South Sudan v Kosovo: secession, national sovereignty, and territorial integrity

I. Introduction

In July 2011, South Sudan became a new state by seceding from Sudan, follwing decades of civil war and a referendum.

When Kosovo attained its independence in February 2008, some pundits warned against this precedent-setting event and foresaw a disintegration of sovereign states from Belgium to Russia. This time - their apocalyptic Cassandra predictions having failed - they remained mum.

II. Insurgents in International Law

Traditionally, the international community has been reluctant to treat civil strife the same way it does international armed conflict. No one thinks that encouraging an endless succession of tribal or ethnic secessions is a good idea. In their home territories, insurgents are initially invariably labeled as and treated by the "lawful" government as criminals or terrorists.

Paradoxically, though, the longer and more all-pervasive the conflict and the tighter the control of the rebels on people residing in the territories in which the insurgents habitually operate, the better their chances to acquire some international recognition and standing. Thus, international law actually eggs on rebels to prolong and escalate conflicts rather than resolve them peacefully.

By definition, insurgents are temporary, transient, or provisional international subjects. As Antonio Cassese puts it (in his tome, "International Law", published by Oxford University Press in 2001):

...(I)nsurgents are quelled by the government, and disappear; or they seize power, and install themselves in the place of the government; or they secede and join another State, or become a new international subject.

In other words, being an intermediate phenomenon, rebels can never claim sovereign rights over territory. Sovereign states can contract with insurrectionary parties and demand that they afford protection and succor to foreigners within the territories affected by their activities. However, this is not a symmetrical relationship. The rebellious party cannot make any reciprocal demands on states. Still, once entered into, agreements can be enforced, using all lawful sanctions

Third party states are allowed to provide assistance - even of a military nature - to governments, but not to insurgents (with the exception of humanitarian aid). Not so when it comes to national liberation movements.

III. National Liberation Movements in International Law