The Intersection of Self Determination
and Territorial Integrity: Case Study of South Sudan
By
Tuga Gamal Mohammed Hassanin
Prepared under the supervision of
Professor Fadul Ahmed
Chapter I
Introduction
The right to self determination has been recognised by the international court of justice as 'one of the
fundamental principles of modern international law.' However, it continues to be one of the most unsettled
and debated norms in international law.1
This dissertation endeavors both the legal definition of the right to self-determination and its normative
significance. Specifically, it focuses on how the different normative interpretations assigned to
self-determination in international legal doctrine influence the willingness of states to clarify and define
the scope and content of the right.
International legal norms are not fixed; their scope and content can evolve over time2. A key factor in the
development of any international legal norm is the practices and perspectives of states. Although a norm
may initially be expressed in vague terms, its meaning can become more defined over time. It is evident
that the right to self-determination was introduced into international law with considerable ambiguity as
will be demonstrated throughout this research.
The concept of self-determination initially emerged in a highly ambiguous form, with some arguing that
this vagueness was intentional to allow greater flexibility in its application, accommodating the unique
circumstances of each state.
The contentious nature of certain issues associated with the right to self-determination such as the right of
a group within a state to secede and establish a new state3 may not be the sole reason why states have
been reluctant to clarify their positions on the scope and content of the right. It is possible, for example,
1
Cass, ‘Rethinking Self-Determination: A Critical Analysis of Current International Law Theories’ (1992) 18 Syracuse
Journal of International Law and Commerce 21
2
Simma and Paulus, ‘The Responsibility of Individuals for Human Rights Abuses in Internal Conflicts: A Positivist
View’ (1999)
3
McCorquodale, ‘Self-Determination: A Human Rights Approach’ (1994) 43 International and Comparative Law
Quarterly 857 at 862
that states find value in the ambiguity of the law of self-determination, as it allows for a wide range of
plausible interpretations and can adapt to unforeseen situations4.
It has been suggested that debates over the heightened normative status of the right to self-determination,
despite not yet fully reflecting its actual position in international law, highlight the political significance
attributed to adhering to this right on the international stage5.
States might prefer to keep the right to self-determination vaguely defined due to its political significance.
A norm perceived as politically important is more likely to provoke international response if breached. By
maintaining vagueness, states can avoid being held accountable for failing to meet obligations to peoples
under their authority. However, recognizing a specific normative status for self-determination could also
entail established and potential legal consequences.
This paper will examine the evolution of the concept of self-determination, tracing its emergence,
recognition as a legal principle, and eventual establishment as a fundamental right under international law.
It will critically address the inherent ambiguity surrounding the definition of self-determination within the
international legal framework, and explore how this vagueness has led to varying interpretations and
applications of the right by states.
The research will also delve into the distinction between self-determination as defined by legal
instruments and its practical implementation within state borders. This disparity has often resulted in
divergent understandings of the right’s scope and applicability. Furthermore, we will explore the
dichotomy between internal and external self-determination, even though these categories are not
explicitly codified in legal statutes but can be inferred from state practice.
This paper will also assess the legal and practical questions surrounding secession from a parent state:
whether secession falls under the purview of self-determination or constitutes a distinct legal concept,
who possesses the right to secede, and the extent to which this right can be exercised.
Additionally, the analysis will examine the interplay between the right to self-determination and one of
the core tenets of international law—state sovereignty. The challenges that arise in attempting to reconcile
these two principles will be explored, questioning whether state sovereignty remains as inviolable within
the modern international legal order as traditionally conceived.
The case of South Sudan is the most recent implementation of the right to self determination, though not
with the notorious understanding of self determination. In January 2011, the majority of South Sudan's
population voted in a referendum to secede from Sudan. Upon gaining independence, Sudan, a former
British colony, retained South Sudan within its borders in accordance with the principle of uti possidetis
and the widely accepted international practice that decolonization should result in the formation of new
states based on pre-existing colonial boundaries.
Evolution of the Concept of Self Determination
4
Sheeran, ‘International Law, Peace Agreements, and Self-Determination: The Case of the Sudan’ (2011)
5
Summers, Peoples and International Law: How the Right of Self-Determination and Nationalism Shape a
Contemporary Law of Nations
The right to self-determination historically emerged in international law during World War I in two
distinct ideological forms, reflecting the divergent perspectives of the East and West. In Western Europe,
self-determination was rooted in Enlightenment principles of popular sovereignty and representative
government. In contrast, in Central and Eastern Europe, it was primarily driven by the rise of nationalism.
Consequently, the Western European concept was less tied to ethnic and cultural considerations than its
Central and Eastern European counterpart.6
There were two concepts for the understanding of self determination, the first interpretation of
self-determination, which is the more radical form, viewed it as a fundamental requirement for achieving
global peace. His aim was to extend this principle to all non-European populations living under colonial
domination. The second interpretation was to restrict self determination to European people and not
necessarily people under colonial rule. The second approach remained prevailing for a while up to the
point of the Second World War were the first understanding of self determination became more
prominent. By this time, the division between two ideological approaches to self-determination was
evident, with the Soviet Union on one side and the European powers on the other. While the Soviet Union
sought to challenge the colonial system, the European powers aimed to preserve their colonies. This
ideological clash influenced the formulation of self-determination as it was later incorporated into the
United Nations Charter. The chapter stipulates that one of the purposes of the United Nations is the
development of friendly relations among nations based on the respect for the principle of equal rights and
self-determination.7 This provided a very vague and ambiguous understanding of the concept of self
determination however, even though it was enriched in the charter or the United Nations, self
determination was for the longest time regarded as mere political principle rather than a right.
The pivotal advancement in recognizing self-determination as a legal right under international law
occurred during the decolonization era, Following World War II, self-determination became recognized as
a legal right. Initially, this right was primarily associated with decolonization, meaning that colonized
peoples had the right to determine their political future independently. Beyond the context of
decolonization, the broader application of self-determination rights has been a subject of debate.
With the adoption of the Declaration on the Granting of Independence to Colonial Peoples as General
Assembly Resolution 1514 (XV) by the United Nations in 1960. The Declaration affirms that all peoples
possess the right to self-determination, allowing them to freely determine their political status and pursue
their economic, social, and cultural development. The United Nations Charter envisioned
self-determination but did not define the concept or differentiate between its various forms. It did not
impose direct legal obligations on member states; instead, it anticipated that member states would permit
minority groups to self-govern to the greatest extent possible. Under the Charter, self-determination did
not entail a right for minority groups to secede from sovereign states or for colonized peoples to gain
independence. Nevertheless, it is significant that this was the first instance of self-determination being
established in a multilateral treaty. This right was later incorporated into the Declaration on Principles of
International Law concerning Friendly Relations and Cooperation among States, adopted as General
Assembly Resolution 2625 (XXV) in 1970.8 Which sets forth the principle of equal rights and
6
Musgrave, 1997,p 2
7
Charter of the United nation article 1 (2)
8
Declaration on principles of international law
self-determination of peoples, as outlined in the Charter of the United Nations, affirming the right of all
peoples to freely determine their political status and to pursue their economic, social, and cultural
development without external interference.9
Self Determination as a Human Right
Self-determination was explicitly recognized as a human right when it was incorporated into the two
international human rights covenants—the International Covenant on Civil and Political Rights (ICCPR)
and the International Covenant on Economic, Social and Cultural Rights (ICESCR)—which became
legally binding in 1976. These covenants, rooted in the Universal Declaration of Human Rights, are
foundational human rights treaties. The right to self-determination is articulated in Article 1 of both the
ICCPR and the ICESCR. Yet the content of the right is not specified and leaves room for various
interpretations. Although a norm may be initially formulated in vague terms, its meaning can become
more defined over time. It is evident that the right to self-determination was introduced into international
law with a degree of vagueness.
The controversial aspects of the right to self-determination, such as the potential right of a group within a
state to secede and form a new state10, may not be the only reason states have not clarified their views on
the scope and content of this right. States might also value the ambiguity in the law of self-determination
because it allows for a wide range of interpretations and can adapt to unforeseen circumstances.11
The Human Rights Committee defined the right of self-determination as “ [...] an essential condition for
the effective guarantee and observance of individual human rights and for the promotion and
strengthening of those rights. It is for that reason that States set forth the right of self-determination in a
provision of positive law in both Covenants and placed this provision as article 1 apart and before all of
the other rights in the two Covenants.”12Therefore, adopting a human rights approach is crucial for
clarifying the meaning and application of the right to self-determination.
A challenge in using a human rights approach is the focus on individual rights within international human
rights law, which often overlooks group rights. Common Article 1 of the two human rights treaties
designates the right to self-determination to “all peoples,” indicating that it is a group right. Consequently,
a key issue in applying the right to self-determination is defining who qualifies as “a people” and is
therefore entitled to this right. The use of the term "peoples" instead of "nations" marked a significant
shift in understanding who the true beneficiaries of international law are and who specifically has the
right to self-determination.
Understanding the Term “People”
Despite references in the Covenants and numerous mentions in international law of the various rights of
peoples, there is no clear definition of "peoples" or "people" within international legal frameworks.
This lack of definition is often attributed to the term's vagueness and imprecision, making it challenging
to define. In the context of self-determination, a group that shares a common identity and is linked to a
9
International Covenant on Economic , Social , and Cultural Rights , article 1(1)
10
McCorquodale, ‘Self-Determination: A Human Rights Approach’ (1994) 43 International and
Comparative Law Quarterly 857 at 862.
11
International Law, Peace Agreements, and Self-Determination: The Case of the Sudan’ (2011)
12
CCPR general comment 12, para 1.
specific territory has the right to determine its political future democratically13. For a group to exercise
this collective right, it must meet the criteria of being recognized as a "people."
Scholarly interpretations emphasize that, for a group to be considered a "people" in the context of
self-determination, two key criteria must be satisfied. First they must share common ground such as
language, religion, culture etc and second, the collective state of mind, in other words the feeling of
belonging or being part of these “people”.
The term "people" has its roots in the historical belief that indigenous groups should have the right to
practice self-government. Indigenous peoples are better equipped to understand the needs and desires of
their own communities, making it logical for them to express these needs through a system of
self-governance.14 Self-governance by smaller minority groups within a larger central state aligns with
democratic principles. Even if the minority group, or people, lacks the capacity to wield full jurisdictional
authority like a sovereign state, it still merits a degree of autonomy that it is capable of managing.15
Internal and External Bifurcation
In the development of the right to self-determination, the United Nations does not differentiate between
internal and external self determination. This distinction emerged from political debates and academic
discourse16.
The vagueness and ambiguity surrounding the scope of the right to self-determination allowed states to
interpret and apply it as they saw fit. This led to a shift from the traditional understanding of
self-determination, which centered on the right of peoples to gain independence from colonial powers, to
a broader concept that includes the exercise of autonomy by people within an existing state. The
traditional understanding of the right to self-determination posed little difficulty. However, its modern
interpretation and implementation have introduced significant challenges. Chief among these, and a focus
of this paper, is the conflict with state sovereignty—one of the most fundamental and inviolable principles
in international law17.
The primary distinction between internal and external self-determination lies in their core elements.
Internal self-determination encompasses two key aspects: first, the right of a people to shape their own
constitution, including the possibility of autonomous status; and second, the right to self-govern through
democratic processes18. External self-determination, on the other hand, includes three main elements:
first, the right of a people within an existing state to freely determine their political status and pursue
economic, social, and cultural development without external interference; second, the right of a people
under foreign domination to liberate themselves; and third, the right of a people to secede19.
External Self Determination
Several forms fall under the umbrella of external self-determination, but our main focus will specifically
be on the element of secession within this framework. Initially the right to self determination included the
13
M.P. Scharf, “Earned Sovereignty: Judicial Underpinnings”, Denver Journal of International Law and Policy, 2003,
Vol. 31, 373–379.
14
M. Moore, “An Historical Argument for Indigenous Self-determination”
15
Milena Sterio, The Right to Self Determination Under International Law
16
Alfredsson (1993), p. 50
17
Rosas (1993), p.227
18
Rosas, (1993), p. 230
19
Id, at 231.
right of people to self government and exercise of their political, cultural right’s. However this may be
insufficient for the “people” in some cases where they resolve to the option of separation from the mother
state and traditionally the right to independence or secession as a form of self-determination has been
limited to peoples under colonial rule or facing some form of oppression20.
However modern day applications of the right to external self determination has recognised which is also
the view point of international law- the right of non-colonial people to succeed from their mother state
“when the group is collectively denied civil and political rights and subject to egregious abuses.21”
This form of secession is known as the "just cause theory of secession," which asserts that a group may
secede if it has a legitimate reason—such as being subjected to systematic discrimination or abuse, or if
its territory has been unlawfully annexed by another state. This right, referred to as the "remedial" right to
secession, traces its origins to the landmark 1920 Aaland Islands case22.
The 1970 Friendly Relations Declaration conditions the right of non-colonial peoples to secede from an
existing state on the denial of their right to democratic self-governance by the parent state23. The
interpretation of this resolution suggests that secession may be justified under the certain circumstances
namely, when the central authorities of a sovereign state consistently refuse to grant participatory rights to
a religious or racial group, systematically violate their fundamental rights, and eliminate the possibility of
achieving a peaceful resolution within the existing state framework.24
It is entirely reasonable that the right to external self-determination, which can lead to secession, would be
recognized only in exceptional circumstances—specifically, when the parent state engages in severe
oppression or when the people's right to participate in the central government is completely denied.
Consequently, an act of external self-determination leading to secession, which falls outside the scope of
colonial self-determination, is generally (though not universally) deemed unlawful under international
law. Entities that have exercised their right to external self-determination in an unlawful manner are
frequently denied recognition as sovereign states even if they have all other elements of statehood. This
affirms that this right is restricted and only applicable in execeptional cases in attempt to preserve the
concept of territorial integrity of states. As it can be noted that “the right to opposed unilateral secession
stands in obvious tension with the claim to territorial integrity and unity of existing states.”25 By adding
such restrictions and by confining all other peoples to forms of autonomy within their central state
through internal self-determination, international law seeks to uphold the territorial integrity of existing
states, except in genuinely exceptional circumstances.
The African Commission has consistently stressed the principle of uti possidetis26, asserting that
self-determination can only be exercised "within the inviolable national borders of a State party, while
20
Scharf, op. cit.,p379
21
Id, at 381.
22
Id.
23
G.A. Res. 2625, UN GAOR, 25th Sess., Supp. No. 28, at 121, UN Doc. A/8028, 1970.
24
Cassesse, op. cit., p. 119.
25
Weller, op. cit., p.32
26
Doctrine established to ensure the stability of newly independent states whose colonial boundaries
were often been drawn arbitrarily
respecting the sovereignty of that State."27 it focuses on condemning state sovereignty of member states
and does not permit succession28.
The first case in which the African Commission addressed external self-determination was the Katangese
Peoples’ Congress v. Zaire. In this case, the President of the Katangese Peoples’ Congress argued for
recognition as a liberation movement and sought to establish Katanga as a separate, independent state.
The commission held that the katangese people can exercise the right to self determination in any shape or
form not prejudice to the territorial integrity of the mother state and set out modes where people can
exercise such right alternatively.29
Nevertheless, it did leave open the possibility that secession would be considered legitimate under certain
circumstances, specifically in cases where there is "concrete evidence of human rights violations to the
extent that the territorial integrity of the State is called into question." Which was not the case in this
precedent. In conclusion, under the African union the exercise of the right to external self determination is
frowned upon and is only acceptable as an exception in very special circumstances.
27
Guidelines and Principles on Economic, Social and Cultural Rights in the African Charter on Human
and Peoples’ Rights, para 41
28
Communication 75/92, Congrès du peuple katangais v Democratic Republic of the Congo, 22 March
1995, para 5.
29
Communication 75/92, Congrès du peuple katangais v Democratic Republic of the Congo, 22 March
1995, para 4