The Right To Self-Determination.
ABSTRACT
This thesis entitled: “The Right to Self-Determination; A Case Study of SouthSudan” centered on the legal challenges inherent in the attainment of statehoodthrough self-determination outcomes.
The thesis from the general perspective isdirected towards addressing the problem of securing independence through selfdetermination of peoples as well as the ensuing legal challenges associated with postsecession disputes particularly as it relates to South Sudan.
The objective of theresearch is to locate the complexities associated with the general application of theright to self-determination.
Another objective of the research is to resolve the inherentchallenges relating to the interpretation of the word “peoples” which is the centrestage of the right to self-determination.
Furthermore, the research is intended toappraise the technical areas of agreements between Sudan and South Sudan and toaddress the post-secession disputes relating to citizenship, border disputes anddisputes over natural resources.
Consequently, the post secession humanitariandisputes arising from the civil war as well as attempts to bringing peace in SouthSudan were explored. The research found that the right of self-determination is vagueand ambiguous in the relevant legal instruments.
TABLE OF CONTENTS
Title page i
Declaration ii
Certification iii
Dedication iv
Acknowledgement v
Table of Cases vi
Table of Statutes viii
List of Abbreviations x
Abstract xii
Table of contents xiii
CHAPTER ONE
GENERAL INTRODUCTION
1.1 Background to the Study 1
1.2 Statement of the Problem 10
1.3 Aim and objectives of the Research 13
1.4 Scope of the Research and Limitations 14
1.5 The Research Methodology 15
1.6 Literature Review 16
1.7 Justification 25
1.8 Organizational Layout 27
CHAPTER TWO
THE LEGAL FRAMEWORK FOR SELF DETERMINATION IN INTERNATIONAL LAW
2.1 Introduction 30
2.2 Meaning, Nature and Scope of the Right of
Self-Determination 32
2.3 The Development of the Right of Self-Determination Through the United Nations Practice. 33
2.4 The Theory of Nationalism and Self-Determination 37
2.5 Legal Framework for Self-Determination in Regional Law 40
2.5.1 The Position under the Organization of Africa Unity 40
2.5.2 The Right of Self-Determination under the African Charter on Human and Peoples Rights 42
2.6 Legal Framework for Self-Determination in International Law 47
2.6.1 The United Nations Charter 47
2.6.2 The United Nations Covenants on Human Rights 49
2.6.3 Declaration on the Granting of Independence to Colonial Countries and Peoples 53
2.6.4 The Declaration on Friendly Relations 53
2.6.5 The Helsinki Final Act 57
2.6.6 The Charter of Paris and Document of Copenhagen 58
2.6.7 The Vienna Declaration. 59
2.6.8 The Legal Effect of the United Nations General Assembly Resolutions Relating to the Right of Peoples and Nations to Self-Determination. 59
2.7 The Jurisprudence of Case Law on the Right to Self-Determination 63
2.7.1 The South-West Africa Decolonization cases (1949 – 1971). 66
2.7.2 Western Sahara (Advisory Opinion 16 October 1975). 69
2.7.3 East Timor (Portugal vs. Australia, Judgment of 30 June 1995) 72
2.7.4 Legality of the Construction of a wall in the Occupied Palestinian Territory (Advisory Opinion of 9 July 2004) 73
2.7.5 The Northern Cameroons Case 77
2.7.6 The ICJ Advisory Opinion on Kosovo on 22 July 2010 78
2.7.7 The Quebec Secession Reference 84
2.8 Applicability of Case law to the Concept of Self-Determination 87
CHAPTER THREE
HISTORICAL EVOLUTION AND THE RIGHT TO SELF-DETERMINATION FOR SOUTH SUDAN
3.1 Introduction 89
3.2 Historical Perspectives of the South Sudan‟s Struggle for Self-Determination 91
3.3 The Processes Leading to the Exercise of the Right to Self-Determination for South Sudan 99
3.3.1 The Acceptance of the Right to Self-Determination by the Government of Sudan. 100
3.3.2 The Role of Northern Opposition Parties to the Demand for Self-Determination for South Sudan 104
3.3.3 Reconfirmation by the Government of Sudan of the Right to Self-Determination for South Sudan 107
3.4 Agreements and Protocols under the Comprehensive Peace Agreement 109
3.5 The Holding of the 2011 Referendum and the Independence of South Sudan 116
3.6 The Implications of South Sudan‟s Independence on the Literature of Africa Legal System 121
CHAPTER FOUR
LEGAL IMPLICATIONS OF THE EMERGING POST INDEPENDENCE ISSUES BETWEEN THE REPUBLIC OF SUDAN AND SOUTH SUDAN
4.1 Introduction 124
4.2 Nationality and Citizenship Rights 125
4.2.1 South Sudanese Approach 128
4.2.2 The Sudanese Approach 130
4.2.3. De Jure and De Facto Acquisition of Citizenship 131
4.2.4 Resulting De Jure Statelessness 132
4.2.5 Resulting De Facto Statelessness 135
4.2.6 Expulsion under International Law 138
4.2.7 Expulsion under the African Charter on Human and Peoples Rights 141
4.3 The Abyei Territorial Dispute between Sudan and South Sudan and the International Attempts at its Resolution. 145
4.4. The Legal Status of Pending Border Disputes Following the Secession of South Sudan from the Republic Of Sudan. 151
4.4.1 Legal Significance of International Delimitation and Emerging Border Disputes between Sudan and South Sudan. 155
4.5 Disputes over Sharing of Resources 159
4.5.1 Oil Resources 160
4.5.2 Nile Waters 164
CHAPTER FIVE
CIVIL WAR AND HUMANITARIAN IMPLICATIONS OF SOUTH SUDANS INDEPENDENCE
5.1 Introduction 168
5.2 The Evolution of the South Sudan‟s Civil War 168
5.3 The Parties to the South Sudan‟s Civil War 171
5.4 Violation of International and Regional Instruments on the Use of Child Soldiers by Parties to the Conflict 177
5.4.1 International Instruments Prohibiting the use of Child Soldiers 178
5.4.2 African Charter on the Rights and Welfare of the Child 182
5.4.3 The use of Child Soldiers by Parties to the South Sudan‟s Civil War 184
5.5 Violation of International Humanitarian Law by Parties to the South Sudan‟s Crisis. 186
5.5.1 Breaches of IHL by Parties to the South Sudan‟s Civil War 193
5.6 Regional and International Efforts at Ending the South Sudan Civil War 195
CHAPTER SIX
SUMMARY AND CONCLUSION
6.1 Summary. 203
6.2 Findings. 215
6.3 Recommendations 225
GENERAL INTRODUCTION
Background to the Study
Self-determination as a right has found difficulty in interpretation as well as its exactmeaning in international law.
The determination and demarcation of fixed territoriesand the subsequent allegiance between those territories and the individuals or groupsof individuals that inhabit them is central to the study of self-determination.
This isarguably the prime factor that creates room for individuals and groups withininternational and human rights law to contest this right.International societyconsists of individuals and groups that ostensibly gain legitimacy and locus standi ininternational law by virtue of being part of a sovereign state.
The acquisition ofdefined and fixed territoriality is a prerequisite for the recognition of statehood.3Thequest for recognition has widespread manifestation in contemporary society; fromindigenous people who seek control over the destiny of their ancestral land to strugglefor self-determination.
The issue of territoriality itself remains contested in international law. Theimplication of this contest is most visible in the treatment of the right to selfdetermination.
BIBLIOGRAPHY
Abba, E., (2006) The Creation of States in International Law Oxford: OUP, London.Antonio ,C., (1995) Self Determination of Peoples: A Legal Reappraisal. Oxford Clarendon, London.
Campbell, D (1998) Writing Security, United States Foreign Policy and the Politics of Identity(Minneaopolis,MN) University of Minnesota Press.Dinah, S.,(2011) Self-Determination in Regional Human Rights Law: From Kosovo to Cameroon, 105 AM.
J INT.L L.Donald, L (2003) A Right to Serve ?, in Secession and Self-Determination, Macedon & Allen,
BuchananFathi, A., (2006) Sudan, the Fall of the Masks Dweudhi press, Hkartoun.
Fatsah, O., (2003) The African Charter on Human and Peoples Rights: A Comprehensive Agenda for HumanRights and Sustainable Democracy in Africa,
Hegue, Kluner press.Garang. J.,(1992) The Call for Democracy in Sudan, Mansour, Khalid press.
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