Principle of self-determination should not undermine a country’s territorial integrity

Sunday January 14 2018

Mombasa Governor Hassan Joho (left) with other

Mombasa Governor Hassan Joho (left) with other leaders from the Coast when they announced the beginning of a consultative process towards secession of the region on November 3, 2017. PHOTO | KEVIN ODIT | NATION MEDIA GROUP 

By MARIA NZOMO
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The primary intent (rather than the letter) of the UN principle of self determination, was to grant the right to recover or reclaim freedom and autonomy within the existing legally recognised territory.

Viewed in this manner, there would be no contradiction between the principle of self determination and that of territorial integrity and state sovereignty, as provided for under Article 2(4) of the UN Charter. But when self determination is interpreted to justify secession, it has the effect of undermining the principle of territorial integrity and sovereignty.

The principle of self-determination must therefore be interpreted and applied cautiously to ensure it remains sensitive to the need to balance competing rights of existing states versus secessionist groups. Furthermore, unilateral withdrawal of a part of a country’s territory and population should be treated as a cause of last resort in circumstances of grave deprivation and human rights violations.

This is because secession reduces the value and form of the original state. Secondly, successful secession by a group within a unitary political territory may open a Pandora’s box whereby; other parts of the state also threaten or effect secession from the parent state.

DISINTEGRATION

This is best illustrated by the disintegration of the former Soviet Union into 15 states, some of which remain unstable and unviable to this date.

The misinterpretation of UN provisions has led to the apparent ambiguity in the manner in which both the UN and other organizations such as African Union (AU) have addressed the issue of Somaliland, which for decades has been seeking to be recognized by other countries in the world as a sovereign state separate from the larger Somalia.

On the other hand, due in part, to this ambivalence coupled with the combined resistance of the parent states as well as the international community, many secessionist movements often abandon their cause and instead revert to other avenues of agitation while remaining within the parent state. For example, they may resort to push for regional autonomy; federalism or power sharing with the established government. They also may engage in a radical agitation strategy, whose objective is capturing state power. This may be the trend we are currently witnessing in Kenya.

Secession as a strategy for attainment of desired autonomy and rights is not necessarily a panacea for resolving irreconcilable issues.

GRIEVANCES

It may or may not produce the desired results. Further, the international norms that provide for the principle of self-determination should not be assumed to be an automatic license for secession. Breakaway attempts are largely symptomatic of resolvable underlying grievances, mostly centred on deep sense of multiple deprivations, exclusions as well as denial of access to resources and power.

It would seem to me, therefore, that the neoliberal democratization dynamism that emerged at the end of the cold war, is being eroded by a notable return to autocracy and conservativeness of ruling regimes, that lack capacity for tolerance and accommodation of political dissent and citizen’s diverse demands for rights and entitlements.

Many of the secessionist trends around the world can be pre-empted and averted. For this to happen, there must be genuine political will to engage in dialogue between the power wielders and the aggrieved political classes and citizens of affected countries.

When and where an interest group feels sufficiently deprived of rights and freedoms or denied legitimate expectations, and considers that it has exhausted all diplomatic mechanisms of seeking redress, such a group could seek independence through secession.

This practically means that the seceding group would seek to exit with a piece of the parent’s State territory - an eventuality that threatens the very core of statehood, territorial integrity and national sovereignty. As a result, most parent States are likely to forcefully resist secession.    

VIOLENCE

This perhaps explains why violence and violent conflicts have historically accompanied most secessionist attempts. Indeed, until the end of the Cold War in 1989, there were only two known successful secessions that were not accompanied by violent conflicts; those of Norway and Iceland. Since 1990, there has been a significant increase of relatively peaceful and amicably negotiated secessions.

The most notable were the mass exodus in the early 1990s, of 12 Soviet federal units that were previously part of the Union of Soviet Socialist Republic (USSR).

This followed an agreement reached in December 1991 between the seceding units and the Soviet federal government (now Russia), to dissolve the federal State. Other Eastern European countries that were freed from Soviet domination but who were not part of the USSR were Poland, East Germany, Romania, Bulgaria, Hungary, Albania and Yugoslavia. The big question therefore is: When and under what circumstances can secession be effectively executed and translated into the desired outcome(s)?

 WHEN IS SECESSION POSSIBLE?

The actualisation of a secessionist attempt depends on a number of factors:

1)  The resilience and capacity of the seceding unit to engage in a protracted struggle and to demonstrate a justifiable cause for seceding from the parent State;

 2) Clear legal provisions in favour of secession within the national constitution

3) International support and 

4) The willingness of the affected political territory to engage with the secessionist group in an amicable negotiated exit. 

 Diplomatic and legally negotiated secession

Secession is likely to succeed in a democratic governance structure that provides aggrieved citizens with the option for breaking away as well as functional institutions and frameworks that facilitate an amicable and diplomatically negotiated compromise without resorting to violence or long term hostility. 

 Norway-Sweden

A good example of this kind of governance structure architecture that facilitated a successful, nonviolent and sustainable secession is that of Norway and Sweden. In June 1905, following tensions and possibility of full blown war between the Kingdoms of Sweden and Norway, a Motion to effect dissolution of the union was put in place. Two months later, a Norwegian referendum overwhelmingly supported the dissolution and on October 26, 1905, Norway recognised Sweden as an independent constitutional monarchy.

The success of the Norway-Sweden breakaway ensured that the two territories shunned long-term hostility. The two States today enjoy warm bilateral relations and are among the most stable and progressive democracies in the world. 

 South Sudan from Sudan 

In Africa, the closest one can come to an example akin to the Norway-Sweden case was the constitutionally negotiated secession concluded in 2011, to allow the declaration of independence of South Sudan from Sudan.

The conclusion of the 2005 Comprehensive Peace Agreement ended Africa’s longest-running civil war and paved the way for the enactment of the Interim National Constitution of the Republic of South Sudan. Article 222, of the Interim Constitution provided not just the timeline for a referendum, but also the choice of the people of the South to either secede or remain united with the North. The Southerners overwhelmingly voted to secede. 

However, unlike the Norway case, the birth of South Sudan was preceded by a protracted war and the outcome of the secession has certainly not met the expectations of the majority of citizens who overwhelmingly voted for it. Indeed, the case of South Sudan demonstrates that a constitutionally-guided secession may not result in delivering on the aspirations of those who struggled and voted for it.  

For secession to be successful and sustainable, the new State should have the intrinsic capacity to fulfil requirements of statehood and in particular, be able and willing to establish the necessary structural conditions to ensure that the grievances, deprivations, injustices and other atrocities that triggered secession are fully redressed.

The South Sudan secession has to date failed to deliver the expected outcomes. Instead, it has left citizens with a worse nightmare than the one they left behind. Despite a long drawn out and diplomatically negotiated settlement and recognition by the UN, the South Sudan ‘revolution’ remains stillborn; without a democratic governance structure and culture and compounded by poor leadership.

Eritrea 

Eritrea was the first African country born through secession since decolonisation started in 1957. Like South Sudan, the secession came only after a long protracted war that went on for 30 years until 1991, when the Eritrean People’s Liberation Front (EPLF), defeated the Ethiopian People’s Revolutionary Democratic Front (EPRDF).

In April 1993, in a referendum supported by Ethiopia, the Eritrean people voted almost unanimously in favour of independence. Formal international recognition of an independent, sovereign Eritrea followed later the same year and gave the new State crucial legitimacy.

Unlike South Sudan, whose justification for secession was irreconcilable differences with Sudan borne out of historical injustices meted out on the South by the northerners, Eritrea’s claim for secession had strong justification.

It was borne out of its historical claim of distinct identity and separateness from Ethiopia. During the colonial era, Eritrea was not part of Ethiopia.

In the first half of the 20th century, Eritrea was an outpost of the Italian empire and then was under British rule for 11 years until 1952.

Eritrea was thereafter handed over to Ethiopia. For the next 30 years, until 1991, it was engaged in a protracted war with Ethiopia as it sought to recover its autonomy, which it did in May 1991, when the Eritrean army defeated its Ethiopian counterpart.

Monday: Read about the challenges of secession