Mousa M. Elbasha

Introduction

The present article is adapted from the third in a series of five articles in Arabic I wrote during the summer that collectively examine the history and legal basis of issues relating to the peace agreement and proposed constitutional amendments intended to resolve Sudan’s long-term civil war with the SPLM/A in southern Sudan.

Recently, the SPLM/A succeeded in forcing the national government in Khartoum to accept a peace settlement that virtually guarantees the southern region will achieve self-determination and autonomy after 6 years followed by a referendum in which only the people of the southern region will vote to secede or to remain within the nation of Sudan as stated in the Machakos Protocol:

“At the end of the six (6) year Interim Period, there shall be an internationally monitored referendum, organized jointly by the GOS and the SPLM/A, for the people of South Sudan to: confirm the unity of the Sudan by voting to adopt the system of government established under the Peace Agreement; or to vote for secession.” 1

While applauding an end to the armed conflict, I can find no legal basis to support the Government of Sudan’s acceptance of a proposal that will eventually permit the residents of southern Sudan to unilaterally decide whether the unity and territorial integrity of Africa’s largest nation will be maintained or whether southern Sudan will secede and my homeland will be split into two separate nations. In this article, I explore the legal background of the principle of self-determination and the illegitimacy of secession as a solution to regional disputes.

The Principle of Self-Determination

The concept of the right of self-determination first appeared in President Woodrow Wilson’s “Fourteen Points” speech on 8 January 1918:

“5. A free, open-minded and absolutely impartial adjustment of all colonial claims based upon a strict observance of the principle that in determining all such questions of sovereignty, the interests of the populations concerned must have equal weight with the equitable claims of the government whose title is to be determined.” 2

Wilson’s fifth point aimed at settling the issue of colonized peoples who were subjugated by alien/foreign powers. Thus, the right of self-determination in its historical context was concerned with the rights of peoples under colonial domination.

In a legal context, the League of Nations emphasized the right of colonized peoples to exercise self-determination in accordance with the legal and administrative procedures contained in Article 22 of its Covenant. 3

Following the collapse of the League of Nations as a result of the outbreak of World War II, the United Nations emerged as a new international organization and included “...respect for the principle of equal rights and self-determination of peoples...” in Article 1, paragraph 2 of its Charter. 4

Based on the language of the UN Charter as cited above, the UN General Assembly adopted on 14 December 1960 a Declaration on the Granting of Independence to Colonial Countries and Peoples pursuant to UNGA Resolution 1514 which includes provisions that confirm the right of all peoples to determine freely their political status, economic, social and cultural development.

Articles 1 and 2 of UNGA Res. 1514 read as follows:

“1. The subjection of peoples to alien subjugation, domination and exploitation constitutes a denial of fundamental human rights, is contrary to the Charter of the United Nations and is an impediment to the promotion of world peace and co-operation.

“2. 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.” 5

Article 5 of UNGA Res. 1514 describes the peoples who have the right to exercise the principle of self-determination in accordance with the provisions of Article 1, paragraph 2 of the UN Charter:

“5. Immediate steps shall be taken, in Trust and Non-Self-Governing Territories or all other territories which have not yet attained independence, to transfer all powers to the peoples of those territories, without any conditions or reservations, in accordance with their freely expressed will and desire, without any distinction as to race, creed or colour, in order to enable them to enjoy complete independence and freedom.” 6

It should be noted that this article makes no reference to indigenous peoples that are citizens of independent states having any right to exercise self-determination. To the contrary, Article 6 of UNGA Res. 1514 states:

“6. Any attempt aimed at the partial or total disruption of the national unity and the territorial integrity of a country is incompatible with the purposes and principles of the Charter of the United Nations.” 7

The articles quoted above imply that indigenous peoples may exercise the right to determine their own political, economic, social and cultural status within the national territory of the State to which they belong only insofar as such exercise does not impair the territorial integrity or national unity of said State.

The right of self-determination of all peoples is also referred to in Article 1, paragraph 1 of the International Covenant on Economic, Social and Cultural Rights:

“1. 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.” 8

This Covenant confirms the right of self-determination to the peoples of non-self-governing and trust territories but makes no mention of indigenous peoples that are citizens of sovereign states. Article 1, paragraph 3 reads:

“3. The States Parties to the present Covenant, including those having responsibility for the administration of Non-Self-Governing and Trust Territories, shall promote the realization of the right of self-determination, and shall respect that right, in conformity with the provisions of the Charter of the United Nations.” 9

Identical language concerning the right of self-determination of all peoples is also contained in Article 1, paragraphs 1 and 3 of the International Covenant on Civil and Political Rights.10 This Covenant similarly makes no reference to any right of self-determination for indigenous peoples living within sovereign states.

After initial adoption in 1981 by the Organization of African Unity, the African (Banjul) Charter on Human and Peoples’ Rights entered into force on 21 October 1986. Article 20, paragraph 1 of that Charter contains very specific language about the right of all peoples to self-determination but the following two paragraphs clarify that this right refers to “colonized or oppressed peoples” seeking to free themselves from “foreign domination, be it political, economic or cultural.” 11 Article 22 declares that “all peoples shall have the right to their economic, social and cultural development...” but then clarifies that the “States shall have the duty, individually or collectively, to ensure the exercise of the right to development.” 12

Article 29 of the Banjul Charter outlines the duties of individual Africans of all States including the following:

“3. Not to compromise the security of the State whose national or resident he is;
4. To preserve and strengthen social and national solidarity...
5. To preserve and strengthen the national independence and the territorial integrity of his country...” 13

Thus, the Banjul Charter balances the collective right of all peoples to seek freedom from foreign domination and to enjoy self-determination in political, economic, social and cultural development with the obligation of all Africans as individuals to support their States’ security, independence, national solidarity and territorial integrity.

The UN General Assembly included extensive language concerning the right of self-determination of peoples in its Declaration on Principles of International Law Concerning Friendly Relations and Co-operation among States in Accordance with the Charter of the United Nations that states inter alia:

“...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...

“...subjection of peoples to alien subjugation, domination and exploitation constitutes a violation of the principle [of equal rights and self-determination of peoples], as well as a denial of fundamental human rights, and is contrary to the [UN] Charter.

“The establishment of a sovereign and independent State, the free association or integration with an independent State or the emergence into any other political status freely determined by a people constitute modes of implementing the right of self-determination by that people...

“The territory of a colony or other Non-Self-Governing Territory has, under the Charter, a status separate and distinct from the territory of the State administering it; and such separate and distinct status under the Charter shall exist until the people of the colony or Non-Self-Governing Territory have exercised their right of self-determination in accordance with the Charter, and particularly its purposes and principles.

“Nothing in the foregoing paragraphs shall be construed as authorizing or encouraging any action which would dismember or impair, totally or in part, the territorial integrity or political unity of sovereign and independent States...” 14

It should be noted that the Declaration concludes in part that “In their interpretation and application, the above principles are interrelated and each principle should be construed in the context of the other principles...The principles of the [UN] Charter which are embodied in this Declaration constitute basic principles of international law...[that should guide] all States...in their international conduct...” 15

This Declaration makes no reference to indigenous peoples within sovereign states having any rights to self-determination. Such peoples may legitimately struggle for equal rights when subjected to discrimination on the basis of race, creed or color but any attempt at secession from a sovereign state by indigenous peoples has no justification or legal basis in international public law.

As recently as 25 June 1993, the text of this Declaration was revalidated when the World Conference on Human Rights adopted the Vienna Declaration and Programme of Action that states in part:

“...Taking into account the particular situation of peoples under colonial or other forms of alien domination or foreign occupation, the World Conference on Human Rights recognizes the right of peoples to take any legitimate action in accordance with the Charter of the United Nations to realize their inalienable right of self-determination.

“...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...” 16

In view of the above, I believe that the right of self-determination applies only to peoples in non-self-governing or colonized territories and not to indigenous peoples or political splinter groups resident within independent sovereign states.

The Exercise of Self-Determination

Historically, the right of self-determination was granted to national liberation movements that struggled on behalf of colonized peoples against the domination of foreign forces. Thus, the UN urged the members of the international community to extend assistance to national liberation movements in order to achieve independence through the use of all legal means – political as well as the use of force. The right of self-determination was exercised by colonized peoples and trust territories in the following ways:

1. By the establishment of a sovereign and independent state. In Africa, this led to the formation of 54 independent nations. Worldwide, more than 80 nations whose peoples were previously under colonial rule have joined the United Nations as sovereign independent states since 1945.

2. By entering into a free association with another independent state. An example of this is the Commonwealth of Puerto Rico which chose free association with the United States of America rather than complete independence as a sovereign state or statehood within the USA.

3. By integration with another independent state. For example, the NW region of Cameroons, a British Trust Territory, elected to join the Federation of Nigeria whereas the southern part of Cameroons joined the Republic of Cameroon.

4. By the merger of two or more regions into a single sovereign state. Such was the case of the Italian Trust Territory of Somalia and British Somaliland which united to form the independent nation of Somalia.

5. By the emergence from colonialism into any other political status freely chosen by the residents of the affected region.

Self-Determination within Independent Sovereign States

In contrast to colonized peoples or those living within Trust Territories, rebel groups within independent states that fight to determine the political, economic, social or cultural development of indigenous peoples are not granted international recognition or legal support for the following reasons:

1. Such groups are not struggling against foreign domination.

2. Any recognition by members of the international community of such rebel groups would be considered as direct intervention in the internal affairs of a sovereign state and such action is considered inconsistent with the purpose and principles of the UN as expressed in its Charter and would be in direct violation of the provisions of international public law.

3. Any international support or recognition of such a rebel group would inevitably lead to political unrest and instability not only in the particular nation housing such group but also in other regions and States within the worldwide community of nations.

This does not mean, however, that indigenous peoples living within sovereign states have no rights that are recognized in international law. As early as 1957, the International Labor Organization developed international standards contained in the Indigenous and Tribal Populations Convention and Recommendation. This early convention has been updated and replaced by the Convention (No. 169) Concerning Indigenous and Tribal Peoples in Independent Countries that was adopted by the General Conference of the ILO in 1989 and entered into force on 5 September 1991. To the best of my knowledge, this is the only international judicial instrument finalized to date that directly addresses the rights of indigenous peoples. It affirms their universal human rights including liberty, equality, health and education; declares certain territorial rights; states that their social, cultural, religious and spiritual values and practices shall be recognized and protected; defines the responsibility of States to consult with indigenous peoples when taking actions that affect them; and mandates that Governments:

“Establish means by which these peoples can freely participate, to at least the same extent as other sectors of the population, at all levels of decision-making in elective institutions and administrative and other bodies...” 17

None-the-less, Convention 169 does not establish any right to independent self-determination or to secession.

A few additional rights are contained in the Declaration on the Rights of Persons Belonging to National or Ethnic, Religious and Linguistic Minorities which clearly emphasizes that respect for national legislation and international public law must take precedence over minority rights. Note especially:

Art. 2, par. 3: “Persons belonging to minorities have the right to participate effectively in decisions on the national and, where appropriate, regional level concerning the minority to which they belong or the regions in which they live, in a manner not incompatible with national legislation.”

Art. 4, par. 2: “States shall take measures to create favourable conditions to enable persons belonging to minorities to express their characteristics and to develop their culture, language, religion, traditions and customs, except where specific practices are in violation of national law and contrary to international standards.“

Art. 8, par. 4: “Nothing in the present Declaration may be construed as permitting any activity contrary to the purposes and principles of the United Nations, including sovereign equality, territorial integrity and political independence of States.” 18

Both the United Nations and the Organization of American States have developed draft documents concerning the rights of indigenous peoples but to this date, neither document has gone into effect nor has any legal standing. Precisely because it is a very progressive document, the UN Draft Declaration19 is “seen as very threatening by many states, and as such its progress has been stalled for several years. Many human rights experts are pessimistic about the potential of this instrument to ever be formally adopted.” 20

The most liberal language concerning the right to self-government is found in the OAS Proposed American Declaration on the Rights of Indigenous Peoples approved by the OAS Inter-American Commission on Human Rights on 26 February 1997 but as yet not entered into force:

“Article XV. Right to self government

1. Indigenous peoples have the right to freely determine their political status and freely pursue their economic, social, spiritual and cultural development, and accordingly, they have the right to autonomy or self-government with regard to inter alia culture, religion, education, information, media, health, housing, employment, social welfare, economic activities, land and resource management, the environment and entry by nonmembers; and to determine ways and means for financing these autonomous functions.

2. Indigenous peoples have the right to participate without discrimination, if they so decide, in all decision-making, at all levels, with regard to matters that might affect their rights, lives and destiny. They may do so directly or through representatives chosen by them in accordance with their own procedures. They shall also have the right to maintain and develop their own indigenous decision-making institutions, as well as equal opportunities to access and participate in all state institutions and fora.

“Article XVI. Indigenous Law

1. Indigenous law shall be recognized as a part of the states' legal system and of the framework in which the social and economic development of the states takes place.

2. Indigenous peoples have the right to maintain and reinforce their indigenous legal systems and also to apply them to matters within their communities, including systems related to such matters as conflict resolution, crime prevention and maintenance of peace and harmony.” 21

It should be noted that Article XXVI states: “Nothing in this Declaration may be construed as permitting any activity contrary to the purposes and principles of the OAS, including sovereign equality, territorial integrity and political independence of states.” 22 Thus, in spite of its liberality, even this document offers no legal support for self-determination that threatens territorial integrity or leads to secession from a sovereign state.

Relationship between Self-determination and Secession:

There is no legal connection between the principle of self-determination and secession for the following reasons:

1. The principle of self-determination is a legitimate right of colonized peoples and peoples inhabiting Trust Territories and other non-self-governing territories as recognized in the provisions of international public law as expressed in the UN Charter and many other international conventions.

2. Secession is an illegitimate action taken by separatists. It has no legal foundation in international public law. As an internal affair, it is considered subject to the jurisdiction of each independent sovereign state.

3. States have the right under international public law to preserve their territorial integrity, sovereignty and national unity by all legal means including the legitimate use of the State’s armed forces to prevent separatist rebel groups from achieving secession. See especially Part I, Article 3 of the Protocol Additional to the Geneva Conventions of 12 August 1949, and Relating to the Protection of Victims of Non-International Armed Conflicts (Protocol II):

“Article 3. Non-intervention

1. Nothing in this Protocol shall be invoked for the purpose of affecting the sovereignty of a State or the responsibility of the government, by all legitimate means, to maintain or re-establish law and order in the State or to defend the national unity and territorial integrity of the State.

2. Nothing in this Protocol shall be invoked as a justification for intervening, directly or indirectly, for any reason whatever, in the armed conflict or in the internal or external affairs of the High Contracting Party in the territory of which that conflict occurs.” 23

4. Secession may be considered legitimate only if it is formally accepted by the governing authority of the particular independent state in which such action is proposed and if such acceptance is then ratified by popular vote of all citizens of said state.

Historically, the African continent has seen “at lease 23 significant secessionist movements since the Second World War” as reported by Bruce Baker in “Secession in Africa: A Doomed Escape Strategy.” 24 These movements have been characterized by cultural/social groups seeking to withdraw (by negotiation or by force) the geographic region they occupy from the control of the sovereign state of which they are a part. Such movements have almost always been failures.

Conclusion:

The right of self-determination of peoples was essentially adopted by the UN for the purpose of eliminating and terminating colonialism which was itself explicitly in contradiction of the purpose and principles of the UN and a direct violation of the human rights and fundamental freedoms of man. All the legal instruments that advocate and support the right of self-determination are based on the provisions of Article 1, paragraph 2 of the UN Charter.

The exercise of self-determination is confined to colonized peoples and the inhabitants of Trust Territories and other non-self-governing entities. Indigenous peoples citizens of independent states may not claim the right of self-determination under the provisions of international law. Their rights to determine their own political status, economic, social and cultural development are principally governed by the ILO’s Convention (No. 169) concerning Indigenous and Tribal Peoples in Independent Countries as referenced above.

The secession of any indigenous group or any geographic region from the territory of an independent sovereign state is an internal affair of such state and is not an appropriate subject for international support or intervention. No such secession can be considered valid unless it is formally approved by the governing authority of such state and ratified by the popular vote of all citizens of the state.

In the specific case of Sudan, the freedoms sought by the southern rebels are the same freedoms which a free, representative and democratically elected government should guarantee to all its citizens. The struggle to obtain these freedoms should be waged for the benefit of all Sudanese and not simply to secure the secession of the southern region. The military dictatorship of Gen. Omar al-Bashir is not representative of the people of Sudan and has no legitimate authority to accept the terms of the proposed peace settlement. Finally, the referendum proposed in the Machakos Protocol to determine the future unity or division of the nation is invalid because only residents of the southern region will be entitled to vote.

About the Author:

A native of Sudan, Mousa M. Elbasha received his LLB and LLM from the University of Cairo and his LLD from the University of Warsaw. His post-doctoral thesis, “The Islamic State in Theory and Practice,” provides a detailed examination of the governments of Sudan, Iran and Saudi Arabia. A staunch proponent of democracy, Dr. Elbasha has publicly opposed the military dictatorship of General Omar Al-Bashir. In 2000, Dr. Elbasha was granted political asylum in Mexico and since 2001 he has taught in the Dept. of RI.