South Sudan and Catalonia amidst the Changing Norms of Statehood Sovereignty
This essay was written for International Law course
Does a region have a unilateral right to secede from the state? Article 1.2 of the UN Charter does recognize the principle of self-determination. But, both the content of the right and who has the legitimate assertion to execute it continue to become a point of contention in international law. The great game of power politics also becomes a determinant factor, arguably more significant to the independence struggle output than the law itself. Debating the ambiguous relationship between state sovereignty and its independence might sound like a post World War II project, alas it is very much a present and relevant issue. The Catalans in Spain have been fighting for secession since 2008, whilst South Sudan seceded from Sudan 10 years ago after decades of bloody civil war and oppression.
This short essay will try to distinguish (and juxtaposed) the statehood recognition status of South Sudan and Catalonia. The first section of the essay defines the elements of statehood to give a clear understanding of the state’s unique characteristics in the international realm. The second part discusses the legitimacy and sovereignty of both South Sudan and Catalonia as independent states. The third section analyzes the underlying reason for South Sudan’s success in achieving statehood recognition, then juxtaposes this status with Catalonia’s failure to do so (so far). The final section concludes how each case reflects the relationship between international law and ongoing international politics.
Elements of Statehood and its Dynamics with Changing Norms in International Politics
Under the 1933 Montevideo Inter-American Convention on the Rights and Duties of States, a “State as a person of international law should possess the following qualifications: (a) a permanent population; (b) a defined territory; © government; (d) capacity to enter into relations with other states. The simultaneous presence of these elements identifies a sovereign entity entitled with international personality. Though, the concept of sovereignty is not rigid. The absence of one element does not automatically revoke state sovereignty; hence, its subsequent meanings and implications reflect hegemonic states’ interests and preferences and changing international norms (i.e., the trend of decolonization).
The base of arguments in the latter sections is the sovereign statehood concept set forth by Robert Jackson. He conceptualized dual regimes of sovereignty; the first is the empirical statehood system (positive sovereignty), which exists in the developed parts of the world, primarily determined by states capability and legitimacy; the second is the accommodative juridical statehood system (negative sovereignty) that exists in marginal parts of the third world, particularly Africa. Jackson claims that sovereignty recognition in the third world is mainly based on de jure rather than de facto due to the delegitimation of colonial rule and the rise of self-determination. This has led to the sprung of quasi-states, in which it acquires its statehood mainly by international “courtesy”. The governments of these states are incapable of enforcing their writ throughout the territory, thus the criteria for empirical statehood is not fulfilled.
These views of dual regimes sovereignty and quasi-state will be explored in the third section of the essay to make a case for distinguishing Catalonia and South Sudan’s sovereign recognition.
Legitimacy and Sovereignty of South Sudan and Catalonia
South Sudan’s history was scattered bloodily, consisting mainly of five decades of civil war and two million lives lost. As an ex-colony of Britain, it has always been a war-cracked patch of Africa. As stated by the New York Times, even before Sudan shook off its colonial yoke in 1956, the southern Sudanese were chafing for more rights. Sudan’s territory, reinforced by British colonizers, was mostly animist and Christian on the southern part and majority Muslim on the northern part. The rebellion started blowing up in the 60s, by which the Sudanese Arabs militia responded with brutal force, massacred civilians, and enslaved southern Sudanese children. Though it was not all black and white, decades-long civil war sowed mistrust between ethnic groups in South Sudan, and the man that later became South Sudan First Vice President was also responsible for the 1991 Bor massacre, resulting in thousands of lives killed and thousands other displaced.
The independence referendum came in January 2011, with a landslide majority of 98.83% voting in favor of independence and well over 60% ballot turnout. This, of course, had an international backing woven into the agenda itself. The U.S. played a key role in Southern Sudan’s self-determination struggle. The “Sudan Caucus” in the U.S congress had pushed three POTUS since 1989 to make the South Sudan self-determination issue a foreign policy priority (Hamilton, 2011). The UN welcomed South Sudan as a member of the United Nations without objections raised by its members six days after its independence in July 2011. Furthermore, the host state, Sudan, was the first state that recognized its independence. There was no strong opposition in regards to its proclamation of independence.
Being cognizant of these facts means acknowledging international political leverage that comes with it too. Sovereignty is today the political currency of the weak (Jackson, 222). By insisting on the privileges of sovereignty that they can defend, the South Sudan political elites adopted this Western view of statehood to further their national interests. With its corrupted and incompetent institution, South Sudan is hardly able to perform the public function in the empirical sense of statehood. Nevertheless, it is being baptized as a state because of international courtesy — a move backed by powerful states such as the U.S.
The decades-long war also came in as leverage for South Sudan to achieve recognition internationally. Seeing this fact from the critical legal angle, the “civilized” West (the U.S.) felt compelled to protect the “uncivilized” from future conflicts; hence the only way to end it was to grant South Sudan an international recognition of juridical sovereignty. This way, each region has a sovereign pie each. The self-determination struggle in the third world has different game rules. As Jackson put it, it is based on universal external rights rather than a particular internal reality (Jackson, 218).
As for the Catalonia self-determination case, it has an entirely different historical context and challenges. My roommate is a Catalan with two pro-Catalan independence parents who were in the middle of the 1-O referendum chaos in Barcelona. “It was all because we are one of the wealthiest provinces in Spain, we are tiny, but we pay most of the taxes, and it does not materialize in any way through the public infrastructure.” Direct sources from a roommate might be frowned upon in an academic essay, but as I researched through various newspapers, the grievances are similar to my roommate’s account. The self-determination struggle is not based on historical-cultural foundations only, but also economic foundations.
Catalan has its language, education system, and cultural and literary traditions. The current Catalan independence push began roughly 80 years ago when dictator Francisco Franco suppressed Catalan culture and language. However, some in the region trace the desire for autonomy back hundreds of years to the inclusion of Catalonia in Spain in the early 18th century (Wildman, 2017). However, two historical choke-points catalyzed its self-determination struggle. The first is that Catalans’ economic prowess helped Madrid climb back from the deep plunge of the 2008 economic crisis, thus angering the Catalans because taxes funneled to Madrid instead of government aid for the Catalans. The second is that the Spanish court decided to strip the 223-article of the 2006 referendum, a legal basis that gives Catalan autonomy to various issues, particularly the use of Catalan instead of Spanish as the official language.
On October 1, 2017, the Catalan independence referendum had a 42.03% turnout, with 92.01% voted for Catalonia to become an independent state in the form of a republic (Fortheringham, 2017). The Spanish Court immediately declared it unconstitutional, and Catalan independence has received no recognition from any sovereign nation. All five members of the UNSC, the supposedly hegemonic power in international affairs, regard it as a domestic issue of Spain and understand and support the Spanish government’s effort to maintain national unity and territorial integrity (Xinhua, 2017).
As part of the old establishment of the nation-states system, Spain is still considered by much of the wealth-dominant hegemonic power as a functional ‘civilized’ state that has solid both empirical and juridical sovereignty. Spain is also backed up by the solid support from elites in the EU, a supranational power that binds the economic fate of Europe together. The issue regarding Catalonia’s self-determination struggle is relatively new and not highly threatening nor intricate itself with the complex colonial past. Catalonia, ultimately, has no leverage to push the international hegemonic powers to recognize its independence. It does have three out of four elements of empirical sovereignty, namely population, territory, and an efficient government. Catalan has the executive power headed by a president, Carles Puigdemont, and a police force and seats in parliament. However, it does not have the final, arguably most essential, element of being a state, recognition from other states. In this case, all hegemonic powers sided with the Spanish government, leaving the Catalans with nothing but the unilateral declaration of independence.
The Spanish police force was engaged in excessive force when confronting demonstrators in Catalonia during a disputed referendum. As long as this practice continues, Catalonia has not achieved its negative/juridical sovereignty, and the right not to have interfered has not been achieved.
The International Recognition of Catalonia and South Sudan Sovereignty, Juxtapose
Ultimately, what binds these two cases of self-determination is the emphasis on getting juridical statehood recognition, not so much on empirical statehood recognition. South Sudan has governmental instability caused by decades-long civil war but received support from major powers globally; meanwhile, Catalonia is prosperous and “civilized,” nevertheless received nil support from any sovereign state. The two host states of South Sudan and Catalonia were held to different standards by the hegemonic power; Sudan was considered “uncivilized,” while Spain was considered “civilized” and fit to maintain stability. Hence, South Sudan has more leverage to push for juridical sovereignty and international recognition than Catalonia. Essentially, Catalonia needs no protection from Spain; however, Sudan does need one from Sudan.
Conclusion
It is quite ironic to see that the standard of civilization being put in international law in regards to statehood sovereignty has put the self-determination struggle of Catalonia, a European nation, in halt because of its rigidity of power. Although the points of discussion in this essay are clearly state-centric, it is worth noting that ordinary people, not state nor the extension of it (the elites), are most affected by statehood sovereignty. Perhaps, the right question should be how does this changing norm in statehood sovereignty affect the livelihood of people in divisive states?
WORKS CITED
(outside the required readings)
BBC. (2021). Catalonia: What powers does the region have?. BBC News. Retrieved 9 October 2021, from https://www.bbc.com/news/world-europe-41754124.
Forthingham, A. (2021). Massive majority votes for Catalan independence. The Independent. Retrieved 9 October 2021, from https://www.independent.co.uk/news/world/europe/catalan-independence-referendum-catalonia-vote-secession-spain-violence-police-a7977676.html.
Human Rights Watch. (2021). Spain: Police Used Excessive Force in Catalonia. Human Rights Watch. Retrieved 9 October 2021, from https://www.hrw.org/news/2017/10/12/spain-police-used-excessive-force-catalonia#.
ICRC. (2021). Independence, war and fragile peace:. International Committee of the Red Cross. Retrieved 9 October 2021, from https://www.icrc.org/en/independence-war-and-fragile-peace.
LSE. (2021). The Catalan crisis is about politics, not constitutional law — and it requires a political solution. EUROPP. Retrieved 9 October 2021, from https://blogs.lse.ac.uk/europpblog/2017/10/01/the-catalan-crisis-is-about-politics-not-constitutional-law-and-it-requires-a-political-solution/.
The Independent. (2021). From conflict to compromise: Lessons in creating a state. The Independent. Retrieved 9 October 2021, from https://www.independent.co.uk/news/world/politics/state-building-country-independence-plebiscite-palestine-south-sudan-kosovo-montenegro-a8888136.html.
The NYT. (2021). After Years of Struggle, South Sudan Becomes a New Nation (Published 2011). Nytimes.com. Retrieved 9 October 2021, from https://www.nytimes.com/2011/07/10/world/africa/10sudan.html.
