BY NY Staff
Is there a legal basis for dismissing unity in the South?
The southern issue represents the most significant problem facing Yemen, and it directly concerns the fate of Yemen’s unification, which dates back to 1990. Many solutions have been proposed for the problem, including the adoption of federalism and a referendum with southern citizens to see whether they stand in support of unity or not.
This report will discuss the legal basis for dissolving unity and self-determination according to international and local laws. It will also shed light on a number of examples of countries established since the Second World War and the legal basis by which they were established, with comparisons to the case of Yemen’s south.
Importance of the legal basis for establishing a new country:
The territory on which the new country would be established should be among the occupied territories. It is worth mentioning that international law in such a case does not approve of the separation demanded by one side. In the event that there is no law that allows for separation, international law seeks the approval of the central government. This approval goes through political and legal arrangements with the side that represents the people of the territory.
Legal description of the south and southern people:
International law considers the southern areas parts of Yemeni lands and so people in the southern governorates are considered to be Yemeni citizens. This description is based on the following facts:
1. The southern territory and people there became part of the Yemeni Republic as a result of the unification which was launched on a peaceful and voluntary basis on May 22nd, 1990 between the two governments of the south and the north. The Yemen Arab Republic and the Democratic People’s Republic were merged into one republic before being removed from the world’s list of countries, according to international law.
2. Unity was enabled when it won public support through a referendum over the constitution of the unified country which took place in 1991 by both southern and northern citizens. In its first article, the constitution provides that the Yemeni Republic is an independent country and is considered as one land and that no part of it should be given up for any reason. It also states that the Yemeni people are part of the Arab and Islamic nations.
Is the south occupied?
Some supporters of the southern issue posit that the southern governorates have been occupied governorates since 1994. This can be viewed as a merely political description but it is incorrect in terms of international dialogue. The war in 1994 was seen as a civil war caused by political factors and this is assured by United Nations Security Council decisions numbers 924 and 931. These two decisions described the war in 1994 as within one country rather than two and referred to the possibility of “restarting the political dialogue” to resolve the “political conflicts.”
Lack of a legal basis for unity to be dissolved:
Those who call for unity to be broken up say they don’t require separation as, according to them, they do not call for the establishment of a new country, but rather for the restoration of a country that used to exist and which was internationally admitted.
From a legal perspective, this viewpoint is invalid due to the fact that the country they are speaking about was called off when the two countries were unified: South Yemen no longer exists and nobody – including those who used to rule it – can represent it.
Lack of a legal basis for self-determination:
Regarding international law, the right to self-determination mentioned in the United Nations charter is not applicable to the southern issue. This is clarified through the following:
International law depends on principles of state sovereignty and territorial integrity. In addition, because the southern people are Yemeni citizens, according to the law of sovereignty, their rights and duties are regulated by the laws and constitution of the Republic of Yemen according to the law of sovereignty. Since the constitution doesn’t give the southern people the right to decide whether to stay unified with the south or to establish their own state, their demands are viewed as illegal by standards international law.
The right to self-determination is not applicable to any group residing within a state while it contradicts the principle of sovereignty and in territorial integrity. A decision by the United Nations General Assembly reads “Any attempt targeting the partial or total disruption of the national unity and regional safety of any state in addition to targeting the political independency of any state contradicts the compact and its principles.”
The legal basis for separation – examples
The Syrian example of separation which took place on September 28th 1961 was very similar to the separation attempt which took place in Yemen in 1994. The success of the Syrian separation may influence separatists in Yemen to attempt similar actions. Yemeni separatists may find encouragement in the fact that as Egypt and Syria merged into one country – though each previously had sovereignty over its lands – they were admitted internationally. The Syrian part, however, separated without the approval of the Egyptian part.
In this example, President Gamal Abdel Nasser, president of the unified state at the time, was forced to approve the separation one week after it took place. On October 5, 1961 he demanded that the Minister of Foreign Affairs not contradict Syria’s request to have its membership in the United Nations and Arab League restored. But in Yemen’s case, the central government in Sana’a refused the separation and prevented it through the use of military force. At the time, a majority of nations accepted the consequences.
It can be expected that a similar reaction towards any separation attempts would result today, as relations between southern and northern Yemenis do not in the least resemble those which existed between Egyptians and Syrians. Furthermore, the international and regional communities do not support separation.
South Sudan was affiliated with the Republic of Sudan since its independence in 1956 and was not expected to separate without the adoption of procedures to make the separation legally binding. The separation was achieved by way of an agreement between the two conflicting sides: the Soudanese government and the Popular Movement for the Liberation of Sudan. The peace treaty was signed in the Kenyan capital of Nairobi in 2005. According to the treaty, a transitional constitution for Sudan was adopted which gave southerners the right to self-determination through a referendum to be conducted 6 years after the beginning of the transitional period. This was done in January 2011 and resulted in South Sudan’s independence.
Eritrea was a territory occupied by Italy. The territory came under British control when Italy was defeated in the Second World War. In 1952, Britain withdrew from Eritrea as part of arrangements prepared by the UN. According to these arrangements, a federalist union between Ethiopia and Eritrea was established, which provided the latter with self-rule and broad power. The self-rule included the establishment of a legislative and executive authority to govern the territory. Nevertheless, the Ethiopian Emperor cancelled self-rule in 1962 and joined Eritrea with Ethiopia – a clear violation of the UN arrangements and the act which served as the basis for Eritrea’s successful bid for independence in 1991.
The Soviet Union:
The former Soviet Union’s constitution gave republics the right to separate. But when central state control grew weaker in 1991, presidents of many republics decided to use the right of separation, leadig to the union’s disintegration.
Bangladesh , which was known before as Eastern Pakistan, separated from the Republic of Pakistan in 1971 following disagreements regarding election results, which many declared were illegitimate. The central government in Islamabad refused to admit the separation and directed the Pakistani army, situated in eastern Pakistan, to suppress the separatist movement. Despite the killing hundreds of people, the army was unable to suppress the movement. The Pakistani government allowed separation in 1974, and gave separatists the legitimacy they sought.
Separation of republics in Yugoslavia:
The Yugoslavian constitution was similar to the Soviet constitution in that it gave republics the right to separate from the mother state. This happened in 1991, when the Yugoslavian republics respectively left the union. A number of European Union nations admitted the republics.
A claim by the Serbian Republic-affiliated union authority that the separated republics weren’t legal was rejected and they were finally admitted by the Serbian Republic.
Kosovo had an exceptional case for independence and established a reconciliation state within the bounds of international law. It was a territory that enjoyed autonomy within the Serbian Republic. In 1989, the Serbian government cancelled Kosovo’s self-rule and placed the territory under its governance.
A majority of Albanian people reacted angrily to the decision; their reaction was demonstrated in a number of practical steps, which included a referendum on independence and the election of a president for the republic.
Serbia rejected all the aforementioned steps and the Serbian army was later accused of committing massacres. At this time, western nations feared the possibility that what happened in Bosnia would re-occur, which led to air strikes against Serbia in 1999 by the NATO alliance. Serbia was soon forced to withdraw its positions from Kosovo.
Later, multi-national forces were deployed and governed the territory according to Security Council resolution 1244. When negotiations between the Serbian and Albanian governments failed, the UN representative announced that Kosovo must receive its independence.
Status of countries which adopted separation without a legal basis
A number of counties announced their independence but could not succeed in becoming states of actual sovereignty, this attributable to the absence of a legal basis for separation.
Republic of Northern Cyprus:
Turkish forces controlled northern Cyprus in 1975 and on November 15th 1983, announced the establishment of the Turkish Republic of Northern Cyprus. However, all other countries – with the exception of Turkey – did not admit the state. According to international law, the state is included within the lands of the Republic of Cyprus, in addition to the fact that citizens don’t have the right to establish a country simply because they are different from other citizens in terms of religion and language.
When the central government in Mogadishu collapsed in 1991, what was known as the Northern Republic of British Somalia was announced to be the Republic of Somalia.
South Ossetia and Abkhazia
The two territories of Abkhazia and Ossetia announced the establishment of an independent state at the outset of the 1990s. Still, this could not have been accomplished, as they were considered parts of Georgia. All other involved countries – with the exceptions of Russia, Nicaragua and Venezuela – didn’t admit the two states.
In 1949, Chinese communists took over Beijing and caused the ousted government to escape to an island in Taiwan. From there, the government announced that they were the legal government for the entire nation of china. Their announcement was supported by the U.S and a number of western countries. This resulted in China being prevented from joining the UN and from gaining Security Council membership.
Since then, the Taiwanese government lost much of its support, including from the US, as they lacked a legal basis for separation. This was also attributable to the fact that the government in Beijing considered Taiwan to be part of the Chinese lands, an idea which was supported by most of the word’s countries.
Quebec province in Canada:
The Quebec case is regarded as a difficult example for would-be separatists to follow. People from the province of Quebec held two referendums concerning the separation of the Canadian state in 1980 and 1995. In the two referendums, a majority of people didn’t vote for separation, even while the last one narrowly failed by 0.6%.
The importance of Security Council Resolutions 924 and 931:
Southern movement supporters say that the two Security Council resolutions issued during the war of 1994 give southerners the right to demand separation and self-determination. In addition, there are a number of other issues related to the resolutions which stoked people’s beliefs:
– Unity cannot be forced on people.
– The demand for dialogue between leaders of the two states.
– A ceasefire and being barred from entering the city of Aden.
– Keeping the issue alive in the UN.
Breaking Yemen’s unity can be regarded as one side’s attempt to separate. This attempt is roundly rejected by international law, which stresses the importance of state sovereignty.
Southerners do not have the right to dismiss unity or to modify it after having accepted it in 1990. Since the constitution of a unified state provides that unity cannot be modified, both southerners and northerners share the right to decide unity’s – and not disunity’s – fate. Unity has provided people in the two parts of the country with a number of virtues which are difficult to ignore, including the fact that a number of southerners have invested capital in the north and vice-versa.
Doing away with unity would greatly harm both sides and would cause many to lose their property or even their lives. According to what southern movement supporters say, northerners residing in the south since unification are merely occupiers. This very description gives the basis for a ‘cleansing’ process of northerners residing in the south; if this happened, it would disastrously lead to revenge actions against southerners residing in the north. What makes it even more complicated is that people of the two parts are integrated with each other through marriage to the extent that it is difficult to separate the citizens of each side.
In addition, unity has created a sense of dependence between north and south in many fields and especially those related to economics. A large number of economic projects depend on unity to continue functioning; chief among them is the Belhaf station for gas liquefaction, considered to be the largest-scale project in Yemen. The institution is situated in a southern area; meanwhile, the gas comes from the northern governorate of Marib. Similarly, we can see that oil is extracted from Marib and filtered in Aden governorate before being distributed for use throughout the country.
While unity may have failed to bring about stability and development for Yemen, the international community well realizes that separation will only worsen the situation. A fragile country like Yemen will collapse in a way similar to what happened with Somalia; this is why the international community remains steadfast in refusing separation. As long as the central government and northern citizens don’t accept it, the international community will continue to believe that unity is the best solution for Yemen.
Southern movement supporters state that the majority of the southerners stand in support of separation. Though this may be true, it fails to legalize the calls for separation – even while it provides political legitimacy. The number of people who support separation is relevant in international law, even when the number reaches 100%.
The concept of restoring the previous state makes a unified state closer to a sport club; whenever partners want to quit, all they must do is announce their desire in a political conference or in a demonstration. People believing such things ignore the fact that international law depends on strict legislation rather than the desires of certain groups.
The resolution of the Higher Court in Canada provided that separation is not so easy to achieve – even in democratic, developed countries. As is, a country like Yemen would suffer mass chaos both in the south and north if separation were to take place. A clear example of this is with Sudan, in a situation where things became worse than they had been before separation and in spite of the fact that South Sudan’s separation had been prepared by the state of Sudan and the international community.
From another perspective, those who call for the adoption of federalism should clearly know that this would not be attainable unless the current constitution was changed by way of a referendum involving the entire population of the Yemeni state – something which cannot in the least be expected to take place in the near future.
Finally, the question that begs itself to be asked is whether we expect changes in the demands of separatists when all their demands lack a legal basis? The best answer we can come up with is that they won’t alter their attitudes after having convinced themselves that separation is achievable. They seem not to care about legal positions. As we have observed, the attitudes of the international community are interpreted by them as betrayals.
In this regard, separatists have threatened to use military actions to force the central government and international community to accept separation. Though this would cause profound damage to Yemen, the possibility of military actions changing reality is limited. In addition, the taking over of all southern lands by separatists would hardly be possible, and certainly not in recent times.
What we can say in closing is that the southern issue will continue to be a dilemma: while separation won’t take place, nor will there be true unity in Yemen’s near future.