On Dependent Independent States: South Sudan

In recent years, several new states have been created: East Timor, Kosovo, and South Sudan, to name a few. While these entities’ statehood may appear unquestionable and almost universally accepted in the global community, their existence poses difficult questions about the contours of statehood and the desirability of supporting statehood for regions which remain heavily dependent on external aid. South Sudan, the most recently created state, illustrates some of these difficult questions. South Sudan, in other words, may be an example of a dependent independent state.
South Sudan celebrated its independence a year ago, when its inhabitants voted in a popular referendum to separate from their mother state, Sudan.  Sudan was a product of decolonization and of the principle of uti possidetis, whereby colonial powers created independent states throughout the African continent pursuant to pre-existing colonial borders and with little regard of the wishes of local populations.
Sudan was doomed from the outset, as its predominantly Arab Muslim inhabitants of the north shared little in common with the predominantly black African southerners. Despite civil wars between the north and the south, Sudan remained a single state for several decades, possibly because of Cold War politics which dictated the continuation of status quo.
Post-Cold War and post-9/11, the people of South Sudan ultimately succeeded in garnering enough support in the world community in order to assert their bid for independence and statehood. In the summer of 2011, the South Sudanese held an independence referendum, at which the overwhelming majority of the population voted to separate from Sudan. Thus, the new state of South Sudan was created and subsequently recognized by most world powers.
Yet, from the outset, South Sudan has been plagued by existential problems. Border skirmishes threatening to evolve into full warfare have continued between Sudan and South Sudan. Many accuse the Khartoum regime of orchestrating deadly raids on the populations of the southern portion of Sudan, which have resulted in a massive refugee crisis and migrations toward South Sudan. Oil production has been cut off in South Sudan, resulting in hardship for its civilian population. Finally, the newly established government of South Sudan is by all accounts extremely corrupt, preventing the flow of foreign aid from reaching populations of South Sudan most in need of such help. Foreign investors have been turned off by the threat of warfare with Sudan and by the overall state of corruption, and the South Sudanese economic development has been stalled.
Under such dire circumstances, South Sudan may survive only with external help: through United Nations Security Council involvement which could prevent war with Sudan; through economic aid by world economic, financial and trade organizations; through foreign investment; through the world powers’ willingness to support the statehood of South Sudan at all costs. South Sudan is thus a dependent independent state, a phenomenon which calls into question the legitimacy of its existence.

A global mandate to end impunity & effect justice

(My thanks to IntLawGrrls for this opportunity to contribute this guest post, the text of the speech I gave this Monday at U.N. headquarters in New York to the Assembly of States Parties on the occasion of my election as Prosecutor of the International Criminal Court)

Madam President of the Assembly,
Mr. President Khama,
Excellencies,
Ladies and Gentlemen,
Kindly allow me to say a few words of thanks following my election as Prosecutor of the International Criminal Court.
Let me start by thanking all States Parties present here today for your confidence and trust in me, as well as for the ownership taken over this election process. It is humbling to have received this truly great honour and I gladly accept the role as your Prosecutor.
Permettez-moi maintenant de m’adresser à vous en français.[*]
Je suis particulièrement fière du fait que ma région m'ait soutenue de manière si proactive depuis le début. Le continent africain a encore une fois démontré son soutien et son engagement en faveur de la justice internationale et de la Cour. Mais laissez-moi également insister sur ceci: je serai le Procureur de tous les États Parties, de manière indépendante et impartiale. Je suis forte du consensus exprimé aujourd’hui dans cette salle, et je compte sur votre soutien continu dans les années à venir.
Depuis que j'ai commencé à travailler, alors que j’étais encore adolescente, en tant que stagiaire dans un tribunal local en Gambie, j'ai consacré ma carrière à la poursuite de la justice. En tant que Procureur général et ministre de la Justice de la Gambie, au Tribunal pénal international pour le Rwanda, et en tant que Procureur adjoint à la Cour pénale internationale, j'ai toujours plaidé en faveur de la primauté du droit, de la protection des citoyens et de leurs droits.
Suite à mon élection aujourd'hui, et dès le début de mon mandat en tant que Procureur en juin 2012, je compte poursuivre cette ambition.
Allow me now to continue in English.
It is an honour to work for this Court, a truly unique institution.
In Rome in 1998, representatives from civil society and from States with different legal traditions debated the creation of the Rome Statute from different perspectives, but all knew that the new legal design would profoundly impact the way international relations are governed. It is impacting other institutions and indeed, as Prosecutor Moreno-Ocampo said, changing international relations forever.
As the next Prosecutor, I hope to contribute to solidifying this change, remaining committed to the goals of the Court and the legal mandate entrusted to the Prosecutor to end impunity for those responsible for the gravest offenses, bringing justice to their victims, and preventing future crimes.
The Office of the Prosecutor is a key component of the Rome system. It is the trigger of the Court and the driving force behind the cases brought forward for prosecution. Yet, the Office is not, and cannot be, an isolated organ, divorced from the other components of the system. On the contrary, the Office must, in a manner respectful of the divisions of functions and responsibilities established by the Statute, and in accordance with its independent mandate, have a fluid relationship with the other organs of the Court, under the one Court principle, and with the Assembly of States Parties.
This is what we have operationalized in the last eight years, and I will continue to work towards an integrated Court, based on inter-organ dialog, coordination and support. Communication with States Parties and our civil society partners is also key to ensuring that their views and concerns are listened to, but also that our positions are adequately presented and explained.
I will also build on what has been accomplished so far in terms of institutional development of the Office, with a view to continuing to ensure the consistency, predictability and transparency of our work.
I thank the current Prosecutor, Luis Moreno-Ocampo, for his inspiration and his total commitment to the mandate of the Court, allowing me to start my tenure as Prosecutor of a global judicial institution that he has greatly contributed to transforming into a key actor in international relations. This Court is where it is today thanks to his dedication and tireless efforts.
I am proud to inherit a well respected and sound functioning Office with high calibre dedicated staff, and organised policies and practices. This solid basis will be the starting point of my work, and any adjustment will be well considered. I will continue efforts to uphold the highest standards in Court.
Madam President of the Assembly,
Mr. President Khama,
Excellencies,
Ladies and Gentlemen,
I look forward to our future cooperation and to implementing this important mandate, which you have bestowed on me.
Thank you.
Merci.

_________________________

* For the benefit of our non-francophone readers, IntLawGrrls provides our own, unofficial translation of this French passage in the post below.

Monks march for a free Tibet

After last year’s monk-led protests in Burma/Myanmar , monks from monasteries outside Lhasa were on the march in Tibet. Coinciding with the 49^th anniversary of the 1959 uprising that forced the Dalai Lama into exile, protests began last Monday, when roughly 400 monks set out to march the 5 miles from Drepung Loseling Monastery to Lhasa’s city center to protest rules restricting religious practices and requiring “patriotic education” in the monastery: i.e., monks must “study government propaganda and write denunciations of the Dalai Lama.” The marchers had made it about halfway when police arrested 50 or 60 of them and the rest promptly turned the march into a sit-in, in which 100 more monks from Drepung joined. As the Drepung monks were agreeing to return to their monastery on Tuesday morning, a dozen or so monks from the Sera Monastery waving a Tibetan flag (at right) began a pro-independence rally outside Tibet’s most sacred temple, the Jokhang, in the center of Lhasa. Arrests there sparked further protest that day, as a reported 500-600 monks stormed from the Sera Monastery demanding the release of their brethren—and independence for Tibet. On Wednesday, monks from the Ganden Monastery held their own protest, which was followed on Thursday by what are apparently the largest anti-Chinese protests to be held since the 1987 and 1988 protests by monks from the Drepung and Sera monastery. While those protests ended in bloodshed, Chinese forces seemed to be more restrained on Thursday, thanks to the upcoming Olympic games in Beijing. On Friday, however, violence erupted. Reports as to how it began or evolved conflict depending on whether the reporter is ethnic Tibetan or Chinese, but it would appear that monks from the Ramoche Temple set out to protest Chinese treatment of monks who had demonstrated earlier in the week. The Ramoche monks were joined by ethnic Tibetans, who began burning shops and cars, including military vehicles. The Dalai Lama asked both sides to avoid violence but otherwise supported the protesters, and thousands of Buddhist sympathizers in Nepal and India hit the streets to show their support. On Saturday, as Chinese authorities reported they had regained control in Lhasa, clashes broke out in the city of Xiahe, Gansu Province, where small protests had begun the day before and escalated to involve perhaps as many as 4000 Buddhist monks and Tibetans calling for the Dalai Lama’s return to Tibet. Chinese authorities say they haven’t fired on the crowds, but witnesses report the opposite, claiming at least 30 deaths, if not 100.

Secession & ethnicity in Kosovo

Following on my post last week about the legality of Kosovo’s declaration of independence, readers interested in this subject might want to take a look at these views of the legality debate from our colleagues at Opinio Juris. And to balance those relatively secession-friendly outlooks, consider this skeptical assessment of the legality of unilateral secession, written in the context of the Quebec Secession case.
In considering these questions, I am troubled by the history of deliberate manipulation of ethnic populations in Kosovo in light of the role that Kosovo's current ethnic composition plays in assessments of its independence claim. Of course, the Serbian attempt at ethnic cleansing of the Albanian population from Kosovo was one of the reasons for NATO’s intervention and UN administration of the province. But under the UN administration, other efforts at manipulation have continued. On the one hand, periodic riots and attacks on Serbian enclaves by Albanians have pushed out most of the few Serbs who stayed after 1999. On the other hand, Serbia has provided considerable support to the Serbian enclaves to persuade the Serbs there to remain within Kosovo. When a claim to self-determination depends on an ethnic group's claim to be a people in possession of a territory, there are strong and dangerous incentives for all concerned to try to shape the ethnic composition of that territory, and certainly those have been at work here.

(credit for 2005 map of Kosovo ethnic makeup, based on data from the Organization for Security and Co-operation in Europe)

Kosovo's independence: Does legality matter?

Serbia, Spain, and other states opposed to the independence of Kosovo argue that its unilateral declaration of statehood is illegal under international law. (Prior posts here, here, and here; map credit.)
Those supporting Kosovo’s independence, including the United States, don’t seem to disagree. Rather than arguing that Kosovo’s declaration can be reconciled with principles of territorial integrity, they contend that Kosovo is “sui generis” and therefore “does not set a precedent.” In other words, no, it isn’t legal, but not to worry, it won’t happen again.
Certainly Kosovo is in some ways unique. Those making the sui generis argument point to the break-up of Yugoslavia, Security Council Resolution 1244 (1999), and the long period of UN administration as distinguishing features. Basing a claim to independence on UN intervention is in some ways reassuring, as any nascent polity receiving such intervention must have considerable international support. It is in other ways disturbing, suggesting that the decisive factor in determining the legitimacy of claims to sovereignty is not the freely expressed will of the people but the will of the international community -- not self-determination but UN-determination.
In any event, there are a lot of independence-seekers in the world who are hoping that they too are sui generis, and it won’t be long before they begin to put the question to the test. The New York Times reports that South Ossetia and Abkhazia, independence-seeking regions in Georgia, have indicated that they will ask for recognition from Russia, which has long supported them, based on the Kosovo (non-)precedent. (map credit)

Parallel courts continue in Kosovo

An important development yesterday concerning the proposal for Kosovo’s independence (discussed in my previous post): the OSCE issued a report finding that Serbian parallel structures continue to exist in Kosovo and “have a direct impact on the rights of individuals and the rule of law.” What are parallel structures and why do they matter? One of the crucial questions for Kosovo’s success as an independent state is whether it can adequately protect and integrate its Serb minority (as well as other minority populations). In 2002, the UN Special Representative in Kosovo established a “Standards Before Status” policy that set out benchmarks for Kosovo to meet in the areas of democracy and rule of law, among others, before its political status could be addressed. These standards have not been met in many areas, and while the UN envoy’s report acknowledges this only indirectly, the details of the proposal for independence calling for further institution-building and EU supervision are tacit acknowledgement of that fact. One of the unmet standards is the integration of Serbs and other minorities into Kosovo’s government and the end of what are called “parallel structures” – Serbian courts, schools, hospitals, and other facilities that the Serbian government has maintained within the Serb enclaves in Kosovo for the Serb population there. The OSCE report attributes the continued existence of these parallel structures to a combination of lack of physical security, trust, and political certainty. Yet the UN envoy's proposal calls for the integration of Serbs into Kosovo institutions, without so much as mentioning the existence of these parallel structures. As I’ve discussed at length elsewhere, the parallel courts (and other parallel administrative structures) both represent and perpetuate the social and political divisions that have proven so intractable in Kosovo. At a minimum, to be successfully accommodated, they must first be openly acknowledged.