In Part I of the series, we examined the legal obligations that need to be undertaken in order to acquire statehood. We surveyed the Montevideo Convention and the Doctrine of Recognition before studying the case of the Palestinians.
In Part II, we look at how the Right to self-determination has emerged as a beacon of hope for aspiring states. I then trace the path to independence of the two newest members of our international order: South Sudan and Timor-Leste. Lastly, I shall be drawing up a tentative roadmap for statehood.
Emerging states and Right of Self-determination
The Right to Self-determination is the centerpiece of the rhetoric employed by the emerging states in their fight to gain more autonomy. The Right to self-determination is perhaps the most important right guaranteed to the individual in the entirety of the UN charter. Article 1 (2) states that, “To develop friendly relations among nations based on respect for the principle of equal rights and self-determination of peoples, and to take other appropriate measures to strengthen universal peace” (UN charter 1945).
The universality of the right to self-determination is further solidified by its presence in the International Covenant on Civil and Political Rights (1976). According to Article I (1) of the ICCPR, “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” (ICCPR 1976).
In this context, several emerging states have attempted to use this right to self-determination in order to further their statehood agenda. Unrepresented Nations and Peoples Organization (UNPO), which is an international organization created for the benefit of the nations and people who are unrepresented in the international system, employs the right to self-determination as its most important tool of operation. UNPO defines the right to self-determination as the “right of a people to determine its own destiny”. The exercising of this right can lead to a variety of outcomes ranging from “full political independence to full integration within a state” (UNPO 2006).
Although the right to self-determination is a very powerful individual right and is universal in nature, its applicability to states is shrouded in controversy. The practical outcome of the exercise of this right by the people is solely determined by the State. The universality of application of the Right to self-determination is the sole prerogative of the individual states, who are not outrightly bound by all the provisions of this Right. UNPO makes an excellent assessment of the Right to self-determination when it asserts that,
“[W]hile claims to cultural autonomy may be more readily recognized by states, claims to independence are more likely to be rejected by them. Nevertheless, the right to self-determination is recognized in international law as a right of Process (not of outcome) belonging to peoples and not to states or governments” (UNPO 2006).
Thus, States are not legally bound to grant this Right to the autonomous groups demanding statehood. So how exactly are new nations born? I shall discuss that in the next section by citing the most recent cases of acquired statehood, i.e. East Timor and South Sudan.
Roadmap for Independence: South Sudan and Timor-Leste
After analyzing the Right to Self-determination in detail, there emerges a harsh reality — secession from a State is impossible without a tacit agreement with the State itself. South Sudan is the newest state to enter the international system in 2011. The state of South Sudan was created as a result of a UN-mandated referendum process which took place in January 2011. In the end, 98.83% of the people residing in the Southern part of Sudan voted in favor of the referendum. Finally, the process of international recognition of South Sudan came to an end on July 14, 2011 when it officially became the 193rd official member of the United Nations (UN 2011).
It is important to note here that independence of South Sudan would not have been possible without a tacit agreement on the referendum with the Khartoum government under Sudanese Premier Omar al-Bashir. The Sudanese central government and the Sudan People’s Liberation Army/Movement (SPA/M) signed the Naivasha Agreement in 2005 according to which a referendum took place in the Southern Sudan area.
The case of East Timor or the Democratic Republic of Timor-Leste is slightly different. Timor-Leste, which had been a Portuguese colony up till 1975, underwent a 25-year long struggle for statehood. A few days after the Portuguese withdrew from Timor-Leste, the Indonesian forces moved in and permanently occupied the territory, effectively bringing it under its government’s direct control. Indonesia’s 25-year occupation in Timor-Leste resulted in the death of more than a 100,000 people, something which resulted in a diplomatic intervention from the international community. Eventually, Indonesia bowed to international pressure and allowed a referendum to be held in Timor-Leste in 1999. At the culmination of the referendum, 78.5% of the population voted in favor of separation from Indonesia. In 2002, Timor-Leste gained international recognition after becoming a full member of the United Nations.
The tacit support of the State from which a new entity is to be carved out is a necessary precondition for a new nation to be born. This is one of the major reasons why there have been so few states that have been newly created over the past 30 years or so.
Having said that, the International Court of Justice’s Advisory Opinion on Kosovo provides some hope to these autonomy-seeking separatist groups. In the judgment it gave on July 22, 2010, the ICJ deemed Kosovo’s declaration of independence in 2008 as being legitimate and within the purview of international law. It said that the Kosovo’s declaration of political independence from Serbia was not in violation of international law “as the authors of the independence declaration were acting outside the legal framework of the U.N. interim administration, their declaration did not violate that framework and, as no legal prohibition of declarations of independence exists, the declaration did not violate general international law” (ICJ 2010).
Although the ICJ made it very clear that its decision was specific to the unique case of Kosovo, its judgment nevertheless successfully managed to encourage other groups aspiring for statehood. According to an interpretation of the judgment of the ICJ, “[w]e are likely to see more debate about the claims of an emerging right of remedial secession—claims that may be invoked with greater frequency by peoples engaged in self-determination struggles outside the Balkans context (Caplan 2010)”.
Hence, the Kosovo judgment by the ICJ might turn out to be a watershed moment as far as the aspirations of statehood of autonomous groups are concerned.