Should the New Republic Called Azawadi Be Recognised as an Independent State - Essay Example

?Should The New Republic Called Azawadi Be Recognised As An Independent Introduction The Azawadi declaration of independence has gained the attention of the legal fraternity worldwide because of its complicated legal nature according to international law and the general ambiguity exhibited by international law in matters of self-determination and statehood. This paper tends to evaluate the intensity of the issue giving specific focus to legal and ethical considerations, prevailing international laws, and previous case studies with intent to examine the scope of Azawadi’s recognition. The history of Azawadi independence The history of Azawadi independence can be traced back to 1916 when the Tuareg started rebellion in Mali. As their rebellion failed, the fighters left for Libya and joined Libyan Army. However, as the Libyan Arab Jamahiriya was defeated in 2011, many of these fighters came back to the Azawadi region of Mali1. On coming back, many of these groups joined together and declared that they would be fighting for the liberation of all peoples of Azawad, including Songhal, Arab, Fula, and Taureg2. These various fractions joined together to form the National Movement for the Liberation of Azawad (MNLA). According to its official website, MNLA consists of ‘old rebels from MFUA of 1990s, the members of 2006 MTNM, fighters who returned from Libya, volunteers from various ethic groups in northern Mali and various soldiers and officers who have let Mali Army (MNLA Website). MNLA started its armed agitation in January 2012. Soon, there were various attacks on various places including Anderamberkane, Menaka, Tessalit, Niafunke, and Aguelhoc. Soon, by March, bigger cities like Kidal, Gao, Tinzawaten, and Timbuktu were under the control of MNLA ((ibid). After capturing Timbuktu, almost the whole northern region of Mali was under the control of MNLA. It was made clear by MNLA that it wanted to dislodge all of the military and political institutions of Mali from the northern region. On 6th April, it was declared by the MNLA spokesperson that Azawad had become an independent state. Also, the movement claimed that it would act as a provisional administration until a new government is established. Though there were claims in the beginning that the MNLA is secular, later on, MNLA and Ansar Dine decided to merge to form an Islamic state. More interestingly, the parties have failed to continue with the pact as MNLA has withdrawn from the same. as a result, presently, MNLA and Ansar Dine are in conflicts, and this resulted in the Battle of Gao on 27th June. Through this move, the Ansar Dine and the Movement for Oneness and Jihad in West Africa (MOJWA) drove MNLA out of Gao city. Soon, Ansar Dine declared that it is in total control of all the cities in Azawad. The reasons behind the rebellion In fact, the Tuaregs are semi-nomadic people in the Saharan and Sahelian areas of Southern Algeria, Western Libya, northern Mali, northern Niger, and northeast Burkina Faso3. According to present day census, their number is around 1.5 million. They possess a combination of Islam and tribal practices. Thus, they do not belong to pure Islamism that is monotheistic in nature. As colonisation came, the nomads lost their freedom movement from place to place as territories were strictly guarded. Also, these people became further isolated from centres of power. Though they had constant conflict over issues of autonomy, there were repeatedly defeated by the military might of colonial powers. When Mali gained independence, Tuaregs were in more trouble as they allegedly faced discrimination from the part of the southern ethnic groups which governed Mali. Secondly, they feared that their culture would be diluted as modernisation comes. Thus, they continued their agitation on and off. As the Mali president Moussa Traore realised that a military solution would be too dearer to bear, he held discussions with the Tuareg and reached the Accords of Tamanrasset. According to the Accord, a cease-fire was to be established, prisoners were to be exchanged, the presence of army personnel in the northern area was to be reduced, army personnel were to be removed from civil administration, and a process of administrative decentralisation was to be started. However, these all promises were not kept. So, the Tuaregs again started their agitation. The years 1970s and 1980s witnessed extreme droughts in the region. As there was no support from the Mali government, the Tuaregs moved to various places including Libya and Algeria. So many of them joined the Libyan army. However, later on, some were expelled and some came back with a lot of weaponry. They added further momentum to the rebellion through the creation of MNLA. The point here is that MNLA is not fighting for geographical expansion or land, instead, their fight is for cultural preservation and self determination. The question of self-determination Admittedly, all people have the right to self determination. That means a people can decide its own form of economic, social and cultural development. Admittedly, the right to self determination has been recognised by various international and national laws. To illustrate, the preamble to the Charter of the United Nations acknowledges the right for self determination4. In addition, International Covenant on Civil and Political Rights and International Covenant on Economic (n.d.), Social and Cultural Rights admit this right to self determination. According to the Covenant, all peoples have their right to self-determination. By virtue of that right, they freely determine their political status; and freely pursue their economic, social and cultural development5. There are various other laws and declarations which accept the right for self determination. To illustrate, The Declaration of Principle of International Law Concerning Friendly Relations and Cooperation Among States, which was adopted by UN General Assembly on 1970, the Organisation for Security and Cooperation in Europe’s Helsinki Final Act, the African Charter of Human and People’s Rights of 1981, the CSCE Charter of Paris for a new Europe dated 1940, and the Vienna Declaration and Programme of Action of 1993, all acknowledge this right for self determination. Furthermore, the International Court of Justice has proved its position in self determination issues in Western Sahara case, East Timor case, and the Namibia case. Also, right to self determination is acknowledged by the UN Human Rights Committee and the Committee on Elimination of Racial Discrimination. The concept of self determination is evidently seen in Articles 1(2) and 55 of the UN Charter. According to Article 1(2), the purpose of UN is to “develop friendly relations among nations based on respect for the principle of equal rights and self determination of peoples6”. Similarly, Article 55 directs the UN to ensure higher standards of living, solutions to health and cultural problems, and universal respect for human rights (Articles 1(2), 55, UN Charter). AU and OAU Charters addressing the issue of self determination Article 20 (1) of the African Charter on Human and Peoples’ Rights points out that “all people shall have the right to existence. They shall have 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”7. Also, Article 20(3) points out that all people have the right to free themselves from the bonds of domination by resorting to any means. Another striking point is that according to the AU Constitutive Act 2000, AU has the right to intervene in any member states’ affairs8. For example, the Decision on Unconstitutional Changes in Member States (1999) suggests that necessary measures for conflict prevention in case of coup d’etat situations. Following this, the 2000 Declaration on the Framework for an OAU Response to Unconstitutional Changes of Government has pointed out that the organisation has the right to interfere if there is an unconstitutional change in any member state. Also, after a period of six months during which negotiations will take place, the OAU will introduce sanctions against the regime that refuses to restore order9. Recognition of states and governments in international law Admittedly, there are two important international theories that deal with the recognition of states. The first one is the constitutive theory. According to this concept, states and governments do not exist until they are recognised by the international community10. It is crystal clear in the case of Azawadi that it does not receive any recognition from any of the international bodies. The declarative theory points out that a state or government gains recognition when it comes into existence11. If this is the case, the state of Azawadi deserves to be accepted as an independent state because it has come into existence despite the lack of recognition by other states. Admittedly, it is possible for Azawadi people to claim that they deserve independence and recognition as a state because according to Article 3 of the Montevideo Convention (1993), “the political existence of a state is independent of recognition by the other states”12. On the other hand, the constitutive theory raises the question of a state being recognised by some states and not by other states. Moreover, this theory has the loophole that it becomes impossible to eliminate the possibility of aggression against unrecognised states. Thus one gains the insight that the declaratory theory is more suitable for practice in the case of recognising states in the international sphere. In the opinion of Cassese13, it is because of these issues that the international community has decided to set a list of some minimum standards to be met by a state to be called an independent state. To illustrate, the ‘Declaration on the Guidelines on the Recognition of new States in Eastern Europe and the Soviet Union (16 December 1991)’ (2010) points out that first of all, a state should respect the provisions of the Charter of the United Nations and the various commitments under the Helsinki Act and the Charter of Paris, which deal with rule of law, democracy, and human rights. Secondly, the guidelines stipulate that a state should guarantee the rights of ethnic minorities and other national groups in accordance with the provision of international law14. The third important point according to the guidelines is that the state should respect the inviolability of all frontiers (ibid). In the case of disputes regarding frontiers, the states should adopt peaceful means. Admittedly, the use of force by Azawadi people will have a very negative impact on their desire to be recognised as an independent state because of their use of force. Most importantly, the guidelines make it clear that the European Community will not recognise a state which took birth as a result of aggression. Admittedly, Azawadi had its birth through a lot of armed aggression, and hence, the region loses the rights to be recognized as a state. In the opinion of Aust15, there are two forms of recognition. They are de facto recognition and de jure recognition. While the former is dependent on the current position of the state, the latter is dependents on the entity fully meeting international legal criteria to be recognised as a state. Admittedly, the area is rather ambiguous. One can say that de facto recognition arises when the entity shows that it has a considerable degree of power to control the affairs of the region. This recognition often accompanies the attitude of ‘wait and see’ in the international sphere. However, de jure recognition is more complicated and hence more powerful16. In this case, the entity needs to meet the various international standards set to be recognised as a state. Admittedly, Azawadi fails in these two areas because it has failed to achieve any of these recognitions. However, it is possible for the Azawadi region to claim recognition based on the history o Bosnia-Herzegovina and Croatia. It is possible to claim that the origin of Azawadi is based on secession. In the two cases, the states received recognition before they could meet the required international regulations. Admittedly, one can see that such premature recognition occurred in the above two cases where there was no government that had effective control over the territory at the time of recognition. Based on these evidences, it is possible for Azawadi to claim that it deserves recognition as an independent state. Admittedly, Azawadi is going to face the threat of Stimson Doctrine. According to the doctrine, recognition should not be given to such new entities of factual positions which are created through illegal actions or through the use of force. The doctrine claims that legal rights cannot be obtained through illegal actions or situations. If this principle is followed, one can say that Azawadi loses its right to statehood because it has evidently used armed aggression as a means to achieve their goals17. Thus, they cannot expect recognition from international sphere. Similarly, according to the Pact of Paris, Article 2, all parties are supposed to settle their disputes through pacific means. In addition, the members are not supposed to recognise any situation, treaty, or agreement which may be brought about by means contrary to the Covenant of the League of Nations or to the Pact of Paris. That means states cannot, and must not; recognise the existence of Azawadi as an independent state because of their use of force. Admittedly, the UN Charter Article 2 (4) points out that “All members shall refrain in their international relations from the threat or use of force against the territorial integrity or political independence of any state, or in any other manner inconsistent with the purposes of the United Nations”18. In addition, the draft Declarations on the Rights and Duties of States and the Security Council Resolution 242 (1967) on the solution to the Middle East conflict point out that states have the duty refrain from recognising any territorial acquisition through threat or force or any other means inconsistent with the international law. Evidently, the term recognition is rather complicated in nature because it can be in various forms. It is claimed by the constitutive theory that a state can become a state only through recognition by other states and international bodies. It is with this insight that Shaw has claimed that the most powerful evidence of statehood recognition is the membership in United Nations. In this case, one can say that Azawad does not meet the criteria. To illustrate, most nations are not ready to accept the existence of the state. It is seen that African Union is strongly against the independence and statehood of Azawad. In fact, the African Union has rejected the existence of Azawadi and requested all other world nations to ignore the existence of Azawad. Similarly, the Economic Community of West African States (ECOWAS) pointed out that it would take all necessary steps including the use of force to ensure that the territorial integrity of Mali is protected. In a similar way, European Union has made it clear that it would respect the territorial integrity of Mali and also that accepting the declaration of independence by Azawad is a matter out of question. Thus, it becomes evident that if recognition is purely constitutive, Azawadi would not be recognized as a state. On the other hand, declaratory theory claims that a state becomes a state when it comes into existence. If this is the case, it is possible for the region to claim that it is an independent state. However, the problem is that international law does not clearly mention the criteria to get recognition as a state. The Guidelines on the Recognition of New States in Eastern Europe Eastern Europe and in the Soviet Union, which is adopted by all the European Union member states, set a number of minimum standards for claiming statehood. They include ensuring a minimum standard of the rule of law, exhibiting the presence of democracy and human rights, offering minority rights, accepting the inviolability of existing boundaries, and meeting all the commitments in connection with disarmament and rules and regulations regarding arbitration. Now, a look back into the issue of Azawad proves that it does not meet any of these criterions. First of all, it has made itself clear that it does not have a government. Also, the fractions within the state are engaged in constant conflicts and there is no entity that can ensure absolute power over the region. As reports show, the MNLA and Ansar Dine are engaged in constant conflict for power even before the state received recognition. This reveals that the state does not have any rue of law on its own and it still exists as a place of anarchy. Secondly, the Ansar Dine has forcefully driven out MNLA and claims that the state will be made an Islamic state. This shows that the state will not be able to ensure human rights and democracy. Thus, one gains the insight that the state has no validity. In the General Theory of State, George Jellineck pointed out as early as in 1900 that a state becomes a state when it has three elements. The first element is a population. Admittedly, the area of Azawadi has a population that wants to become independent from Mali. The second important criterion is a territory. Evidently, Azawad has a certain territory within its control and hence, it meets the second element too. The third important point is ‘an effective public authority’. It is at this point that Azawad fails utterly. This is so because the area is still facing extreme levels of anarchy. Thus, one can say that this element does not exist in Azawad. Admittedly, the concept of public authority has two aspects. First of all, it should possess the right and power to determine the constitution of the state. This is termed as ‘internal sovereignty’19. In the case of Azawad, this factor is in dispute as there are various groups claiming absolute authority over the region and as they are in constant fight. Another aspect of public authority is ‘external sovereignty’. This means that the state should not be dependent on external parties. However, in the case of Azawad, there are allegations that the region receives active support from Al-Qaeda and other terrorist organisations. In fact, one can see that the international law only sets one criteria to recognise a state, that is, it should be able to effectively control its territory. Evidently, all the groups including MNLA and Ansar Dine have failed to effectively control the region. In fact, Mali has lost its total control over Azawad and failed to protect its people from the rebellions and unrest. Similarly, MNLA and Ansar Dine failed to claim absolute authority. Despite claims, they are in constant fight with each other. Thus, both the parties do not meet the criteria. However, international law points out that a government can still be considered as a government even if the territory is under the forceful occupation of a foreign force or even if its is under the control of a de facto government. Thus we can see that as MNLA and Asar Dine have used excessive armed force in violation of international law to capture the region and have failed to get recognition as a government, Mali government can still be considered as the government of Azawadi region. However, there seems a positive point in favour of Azawadi independence. That is there is no provision in the international law which makes it necessary that a de facto government should be democratically elected. That means even if there are various scholarly works which claim that such a criteria should be set, the international law does not demand so. However, the Security Council preamble strongly points out that sovereignty and territorial integrity of any nation should be respected. Moreover, the use of force for the acquisition of any territory is strongly opposed by the UN. At this point, there are two important aspects which deserve to be examined. They are the uti possidetis and self determination. In fact, uti possidetis was developed to see that the traditional territorial boundaries are respected. However, this goes in sharp contradiction with the principle of self determination. In the case of Burkina Faso vs. Mali case, the court opined that there exists an obligation to respect pre-existing boundaries in the case of a state succession. The mere fact is that when uti possitiditis is applied, states will have to ignore issues like cultural and ethnic differences. The three requirements, according to international law, are to become a state are a territory, a population, and recognition by other states20. Admittedly, Azawad is capable of gathering territory and population. However, it has totally failed to receive recognition from other states. In fact, Article 1 of the Montevideo Convention on Rights and Duties of States (1933) maintains that a state should ‘have a permanent population, a defined territory, a government, and the capacity to enter into relations with other states’. Admittedly, Azawad has a permanent population and a territory. However the state does not have a government nor it has the ability to enter into relations with other states. Evidently, various forces including MNLA and Asar Dine continue claiming absolute authority over the region. So what they do cannot be considered as meaningful relations or interactions in the international sphere. Similarly, the Arbitration Committee of the European Conference on Yugoslavia states in Opinion No. 1 that “the state is commonly defined as a community which consists of a territory and a population subject to an organised political authority”21. Moreover, according to the Commission, the state should be ‘characterised by sovereignty’22. In fact, Azawadi has succeeded in achieving the first two criteria. First of all, it has a permanent population. Also, this claim cannot be disputed because according to international law, there is no stipulation regarding the minimum number of people required to establish a state. Secondly, there is territory also because though it is said that territory is required, the international law does not say that it is necessary to have well-established boundaries. In fact, this stand of the International Court has become evident in the North Sea Continental Shelf Cases. In the case, the court declared that “there is no rule that the land frontiers of a state must be fully delimited and defined23. Thus, it becomes evident that Azawadi cannot be denied its right to statehood based on the uncertainty regarding the boundaries. However, the state fails in meeting the remaining two criteria. First of all, a state needs to show that it has a government that functions as an effective means of administration and that it functions according to the law of the land. However, again, it becomes possible for the state to claim statehood because according to Shaw, the existence of a government is not required to get recognition as an independent state. Thus, even though there is the defect that Azawadi failed to create a political body that shows sovereignty, it cannot be denied recognition as a state on the basis of the absence of a government. The last important point is the capacity to enter into relations with other states. This criterion deals with the ability to be independent. In simple terms, a state should be able to enter into meaningful and effective relations with other states24. In order to understand the general legal rights of a state, one should read the work by Crawford who gives a list of the legal characteristics of states. According to him, the first characteristic of a state is that it has the legal competence to enter into acts like making treaties in the international sphere25. The second important point to be learnt from the work is that an independent state is not subject to international process without its consent. Admittedly, Azawadi is not free from the international actions as various international unions including the AU and ECOWAS have declared that they would do the needful to see that the territorial integrity of Mali is protected. Another important point is that an independent state is entitled to gain from the Lotus decision. In the famous decision, it is held that “international law governs the interactions between independent states. The rules of law binding upon states therefore emanate from their own free will. Restrictions upon the independence of states cannot therefore be presumed”26. Evidently, this will have an adverse impact on the wishes of Azawadi people. This is so because as far as the place fails to have a stable government that shows both internal and external sovereignty, it is unlikely to be recognized as a state. Secondly, there is no international law that will restrict Mali from using force to retain its territorial integrity. Points in favour of Azawadi Admittedly, there are various points in favour of Azawadi. First of all, in the case of East Timor, the International Court of Justice pointed out that “the principle of self determination has been recognised by the United Nations Charter and in the jurisprudence of the court…and is one of the essential principles of contemporary international law”27. Moreover, most of the important international conventions, covenants and agreements point out that the self determination rights of people should be protected. The second important point is that Mali has failed to respect its own Accords of Tamanrasset, thus presenting itself unreliable in international community. By engaging in armed suppression instead of peaceful means, Mali has violated international law because Article 2 of the Pact of Paris and various other laws point out that dispute should only be settled through peaceful means. Points against Azawad According to the literature on international relations and self determination, the main elements of statehood are a territory, population, and government. In the case of Azawad, the people cannot claim that they have an effective government. Secondly, Azawadi people have made the mistake of using force to gain control over the territory. Evidently, the Stimson Doctrine has made it clear that a status achieved through illegal means cannot be given legal recognition. Following this, as Pact of Paris Article 2 points out, disputes must be settled through pacific means. Thus, Azawadi again committed an act of illegality. ECOWAS intervention and international law According to article 39 of UN Charter, Chapter VII, the UN Security Council has the authority to decide the existence of any threat to the peace or act of aggression and this authority holds the power to make recommendations regarding further measures. Similarly, from articles 41 and 42 of the same chapter, it is clear that ECOWAS cannot interfere in the issue without the prior approval of UN. Thus, ECOWAS does not have the legal right to interfere in the issue at this juncture. However, it seems that according to AU and OAU decisions, it is possible for the AU to interfere in case of any unconstitutional changes or human right violations in any member state. Thus, it may be possible that ECOWAS can interfere even without the permission from UN. Conclusion In total, it becomes evident that the issue of Azawadi is rather complicated in international law. According to UN principles, it is possible to give Azawadi statehood though it has erred by using armed force. However, according to AU and OAU principles, the effort by MNLA to capture cities using armed force can be called unconstitutional changes in government. So, it is possible for AU to support Mali and suppress the demands of MNLA and not give recognition to Azawadi as an independent state. So, the solution out is to have a meeting of representatives of Mali, Azawadi, UN and AU, and reach a decision regarding the independence of Azawadi. Azawadi can be given a limited period of time to prove that they can make an effective and sovereign government and that they can ensure human rights and law and order. If they elect government democratically and law and order prevails, the state can be acknowledged as independent state. Bibliography Aust, A. (2005), Handbook of International Law. Cambridge University Press. NY. Brownlie, I. (2008), Principles of Public International Law. Oxford University Press. Cassese, A. (2004), International Law, 2nd ed. OUP Oxford. Crawford, J. (2007), The creation of states in international law. Oxford University Press. Focarelli, C. (2012), International Law as Social Construct: The Struggle for Global Justice. Oxford University Press. Malanczuk, P (Ed.). (1997), Akehurst's Modern Introduction to International Law. Routledge. NY. Shaw, M. N. (2003), International Law, Cambridge University Press. Websites African Charter on Human and Peoples’ Rights. (n.d.). [Online] Available at http://www.africa-union.org/official_documents/treaties_%20conventions_%20protocols/banjul%20charter.pdf [accessed 13 Dec 2012]. Charter of the United Nations. (n.d.), UNO. [online] Available at http://www.un.org/en/documents/charter/preamble.shtml [Accesed 13 Dec 2012]. International Covenant on Civil and Political Rights. (n.d.). OHCHR. [Online] Available at http://www2.ohchr.org/english/law/ccpr.htm [accessed 13 Dec 2012]. International Covenant on Economic, Social and Cultural Rights. (n.d.). OHCHR. [Online] Available at http://www2.ohchr.org/english/law/cescr.htm [accessed 13 Dec 2012]. MNLA Website, http://www.mnlamov.net/ [Accesed 13 Dec 2012]. Web Documents Atallah, R. (n.d.), The Tuareg Revolt and the Mali Coup, Lt (Col). [online] Available at http://www.metransparent.com/spip.php?page=article&id_article=19106&lang=en [Accessed 13 Dec 2012]. Declaration on the Guidelines on the Recognition of new States in Eastern Europe and the Soviet Union (16 December 1991). (2010), International Law. [Online] Available at http://www.dipublico.com.ar/english/declaration-on-the-guidelines-on-the-recognition-of-new-states-in-eastern-europe-and-in-the-soviet-union-16-december-1991/ Decision on Unconstitutional Changes in Member States. (1999). [online]. Available at http://www.chr.up.ac.za/images/files/documents/ahrdd/theme39/change_of_govt_decision_unconstitutional_changes_member_states_1999.pdf [Accessed 13 Dec 2012]. Declaration on the Framework for an OAU Response to Unconstitutional Changes of Government. (2000). [online]. Available at http://www.chr.up.ac.za/images/files/documents/ahrdd/theme39/change_of_govt_declaration_framework_oau_2000.pdf [Accessed 13 Dec 2012]. Gawanas, B. (2009). The African Union: Concepts and implementation mechanisms relating to human rights. In Bosl and Diescho (Eds) Human Rights in Africa. 137. [online]. Available at http://www.kas.de/upload/auslandshomepages/namibia/Human_Rights_in_Africa/6_Gawanas.pdf [Accessed 13 Dec 2012]. Gawanas, B. (2009). The African Union: Concepts and implementation mechanisms relating to human rights. In Bosl and Diescho (Eds) Human Rights in Africa. 137. [online]. Available at http://www.kas.de/upload/auslandshomepages/namibia/Human_Rights_in_Africa/6_Gawanas.pdf [Accessed 13 Dec 2012]. Montevideo Convention on the Rights and Duties of States. (1933). Council on Foreign Relations. [Online] Available at http://www.cfr.org/sovereignty/montevideo-convention-rights-duties-states/p15897 [Accessed 13 Dec 2012]. Ragazzi, M. (1992), ‘Conference on Yugoslavia arbitration commission: Opinions on questions arising from the dissolution of Yugoslavia’. International Legal Materials 31, (6), pp. 1488-1526. Statehood and recognition. Available at http://fds.oup.com/www.oup.co.uk/pdf/0-19-922842-6.pdf [Accessed 13 Dec 2012]. Yamali, N. (n.d.), What is meant by state recognition in international law. Ministry of Turkey. [Online] Available at http://www.justice.gov.tr/e-journal/pdf/LW7081.pdf [Accessed 13 Dec 2012]. Cases North Sea Continental Shelf Cases. Summary of the Summary of the Judgment of 20 February 1969. International Court of Law. [Online] Available at http://www.icj-cij.org/docket/index.php?sum=295&code=cs2&p1=3&p2=3&case=52&k=cc&p3=5 [Accessed 13 Dec 2012]. Read More