the Caucasus: Implications for International Legal Order (2010) 29.
473
67
the Soviet Union to justify their argument.481 Both events occurred outside the context of
decolonisation and in both instances, reliance was made on the right to self-determination.
Another case in point which occurred outside the context of decolonisation is the so called
“velvet divorce” relating to the peaceful dissolution of Czechoslovakia into the Czech Republic
and Slovakia.482
East and West Germany were re-united in 1990. The Treaty on the Final Settlement with Respect
to Germany483 made reference to the right to self-determination as the basis of that unification.
The relevant part provides that:
“the German people, freely exercising their right of self-determination, have expressed
their will to bring about the unity of Germany as a state so that they will be able to serve
the peace of the world as an equal and sovereign partner in a united Europe.”484
In 1991, an extraordinary ministerial meeting on European Political Cooperation, was held in
Brussels. The meeting adopted the Declaration on Guidelines on the Recognition of New States
in Eastern Europe and in the Soviet Union.485 The Declaration states that:
“The Community and its member States confirm their attachment to the principles of the
Helsinki Final Act and the Charter of Paris, in particular the principle of selfdetermination. They affirm their readiness to recognise, subject to the normal standards
of international practice and the political realities in each case, those new States which,
following the historic changes in the region, have constituted themselves on a democratic
basis, have accepted the appropriate international obligations and have committed
themselves in good faith to a peaceful process and to negotiations.”486
General Comment 12 on Article 1 of the ICCPR,487 adopted by the Human Rights Committee
(HRC) in 1984, requires state parties to describe in their reports to the HRC measures taken to
481
Ibid.
Toth “From Uneasy Compromises to Democratic Partnership: The Prospects of Central European
Constitutionalism” 2011 European Journal of Law Reform 80 81.
483
Treaty on the Final Settlement with Respect to Germany: http://usa.usembassy.de/etexts/2plusfour8994e.htm
(accessed 7 July 2014).
484
Treaty on the Final Settlement with Respect to Germany para 11.
485
Declaration on Guidelines on the Recognition of New States in Eastern Europe and in the Soviet Union reprinted
in Hill and Smith European Foreign Policy : Key Documents (2000) 282.
486
Declaration on Guidelines on the Recognition of New States in Eastern Europe and in the Soviet Union para 3.
487
Human Rights Committee, General Comment No. 12 (1984) HRI/GEN/1/Rev.9 (Vol. I).
482
68
facilitate the exercise of self-determination within their states.488 This requirement indicates the
applicability of the right to self-determination outside the decolonisation context.489
Another interesting observation is the incorporation of the right to self-determination in
municipal law. The incorporation into municipal law is an indication that self-determination is
applicable in a post-colonial era. Article 39(1) of the constitution of Ethiopia expressly states that
“every Nation, Nationality and People in Ethiopia has an unconditional right to selfdetermination, including the right to secession.” The 1996 Constitution of the Republic of South
Africa490 provides that:
“The right of the South African people as a whole to self-determination, as manifested in
this Constitution, does not preclude, within the framework of this right, recognition of the
notion of the right of self-determination of any community sharing a common cultural
and language heritage; within a territorial entity in the Republic or in any other way,
determined by national legislation.”491
The discussion in this section revealed that some states are of the view that self-determination is
a concept applicable in situations of colonialism and alien domination. In other words the
concept of ‘self-determination’ is not applicable in post-colonial situations. It was however
argued that state practice shows that the concept of ‘self-determination’ is applicable outside the
context of decolonisation. The next section will consider the continuum of self-determination, in
particular, the relationship between internal and external self-determination outside the context
of decolonisation.
4 3 The continuum of self-determination: the relationship between internal selfdetermination and external self-determination
As noted in chapter one, international law distinguishes between internal and external selfdetermination.492 The comments made by the Committee on the Elimination of Racial
Discrimination (CERD) in General Recommendation 21 of 1996, are noteworthy:
488
Human Rights Committee, General Comment No 12 para 6.
Park “Integration of Peoples and Minorities: An Approach to the Conceptual Problem of Peoples and Minorities
with Reference to Self-determination under International Law” 2006 International Journal on Minority and Group
Rights 69 73.
490
The Constitution of the Republic of South Africa, 1996.
491
Section 235 of the Constitution of the Republic of South Africa.
492
Section 1 7.
489
69
“In respect of the self-determination of peoples two aspects have to be distinguished. The
right to self-determination of peoples has an internal aspect, i.e. the rights of all peoples
to pursue freely their economic, social and cultural development without outside
interference. In that respect there exists a link with the right of every citizen to take part
in the conduct of public affairs at any level as referred to in article 5 (c) of the
International Convention on the Elimination of All Forms of Racial Discrimination. In
consequence, governments are to represent the whole population without distinction as to
race, colour, decent, national, or ethnic origins. The external aspect of self-determination
implies that all peoples have the right to determine freely their political status and their
place in the international community based upon the principle of equal rights and
exemplified by the liberation of peoples from colonialism and by the prohibition to
subject peoples to alien subjugation, domination, and exploitation.”493
The internal and external self-determination dichotomy is also highlighted in the Declaration on
Principles of International Law concerning Friendly Relations and Co-operation among States in
accordance with the Charter of the United Nations494 (Friendly Relations Declaration).495 The
Friendly Relations Declaration emphasizes that a state is required to facilitate the meaningful
participation of its people in the political, social and economic affairs of the state and if the state
complies with those obligations, the people may not challenge the territorial integrity of the
state.496
The internal and external self-determination dichotomy is important in that it highlights that the
right to self-determination calls for the protection of the territorial integrity of states while
simultaneously insisting that states must not violate human rights of peoples within its
territory.497 Junngam describes the position as follows:
“Nowadays, there is also a common understanding that people can determine their
destiny within their existing state framework. This is not to say that people are captives of
their territorial states, but the territorial integrity of their states is critical to their
survival.”498
493
Committee on the Elimination of Racial Discrimination, General Recommendation 21, The Right to Selfdetermination U.N. Doc. A/51/18.
494
United Nations General Assembly Resolution 2625 (XXV), Declaration on Principles of International Law
concerning Friendly Relations and Co-operation among States in accordance with the Charter of the United Nations
A/Res/25/2625 (1970).
495
Said “Birth Pangs: Greenland's Struggle for Independence” 2014 Loyola of Los Angeles International and
Comparative Law Review 281 291.
496
Friendly Relations Declaration para 7.
497
Hilpold “The International Court of Justice's Advisory Opinion on Kosovo: Perspectives of a Delicate Question”
2009 Austrian Review of International and European Law 259 300.
498
Junngam “The Secessionist Movement in the Southernmost Provinces of Thailand: A View from the New Haven
School of International Law” 2012 Asia Pacific Law Review 233 234.
70
This section set the foundation for the examination of the post-colonial conception of selfdetermination by arguing that there is a relationship between internal and external selfdetermination. It was argued that the self-determination continuum calls for the protection of
territorial integrity of states while at the same time demanding that states promote human rights
of its citizens. The next section will examine the scope of internal self-determination.
4 4 The scope of internal self-determination
Internal self-determination provides a platform for human rights protection, democracy and selfgovernment.499 Senaratne explains the link between human rights and internal self-determination
as follows:
“Viewed from a human rights perspective, in particular, "internal self-determination" is
considered to be a manifestation of all the rights embodied in the 1966 International
Covenant on Civil and Political Rights.”500
Internal self-determination also provides for the right of peoples to take part in the political
affairs of their state.501 Macklem argues that by emphasizing freedom of choice, the concept of
‘self-determination’ envisages a democratic form of government.502 Consequently a state which
establishes democratic system of government gives effect to the right to internal selfdetermination.503 The right to internal self-determination also posits that people should be given
the power to govern themselves.504
From the brief discussion in the current section it can be said that the protection of human rights,
meaningful participation in the political affairs of the state and autonomy are components of the
right to internal self-determination. In the following sub-sections, these elements of the right to
internal self-determination will be discussed in turn.
499
Dersso “Constitutional Accommodation of Ethno-Cultural Diversity in the Post-Colonial African State” 2008
South African Journal on Human Rights 565 586.
500
Senaratne “Beyond the Internal/External Dichotomy of the Principle of Self-Determination” 2013 Hong Kong
Law Journal 463 470.
501
Allen “Recreating ‘One China’: Internal Self-Determination, Autonomy and the Future of Taiwan” 2003 AsiaPacific Journal on Human Rights and the Law 21 29.
502
Macklem “Militant Democracy, Legal Pluralism, and the Paradox of Self-determination” 2006 International
Journal of Constitutional Law 488 500.
503
Wheatley “Democracy in International Law: A European Perspective” 2002 International and Comparative Law
Quarterly 225 230.
504
Bennett “‘Indigeneity’ as Self-Determination” 2005 Indigenous Law Journal 71 97.
71
4 4 1 Human rights
Hilpold argues that common Article 1 of the ICCPR and the ICESCR forms the legal basis of the
link between self-determination and human rights.505 Similarly, Kuokkanen argues that the
preferable conception of self-determination can be found in the human rights regime established
by the ICCPR and the ICESCR.506 Pentassuglia captures the human rights dimension of selfdetermination as follows:
“In sum, a human rights-based understanding of self-determination of the whole people is
assumed to inform, by implication, the scope and reach of sovereignty principles as well
as the role of the state itself in contemporary international law, thereby promoting
democracy and peace within and among societies.”507
In its General Comment number 12 on Article 1 of the ICCPR, the HRC observed that:
“The right of self-determination is of particular importance because its realization is an
essential condition for the effective guarantee and observance of individual human rights
and for the promotion and strengthening of those rights.”508
The link between human rights and self-determination is significant especially when one
considers that in Africa, human rights violations often result in armed conflict or civil unrest.509
Sudan is a case in point. As highlighted in chapter three, the people of South Sudan were
subjected to gross human rights violations by the different governments, which came to power in
Sudan since independence in 1956.510 In response, the people of South Sudan took up arms
against the government of South Sudan resulting in two devastating civil wars.511 It is
noteworthy that the second civil war came to end because of the signing of the Comprehensive
Peace Agreement (CPA) whose provisions promised, inter alia, the protection and promotion of
human rights of the people of South Sudan.512
505
Hilpold “The Right to Self-determination: Approaching an Elusive Concept through a Historic Iconography”
2006 Austrian Review of International and European Law 23 40.
506
Kuokkanen “Self-Determination and Indigenous Women's Rights at the Intersection of International Human
Rights” 2012 Human Rights Quarterly 225 228.
507
Pentassuglia “State Sovereignty, Minorities and Self-Determination: A Comprehensive Legal View” 2002
International Journal on Minority and Group Rights 303 316.
508
Human Rights Committee, General Comment No. 12 para 1.
509
Aka “Human Rights as Conflict Resolution in Africa in the New Century” 2003 Tulsa Journal of Comparative
and International Law 179 181.
510
Section 331.
511
Section 3 2.
512
Section 3 4 8.
72
4 4 2 Democracy and meaningful participation in the political affairs of the state
Democracy can be defined as “a political system which is based on choice, competition, respect
for human rights, and the rule of law.”513 The rule of law refers to the framework put in place to
promote legal certainty and to prevent abuse of power by the state and its organs. 514 Democracy
is also an element of the right to internal self-determination515 and it facilitates the meaningful
participation of peoples in the political affairs of the state.516 Article 25 of the ICCPR which
forms the legal basis for the right to democratic governance517 provides for the right of citizens to
participate in the political affairs of the state. Former UN Special Rapporteur on the Rights of
Indigenous Peoples, James Anaya’s observations based on the Draft Declaration on The Rights
of Indigenous Peoples are noteworthy:
“the new conception of self-determination recognizes the freedom of individuals and
groups to form associations and to collectively pursue their own destinies under
conditions of equality within the framework of the states within which they live.”518
Democracy as an element of the right to internal self-determination requires, inter alia, that there
be a constitution which entrenches rights which facilitate and promote democracy such as the
right to life, equality, freedom of speech and association and the right to vote.519 At some point in
its history, Sudan was a state without a constitution.520 The most notable constitution
promulgated in Sudan was the 1998 Sudan Constitution which provided for various fundamental
rights.521 Despite the existence of such rights, human rights violations against the people of
South Sudan never ceased, in fact they continued right up to and beyond the signing of the CPA
in 2005.522
513
Berween “The Islamization of Democracy: The Political Requisite of Democracy in the Muslim World” 2006
International Journal of Civil Society Law 9 11.
514
Reiter “Towards the Rule of Law or the Rule of the Boots? A Liberal Perspective on Democracy and Human
Rights” 2014 US-China Law Review 404 405.
515
Park 2006 International Journal on Minority and Group Rights 74.
516
Andr “The Conflict in the Democratic Republic of Congo and the Protection of Rights Under the African
Charter” 2003 African Human Rights Law Journal 235 236.
517
Varayudej “A Right to Democracy in International Law: Its Implications for Asia” 2006 Annual Survey of
International & Comparative Law 1 8.
518
Anaya “Indian Givers: What Indigenous Peoples Have Contributed to International Human Rights Law” 2006
Washington University Journal of Law & Policy 107 117.
519
Seshagiri “Democratic Disobedience: Reconceiving Self-Determination and Secession at International Law”
2010 Harvard International Law Journal 553 561.
520
For instance between 1983 and 1998. See section 3 4 7.
521
Section 3 4 7.
522
Section 3 5.
73
Since the right to internal self-determination requires that people participate in the government of
their state, it is only a democratic system of government which can guarantee or facilitate such
participation.523 Consequently, a state violates the right to self-determination of its people when
it denies them political participation in the affairs of the state. 524 Governments must therefore be
representative of its people without discrimination on the basis of race, colour, national or ethnic
origin.525As noted in chapter three Sudan has been under authoritarian rule for most of its postcolonial existence. Since independence in 1956, the government of Sudan denied the people of
South Sudan meaningful participation in the political affairs of Sudan thus violating their right to
internal self-determination.526
4 4 3 Autonomy
That autonomy is one of the elements of the right to self-determination was confirmed in Kevin
Mgwanga Gunme et al v Cameroon527 (Southern Cameroon case) where the African
Commission on Human and Peoples’ Rights (African Commission) in deciding whether the
people of Southern Cameroon had the right to external self-determination, stated that autonomy
is one of the many ways in which peoples may exercise their right to self-determination.528 As
highlighted in chapter three, autonomy refers to an arrangement where a particular region within
a state is given the powers of self-government.529 These arrangements may provide a particular
region with the power to govern or decide, inter alia, on issues of municipal government,
taxation, land, culture and religion.530
523
Fan “The Missing Link between Self-Determination and Democracy: The Case of East Timor” 2007
Northwestern Journal of International Human Rights 176 178.
524
Vandewoude “The Rise of Self-Determination versus the Rise of Democracy” 2010 Goettingen Journal of
International Law 981 992.
525
Cirkovic “An Analysis of the IC Advisory Opinion on Kosovo's Unilateral Declaration of Independence” 2010
German Law Journal 895 908.
526
Mampilly Rebel Rulers: Insurgent Governance and Civilian Life During War (2011) 134.
527
Kevin MgwangaGunme et al v Cameroon, Communication 266/03 (Southern Cameroon case).
528
Southern Cameroon case para 191.
529
Section 3 4 4. See also: Dinstein “Autonomy Regimes and International Law” 2011 Villanova Law Review 437
437.
530
Magnarella “The Evolving Right of Self-determination of Indigenous Peoples 2001 St. Thomas Law Review 425
440.
74
Autonomy as an element of internal self-determination promotes the distribution of power to the
people so that they may be able to participate in the government of their region.531 Autonomy
arrangements therefore align the government of the autonomous region with the wishes of the
people belonging to that territory.532
As already indicated in chapter three of this study, at independence in 1956 the people of South
Sudan wanted a system of government which would guarantee them autonomy in the new
Sudan.533 At the end of the first civil war in 1972 under the Addis Ababa Peace Agreement,
autonomy was granted to South Sudan.534 In violation of the Addis Ababa Agreement, the then
president of Sudan, Nimeiri revoked this autonomy.535 In pursuit of their right to selfdetermination, the people of South Sudan demanded the restoration of autonomy, threatening to
secede if the demand for autonomy was not met.536 It was only in 2005 when the CPA was
signed that autonomy in the form of an establishment of the government with its own legislative,
executive and judiciary and constitution was granted to the people of South Sudan.537 The
autonomy arrangement was however frustrated by tensions between the central government and
the government of South Sudan regarding compliance with various provisions of the CPA.538
This section revealed that human rights protection, democracy and meaningful participation in
the political affairs of the state and autonomy are elements of internal self-determination. Most
importantly, the discussion revealed that the people of South Sudan were denied all elements of
the right to internal self-determination. The next section will investigate the scope of the right to
external self-determination.
531
Nordin and Witbrodt “Self-Determination of Indigenous Peoples: The Case of the Orang Asli” 2012 Asia Pacific
Law Review 189 200.
532
Musafiri “Right to Self-Determination in International Law: Towards Theorisation of the Concept of Indigenous
Peoples/ National Minority?” 2012 International Journal on Minority and Group Rights 481 523.
533
Section 3 2.
534
Section 3 4 1.
535
Section 3 4 1.
536
Section 3 4 3.
537
Section 3 4 8.
538
Section 3 5.
75
4 5 The scope of external self-determination
External self-determination refers to the right of peoples to decide their status in relation to other
states in the international political order.539 The Supreme Court of Canada in Reference re
Secession of Quebec540 (Quebec case) described the scope of external self-determination as
follows:
“In summary, the international law right to self-determination only generates, at best, a
right to external self-determination in situations of former colonies; where a people is
oppressed, as for example under foreign military occupation; or where a definable group
is denied meaningful access to government to pursue their political, economic, social and
cultural development. In all three situations, the people in question are entitled to a right
to external self-determination because they have been denied the ability to exert
internally their right to self-determination.”541
External self-determination claims often arise where certain groups within a state are
marginalized or denied the right to participate in the political system of their country. 542 External
self-determination claims may also arise due to the adoption of discriminatory policies by a
state.543
Minor violations of human rights cannot, however, trigger an external self-determination
claim.544 An example of human rights violations which may trigger an external selfdetermination claim are those which occurred in South Sudan. Human rights violations
committed by the government of Sudan against the people of South Sudan have been labeled as
one of the “worst cases of human rights catastrophes.”545 That seems to be an appropriate label
especially considering that in chapter three of this study it was highlighted that the people of
South Sudan were forcibly displaced from their homes, they were subjected slavery, religious
539
Cirkovic 2010 German Law Journal 909.
Reference re Secession of Quebec, [1998] 2 S.C.R. 217 (Quebec case).
541
Quebec case para 138.
542
Mhango “Governance, Peace and Human Rights Violations in Africa: Addressing the Application of the Right to
Self-Determination in Post-Independence Africa” 2012 African Journal of Legal Studies 199 206.
543
Woocher “The ‘Casamance Question’: An Examination of the Legitimacy of Self-Determination in Southern
Senegal” 2000 International Journal on Minority and Group Rights 341 362.
544
Coffin “Self-Determination and Terrorism: Creating a New Paradigm of Differentiation” 2014 Naval Law Review
31 45.
545
Kofman “Secession, Law, and Rights: The Case of the Former Yugoslavia” 2000 Human Rights Review 9 9.
540
76
and ethnic cleansing, Sharia law was imposed on them despite the fact that a majority of the
people of South Sudan are Christian and animist.546
The underlying theme in most claims for external self-determination is the systemic violation of
human rights of the minority by the majority.547 The question is whether self-determination can
be interpreted to permit its external manifestation, that is, secession, where a state violates the
rights of peoples within its territory.548 In order to answer that question, the next section will
propose a new understanding of self-determination based on the remedial self-determination
theory.
4 6 Towards a new understanding of self-determination: Remedial self-determination
theory
The remedial self-determination theory is modeled on the Friendly Relations Declaration which
makes the protection of the territorial integrity of a state dependent upon the equal representation
of the people belonging to the sovereign state.549 Thus the Friendly Relations provides the basis
for the exercise of external self-determination where peoples are subjected to discrimination and
gross violation of human rights.550
According to the remedial self-determination theory peoples may secede where a state denies
them the right to exercise their right to internal self-determination.551 The remedial selfdetermination theory regards secession as an option of last resort where there is evidence of
violations of human rights by a state.552 In order to trigger the application of this theory, there
546
Section 3 3 1.
Burke and Panina-Burke “Eastern and Southern Ukraine's Right to Secede and Join the Russian Federation” 2015
Russian Law Journal 33 53.
548
Roth “Secessions, Coups and the International Rule of Law: Assessing the Decline of the Effective Control
Doctrine” 2010 Melbourne Journal of International Law 393 409.
549
Orakhelashvili “Statehood, Recognition and the United Nations System: A Unilateral Declaration of
Independence in Kosovo” 2008 Max Planck Yearbook of United Nations Law 1 14.
550
Anderson “Unilateral Non-Colonial Secession in International Law and Declaratory General Assembly
Resolutions: Textual Content and Legal Effects” 2013 Denver Journal of International Law and Policy 345 363.
551
Ryngaert “The ICJ’s Advisory Opinion on Kosovo’s Declaration of Independence: A Missed Opportunity?” 2010
Netherlands International Law Review 481 492.
552
Jovanovic “National Self-Determination as a Legitimate Way Towards European Union - The Case of Former
Yugoslavia” 2002 International Journal on Minority and Group Rights 71 78.
547
77
must be evidence of violations of human rights which may justify the secession of a particular
group and such violations should not be capable of being abated without secession.553
An example of such a situation can be seen in the case of South Sudan where the government of
Sudan under the National Islamic Front (NIF) regime deliberately committed human rights
violations against civilians in South Sudan.554 In the case of South Sudan, secession was the
only avenue capable of resolving the human rights violations committed by the government of
Sudan against the people of South Sudan.555 It is noteworthy that the people of South Sudan
during the 1992 Abuja Peace Negotiations called for the recognition of their right to internal selfdetermination and insisted that if the government of Sudan fails to meet those demands, they will
agitate for external self-determination.556 This demand was consistently made by the people of
South Sudan in the various peace initiatives, agreements which followed, most significantly, the
CPA.557 Human rights violations continued to take place even after the signing of the CPA and
the people of South Sudan had no other option but to vote for independence in the referendum
which was conducted in terms of the provisions of the CPA.558
The application of the remedial self-determination theory can also be exemplified by the events
which led to the declaration of independence by Kosovo in 2008.559 Kosovo was a province in
the former Socialist Federal Republic of Yugoslavia (SFRY).560 In 1974, Kosovo was granted
autonomy within Yugoslavia.561 Kosovo’s autonomy was revoked by the then president
553
Dickinson “Twenty-First Century Self-Determination: Implications of the Kosovo Status Settlement for Tibet”
2009 Arizona Journal of International & Comparative Law 547 554.
554
Apsel “On Our Watch: The Genocide Convention and the Deadly, Ongoing Case of Darfur and Sudan” 2008
Rutgers Law Review 53 56.
555
Raore “Do Ethnic Minority Communities Have a Right to Secede? An Analysis of Secession, the Principle of
Self-determination and the Creation of States in International Law” 2011 Hong Kong Journal of Legal Studies 147
177.
556
Section 3 4 3.
557
Section 3 4 8.
558
Section 3 4 8.
559
Connolly “Independence in Europe: Secession, Sovereignty, and the European Union” 2013 Duke Journal of
Comparative & International Law 51 72.
560
Cerone “The International Court of Justice and the Question of Kosovo’s Independence” 2011 ILSA Journal of
International & Comparative Law 335 336.
561
Cook “The Power of International Institutions: An Examination of U.S. Policy towards East Timor and Kosovo
in 1999” 2010 Journal of Politics and Law 26 27.
78
Slobodan Milosevic in 1989 and Kosovar Albanians tried to regain their autonomy. 562 Milosevic
responded by suppressing the call for restoration of autonomy by force.563
The situation in Kosovo quickly became one of gross violations of human rights of Kosovar
Albanians.564 Serbian forces embarked on ethnic cleansing campaign targeted at Kosovo
Albanians.565 It is reported that approximately 75% of the Albanian Kosovars were displaced due
to the violence which ensued.566 In 1999 the draft Rambouillet Accords proposed an end to the
violence and the restoration of autonomy which Serbia refused to sign. 567 After efforts to resolve
the conflict failed the North Atlantic Treaty Organisation (NATO) launched airstrikes against
Serbia from March 1999 to June 1999.568 Serbia responded to NATO bombings by launching a
counter attack on Albanian civilians in Kosovo.569 Serbia’s quest to suppress the calls for
restoration of autonomy thus became more violent.570
After several efforts to resolve the Kosovo situation with no success Kosovo declared
independence from Serbia on 17 February 2008.571 The declaration of independence was
significant in view of the conception that a state which engages in human rights violations and
denies its people the right to internal self-determination cannot insist on the inviolability of its
territorial integrity.572 The declaration of independence is also significant in that in line with the
562
Jamar and Vigness “Applying Kosovo: Looking to Russia, China, Spain and Beyond After the International
Court of Justice Opinion on Unilateral Declarations of Independence” 2010 German Law Journal 913 915.
563
Vidmar “Democracy and Regime Change in the Post-Cold War International Law” 2013 New Zealand Journal of
Public and International Law 349 373. At that time he was president of Serbia after the SFRY had disintegrated and
Kosovo was now a province under Serbia.
564
Vidmar 2013 New Zealand Journal of Public and International Law 379.
565
Burri “The Kosovo Opinion and Secession: The Sounds of Silence and Missing Links” 2010 German Law
Journal 881 881.
566
Delahunty “Nationalism, Statism, and Cosmopolitanism” 2012 Northwestern Interdisciplinary Law Review 77
119.
567
Latif-Aramesh “The Case for Kosovo's Statement and the Use of Principles of International Law” 2012 King's
Student Law Review 98 102.
568
Bergink “International Law as a Political Instrument in the Case of Kosovo (1999-2010)” 2010 Amsterdam Law
Forum 85 91.
569
Orchard “Regime-Induced Displacement and Decision-Making Within the United Nations Security Council: The
Cases of Northern Iraq, Kosovo, and Darfur” 2010 Global Responsibility to Protect 101 116.
570
Milano “The Security Council and Territorial Sovereignty: The Case of Kosovo” 2010 International Community
Law Review 171 173.
571
Ingravallo “Kosovo after the ICJ Advisory Opinion: Towards a European Perspective?” 2012 International
Community Law Review 219 224.
572
Anderson “Unilateral Non-Colonial Secession and the Use of Force: Effect on Claims to Statehood in
International Law” 2013 Connecticut Journal of International Law 197 231.
79
remedial self-determination theory in that it was triggered by the continued systemic violation of
human rights of the people of Kosovo by Serbia.573
The United Nations General Assembly (UN General Assembly), on 8 October 2008 adopted
Resolution 63/3 requesting the International Court of Justice (ICJ) to give an advisory opinion on
whether the declaration of independence by the Provisional Institutions of Self-Government of
Kosovo was in accordance with international law.574 In its opinion in Accordance with
International Law of Unilateral Declaration of Independence in Respect of Kosovo575 (Kosovo
Advisory Opinion) the ICJ held that the declaration of independence did not violate international
law.576 The decision of the ICJ removes any doubts on whether a group in a post-colonial
context may secede from a sovereign state.577
The separate opinions of Judge Trindade and Judge Yusuf are noteworthy. Judge Yusuf in his
separate opinion described the post-colonial conception of the right to self-determination as
follows:
“the right of self-determination chiefly operates inside the boundaries of existing States in
various forms and guises, particularly as a right of the entire population of the State to
determine its own political, economic and social destiny and to choose a representative
government; and, equally, as a right of a defined part of the population, which has
distinctive characteristics on the basis of race or ethnicity, to participate in the political
life of the State, to be represented in its government and not to be discriminated
against.”578
Judge Yusuf indicated that external self-determination is allowed only under exceptional
circumstances and such circumstances exist when the following are present: discrimination;
persecution of peoples on the basis of the racial or ethnic origins; denial of political participation
573
Muharremi “Kosovo's Declaration of Independence: Self- Determination and Sovereignty Revisited” 2008
Review of Central and East European Law 401 421.
574
United Nations General Assembly Resolution 63/3. Request for an Advisory Opinion of the International Court
of Justice on Whether the Unilateral Declaration of Independence of Kosovo is in Accordance with International law
A/RES/63/3.
575
Accordance with International Law of Unilateral Declaration of Independence in Respect of Kosovo, 2010 I.C.J.
Reports 403(Kosovo Advisory Opinion).
576
Kosovo Advisory Opinion para 84.
577
Beal “Defending State Sovereignty: The I.C.J. Advisory Opinion on Kosovo and International Law” 2012
Transnational Law & Contemporary Problems 549 564.
578
Kosovo Advisory Opinion, Separate Opinion of Judge Yusuf para 9.
80
and denial of autonomy or self-government.579 He also cautioned that the presence of these
circumstances does not necessarily entitle people concerned to exercise their right to external
self-determination but rather, all efforts at exercising the right to internal self-determination must
first be exhausted before peoples may lay claim to the right to external self-determination.580
Judge Trindade highlighted that the Kosovo situation should be understood to imply that states
cannot insist on the inviolability of their territorial integrity where they systemically violate
human rights of their people through acts such as ethnic cleansing, discrimination and forced
displacement.581 The concept of ‘self-determination’ can thus be applied to end the violation of
human rights:
“The fact remains that people cannot be targeted for atrocities, cannot live under
systematic oppression. The principle of self-determination applies in new situations of
systematic oppression, subjugation and tyranny.”582
The Canadian Supreme Court’s pronouncement in the Quebec case is regarded as “the most
prominent judicial pronouncement which underpins the theory of remedial secession.”583 The
Canadian Supreme Court indicated that the right to self-determination is normally exercised in
its internal form.584 Only in the “most extreme cases” and under “carefully defined
circumstances” will the right be exercised in its external form which will ultimately result in
secession.585 An example provided by the Canadian Supreme Court was in a situation where “a
people is blocked from the meaningful exercise of its right to self-determination internally, it is
entitled, as a last resort, to exercise it by secession.”586 Another case may include the deliberate
and continuing violations of human rights by the state or its organs against a specific group of
peoples within that state.587
579
Kosovo Advisory Opinion, Separate Opinion of Judge Yusuf para 16.
Ibid.
581
Kosovo Advisory Opinion, Separate opinion Judge Trindade para 176.
582
Kosovo Advisory Opinion, Separate opinion Judge Trindade para 175.
583
Vidmar “Remedial Secession in International Law: Theory and (Lack of) Practice” 2010 St Antony’s
International Review 37 39.
584
Quebec case para 126.
585
Ibid.
586
Quebec case para 134.
587
Fierstein “Kosovo's Declaration of Independence: An Incident Analysis of Legality, Policy and Future
Implications” 2008 Boston University International Law Journal 417 435.
580
81
The underlying theme in the two cases above is that where a state ceases to represent its people
without discrimination and violates the rights of its people with impunity, such people may
secede.588 The theory of remedial self-determination is modeled on the premise that a people
may secede if they are denied the right to internal self-determination.589 The Kosovo case in
particular illustrates, in line with the remedial self-determination theory, that where the
population of a state is systemically oppressed they may secede. 590 Moore describes the position
as follows:
“It is difficult to deny that a group that has been the victim of widespread violations of
basic human rights or the target of a genocidal campaign has a right to secede. This is
relatively uncontested, since it is grounded in the widely accepted view that the state's
authority and political legitimacy are forfeited when it commits such injustices.”591
The cases also illustrate that a peoples may secede as a last resort after exhausting the solutions
provided for by internal self-determination.592 This is significant because in certain instances
internal self-determination may not be an effective remedy to deal with the systemic violation of
human rights.593 The argument put forward by this section is that the secession of South Sudan
should be viewed as the practical application of the remedial self-determination theory. The
discussion in this section has argued that where internal self-determination is denied, external
self-determination is justified.
4 7 Summary
The chapter focused on the applicability of the concept of ‘self-determination’ in a post-colonial
context. It was observed that due to the widespread reliance on the concept of ‘selfdetermination’ during decolonisation, there became a view that the concept is only applicable in
the decolonisation context. The chapter, however, found evidence of the application of selfdetermination outside the context of decolonisation.
588
Wilson “Self-Determination, Recognition and the Problem of Kosovo” 2009 Netherlands International Law
Review 455 472.
589
Miller “Sovereignty 2010: The Necessity of Circling the Square” 2010 Vienna Journal on International
Constitutional Law 624 631.
590
Roth “New Developments in Public International Law: Statehood, Self-determination, and Secession” 2011
National Taiwan University Law Review 639 653.
591
Moore “The Ethics of Secession and a Normative Theory of Nationalism” 2000 Canadian Journal of Law and
Jurisprudence 225 229.
592
Seshagiri 2010 Harvard International Law Journal 584.
593
Weldehaimanot “The ACHPR in the Case of Southern Cameroons” 2012 Sur-International Journal on Human
Rights 85 95.
82
It was observed that international law distinguishes between internal and external selfdetermination. The chapter argued that the distinction is crucial in that it attempts to reconcile the
interests of both the state and its peoples. This discussion thus revealed that the selfdetermination continuum provides peoples a safeguard for human rights violations while also
providing a safeguard for the territorial integrity of states.
The chapter also examined the scope of internal self-determination. Three elements of the right
to internal self-determination were identified, namely human rights protection, autonomy,
democracy / political participation. It was argued that internal self-determination can be
manifested through the protection of human rights, grating autonomy or facilitating meaningful
participation in the political affairs of a state or the establishment of democratic practices and
institutions. It was however, revealed that the people of South Sudan were denied the right to
internal self-determination by the government of Sudan.
Next, the chapter sought to investigate whether a people such as those of South Sudan may
secede on the basis that they have been denied the right to internal self-determination. In order to
answer this question, the chapter argued that if viewed through the lens of the remedial selfdetermination theory, a people who have been denied the right to internal self-determination or
have been subjected to gross human rights violations may secede from the parent state. It was
argued that the secession of South Sudan should be seen in this light.
83
CHAPTER 5
CONCLUSION
The main focus of the study was to investigate the post-colonial understanding of the concept of
‘self-determination’ using South Sudan as a case study.594 The study had three main objectives.
The first objective was to ascertain the scope nature of the concept of ‘self-determination’
outside the context of decolonisation. In order to understand the post-colonial conception of selfdetermination the study in chapter two provided a legal background of the concept of ‘selfdetermination’ and the study as a whole. It was noted that the concept of ‘self-determination’
was initially regarded as a political principle.595 It was only in 1945 that the concept of ‘selfdetermination’ was expressly mentioned in a major international legal instrument.596 Thereafter
the concept started to be recognised as a legal principle because liberation movements relied on
it in achieving independence for colonised peoples.597 In current international law selfdetermination is considered to be a right.598 In fact numerous international legal instruments
make reference to the “right to self-determination.”599 Some scholars go as far as arguing that the
concept has the status of a jus cogens norm and consequently the concept of ‘self-determination’
has an erga omnes character.600
In the context of decolonisation, the general understanding was that self-determination entitled
peoples under colonial rule to political independence.601 Oppressed peoples could determine
their political status by either emerging as a sovereign independent state; or freely associate with
an independent state; or integrate with an independent state or emerge into any other political
status that they wished to.602
Outside the context of decolonisation, self-determination has to be balanced with the principle of
the territorial integrity of states.603 The scope and content of the concept of ‘self-determination’
594
Section 1 3.
Section 2 2.
596
Section 2 2.
597
Section 2 2.
598
Section 2 4.
599
Section 2 4.
600
Section 2 4.
601
Section 2 3.
602
Section 2 3.
603
Section 1 2.
595
84
is controversial.604 The controversy relates to the conflict between the right to self-determination
and the concept of ‘territorial integrity’.605 It was, however, observed that legal instruments
providing for the right to self-determination also discourage the violation of the principle of
territorial integrity.606 This is not surprising since external self-determination results in the
violation of the territorial integrity of a state.607 Peoples all over the African continent for
instance in Angola, Namibia, Zambia and Zimbabwe, are agitating for the exercise of their right
to self-determination.608 States, on the other hand, are quick to suppress calls for selfdetermination because they associate the concept with territorial disintegration.609 The right to
self-determination can however be exercised without impairing the territorial integrity of
states.610 The chapter observed that the general view in Africa is that any exercise of the right to
self-determination, which results in the violation of the principle of territorial integrity, is not
permissible.611
The exercise of the right to self-determination may result in the secession of a region from and
independent state. An important observation was that secession is neither permitted nor is it
prohibited in international law.612 It was, however, noted that there seems to be consensus in
international law that where a government facilitates the meaningful exercise of the right to
internal self-determination, peoples may not be allowed to secede from a sovereign state.613
The second objective of this study was to ascertain the significance of South Sudan’s secession
on the post-colonial understanding of self-determination. Chapter three thus investigated the
concept of ‘self-determination’ in the context of South Sudan. The study identified instances
where the government of Sudan engaged in the deliberate and systemic violation of human rights
of the people of South Sudan. These include, slavery, forced displacement, political and
604
Section 1 2.
Ibid.
606
Section 2 5.
607
Ibid.
608
Section 1 1.
609
Ibid.
610
Section 2 5.
611
Ibid.
612
Section 2 6.
613
Ibid.
605
85
economic marginalisation, religious and ethnic cleansing, and the imposition of Sharia law and
policies of Islamisation on non-Muslims in South Sudan.614
The people of South Sudan were on numerous occasions, engaged in negotiations with the
government of South Sudan in order to try an end these gross violations of human rights.615 The
outcome of these negotiations was the signing of several agreements which promised, inter alia,
human rights protection, economic development and equal political participation.616 The
situation of the people of South Sudan, however, continued to worsen and they began agitating
for external self-determination.617
The Comprehensive Peace Agreement (CPA) signed in 2005 between the main opposition party,
the Sudan People’s Liberation Movement (SPLM) and the government of Sudan promised once
more to solve the problems of South Sudan within the territorial framework of Sudan within an
interim period.618 Quite significantly it also provided the people of South Sudan the option of
voting for secession at the end of that interim period.619 At the end of the interim period the
people of South Sudan voted for secession because of the realisation that they will continue
being viewed as second class citizens in the country of their birth by the government of Sudan.620
The significance of the secession of South Sudan lies in that it was an example of the exercise of
self-determination outside the context of decolonisation. The exercise of the right to selfdetermination by the people of South Sudan is also significant in that they first sought to exercise
their right internally – thus without threatening the territorial integrity of Sudan. Only when
internal self-determination failed to resolve their grievances did the people of South Sudan
614
Section 3 3 1.
Section 3 4.
616
Ibid.
617
Section 3 4 3. The people of South Sudan, represented by the Sudan People’s Liberation Movement started
agitating for the right to self-determination at the 1992 Abuja Peace Negotiations, arguing that should the
government of Sudan fail to meet their demands for democracy, the rule of law and autonomy they will be entitled
to secede from Sudan.
618
Machakos Protocol, Principle 1.1.
619
Article 2.5.
620
Section 3 5.
615
86
agitate for the exercise their right to self-determination in its external form and consequently
voted for secession in the referendum provided for under the CPA.621
The third objective of this study was to propose a new approach to understanding the concept of
‘self-determination’ outside the context of self-determination. It is noteworthy that the discussion
in chapter four revealed that the concept of ‘self-determination’ is not limited to situations of
colonial or alien domination.622 The concept is also applicable outside the context of
decolonisation.623 The secession of South Sudan from Sudan supports that contention as well.
The general understanding of the concept of ‘self-determination’ is that outside the context of
decolonisation, the concept is applicable in its internal form. Internal self-determination entails
the exercise of civil and political rights within the territorial framework of a state.624
Consequently the exercise of the right to internal self-determination does not result in the
impairment of the territorial integrity of a sovereign state. The scope of internal selfdetermination has three elements namely human rights protection, democracy or participation in
the political affairs of the state and autonomy.625
The question raised by this discussion was what solution is available to peoples such as those in
South Sudan, where they are denied their right to internal self-determination or where they are
subjected to gross human rights violations? A further question is in such cases should the
principle of territorial integrity be upheld over the right to self-determination? These questions
are important especially when one considers that the exercise of external self-determination
results in the territorial disintegration of a state.
In light of the secession of South Sudan from Sudan the chapter proposed the remedial selfdetermination theory as the solution where peoples are denied their right to internal self-
621
Section 3 5.
Section 4 2.
623
Ibid.
624
Section 4 4.
625
Ibid.
622
87
determination. The chapter also presented the remedial self-determination theory as the new
approach to the post-colonial understanding of the concept of ‘self-determination’.626
In terms of the remedial self-determination theory, peoples may secede if they are denied the
opportunity to exercise their right to external self-determination internally or when they are
subjected to gross human rights violations.627 It must be emphasised that the exercise of the right
to self-determination should be an option of last resort.628 The conclusion of this study is that the
scope and application of the concept of ‘self-determination’ outside the context of decolonisation
should be understood as allowing external self-determination where people are denied their right
to internal self-determination. Such was the case for the people of South Sudan.
626
Section 4 6.
Ibid.
628
Ibid.
627
88
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