Monday, January 24, 2011

What doe Sudanese example mean for international law of secession?

As I write this, a new country is in the process of being born. Like the proverbial phoenix rising from the ashes of what even President George W. Bush, acknowledged as the world most recent example of genocide. The votes have not been completely counted yet, but the results of the referendum on secession, have never been in doubt. In all likelihood, barring a dramatic collapse in the negotiations between north and south, by this time next week the world will witness the emergence of a new predominately Christian and ethnically African country in southern Sudan.
Aside from its support for human rights and self-determination in general, we as Canadians have yet another reason, to watch carefully as this situation unfolds: the parallel between the legitimate independence process of Sudan and the one that’s being proposed by the majority of constitutional experts and politicians in Canada and Quebec.

Ever since the Supreme court reference on secession in ’98, the opinion of the court that ruled out use of a UDI-unilateral declaration of independence-by a sovereigntist government in Quebec, there have been some in the hard line camp-i.e. Daniel Turp, Jacques Parizeau-who refuse to accept that the Canadian constitution imposes upon all parties a duty to negotiate a secession. Matters were confused further, by the opinion of the International Court of Justice last summer, on the question of Kosovo’s decision to go it alone -see my August 2nd piece on this matter. Basically, the Court seemed to be supporting the hardliner’s argument that a UDI can lead to effective independence, at least in the case of Kosovo. Thus, by analogy, this could apply to the staunch secessionist’s claim in Quebec regarding a UDI.

However, now we have a seemingly contradictory precedent in international law in the case of Southern Sudan-the official name remains to be seen. How does this affect the hardliner’s claim to be able to leave the rest of Canada without so much as a Dear John letter? At the very least, we can now see that there are no simply no hard and fast rules regarding secession in international law. It appears that each case is unique and must be treated accordingly. At the risk of going out on a limb, though: I would argue that a case of external self-determination- i.e. the creation of new nation state-even one that the resulted from a well-documented genocide, requires some sort of referendum and negotiations on the critical issues that concern all the parties.

The Future is Unwritten