Monday, January 17, 2011

The Southern Sudan to Vote on Secession: A Precedent-Setter or Sui Generis?

The people of Southern Sudan recently voted in a public referendum on whether they want to separate (secede) from the state of Sudan (click here for the full story: Sudan has been plagued by a bloody civil war for the last decade. The vote in a week-long referendum is the last step in a United States-backed peace plan. However, tensions and uncertainty remain. For one, the vote itself has been accompanied by reports of violence (click here for the full story: More importantly, it is unclear how the Sudanese president, Omar al-Bashir, will react to the results of the referendum. Full results are not expected before February, and although al-Bashir has promised to allow the south to secede if the results of the referendum pointed toward that direction, it is unclear whetheral-Bashir will respect his word. After all, he has been indicted in the International Criminal Court (ICC) and has been accused of sponsoring violence in the southern region of Darfur, which has claimed the lives of thousands of Sudanese over the last several years. The south contains most of the country's oil reserves, and is an important natural resource to the Khartoum government. The civil war in Sudan has opposed the mostly Muslim Arab north and the Christian and animist south, with the north attempting to retain its control over the oil-rich south. Thus, despite al-Bashir's assurances to the contrary, it is uncertain that the northern government will respect its promise and allow the south to secede peacefully. According to the 2005 peace plan, if the south were to vote yes on the issue of secession, then the actual secession wouldn't take place until July 2011, and further negotiations may be needed to hash out issues like border lines, water rights, and the Sudanese overwhelming debt.
The Sudanese secession triggers important issues in international law and politics. Secession, although allowed under international law, remains frowned upon in practice. Examples of successful secession have been rare, excluding possibly the most recent example of Kosovo. In that case, the International Court of Justice even went as far as to proclaim that the Kosovar unilateral declaration of independence, leading to its secession from Serbia, was legal. Yet, the United States State Department, as well as several other governments, although supportive of Kosovo, have called its case sui generis, probably for fear of precedent-setting for future separatist groups. In fact, such groups in places as South Ossetia and Abkhazia have already relied upon the Kosovo precedent to claim secession rights. Significantly, countries which haven't recognized Kosovo as a new state virtually all have important separatist movements functioning within their borders and are too afraid to support even a sui generis Kosovo. Thus, what will the recent example of southern Sudan do for international law and the right to secession therein? Is Sudan sui generis like Kosovo, or is it a precedent for the idea that if a people's rights are abused by its mother state, it accrues the right to so-called external self-determination, leading toward remedial secession. If the people of southern Sudan deserve independence, should Tibetans, South Ossetians, and Abkhazians also get their own states? Should courts, scholars and politicians fully endorse the right to remedial secession in all such instances? Or, will the world witness a bunch of sui generis Kosovos and southern Sudans in the future, without any significant changes brought thereby to the international law of secession? I fear the latter, but as an academic support the former. And hope for a peaceful and precedent-setting secession of southern Sudan.

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