Earned sovereignty: the future of sovereignty-based conflict resolution.

• Jurisdiction: United States
• Date: 22 December 2011
• Author: Williams, Paul R.

INTRODUCTION

In the coming decades, the world is likely to see continuing conflict arising from the inherent tension between self-determination and territorial integrity. In the 1950's and 1960's, the world grappled with a wave of new states emerging from decolonization. In the 1990s and 2000's, the world witnessed the dissolution of the Soviet Union, Yugoslavia, Czechoslovakia, and the Sudan, as well as the separation of Eritrea from Ethiopia and East Timor from Indonesia. In the 1990's, almost half of all peace agreements failed within five years. In the 21st century, 90 percent of civil wars occurred in countries that had already endured civil war within the last 30 years. As we look toward the horizon, it is safe to say that deep-seated tension will continue to exist between groups seeking to exercise their right to internal or external self-determination, and states looking to preserve their territorial integrity. While some of these conflicts may play out peacefully, we know from experience that the clash between self-determination and territorial integrity leads in most cases to violence met by violence.

If the lessons of the past few years are any indication, it is also likely that the conflict resolution approach of earned sovereignty will be turned to as a means for bridging the impasse between self-determination and territorial integrity. Earned sovereignty is the conditional and progressive devolution of sovereign powers and authority from a state to a substate entity under international supervision. The approach, which has its roots in the Northern Ireland and Bougainville peace agreements, among others, proved successful in structuring the separation of Montenegro from Serbia, East Timor from Indonesia, Kosovo from Serbia, and South Sudan from the Sudan. Professor Ved Nanda's lifetime of work on the question of self-determination played a crucial role in the development of the approach of earned sovereignty.

During the course of advising numerous states and substate entities on questions of self-determination, I have invariably turned to the ideas and concepts developed by Professor Nanda. Professor Nanda has led the field in proposing specific criteria for resolving claims of self-determination. He has always resisted the temptation to adopt a "sovereignty first" or "self-determination first" approach. Rather, he has endeavored to paint a realistic picture of the effect that sovereignty-based conflicts have on the stability of our world, and to identify ways in which these conflicts may be better resolved.

This article will first discuss the significant impact that Professor Nanda's scholarship has had on the self-determination debate, setting the stage for the development of earned sovereignty. Next, it will trace the development of the earned sovereignty approach to its current status as a widely accepted conflict resolution approach that has been extensively utilized to resolve sovereignty-based conflicts throughout the world. This article will then revisit the elements that make up the earned sovereignty approach and will analyze the successful use of the approach to resolve the conflicts in Kosovo and South Sudan.

SETTING THE FOUNDATION FOR EARNED SOVEREIGNTY

Professor Ved Nanda first staked a role in the self-determination debate in the early 1970's when he wrote about East Pakistan's right to self-determination. (1) In that first piece, Professor Nanda argued that a set of criteria for self-determination should be developed, and he proposed a basic set of elements to jump-start the discussion. (2) At that time, he urged that claims to non-colonial self-determination were going to rise quickly and sharply, and that the international community would be wise to consider certain of these claims. (3) When Professor Nanda later looked back on the East Pakistani conflict, which had resulted in the birth of Bangladesh, he again argued for the extension of self-determination to groups "deprived of the opportunity to participate in the value processes of a body politic." (4) He reasoned that the test for evaluating a claim for self-determination should be "the nature and extent of the deprivation of human rights of the subgroup making the claim." (5)

When Professor Nanda revisited self-determination in the early 1980's after the Soviet intervention in Afghanistan and the Vietnamese intrusion in Cambodia, it was to refine the circumstances under which secession, as an exercise of the right to self-determination, might be considered justifiable. (6) To establish whether a right to secede is legitimate, Professor Nanda suggested focusing on the nature of the group seeking self-determination and its alienation from the "body politic," as well as the group's reasons for wanting to secede and the degree to which its members had been denied basic human rights. (7) His purpose in doing so was to encourage the establishment of criteria for cases in which the severe deprivation of human rights leaves no alternative to secession. (8)

Over a decade later, Professor Nanda reexamined self-determination in light of the post-Cold War environment, which included self-determination claims from the Kurds in Iraq and Turkey, the Tamils in Sri Lanka, and claims for secession in the Balkans, Caucuses, and throughout Africa. (9) This time around, he analyzed self-determination in a world that had finally caught on to what he had insisted for over two decades--that certain claims for self-determination outside the colonial situation deserve recognition. (10) While Professor Nanda reiterated that the severe deprivation of human rights may justify self-determination claims, he emphasized that there were different results of accepting such claims--"the creation of a state, a federal entity ... a confederation of states," or "an ethnic power-sharing arrangement." (11) In order to avoid a resort to violence to resolve self-determination claims, Professor Nanda encouraged the creation of mechanisms for pursuing self-determination claims and reconciling competing claims of sovereignty. (12)

In the 21st century, Professor Nanda again lent his expertise to the self-determination debate in light of Quebec's claim to secede from Canada, and the recent developments in Kosovo and East Timor. (13) He argued that the cases of Kosovo and East Timor demonstrated that the international community may be willing to accept unilateral secession claims in exceptional circumstances, particularly when an "undemocratic, authoritarian regime" has prohibited "the 'people' [from] participat[ing] effectively in the political and economic life of the state" and has followed "a pattern of flagrant violations of human rights." (14)

A GROTIAN MOMENT AT THE UNIVERSITY OF DENVER COLLEGE OF LAW

In seeking to develop the ability of lawyers to add value to sovereignty-based conflicts, Professor Nanda accepted an offer by the Public International Law & Policy Group to cooperate in organizing a day-long roundtable discussion at the DU College of Law to exchange ideas on the evolving conflict resolution approach of earned sovereignty.

At that time, earned sovereignty was an emerging concept with origins in the peace agreements relating to the state practice of Serbia and Montenegro and East Timor, the Northern Ireland and Bougainville agreements, and the proposed agreements for the Palestine Road Map and Western Sahara. However, despite the ad hoc reliance on the earned sovereignty approach by mediators and parties to conflict, there had been little effort to synthesize the concept or draw attention to its utility for resolving sovereignty-based conflicts. (15) This roundtable, and the subsequent debate that ensued, (16) began to put flesh on this emerging trend we dubbed "earned sovereignty," which came to be recognized as the conditional and progressive devolution of sovereign powers and authority from a state to a substate entity under international supervision.

Much has changed since that roundtable discussion a decade ago: the concept of earned sovereignty has gained considerable traction in the public international law and conflict resolution communities, and--most significantly--earned sovereignty has proven itself as a reliable mechanism for resolving sovereignty-based conflicts. Earned sovereignty is no longer an "emerging approach," as my colleagues and I once described it; it is now a tried and tested process for resolving conflicts.

The earned sovereignty approach has now been fully realized in both Kosovo and South Sudan, ending years of armed conflict in those states. Additionally, earned sovereignty has been proposed by the Moro in the Philippines, (17) the Tamils in Sri Lanka, (18) and the government of Nagorno Karbaugh, (19) as an option for ending conflict and resolving their claims to self-determination.

Earned sovereignty has also gained significant traction in the public international law and conflict resolution communities as a method for resolving sovereignty-based conflicts. While one scholar has hailed earned sovereignty as the "most promising solution in ethnically based conflicts where the prerequisites for self-determination are not met," (20) others have described the advent of earned sovereignty as a reconceptualization of sovereignty as a divisible entity, calling into question the strength of traditional notions of sovereignty and self-determination. (21) Some scholars focus on earned sovereignty's utility for resolving conflicts (22) or value as a tool to clarify...