Determined by Blood and Oil

Back in the days of International Environmental Law seminars, I had a conversation with a fellow seminar attendee, a Sudanese gentleman, about the future of South Sudan. Being a relatively cold-hearted international lawyer (by Environmental Law standards anyway), I maintained that self-determination is a matter usually settled by bloodshed and natural resources useful to those offering support for independence – the referendum only necessary for legitimacy in the minds of the South Sudanese population.

The thing that struck me was the conviction with which he told me that the secession would (first, foremost and ultimately) be determined  by the  people of South Sudan through the omnipotent referendum.  This is not a naively unreasonable position.

History shows us that secession only happens in exceptional circumstances, often in the form of ‘remedial secession’ aimed at remedying a severe wrong suffered by a population.

After all, the United Nations General Assembly’s (UNGA) 1970 Declaration on Principles of International Law Concerning Friendly Relations embodies the idea of secession being people-determined. This declaration  says that all people have the right to determine their political status and pursue their own political, social, economic and social development. Self-determination may also be a principle generating true rights in the post-colonial sense of its usage in Common Article 1(1) of the two covenants on human rights. However, the conspicuous scarcity of the secession phenomenon suggests that, in the secessionist notion of self-determination, self-determination does not have the same status as a right.

There are very few examples of secession against the preservation of territorial integrity despite grievances of minorities. In simplistic terms, Eritrea seceded from Ethiopia in 1993, following a civil war and internationally-supervised referendum. Biafra’s secession claim failed in the absence of regional and international support. Bangladesh seceded from Pakistan with support from India following the withdrawal of troops from the territory. In an unprecedented use of their powers, the United Nations Security Council (UNSC) gave Kosovo substantial autonomy and meaningful self-administration in UNSC Resolution 1244 (1999).

History shows us that secession only happens in exceptional circumstances, often in the form of ‘remedial secession’ aimed at remedying a severe wrong suffered by a population. An ultima ratio or last resort for communities who have suffered unbearable persecution. It is also based on whether the newly created entity is able to effectively exist on its own. Remedial secession is most likely to be recognised where there is prolonged armed conflict accompanied by gross violations of human rights and support or sympathy from the international community. It is not as a matter of self-determination per se, but when a situation in a territory has become a human rights problem – cementing the idea that self-determination is only achieved through violence and outside support.

This viewpoint is not only a product of the cynicism cultivated by the politics of international law. UNGA Resolution 2625 (XXV) of 24 October 1970 contains a principle of national unity, unless the government concerned does not represent the entire people but embodies discrimination based on race, creed and colour. This is re-affirmed in the 1993 Declaration on the UN World Conference on Human Rights as well as the 1995 Declaration on the Occasion of the Fiftieth Anniversary of the UN which includes distinctions of ‘any kind’. However, a lack of representative government is not enough to secure secession. The Declarations require exceptional circumstances – grave and massive violations of human rights against specific groups in a discriminatory fashion. Further, UNSC Res. 1244(1999) specifically accepted that autonomy was indispensable to secure stable conditions in Kosovo and generally recognised that in certain circumstances, a community may have the right to self-determination.

Now, let’s look at the circumstances surrounding South Sudan: decades of armed conflict fuelled by political-religious divisions – check; access to oil resources – check; and, international and regional sympathy and/or support  – check. Although, perhaps the most compelling circumstances involve Sudan’s human rights record:  rape, torture and massive population displacement during the civil war reflecting North-South tensions; ethnic cleansing systematically carried out against tribes of the Darfur region, as well as slavery, the use of child soldiers and prisoner abuse. From an outsider’s perspective, the people of South Sudan have a very good case. Former Tanzanian president Julius Nyerere (who supported Biafra’s claim for secession), in a public statement, summed it up better than I can: “There is no unity between the dead and those who killed them, and there is no unity in slavery and those who dominate them.” In South Sudan, remedial secession may be the last resort – people-determined or not.