Revisiting uti possidetis: Is Southern Sudan’s referendum scarier if it succeeds?

by Rhodri C. Williams

On day three, all signs indicate that the referendum on the separation of Southern Sudan from Khartoum is going shockingly well. Continued high turnout bodes well for achievement of the key threshold of 60% of registered voters and the mood appears to be nigh on festive at many polling stations. Violence has flared in the contested Abyei region, but it remains to be seen whether this dispute will join the ranks of the intractable (along with Jerusalem, Kirkuk and Nagorno Karabakh) or can eventually be arbitrated into submission (a la Bosnia’s Brcko District). So why are there still some long faces in the world of diplomacy?

In looking at land issues in conflict, it is helpful to recall that various individuals’ and groups’ asserted property rights are not the only relevant claims. States have traditionally had rather an important vote as well. Indeed, until recently states were relatively unfettered in their ability to regulate and expropriate property rights and forcibly remove people from their homes and lands when they deemed it necessary. Sovereignty-related concerns related to development, national security and territorial integrity were paramount.

Since the end of Cold War, greater attention to both regional and global human rights standards and the assertion of doctrines such as human security and responsibility to protect (R2P) have altered this balance. As a result, while states continue to enjoy  broad discretion over the use of their land resources, they have come under increasing pressure to recognize that their ‘territory’ is co-terminous with the homes, homelands, property and possessions of their citizens, and to respect the rights accruing to affected individuals and groups as a result.

The resulting situation should in theory ensure that the costs of necessary government action that infringes on private property interests are not externalized solely onto those directly affected. As I blogged on earlier here, both development and human rights standards are converging on this understanding. In situations where these rights are egregiously violated in the context of war and ethnic cleansing, legal remedies such as restitution have come to the fore, both in practice and in standards such as the Pinheiro Principles.

However, as many commentators have pointed out, the current exercise of self-determination by the people of southern Sudan hearkens back to older understandings of the primacy of state territorial control and threatens the integrity of a longstanding legal consensus of such age and fixity that it has been anointed with a Latin phrase. “Uti possidetis” or “as you possessed” is a sort of interstate rule of adverse possession that originally ratified territorial conquests in warfare and later shaped the process of liberation of former colonies.

In the context of decolonization in Africa, uti possidetis came to stand for the notion that African colonies would translate, one for one, into African states, without any scope for adjustment of the arbitrary and often absurd boundaries previously drawn by European powers.  Critics noted that this principle implied that self-determination was a right available only to abstract territories (and the elites invested in them) rather than the ‘peoples’ granted this right in accordance with the 1966 UN Human Rights Covenants. However, the alternative – redrawing the boundaries for an entire continent – was viewed as impracticable and destabilizing. This consensus was reflected in the 1963 Charter of the Organization of African Unity (OAU), which enshrined among its core principles the following:

Respect for the sovereignty and territorial integrity of each State and for its inalienable right to independent existence. (Article III.3)

African states have largely clung to this doctrine since the liberation era, devoting significant resources to stamping out secessionist movements, ignoring the existence of and autonomy claims raised by minorities, and (with notable exceptions in the Great Lakes region) generally limiting their interference in the affairs of their neighbors to the discreet (support for rebel groups) rather than the uncouth (actual armed incursions). As summarized by Alex de Waal in his chapter in ODI’s recent book on land and conflict, one result has been a distinct pattern of protracted warfare between the center and periphery of African states, which should sound familiar if you know a bit about Sudan.

It is against this background that the improbability of the current voting on South Sudan’s secession is perhaps best understood. In the interest of Sudan’s stability, the African Union, as successor to the OAU, has made an exception to the rule seen as most central to the entire continent’s stability. Indeed, although the North has accepted the referendum under the terms of the 2005 Comprehensive Peace Agreement, politicians there have bitterly predicted disaster. One preoccupation, reflected in a 2006 interview with Hassan al-Turabi, is the possibility that insurgencies in both eastern Sudan and the western Darfur region will now seek similar outcomes. However, veteran Sudan politician Sadiq al-Mahdi, interviewed in a recent New York Times analysis piece, predicted dire consequences for the entire continent as a result of the abandonment of the respect for borders established by the OAU:

“But now this sanctification is gone,” he said. “The borders have been polluted. And to resort to self-determination to solve your problems will break up the Sudan, will break up Ethiopia, will break up Uganda, will break up all of Africa, because all African countries are made up of such heterogeneous elements.”

“Pandora’s box is now open,” he declared.

However, Mr. al-Mahdi and other prophets of doom may have overstated the case somewhat. As noted in an interesting USIP Peace Brief by Jon Temin, similarly dire consequences were predicted when Eritrea seceded from Ethiopia in 1993, but that event hardly portended a wave of partition in Africa. Indeed, Sudan is likely to be explained away as a “special case” much in the same way that proponents of Kosovo’s even more radical unilateral declaration of independence refer to unique circumstances disqualifying it as a precedent elsewhere in Europe.

However, in both cases, the true unique circumstances may not lie so much in local contextual factors as in a rare alignment of global power politics in favor of secession. Anyone looking for evidence of this in Africa need look no further than the Western Sahara, a former Spanish colony of little geopolitical significance deemed entitled to a referendum on independence by the UN in the early 1990s but still occupied by neighboring Morocco. As noted in today’s New York Times, however, at least one further viable secession candidate remains in play in Africa:

Western diplomats say Somaliland probably has the strongest case to be recognized as a nation, because it is the most democratic part of Somalia and is an oasis of stability in the war-ravaged country. This summer, Somaliland held a legitimate election in which the incumbent president lost and gracefully handed over power to the opposition, a rarity in Africa considering the disputed elections in Ivory Coast, Kenya, Zimbabwe and elsewhere.

Somaliland representatives were in Juba, trying to buttonhole Western and African dignitaries and plead for recognition of Somaliland. “I’m encouraged,” said Abdillahi M. Duale, a former Somaliland government minister, who met with [former South African President Thabo] Mbeki this past week. “What’s happening here in South Sudan is going to help us.”

Meanwhile, as if the possibility of other parts of Africa catching the Juba bug was not sufficiently unsettling, other observers, such as Vasco Martins of IPRIS, have queried whether the self-determination principle currently galvanizing the South may not be its undoing over the long run:

… an independent South Sudan would not bring about a unified nation-state but rather a conglomerate of different ethnic groups who – each in their own way – associate with a loose definition of South Sudan statehood and society. Hence, nothing guarantees that these ethnic groups can be mobilized to secede from South Sudan and create yet another new state, especially since the southern population hopes that secession will bring about a quick improvement in the quality of life – an expectation present in most secessionist regions, but one the very young and inexperienced South Sudanese government will find impossible to meet.

Indeed, this is where the land and property rights of individuals comes back into play. Having wrested political control over their own territory, the authorities of southern Sudan now face the challenge of ensuring their continued legitimacy through an effective response to the burning land issues generated by decades of neglect, warfare and displacement. Sara Pantuliano, an expert on humanitarian issues in Sudan at ODI, recently described the land question as one of the most pressing issues facing the post-referendum South:

Land will remain a vital issue, both in urban and rural areas. This is a key point of tension. No mechanisms are in place for people to reclaim their land, either because customary processes have broken down or because legislation is incomplete. In some areas, such as in Juba, there are simply not enough trained people to demarcate the land in the first place. Humanitarian and development actors cannot resolve these issues, but they can ease the situation by advocating for interim land titles until such time as the authorities are better able to address these problems. Development agencies should work with the authorities to train more people in land management and to help put a system in place, both in the capital and rural areas, with the involvement of affected communities.

The impending secession of southern Sudan undoubtedly undermines traditional conceptions of one of the founding principles of African statehood, uti possidetis. However, an equally fundamental and arguably more significant change taking root throughout the Continent is the erosion of another common post-independence principle – namely, that stipulating that land not formally held in title lay at the disposal of the state rather than those who lived there and may have considered it their homeland (on which, see Liz Alden Wiley’s ODI chapter here). The recent ‘Endorois decision’ by the African Commission on Human and Peoples’ Rights is an important endorsement of this trend. For the newly minted southern Sudan authorities, an unambiguous commitment to this approach would represent a truly clean break.

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9 responses to “Revisiting uti possidetis: Is Southern Sudan’s referendum scarier if it succeeds?

  1. The misery in southern Sudan is very much related to the natural riches of the region. The black gold found and exploited on indigenous peoples land is often a real curse for those whose ground is being drilled for this ultimate fuel of the affluent western lifestyle. Additionally, religion and oil is a potent mixture, as in most other places in the world where these ingredients are present. In southern Sudan this mix is to blame for the plus-20–year Sudanese civil war in which nearly two million people have died. It ended five years ago with the signing of the Comprehensive Peace Agreement (CPA) in Nairobi. The tycoons of oil industry have been doing their thing all through the years, despite the horrors inflicted on the people, and very much as a result of their activities. Maybe some degree of restitution and compensation for all these years of hardship to the voiceless, powerless and weak inhabitants will come out of the referendum. Perhaps also some of the perpetrators of the mayhem that has been going all these years could eventually be brought into the public eye? The Swedish Public Prosecutor Magnus Elving has noted that the contents of the recently published report UNPAID DEBT by the European Coalition on Oil in Sudan (ECOS) which justifies his decision to open up for a preliminary criminal investigation into alleged violations of International Humanitarian Law in Sudan during the years 1997 – 2003. In the report ECOS argues that the oil companies OMV AG, Petronas Caligari and Lundin Petroleum may have been complicit in the commission (by others) of war crimes and crimes against humanity. ECOS calls upon the governments of Austria, Malaysia and Sweden to account for their failure to prevent the alleged human rights violations and international crimes. The report UNPAID DEBT is available at http://www.ecosonline.org/hottopics/unpaid_debt

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