DOCSLIB.ORG

State Succession to Territorial Obligations, South Sudan, and the 1959 Nile Waters Agreement

Total Page：16

File Type：pdf, Size：1020Kb

Download full-text PDF Read full-text
State Succession to Territorial Obligations, South Sudan, and the 1959 Nile Waters Agreement Emory International Law Review Volume 27 Issue 2 2013 Inheriting International Rivers: State Succession to Territorial Obligations, South Sudan, and the 1959 Nile Waters Agreement Mohamed S. Helal Follow this and additional works at: https://scholarlycommons.law.emory.edu/eilr Recommended Citation Mohamed S. Helal, Inheriting International Rivers: State Succession to Territorial Obligations, South Sudan, and the 1959 Nile Waters Agreement, 27 Emory Int'l L. Rev. 907 (2013). Available at: https://scholarlycommons.law.emory.edu/eilr/vol27/iss2/7 This Article is brought to you for free and open access by the Journals at Emory Law Scholarly Commons. It has been accepted for inclusion in Emory International Law Review by an authorized editor of Emory Law Scholarly Commons. For more information, please contact [email protected]. HELAL GALLEYSPROOFS2 5/1/2014 9:02 AM INHERITING INTERNATIONAL RIVERS: STATE SUCCESSION TO TERRITORIAL OBLIGATIONS, † SOUTH SUDAN, AND THE 1959 NILE WATERS AGREEMENT ∗ Mohamed S. Helal ABSTRACT South Sudan’s independence has increased the number of Nile riparian states to eleven. Unfortunately, the Nile remains without an all-inclusive legal regime to regulate its use and to ensure that this indispensable natural resource is conserved for future generations. What, therefore, are the legal obligations of the newborn Republic of South Sudan regarding the Nile River? Specifically, this Article asks whether the Egyptian-Sudanese Nile Waters Agreement of 1959 has devolved onto South Sudan. This Article looks to the law of state succession to treaties to answer to this question. This is a field of international law that is beset with considerable uncertainty. State practice is inconsistent and scholarly opinion is virtually unanimous that the principal international legal instrument on the matter, the 1978 Convention on State Succession in Respect of Treaties, does not wholly reflect customary international law. To further complicate matters, the process by which South Sudan gained independence makes it difficult to reconcile this case with the structure and logic of the 1978 Convention. Therefore, this Article turns to customary international law to determine the rights and obligations of South Sudan in relation to the Nile River. This Article argues that international law recognizes a special category of treaties that establish territorial obligations. The overwhelming weight of state practice and judicial opinion supports the assertion that these territorial obligations remain unaffected by State † With much gratitude, this Article is dedicated to my academic supervisors at Harvard University: Professor William Alford, Professor Gabriella Blum, and Professor John Gerard Ruggie. The author wishes to thank Jason Robison, Konstantinos Stylianou, and Abdelkhalig Shaib for reading drafts of this Article and providing insightful comments and suggestions. All errors are mine alone. ∗ S.J.D. Candidate (Harvard Law School); LL.M. ’10 (Harvard Law School); Licence en droit ’09 (Ain Shams Law Faculty, Egypt); M.A. in International Human Rights Law ’04 (American University in Cairo); B.A. in Public and International Law ’02 (American University in Cairo). The author is a Second Secretary with the Diplomatic Corps of Egypt. He served on the Cabinet of the Foreign Minister of Egypt from 2005- 2009 and on the Cabinet of the Secretary-General of the Arab League from 2002-2003. All views expressed herein are solely those of the author, and nothing in this article should be read or interpreted as representing the positions of the Government of the Arab Republic of Egypt. HELAL GALLEYSPROOFS2 5/1/2014 9:02 AM 908 EMORY INTERNATIONAL LAW REVIEW [Vol. 27 succession. This Article concludes that, while it is doubtful that South Sudan has succeeded to the 1959 Nile Water Treaty per se, the Nile’s newest riparian is bound by the territorial obligations enshrined therein. This, however, is an unsatisfactory state of affairs. The existing treaties relating to the Nile River are inadequate to meet the many environmental, demographic, and developmental challenges facing the drainage basin. The Nile riparians need to overcome their differences and reach agreement on a comprehensive legal regime to govern the utilization of the watercourse. INTRODUCTION .............................................................................................. 909 I. THE BIRTH OF SOUTH SUDAN ............................................................. 912 II. THE LEGAL REGULATION OF THE UTILIZATION OF THE NILE RIVER WATERS .............................................................................................. 914 A. Pre-1959 Agreements on the Utilization of the Nile Waters ...... 915 B. The 1959 Nile Waters Agreement ............................................... 923 C. Post-1959 Agreements and Arrangements for the Utilization of The Nile River ......................................................................... 931 III. THE LAW OF STATE SUCCESSION TO TREATIES .................................. 934 A. Defining State Succession ........................................................... 934 B. Theories of State Succession to Treaties .................................... 937 1. The Universal Succession Theory ........................................ 937 2. The Tabula Rasa Theory ...................................................... 938 3. The Politics and Practice of State Succession ...................... 939 C. The 1978 Vienna Convention on State Succession in Respect of Treaties ................................................................................... 943 1. The Structure of the 1978 Convention .................................. 944 2. The Status of South Sudan and the Deleted Draft Article 33(3) of the 1978 Convention ............................................... 947 3. Does the 1978 Convention Express Customary International Law? ............................................................... 953 IV. TERRITORIAL OBLIGATIONS, DISPOSITIVE TREATIES, AND STATE SUCCESSION ........................................................................................ 964 A. The Genesis of Territorial Obligations and Dispositive Treaties ....................................................................................... 964 B. State Succession to Territorial Obligations and Dispositive Treaties ....................................................................................... 967 C. The Scope and Content of Obligations Inherited by South Sudan .......................................................................................... 981 CONCLUSION .................................................................................................. 984 HELAL GALLEYSPROOFS2 5/1/2014 9:02 AM 2013] STATE SUCCESSION TO TERRITORIAL OBLIGATIONS 909 INTRODUCTION On July 9, 2011, South Sudan declared independence from the Republic of the Sudan and became the world’s newest state.1 South Sudan also became the eleventh riparian state to share the world’s longest river, the Nile.2 Emerging from Africa’s longest civil war, South Sudan faces immeasurable challenges as it strives to lay the foundations of a peaceful and prosperous nation.3 In addition to boundary disputes with its northern neighbor, conflicts over the use and exploitation of its abundant natural resources, particularly oil and water, could become a serious source of insecurity for the young republic.4 Most scholarly and policy interest has centered on the potential for the outbreak of hostilities between Sudan and South Sudan over oil-related disputes.5 Relatively lesser attention has been paid to the impact the birth of South Sudan has had on the Nile Basin legal regime. The Nile is an ancient river. Since time immemorial, glorious civilizations flourished on its banks and lived off its silt.6 “The Nile is one of the great natural wonders of the world. It flows through every natural formation from towering mountains and well-watered highlands to the most barren of deserts.”7 Today, the Nile continues to provide sustenance to millions of people in its eleven riparian states.8 Unfortunately, South Sudan entered international life at a time of uncertainty for the Nile. As discussed in Part II of 1 See, e.g., South Sudan’s Flag Raised at Independence Ceremony, BBC NEWS (July 9, 2011), http:// www.bbc.co.uk/news/world-africa-14092375. 2 The Nile riparian States are: Burundi, the Democratic Republic of the Congo, Egypt, Eritrea, Ethiopia, Kenya, South Sudan, Sudan, Rwanda, Tanzania, and Uganda.. See Christina Carroll, Past and Future Legal Framework of the Nile River Basin, 12 GEO. INT’L ENVTL. L. REV. 269, 270, 273 (1999). 3 See Crisis Group Africa, Int’l Crisis Group, Politics and Transition in the New South Sudan, at 1–2, Africa Report No.172 (Apr. 4, 2011). 4 See Crisis Group Africa, Int’l Crisis Group, Sudan: Defining the North-South Border, at 1–2, 8, Policy Briefing No.75 (Sept. 2, 2010). 5 Luke Patey, Crude Days Ahead? Oil and the Resource Curse in Sudan, 109 AFR. AFF., 617, 617 (2010); TED DAGNE, CONG. RESEARCH SERV., THE REPUBLIC OF SOUTH SUDAN AND CHALLENGES FOR AFRICA’S NEWEST NATION 18 (2011), available at http://relooney.fatcow.com/SI_FAO-Africa-2012/Sudan_1. pdf; Josh Kron, In 2 Sudans, Familiarity with Path to War, N.Y. TIMES, May 11, 2012, at A4. It should be noted, however, that scholars have pointed to the potential for the outbreak of war over water between Nile riparian States. See, e.g., Joyce Starr, Water Wars, FOREIGN POLICY (Spring 1991)
Load more

Recommended publications
  • I Am Honoured to Have Been Invited Here to Deliver the Keynote Address
    KEYNOTE ADDRESS BY H.E. MR. ABDULQAWI A. YUSUF, PRESIDENT OF THE INTERNATIONAL COURT OF JUSTICE I am honoured to have been invited here to deliver the keynote address, and I am particularly happy that my first speech before you as President of the International Court of Justice should be on the occasion of the 70th anniversary of the International Law Commission. As a judge of the International Court, but also first and foremost as an international lawyer, the work of the International Law Commission has played, and continues to play, a crucial role in my daily work. Your dedication and that of your predecessors has allowed the international legal system to develop into what it is today. For that, on behalf of international lawyers everywhere, I thank you. Of course, in the first rank of these international lawyers are my colleagues at the International Court of Justice, many of whom have passed through the Commission and have asked me to convey to you their congratulations on this 70th anniversary as well as their best wishes for the future. The theme of today’s celebration is “Drawing a Balance for the Future”, but I want to take a few minutes to look back into the past in order to understand the role that the International Law Commission has played over the past seven decades. This brings to mind an African proverb, which says: “If you want to know the end, look at the beginning.” The twentieth century was a time of particular upheaval for the international legal system. On the one hand, the century marked the evolution of the international law from a system that was applicable only among a small circle of European States to one that has a credible claim to be a universal legal system, one in which States from all corners of the globe participate.
    [Show full text]
  • Table 1 Comprehensive International Points List
    Table 1 Comprehensive International Points List FCC ITU-T Country Region Dialing FIPS Comments, including other 1 Code Plan Code names commonly used Abu Dhabi 5 971 TC include with United Arab Emirates Aden 5 967 YE include with Yemen Admiralty Islands 7 675 PP include with Papua New Guinea (Bismarck Arch'p'go.) Afars and Assas 1 253 DJ Report as 'Djibouti' Afghanistan 2 93 AF Ajman 5 971 TC include with United Arab Emirates Akrotiri Sovereign Base Area 9 44 AX include with United Kingdom Al Fujayrah 5 971 TC include with United Arab Emirates Aland 9 358 FI Report as 'Finland' Albania 4 355 AL Alderney 9 44 GK Guernsey (Channel Islands) Algeria 1 213 AG Almahrah 5 967 YE include with Yemen Andaman Islands 2 91 IN include with India Andorra 9 376 AN Anegada Islands 3 1 VI include with Virgin Islands, British Angola 1 244 AO Anguilla 3 1 AV Dependent territory of United Kingdom Antarctica 10 672 AY Includes Scott & Casey U.S. bases Antigua 3 1 AC Report as 'Antigua and Barbuda' Antigua and Barbuda 3 1 AC Antipodes Islands 7 64 NZ include with New Zealand Argentina 8 54 AR Armenia 4 374 AM Aruba 3 297 AA Part of the Netherlands realm Ascension Island 1 247 SH Ashmore and Cartier Islands 7 61 AT include with Australia Atafu Atoll 7 690 TL include with New Zealand (Tokelau) Auckland Islands 7 64 NZ include with New Zealand Australia 7 61 AS Australian External Territories 7 672 AS include with Australia Austria 9 43 AU Azerbaijan 4 994 AJ Azores 9 351 PO include with Portugal Bahamas, The 3 1 BF Bahrain 5 973 BA Balearic Islands 9 34 SP include
    [Show full text]
  • The Partition of the Gilbert and Ellice Islands W
    Island Studies Journal , Vol. 7, No.1, 2012, pp. 135-146 REVIEW ESSAY The Partition of the Gilbert and Ellice Islands W. David McIntyre Macmillan Brown Centre for Pacific Studies Christchurch, New Zealand [email protected] ABSTRACT : This paper reviews the separation of the Ellice Islands from the Gilbert and Ellice Islands Colony, in the central Pacific, in 1975: one of the few agreed boundary changes that were made during decolonization. Under the name Tuvalu, the Ellice Group became the world’s fourth smallest state and gained independence in 1978. The Gilbert Islands, (including the Phoenix and Line Islands), became the Republic of Kiribati in 1979. A survey of the tortuous creation of the colony is followed by an analysis of the geographic, ethnic, language, religious, economic, and administrative differences between the groups. When, belatedly, the British began creating representative institutions, the largely Polynesian, Protestant, Ellice people realized they were doomed to permanent minority status while combined with the Micronesian, half-Catholic, Gilbertese. To protect their identity they demanded separation, and the British accepted this after a UN-observed referendum. Keywords: Foreign and Commonwealth Office; Gilbert and Ellis islands; independence; Kiribati; Tuvalu © 2012 Institute of Island Studies, University of Prince Edward Island, Canada Context The age of imperialism saw most of the world divided up by colonial powers that drew arbitrary lines on maps to designate their properties. The age of decolonization involved the assumption of sovereign independence by these, often artificial, creations. Tuvalu, in the central Pacific, lying roughly half-way between Australia and Hawaii, is a rare exception.
    [Show full text]
  • Political Status and Development: the Implications for Australian Foreign Policy Towards the Pacific Islands
    Political Status and Development: The Implications for Australian Foreign Policy Towards the Pacific Islands STEWART FIRTH SSGM DISCUSSION PAPER 2013/6 Introduction Table 2: Pacific Islands Freely Associated Entities Nine in every 10 Pacific islanders live in the independent countries of the region — Fiji, Kiribati, Entity External State Nauru, Papua New Guinea, Samoa, Solomon Federated States of Micronesia USA Islands, Tonga, Tuvalu, and Vanuatu. The remaining tenth — almost a million people in all — live in the Republic of the Marshall Islands USA territories and freely associated states, where formal Republic of Palau USA connections with a metropolitan state offer access Cook Islands New Zealand to its resources and opportunities. In different ways, Niue New Zealand and with different levels of devolution of power to local governments, eight of the Pacific island entities in the Pacific community are territories Geoff Bertram points out, a large body of evidence of external states, and a further five Pacific island now supports the view that there is ‘a negative entities are freely associated with an external state. association between sovereign independence and present-day per-capita income, indicating that Table 1: Pacific Islands Territories while decolonization may have brought political and psychological gains, it retarded rather than Territory External State advanced the material prosperity of the decolonized American Samoa USA populations. The reasons are straightforward: Commonwealth of the USA small island jurisdictions which are sub-national Northern Mariana Islands (that is, retain constitutional links to metropolitan Guam USA powers) get more financial assistance per head, better access for migrant labour, and a wide range New Caledonia France of jurisdiction-related opportunities to capitalize on French Polynesia France non-sovereign status’ (Bertram 2007, 239–40).
    [Show full text]
  • The Position and the Role of Direct Democracy's Institutions in The
    SA 201 AR 2 - - A E d C v N a E n c R e E d F R N e Advanced Research in Scientific Areas 2012 O s C e a L r A c h U T i n R I S V c - i e s n a t e i r f i c A December, 3. - 7. 2012 The position and the role of direct democracy’s institutions in the political system of Principality of Andorra Marcin Łukaszewski Faculty of Political Science and Journalism Adam Mickiewicz University Poznań, Poland [email protected] Abstract—The article is an attempt to answer the question about through a trilateral agreement, accession to the United Nations the role of institutions of direct democracy in Andorra. The and the Council of Europe, has changed this status. author points to a relatively unique situation in the modern European political systems that takes place in the Principality, The only forms of direct democracy in the Principality are where the number of referendums after the adoption of the currently referendum and popular legislative initiative. Before Constitution (which provides these institutions) is significantly 1993 the direct democracy was fulfilled in consultations carried smaller than the period prior to its adoption. The author also out by national referendums. In 1971 Andorrans expressed tries to answer the question about the reason for such poor use of support for the idea of equality in the electoral rights of direct democracy institutions in contemporary Andorra. women. In 1977 and 1978 Andorrans supported the plan of political and institutional reforms, which resulted in the great Andorra; direct democracy; referendum; citizens’ legislative reform in 1981.
    [Show full text]
  • Draft Articles on Nationality of Natural Persons in Relation to the Succession of States with Commentaries 1999
    Draft Articles on Nationality of Natural Persons in relation to the Succession of States with commentaries 1999 Text adopted by the International Law Commission at its fifty-first session, in 1999, and submitted to the General Assembly as a part of the Commission’s report covering the work of that session (at para. 48). The report, which also contains commentaries on the draft articles, appears in Yearbook of the International Law Commission, 1999, vol. II, Part Two. Copyright © United Nations 2005 Nationality in relation to the succession of States 23 (c) Have their habitual residence in a third State, and were born PREAMBLE in or, before leaving the predecessor State, had their last habitual residence in what has remained part of the territory of the prede- The General Assembly, cessor State or have any other appropriate connection with that State. Considering that problems of nationality arising from succession of States concern the international Article 26. Granting of the right of option by the predecessor and community, the successor States Emphasizing that nationality is essentially gov- Predecessor and successor States shall grant a right of option to erned by internal law within the limits set by interna- all persons concerned covered by the provisions of articles 24 and tional law, 25, paragraph 2, who are qualified to have the nationality of both the predecessor and successor States or of two or more successor Recognizing that in matters concerning nationality, States. due account should be taken both of the legitimate interests of States and those of individuals, 2. TEXT OF THE DRAFT ARTICLES WITH COMMENTARIES Recalling that the Universal Declaration of Human THERETO Rights of 1948 proclaimed the right of every person to a nationality, 48.
    [Show full text]
  • The UK Caribbean Overseas Territories, New Labour, and the Strengthening of Metropolitan Control Caribbean Studies, Vol
    Caribbean Studies ISSN: 0008-6533 [email protected] Instituto de Estudios del Caribe Puerto Rico Clegg, Peter The UK caribbean overseas territories, new labour, and the strengthening of metropolitan control Caribbean Studies, vol. 34, núm. 1, enero-junio, 2006, pp. 131-161 Instituto de Estudios del Caribe San Juan, Puerto Rico Available in: http://www.redalyc.org/articulo.oa?id=39211247005 How to cite Complete issue Scientific Information System More information about this article Network of Scientific Journals from Latin America, the Caribbean, Spain and Portugal Journal's homepage in redalyc.org Non-profit academic project, developed under the open access initiative THE UK CARIBBEAN OVERSEAS TERRITORIES... 131 THE UK CARIBBEAN OVERSEAS TERRITORIES, NEW LABOUR, AND THE STRENGTHENING OF METROPOLITAN CONTROL Peter Clegg ABSTRACT The article analyses the complex and ever-evolving relationship between Britain and its Overseas Territories in the Caribbean. Links between Britain and its Territories have been shaped and determined by particular historical, constitutional, political and economic trends. For many years the relationship between the Territories and the UK was rather ad hoc—a situation that can be traced back to the compromises, fudges and deals char- acteristic of ‘pragmatic’ British colonial administration. More recently, however, there have been attempts by the Labour government in Britain to overcome the informal nature of the relationship and to develop a new partnership based on mutual obligations and responsibilities. The article describes the appli- cations of this more pro-active and coherent level of oversight and highlights how the principle of more forceful metropolitan control has taken hold. The article asserts that the Territories are now much more heavily integrated into the international system, having adopted either willingly or unwillingly a number of changes to their political, economic and social structures.
    [Show full text]
  • The Treaty Obligations of the Successor States of the Former Soviet Union, Yogoslavia, and Czechoslovakia: Do They Continue in Force
    Denver Journal of International Law & Policy Volume 23 Number 1 Fall Article 3 May 2020 The Treaty Obligations of the Successor States of the Former Soviet Union, Yogoslavia, and Czechoslovakia: Do They Continue in Force Williams Paul R. Follow this and additional works at: https://digitalcommons.du.edu/djilp Recommended Citation Williams Paul R., The Treaty Obligations of the Successor States of the Former Soviet Union, Yogoslavia, and Czechoslovakia: Do They Continue in Force, 23 Denv. J. Int'l L. & Pol'y 1 (1994). This Article is brought to you for free and open access by Digital Commons @ DU. It has been accepted for inclusion in Denver Journal of International Law & Policy by an authorized editor of Digital Commons @ DU. For more information, please contact [email protected],[email protected]. The Treaty Obligations of the Successor States of the Former Soviet Union, Yugoslavia, and Czechoslovakia: Do They Continue in Force? PAUL R. WILLIAMS* I. INTRODUCTION The United States consistently asserts that the successor states emerging from the dissolution of the former Soviet Union, Yugoslavia, and Czechoslovakia are obligated to fulfill the treaty obligations of their predecessor states. The United States bases this duty on the international law of state succession with respect to treaties and on political commitments made during the process of establishing diplo- matic relations. The international law of state succession with respect to treaties, however, indicates that successor states are frequently entitled to a de novo review of the treaty commitments of the predecessor state, and they are not immediately obligated to assume all the treaties of the predecessor state.
    [Show full text]
  • The Statehood of 'Collapsed' States in Public International
    Agenda Internacional Año XVIII, N° 29, 2011, pp. 121-174 ISSN 1027-6750 The statehood of ‘collapsed’ states in Public International Law Pablo Moscoso de la Cuba 1. Introduction Over the last few years the international community has been witnessing a phenomenon commonly referred to as ‘State failure’ or ‘State collapse’, which has featured the disintegration of governmental structures in association with grave and intense internal armed conflicts, to the point that the social organization of society what international law considers the government of the State, a legal condition for statehood – has almost, or in the case of Somalia totally, disappeared from the ground. Such a loss of effective control that the government exercises over the population and territory of the State – the other legal conditions for statehood – pose several complex international legal questions. First and foremost, from a formal perspective, the issue is raised of whether a State that looses one of its constitutive elements of statehood continues to be a State under International Law. Such a question may only be answered after considering the international legal conditions for statehood, as well as the way current international law has dealt with the creation, continuity and extinction of States. If entities suffering from State ‘failure’, ‘collapse’ or ‘disintegration’ and referred to as ‘failed’, ‘collapsed’ or ‘disintegrated’ States continue to be States in an international legal sense, then the juridical consequences that the lack of effective government create on their condition of States and their international legal personality have to be identified and analysed. Our point of departure will therefore be to analyze ‘State collapse’ and the ‘collapsed’ State from a formal, legal perspective, which will allow us to determine both whether 122 Pablo Moscoso de la Cuba the entities concerned continue to be States and the international legal consequences of such a phenomenon over the statehood of the concerned entities.
    [Show full text]
  • Overseas Countries and Territories (OCT) (October 2011)
    Overseas Countries and Territories (OCT) (October 2011) Caption: European Commission President José Manuel Barroso delivers his State of the Union speech pleading for the launch of a wide-ranging public debate for a major transformation of the European Union into a ‘federation of nation states’. Source: European Commission. Region level evaluation. Overseas Countries and Territories (OCT). Final Report. Volume II: Annexes, October 2011. 271 p. Copyright: European Union URL: http://www.cvce.eu/obj/overseas_countries_and_territories_oct_october_2011-en-6f7c0eed-6572-4c47-83da- 05d2ce024c45.html Publication date: 05/12/2013 1 / 272 05/12/2013 REGION LEVEL EVALUATION OVERSEAS COUNTRIES AND TERRITORIES (OCT) Final Report Volume II: Annexes October 2011 Evaluation carried out on behalf of the Commission of the European Union 2 / 272 05/12/2013 3 / 272 05/12/2013 Consortium composed by ECO Consult, AGEG, APRI, Euronet, IRAM, NCG Leader of the Consortium: ECO Consult, Contact Person: Dietrich BUSACKER [email protected] Contract No EVA 2007/geo-acp This evaluation is mandated by The Joint Evaluation Unit for: EuropeAid Directorate General for Development and Directorate-General External Relations The opinions expressed in this document represent the views of the authors, which are not necessarily shared by the Commission of the European Union or by the authorities of the countries concerned The evaluation team was composed of: Mr. Gunnar Olesen (Team Leader), Mr. Max Hennion, Mr. Mark Q. Watson, Mr. Dolf Noppen, Mr. Seán J. Burke, Ms. Jutta Keilbach and Ms. Anne Beutling. 4 / 272 05/12/2013 5 / 272 05/12/2013 EVA 2007/geo-acp: Evaluation of the Commission of the EU’s cooperation with Overseas Countries and Territories ECO Consult – AGEG – APRI – Euronet – IRAM – NCG Table of Contents Page Annex I: Terms of Reference..................................................................................................
    [Show full text]
  • When the Demos Shapes the Polis - the Use of Referendums in Settling Sovereignty Issues
    When the Demos Shapes the Polis - The Use of Referendums in Settling Sovereignty Issues. Gary Sussman, London School of Economics (LSE). Introduction This chapter is a survey of referendums dealing with questions of sovereignty. This unique category of referendum usage is characterized by the participation of the demos in determining the shape of the polis or the nature of its sovereignty. The very first recorded referendums, following the French Revolution, were sovereignty referendums. Though far from transparent and fair, these votes were strongly influenced by notions of self- determination and the idea that title to land could not be changed without the consent of those living on that land. Since then there have been over two hundred and forty sovereignty referendums. In the first part of this chapter I will briefly review referendum usage in general. This international analysis of 1094 referendums excludes the United States of America, where initiatives are extensively used by various states and Switzerland, which conducted 414 votes on the national level from 1866 to 1993. This comparative analysis of trends in referendum usage will provide both a sketch of the geographical distribution of use and a sense of use by issue. In the second section of this chapter I examine the history and origins of the sovereignty referendum and identify broad historical trends in its use. It will be demonstrated there have been several high tides in the use of sovereignty referendums and that these high tides are linked to high tides of nationalism, which have often followed the collapse of empires. Following this historical overview a basic typology of six sub-categories, describing sovereignty referendums will be suggested.
    [Show full text]
  • The Reservations to the Protocols Additional to the Geneva Conventions for the Protection of War Victims
    International Review of the Red Cross, No. 849, March 2003, pp. 143-184. Faits et documents Reports and documents The reservations to the Protocols additional to the Geneva Conventions for the protection of war victims JULIE GAUDREAU* * Julie Gaudreau is a former staff member of the ICRC Advisory Service on International Humanitarian Law. On 8 June 1977, the Diplomatic Conference on the Reaffirmation and Development of International Humanitarian Law Applicable in Armed Conflicts (Geneva, 1974-1977) adopted two protocols additional to the Geneva Conventions of 12 August 1949 for the protection of war victims. The Protocols have not yet attained the universality of the Geneva Conventions,1 but 160 States are nevertheless party to the Additional Protocol relating to the Protection of Victims of International Armed Conflicts (Protocol I), and 153 are party to the Additional Protocol relating to the Protection of Victims of Non-International Armed Conflicts (Protocol II). The Additional Protocols undeniably enhanced international humanitarian law. The aim here is not to re-examine how – although this is discussed when relevant – but rather to draw up an inventory of all the reservations with which the Protocols have been encumbered.2 To date, 34 States have formulated nearly 150 unilateral declarations pertaining to Protocol I, whereas 13 States have formulated 13 declarations pertaining to Protocol II.3 This article endeavours to ascertain whether those declarations constitute true reservations and, if so, to assess their scope. Legal norms applicable to reservations to the Additional Protocols Like the Geneva Conventions, which they supplement, the Additional Protocols are silent on the subject of reservations.
    [Show full text]