Doctrine of Self Determination, Naivasha Agreement of 2005 - Essay Example

A critical analysis of the application of the doctrine of self determination in the context of South Sudan with reference to the Naivasha Agreement if 2005 1. Introduction The efficacy of international law as an enforceable legal concept at state level has perpetuated polarised academic discourse. On the one hand some commentators argue that the notion of international law enforceability is based on an implied mutuality of compliance by states. Conversely, some academics question the extent to which the system of international law actually facilitates international order due to the gap between theory and practice1. Furthermore, a central issue at the heart of this debate is how far the concept of the state and state interests serve to limit the application of international law. Moreover, this issue is central to the efficacy of international law as a regulatory mechanism particularly in human rights issues as a gap between theory and practice clearly undermines the objectives of both customary international legal principles and UN Charter provisions.2 Directly correlated to this is the concept of “state” and “inter-state relations”, which in terms of individual human rights protections at international level has become a central issue particularly in context of rapid globalisation3. Furthermore, the complex notion of state and the role of ethnic groups within states have challenged colonial geographic boundaries of the state4. In turn, the changing nature of the global order in the post Cold War environment has created novel conflict scenarios and significantly reshaped the dynamics of conventional warfare5. This has challenged pre-existing international legal principles, which is highlighted by the problematic doctrine of self determination and its boundaries in international law6. The doctrine of self determination has remained contentious in international law as whilst the objective of the doctrine as expressed in the UN Charter 19457 was arguably triggered by the increasing desire for decolonisation; the practical consequences has often seen the doctrine of self determination being utilised to perpetuate conflict8. This paper evaluates the application of the doctrine of self determination with a contextual reference to Southern Sudan and the 2005 Naivasha Agreement, which enables the Southern part of Sudan to vote on its legal status in a referendum in January 2011. It is submitted at the outset that the 2005 Naivasha agreement highlights the conflict between the subjective interpretation of the doctrine of self determination and legality under established international legal principles. Therefore, in evaluating the doctrine, Section 2 will consider the models of self determination and the legal basis for self determination. Section 3 will evaluate the Naivasha agreement and the issues which arise regarding self determination under international law, followed by a conclusion in Section 4. 2. Two Models of Self-Determination & Legal Boundaries The immediate aftermath of the Second World War significantly altered the balance of power in colonised states, with the increasing demand for transfer of power from the colonisers to the indigenous people. A method of achieving this was through the concept of self determination. However, whilst the theoretical justification for self determination was contextually meritorious, it has remained an ambiguous concept under international law and created challenges within the international legal framework as a result of the growing reality of “postmodern tribalism”9. As a result, Castellino highlights the point that in the contemporary framework of international relations, self determination has become “all things to all men”10. However, the specific problem which arises under international law is the extent of minority rights in exercising the right to self determination. On the one hand, it is evident that the rights of minorities are central to the theoretical conception of self determination however this falls short of having an absolute right to self determination11. Another problem is the fact that countries such as Sudan have suffered from long term internal conflict and civil wars, which has led to the proliferation of self determination settlements in order to address internal armed conflict such as the Naivasha agreement 200512. However, this has left the same questions as to whose interests are entitle to take priority in applying the self determination doctrine and whether self determination actually results in foregoing secession for internal autonomy on the basis of securing stability and national protection13. This in turn highlights the problem between legal theory and practice, particularly as the colonial boundaries in certain territories did not always take account of tribal and ethno-national differences. On this basis, the legal doctrine of self determination is arguably at odds with the theoretical basis of self determination and in some cases fuels the potential for further conflict. For example, Koskenniemi argues that there are two models of self determination; which are as follows: 1. The classical model; and 2. The secessionist model14. The first model refers to the conventional concept of statehood, which governs “artificial communities”, and the secessionist model is focused on the end to which it is exercised, “whether it participates in the natural life form appropriate for each nation as an authentic and not artificial community”15. Arguably, it is the conflict between these self determination paradigms which lies at the centre of the current debate in international law regarding the application of the doctrine. This is exemplified by the Naivasha Agreement 2005, which appears to implement a model of the doctrine in line with the secessionist paradigm, which is at odds with the classical model of self determination implemented by the United Nations Charter 1945 and General Resolution 1541 (1960) which appears to restrict the exercise of self determination to either: a) forming a separate state; b) integrating with an existing state, or c) Associating with an existing state16. Therefore, this would suggest that interpretation of the doctrine of self determination under international law enables state autonomy in internal political affairs, in addition to the right to non-interference. With regard to the legal sources of the doctrine, Chapter 1, Article 1 part 2 of the United Nations Charter 1945 provides the right of nations to “self determination of peoples17”. Furthermore, Article 1 in the International Covenant on Civil and Political Rights (1976) and Article 1 of the International Covenant on Economic, Social and Cultural Rights (1976) provide 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 development18”. Similarly, Article 15 of the United Nations Universal Declaration of Human Rights (1948), provides the innate right to nationality, which cannot be denied or prevented.19. Accordingly, the legal parameters of self determination ostensibly implement a classic model which is restrictive. However, as evidenced by the example of South Sudan and the Naivasha Agreement 2005, states have implemented a secessionist interpretation of self determination. Furthermore, under the wide interpretation of self determination, states have the right to define borders of the state and define what comprises the nation state. In turn, this interpretation of the self determination doctrine has created conflict as to the legal basis upon which states can validly rely on the doctrine, which has also served to highlight the intrinsic limitations of the doctrine under international law20. For example, Weller comments that the right to self determination “often encapsulates the hopes of ethnic peoples and other groups for freedom and independence”21. However, notwithstanding the international legal provisions, there is no express provision providing for full independence in terms of the interrelationship between self government and self determination, and this ambiguity is compounded by the lack of efficient enforcement at international level22. Moreover, academic discourse has highlighted the reality that the doctrine of self determination has in fact been utilised as a tool to perpetuate conflict within states, particularly as sub-groups purport to implement autonomy on grounds of self determination23. The problem of this has been perpetuated by the lack of efficient international legal mechanism to deal with this and Osman highlights the following central legal issues arise when addressing the doctrine of self determination within the international legal framework24: 1) Definition of peoples; 2) The legal doctrine of self determination and state boundaries; 3) The parameters of the self determination doctrine to increase minority rights; 4) Struggle between state rule and self determination; 5) Constitutional legitimacy versus legal doctrine of self determination; and 6) Reconciling self determination with geographical borders25. This is further exemplified by the current situation in Southern Sudan, where a peace agreement was reached in 2005 under the Naivasha agreement regarding self determination with a view towards a referendum in 2011. The pending referendum may split the state depending on the vote and has fuelled questions as to the agreement’s legal validity in international level under the classic model of self determination. This conundrum is reiterated by the continuing socio-political instability within Sudan, which has fuelled non-state terrorist groups26. As a result, the consequences of the Naivasha agreement and principle of non interference has created a situation whereby self determination can be used to perpetuate conflict. Indeed, Weller refers to the example of Southern Sudan to assert that self determination in reality can be one of the most “persistent and destructive forms of warfare”27. In turn, the doctrine of self determination can trigger instability, which is highlighted by the doctrine of non-intervention as highlighted by Sudan, where there is risk of disintegration of societies. One of the main conflicts of self determination is the point that the doctrinal basis for self determination doesn’t address the creation of new conflicts, which can be beyond resolution and result in further breaches of international law relating to the use of force28. Indeed, Weller highlights the point that whilst on the one hand the intention of self determination was to address democratic participation of individual rights and for indigenous peoples in the post colonial framework; on the other side of the spectrum it has resulted in “unilateral secession” and “the doctrine in its simplicity and mono-dimensional application has contributed to conflict”29. Ultimately, the problem in the application of the doctrine is that the restrictive legal model fails to identity the concept of state and arguably it is the concept of statehood that is often fundamental to the exercise of self determination from an indigenous perspective30. This lacuna in international law has enabled governments to rely on the doctrine to utilise it for their own definition of statehood and as such, Weller highlights that “governments have simultaneously ensure that the legal right to self determination, at least in terms of secession is strictly rationed and cannot ever be invoked against the state they represent31.” Therefore, self determination has been utilised as an entitlement to secession as highlighted by the Naivasha Agreement, where arguably the Sudan People’s Liberation Movement (SPLM) and the Government of Sudan provided constitutional legitimacy for the secessionist approach to self determination under the 2005 peace agreement. 3. Southern Sudan & 2005 Naivasha Agreement As highlighted above, the international legal framework for self determination was rooted in the classic model and was motivated by the historical context of increasing desire for decolonisation. As a result the right to self determination has been exercised within the geographic boundaries that were established by colonial powers, which is often left gaps as to the nature of minority rights32. In turn, the doctrine of self determination has been used by governments for their own purposes and resulted in novel conflict scenarios. Accordingly, it is submitted that the self determination doctrine has resulted in legal inequality in practice in balancing the interests of different groups, particularly as the current legal structure is rooted in the rights of central states under a classic self determination model. Therefore, the main problem of applying self determination doctrine is that it leaves following issues unaddressed: 1) Scenarios outside the colonial context; 2) Challenges to the territorial definition of former colonies; and 3) Challenges to the implementation of colonial self determination33. This is arguably highlighted by the consequences of the Naivasha agreement in Southern Sudan, for example where the uti possidetis doctrine may have been wrongfully applied34. Furthermore, Weller comments that the example of Southern Sudan highlights the potential abuse of the use of self determination as the focus on self determination and the state doesn’t always mean it is the right organisation claiming the right to self determination at the point of de-colonization. In turn, as evidenced by the situation in Southern Sudan, the self determination doctrine has served to fuel and create novel conflicts and undermined the very purpose of the doctrine for decolonisation and autonomy. Indeed, in Sudan the potential problem is that self determination can result in a regime that is not different than the former colonial power for certain ethnic groups. In reinforcing this point, Weller comments that “Recent practice has offered a number of solutions going beyond autonomy… Sudan is a prime example of this with the three settlements enabling the South to leave in 201135”. The Naivasha agreement was a set of agreements between the SPLM and the Sudanese Government with the objective of terminating the Second Sudanese war and develop a democratic government. The agreement set out a timetable for governance of Sudan with a referendum scheduled for January 2011 to vote on whether Southern Sudan will have independence. The process of the Naivasha Agreement resulted in the Machakos Protocol, the Protocol of Power Sharing, the Agreement on Wealth Sharing, and the Protocol on Resolution of the conflict. The wording of the Agreement suggests that the state structure remains the same and paragraph 44 of the Agreement enables devolution of power to Southern Sudan and for distribution of governmental responsibility. As a result, the Naivasha Agreement 2005 has clearly taken a secessionist approach to self determination, which prima facie goes beyond the international legal approach to self determination. However, paragraph 44 of the Agreement highlights that the issue regarding governance and independence of Southern Sudan is extrapolated to be determined “in accordance with the provisions of the Constitution”; thereby making the self determination exercise within the realm of state authority as permitted under international law36. In reality it is reported that the Sudan situation and agreement in respect of the South is asymmetrical and that whilst the 2005 agreement imposes a quasi-confederal framework for both the North and South in the interim period until January 2011, ultimately, the current government is for all intents and purposes independent of the North37. Additionally, the other problem with the 2005 Agreement is that the issue as to Darfur’s sovereignty remains ambiguous and whilst the Sudanese government signed the agreement with one opposition group; another opposition group refused to sign the 2005 Agreement, which has led to questions as to the legitimacy of the Naivasha agreement under international law38. Accordingly, it is evident that not all groups within Sudan are represented under the 2005 Agreement, which in turn questions the efficacy of the Naivasha Agreement to actually achieve peace and whether it has actually used self determination to move towards secession. For example, Section 4, Article 2 of the Agreement provides an express obligation on the SPLM to ensure the right environment to facilitate self determination for the Sudanese people. Accordingly from the perspective of the SPLM and the Sudanese Government, the Agreement enshrines the right to self determination in Southern Sudan with the referendum vote, which could lead to potential secession of Sudan. Indeed, paragraph 1.3 of the Machakos Protocol provides that “the people South Sudan have the right to self determination, inter alia, through a referendum to determine their future status”. Therefore, on the face of it the Naivasha Agreement has created the result whereby the people of Southern Sudan can determine their own status, which clearly goes beyond the narrow international legal principles on self determination. Accordingly, the Naivasha Agreement has posed significant questions regarding legitimacy as under the international legal principles there is no automatic right to self determination per se39. Weller highlights that the right to self determination was initially granted to those wanting decolonisation under the Mandate System of the League of Nations and then the Trusteeship system implemented by the United Nations40. As a result, the international legal system provided the rights for separate states from the main colony state governing them. For example, under the UNGA Resolution 2625 “Declaration on Principles of International law concerning friendly relations and cooperation among states in accordance with the Charter of the United Nations” (1970)41, provides that a state has to have separate legal status in the first place to exercise the right to self determination. However, Southern Sudan does not currently have separate legal status and is not covered by the Mandate or the Trusteeship system, which again questions the legality of any separate Sudanese state if voted for under the referendum42. Alternatively, Article 2 of Convention 169 of the International Labour Organization (1989)43 places an obligation on governments to develop an infrastructure which guarantees the rights of minorities within the state. Additionally, the Declaration on the Rights of Persons Belonging to National or Ethnic Religious and Linguistic Minorities (1992)44, which emphases the respect for national legislation and international public law must take precedence. Accordingly, whilst the international legal system requires indigenous and ethnic minorities to have equal rights, there is no express statement under the international law provisions enabling tribal peoples and ethnic minorities with the right to self determination or secession per se. Therefore, this would suggest that prima facie the Naivasha Agreement contravenes international legal principles governing self determination. 4. Conclusion The above analysis highlights the conflict between legal theory and practice in applying the doctrine of self determination. On the one hand the international legal principles clearly implement a narrow classic model of self determination that was a product of its time in facilitating decolonisation. As a result, the legal doctrine of self determination has focused on the concept of statehood within artificial colonised territorial boundaries, thereby negating any notion of an automatic minority right to self determination. Conversely, the self determination doctrine has been interpreted widely at state level by governments using the doctrine for their own political purposes. In turn this has created difficulties in international law as evidenced by the Naivasha Agreement 2005 with regard to Sudan. For example, the consequence of the Agreement is that it effectively grants the Southern territory of Sudan with autonomy over its destiny and decisions regarding independence. However, in light of the legal provisions, the fact that Southern Sudan is not a state would mean that the agreement provisions breach international legal principles. However, whilst the Naivasha Agreement prima facie contravenes international law, it is evident that the SPLM and the Government of Sudan arguably utilised the doctrine of self determination to set into motion the framework for potential secession of Southern Sudan. For example, in conjunction with the 2005 Agreement, the Transitional Constitution of the Republic of Sudan provides that the “the people of Southern Sudan have the right to exercise self determination through a referendum to determine their future status”45. On this basis, arguably the Naivasha Agreement has given the legal justification for secession de facto and any attempt to undermine this by the international community could constitute a breach of the non-interference principle. Accordingly, the doctrine of self doctrine as it currently stands whilst clearly intending a restrictive approach enables states to implement measures which legitimise secession through a subjective, wide interpretation of the doctrine for their own political purposes as evidenced by Southern Sudan and the Naivasha Agreement BIBLIOGRAPHY J. Baylis, J & S. Smith, The Globalisation of World Politics, (Oxford University Press, 2001). E. Benvenisti, E. & M. Hirsch, The Impact of International Law on International Co-operation. (Cambridge University Press, 2004) A. Cassese, Self Determination of Peoples: A Legal Reappraisal, (Cambridge University Press, 1999) A. Cassese., International Law, (2nd Edition. Oxford University Press, 2005) Joshua Castellino, International Law and Self Determination, (Martinus Nijhoff Publishers, 2000) M, Dixon., Textbook on International Law,(6th Edition. 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