GENERAL ASSEMBLY 6: Constructing a legal structure for regions seeking to gain sovereignty and independence.

GENERAL ASSEMBLY 6: Constructing a legal structure for regions seeking to gain sovereignty and independence.

HUMAN RIGHTS COUNCIL: Promotion of human rights of stateless persons..

Forum: General Assembly 6 Issue: Constructing a legal structure for regions seeking to gain sovereignty and independence Student Officer: Teije Rutgers Position: Chair Introduction On the 9 th of July 2011, South Sudan gained independence from Sudan. This is the most recent example of the birth of a new sovereign independent state. Even though this example was a successful one, with the people getting to enjoy their right to self-determination, there are several other non-successful very complex independence movements all around the world right now. Often these conflicts lead to an increase in internal tensions and perhaps even civil war. One recent example of increasing tensions, for example, is the Catalonia Autonomous region in Spain. After holding a referendum (deemed illegal by the Spanish Government), the regional parliament declared independence from Spain. This declaration of independence is likely to be ruled against the law by the Constitutional Court, according to TIME Magazine, but even if it isn t deemed illegal, Catalonia would be unlikely to gain membership in the European Union or to be recognized internationally. The issue of sovereignty and independence of countries, as well as its recognition by the UN, has been an ongoing one since the beginnings of the organization. The UN has in fact taken somewhat mixed and unclear positions, with resolutions supporting the sovereignty of countries and the inadmissibility of intervention, and the UN Charter proclaiming the right of Self-Determination of peoples. This report focuses on the causes of these problems, the current situation, the different views and possibilities for the future. 1

Definition of Key Terms Independence The state or quality of being independent; freedom from the control, influence, support, aid, or the like, of others. Independence is a condition of a nation, country, or state in which its residents and population, or some portion thereof, exercise self-government, and usually sovereignty, over the territory. Sovereignty Sovereignty is the full right and power of a governing body over itself, without any interference from outside sources or bodies. Self-Determination The right to self-determination appears in the first Article of the UN Charter, which reads 2-To develop friendly relations among nations based on respect for the principle of equal rights and self-determination of peoples, and to take other appropriate measures to strengthen universal peace;. Self-Determination, according to International Law is the right people have to freely choose their sovereignty and international political status with no interference. Thus, it is a right that belongs to people and not to states or governments. Nation Nation and state are not always interchangeable. Whilst a state is a nation or territory considered as an organized political community under one government, a nation is a large body of people united by common descent, history, culture, or language, inhabiting a particular state or territory. The important bit to highlight here, putting it in simple terms, is that one state can have several nations. 2

General Overview One of the definitions one can find of the word independence is being free from the control, influence, support, aid, or the like, of others. While this may look very appealing for some, it is important to realize this also means one can t expect any form of help, aid or support from the previous mother-country. There are many reasons a country may want to seek independence and create their own sovereign state. For example, a group of people might feel separate from another because they don t share the same history, they speak different languages or they believe they are not being recognized as people. Sometimes there are financial motives at play, when a people feels their economy would thrive if they became independent. They might also feel the urgent need to decide for themselves instead of someone deciding for them and feel like their own culture is not being dignified. A major part of the before mentioned culture can include religion. A state can easily be polarized by differences in beliefs, even wars can arise. There are several ways new countries can be formed and gain independence. Perhaps the most common way when taking a historic perspective, is through a war with the oppressor. This can be seen for example in the US war of independence, where the Americans fought to be freed from the British. Other types of war, like civil wars, can often end up in the splitting of a country into two independent states, often with opposite ideologies, like is the case of the Koreas. Since the 19 th century however, more peaceful ways of independence have been found two recent examples including the split of Czechoslovakia into the Czech Republic and Slovakia, and the independence of South Sudan from Sudan, which took place through a vote (that had a blessing from the Sudanese government). All of these independence movements however, had to be recognized by the international community, with an important step for their full recognition being their entry in the UN. 3

To what extent can the UN intervene? It should not be assumed that the concept of self-determination became a legally binding principle of conventional international law by the mere fact of its incorporation into the UN Charter.The UN s role is somewhat limited since it shouldn t directly interfere in country s internal issues. However, its role is also to promote peace. The first significant contribution made by the UN in developing the concept of self-determination was the Declaration on the Granting of Independence to Colonial Countries and Peoples which represented the political and in some observers view the legal basis for the decolonization. Furthermore, there is he UNGA Declaration on Principles of International Law concerning Friendly Relations and cooperation among States in accordance with the Charter of the United Nations, which is perhaps the most authoritative and comprehensive formulation so far of the principle of self-determination. This document embraces the right of people to determine their external interference their political status as well as the duty of every State to respect this right in accordance with the provisions of the Charter (Principle 5 Friendly Relations Declaration). It further added that the establishment of a sovereign and independent State, the free association or integration with an independent State, or the emergence into any other political status freely determined by a people constitute modes of implementing the right of self-determination, thus stressing, as the critical issue, the methods of reaching the decision and not the result. Timeline of Key Events 14 December 1960 : General Assembly resolution 1514 (XV) of 14 December 1960, the Declaration on the Granting of Independence to Colonial Countries and Peoples 21 December 1965: UN GA Resolution A/RES/20/2131 on Declaration on the Inadmissibility of Intervention in the Domestic Affairs of States and the Protection of Their Independence and Sovereignty 24 October 1970: UNGA Resolution 2625 (XXV) on the declaration on Principles of International Law concerning Friendly Relations and cooperation among States in accordance with the Charter of the United Nations 4

25 October 1971 : UN resolution on the Restoration of the lawful rights of the People s Republic of China in the United Nations Majorly involved parties China Taiwan (officially the Republic of China -ROP) was the official China at the UN until the People s Republic of China (mainland China) until 1971, when not only did it lose its seat as a permanent member of the Security Council, but its seat in the UN as a whole. It currently is the most populous state and largest economy that is not a member of the United Nations. It is currently recognized by 29 states and the Holy See, however it maintains unofficial ties through representative offices (that function as de facto embassies and consulates). Furthermore, the PRC supports the One-China policy, which states that Taiwan and mainland China are both part of China and that PRC is the only legitimate government, using this policy to prevent the international recognition of ROC, regardless of the fact that the ROC has its own constitution, independently elected president and armed forces and that ROC territories have never been ruled by PRC. Below is a timeline of the situation of China. Serbia Serbia has recently suffered two territorial splits from their state. Firstly, Montenegro s split and secondly, Kosovo s attempted split. After Yugoslavia broke up in 1991, the republics of Serbia and Montenegro established a federation called the Federal Republic of Yugoslavia (FRY). On 4 February 2003, the federal parliament of Yugoslavia created a loose state union - State Union of Serbia and Montenegro, and independence movements started growing. Finally, an independence referendum was held in Montenegro on 21 May 2006. It was approved by 55.5% 5

of voters, narrowly passing the 55% threshold, with all permanent SC members recognizing the new state and Serbia accepting the results in favour of independence. Secondly, there is the situation of Kosovo, which was governed by a UN-authorized force since the end of the NATO bombing campaign in 1999 until their unilateral declaration of independence in February 2008. Kosovo s independence had been recognized by almost 100 states as of mid-2010, but not by Serbia, and most Western observers are sympathetic to Kosovo's claimed independence; for example, 22 EU member states, the United States, Australia, and Canada. Spain Catalonia was an independent region in the Iberian Peninsula for many centuries until the unification of Spain, taking place in the 15th century. Subsequent kings tried to impose the Spanish language and laws on the region, with Francisco Franco (the Spanish Dictator) killing over 3,500 people and forcing many more into exile. Recently, the economic crisis has magnified calls for Catalan independence as the wealthy Barcelona region is seen as propping up the poorer rest of Spain. Catalonia's pro-independence leaders then went ahead with a full referendum on 1 October 2017, which was also declared illegal by Spain's constitutional court. Even though independence won by a large majority, turnout was only 43% amid a boycott by unionists. Nonetheless, the separatist majority in the Catalan parliament declared independence on 27 October. Using the Article 155 emergency powers, Madrid dissolved parliament, sacked its leaders and called a snap election for 21 December, in which pro-independence parties once again got a majority of seats. Some argue that if Madrid makes concessions, such as restoring parts of the 2006 autonomy statute, it could defuse the crisis. Previous attempts to solve the issue One of the big issues when debating this topic is the definition of peoples, meaning that it is always unclear in concrete instances whether one or more peoples exist. he ICJ followed suit in the Western Sahara Advisory Opinion in stating that [t]he right of that population to self-determination constitutes therefore a basic assumption of the questions put to the Court (para. 70). In a similar way, the ICJ in the East Timor (Portugal v Australia) case took note of the fact that both parties to the dispute agreed that the people of East Timor had the right to 6

self-determination (at paras 31 and 37) and thereby underscored that the population of East Timor is a people. A right however must not only have a holder but also a duty-bearer. Furthermore, it remains difficult to establish how and by which act the right to self-determination is violated in the first place. In the the Israeli Wall Advisory Opinion, the ICJ held that the right to self-determination was breached by creating the risk of further alterations to the demographic composition of the Occupied Palestinian Territory, which is a very unclear statement. In 2008 the General Assembly adopted a resolution submitted by Serbia that requested an Advisory Opinion from the International Court of Justice on the following question: Is the unilateral declaration of independence by the Provisional Institutions of Self-Government in Kosovo in accordance with international law?. The response from the Court in 2010 was far from clear, the Court specifically noting the radically different views expressed to it on the question of whether either a contemporary form of self-determination or a right of remedial secession exists that might grant part of an existing state a right to separate from that state. It is of most importance for this committee to take a close look at the end of such opinion from the Court which reads: it is not necessary to resolve these questions in the present case... [which] is beyond the scope of the question posed by the General Assembly, thus offering no guidance as to how the substantive right to self-determination should be understood. Possible Solutions Although it is quite hard to find fitting solutions that will actually (partially) resolve this issue, there are a few methods that could be taken into consideration. One of the first things to do would be to promote dialogue and peace between the people seeking independence and the state, so that in a middle ground can be reached. This would have to be something clearly written and structured in order to ensure the UN does not cross the inadmissibility line. However, it is important to stress that truly the solutions for this issue have to come from inside the country/state itself. This nonetheless can very much be promoted in a resolution, in small things such as with the promotion of the participation of people in decision-making, with referendums and/or increase in local power (municipalities /regions/ districts). If people (like for 7

example in Catalonia) feel like they have more decision-power in their lives, perhaps they won t see independence as their only source of happiness. Furthermore, cultural education and promotion of diversity is always a positive path to follow, making sure minorities are not being left out and oppressed but rather integrated in society in a way that also promotes their diversity such a thing can be done through schools, special programs, free language lessons. Bibliography 1. Alexander, Harriet, and James Badcock. "Why Does Catalonia Want Independence from Spain?" The Telegraph. N.p., 10 Oct. 2017. Web. 6 Feb. 2018. <http://www.telegraph.co.uk/news/0/does-catalonia-want-independence-spain/ >. 2. Gray, Eliza. "What Catalonia's Vote for Independence Means for Europe." TIME. N.p., 7 Nov. 2015. Web. 5 Feb. 2018. <http://time.com/4102619/what-catalonias-vote-for-independence-means-for-e urope/>. 3. Hannum, Hurst. "Legal Aspects of Self-Determination Encyclopedia Princetoniensis." Princeton University. The Trustees of Princeton University, n.d. Web. 05 Feb. 2018. <https://pesd.princeton.edu/?q=node%2f254>. 4. "Independence." Dictionary.com. Dictionary.com, n.d. Web. 05 Feb. 2018. 5. "Independence." Wikipedia. Wikimedia Foundation, 14 Jan. 2018. Web. 05 Feb. 2018. 6. Thurer, Daniel, and Thomas Burri. "Self-Determination." Oxford Public International Law. N.p., Dec. 2008. Web. 5 Feb. 2018. <http://opil.ouplaw.com/view/10.1093/law:epil/9780199231690/law-9780199231 690-e873#>. 7. "UN Charter." UN. N.p., n.d. Web. 5 Feb. 2018. <http://www.un.org/en/sections/un-charter/chapter-i/index.html>. 8

8. Wong, Edward (12 March 2008). "Taiwan's Independence Movement Likely to Wane". The New York Times. Retrieved 12 February 2016 9