¹ ‘South Sudan backs independence—results’ BBC News Africa (7 February 2011) http://www.bbc.co.uk/news/world-africa-12379431. It was reported that 98.83 per cent of voters backed independence for the South.

² ibid.

³ Government of Sudan v the Sudan People's Liberation Movement/Army, Final Award at para 427 (Permanent Court of Arbitration 2009) [hereinafter ‘Abyei arbitration’] available at http://www.pca-cpa.org/upload/files/Abyei%20Final%20Award.pdf.

⁴ What is today the GoSS was at the time, and for the purposes of the CPA, the Sudan People's Liberation Movement/Army (SPLM/A).

⁵ C Bell, On the Law of Peace: Peace Agreements and the Lex Pacificatoria (OUP, Oxford, 2008).

⁶ Koskenniemi, M, ‘National Self-Determination Today: Problems of Legal Theory and Practice’ (1994) 43 ICLQ 245CrossRefGoogle Scholar, 264. He notes that the more concrete the norm becomes the more it is controversial.

⁷ Available at: http://unmis.unmissions.org/Default.aspx?tabid=515.

⁸ Thomas, E, ‘Against the Gathering Storm: Securing Sudan's Comprehensive Peace Agreement’ Chatham House (2009) 6Google Scholar, available at http://www.chathamhouse.org.uk/files/12941_0109sudan_r.pdf. The CPA includes the following: The Machakos Protocol (or Chapter I) (July 2002) on broad principles of government and governance; The Protocol on Power Sharing (or Chapter II), (May 2004); The Agreement on Wealth Sharing (or Chapter III) (January 2004); The Protocol on the Resolution of the Conflict in Abyei Area (or Chapter IV) (May 2004); The Protocol on the Resolution of the Conflict in Southern Kordofan and Blue Nile States (or Chapter V) (May 2004); The Agreement on Security Arrangements (or Chapter VI) (25 September 2003); The Permanent Ceasefire and Security Arrangements Implementation Modalities and Appendices (or Annexure I) (October 2004); The Implementation Modalities and Global Implementation Matrix and Appendices (or Annexure II) (31 December 2004).

⁹ Thomas ibid.

¹⁰ For more explanation, see Thomas ibid referring to DH Johnson, The Root Causes of Sudan's Civil Wars (James Currey, Oxford, 2007), and J Spaulding and L Kapteijns in J O'Brien and W Rosebery (eds), Golden Ages, Dark Ages: Imagining the Past in Anthropology and History (University of California Press, Berkeley, 1991) discussing the role of underdevelopment and identity in the shaping of Sudan's past.

¹¹ First Vice President of Sudan, Ali Osman Mohamed Taha, and Chairman of the SPLM/A, Dr. John Garang de Mabior.

¹² The Presidents of Kenya and Uganda signed on behalf of the Intergovernmental Authority on Development (IGAD), the East African regional development organization.

¹³ Egypt, Italy, two signatories from the Netherlands, UK and Ireland, USA.

¹⁴ The following individuals witnessed the CPA: HE Hon Mwai Kibaki, HE Hon Yoweri Kaguta Museveni, HE Mr Ahmed Aboul Ghei, Senator Alfredo Mantica (on behalf of both the IGAD Partners Forum and the Government of Italy), HE Mr Fred Racke, HE Ms Hilde F Johnson, Right Hon Hilary Benn, MP, Mr Colin L Powell, HE Mr Alpha Oumar Konare, Hon Charles Goerens, HE Ms Hilde F Johnson, HE Mr Amre Moussa, and Mr Jan Pronk.

¹⁵ Thomas (n 8) 6–7.

¹⁶ For list of component agreements see (n 7).

¹⁷ Art 2 of the September 2003 Agreement on Security Arrangements requires international monitoring for the ceasefire. The nature of that monitoring is elaborated in arts 14 and 15 of the December 2004 Permanent Ceasefire Agreement: ceasefire institutions would be chaired by the UN, but come under a Ceasefire Political Commission chaired by the parties to the agreement, which means that parties have the final say.

¹⁸ UNMIS, ‘UNMIS Mandate’ http://www.un.org/en/peacekeeping/missions/unmis/mandate.shtml accessed 11 December 2010.

¹⁹ Thomas (n 8) 19.

²⁰ Machakos Protocol, July 20, 2002, art 1.5.5 (set out in Chapter I of the CPA (n 7). See also the Chapeau to the CPA.

²¹ ibid art 2.5.

²² ibid art 2.4.

²³ John Garang's death has been cited as the ‘first big crisis for the agreement’; see Thomas (n 8) 14. As the report describes, without him, ‘unity is less attractive and Southerners are more likely to vote for independence.’

²⁴ S Healy, Sudan: Where is the Comprehensive Peace Agreement Heading? (Chatham House, London, 2008) 2, www.chathamhouse.org.uk/files/10753%20_231107sudan.pdf.

²⁵ The warrant of arrest lists five counts of crimes against humanity (murder, extermination, forcible transfer and rape), two counts of war crimes (intentionally directing attacks against a civilian population as such or against individual civilians not taking part in hostilities, and pillaging), and three counts of genocide (genocide by killing, genocide by causing seriously bodily or mental harm, and genocide by deliberately inflicting on each target group conditions of life calculated to bring about the group's physical destruction). See International Criminal Court, Case Information Sheet: Case No ICC-02/05-01/09, available online at: http://www.icc-cpi.int/NR/rdonlyres/08B26814-F2B1-4195-8076-B4D4026099EC/282348/bashirEng1.pdf.

²⁶ Thomas (n 8) 6.

²⁷ Abyei arbitration (n 3).

²⁸ See CPA (n 7). According to art 2.5 of the Machakos Protocol in the CPA, the referendum was supposed to be held at the end of the interim period (of six years), which follows the pre-interim period (of six months). The Chapeau to the CPA states that the pre-interim period commences on the signing of the CPA, which was 9 January 2005. The Interim National Constitution of the Republic of Sudan (2005), available at: http://www.sudan-embassy.de/c_Sudan.pdf. See ibid and art 222(1) of the constitution, however, states that the referendum shall be held six months before the end of the six-year interim period, as is currently scheduled.

²⁹ See CPA (n 7). ‘Abyei referendum behind schedule’ BBC World Service (14 October 2010) http://www.bbc.co.uk/worldservice/africa/2010/10/101014_sudan_abyei_referendum.shtml.

³⁰ L Vinjamuri and AP Boesenecker, ‘Accountability and Peace Agreements: Mapping Trends from 1980 to 2006, Geneva, Centre for Humanitarian Dialogue’ (2007) available at <http://www.hdcentre.org/publications/accountibility-and-peace-agreements-mapping-trends-1980-2006>. See also discussion of Bell (n 5) 47–53.

³¹ Bell ibid 8–9.

³² For a discussion of the difficulty of legal categorization under the traditional law of treaties, see Bell, C, ‘Peace Agreements: Their Nature and Legal Status’ (2006) 100 AJIL 2, 373, 379–381CrossRefGoogle Scholar, 395; and Bell (n 5) 127–174.

³³ See (n 1) para 427.

³⁴ ibid.

³⁵ ibid.

³⁶ On the relationship between the VCLT and customary international law, see I Sinclair, The Vienna Convention on the Law of Treaties (2nd edn, Manchester University Press, Manchester, 1984) 5–10.

³⁷ Vienna Convention on the Law of Treaties art 2(1)(a), May 23, 1969, 1155 UNTS 331 (emphasis added) [hereinafter VCLT] which adds ‘whether embodied in a single instrument or in two or more related instruments and whatever its particular designation’.

³⁸ Bell (n 5) 128.

³⁹ See VCLT (n 37) art 3. It is worthy to note, however, that in a draft of the articles that led to the VCLT definition of a treaty, the International Law Commission defined treaty as ‘concluded between two or more States or other subjects of international law’. See Yearbook of the International Law Commission, 1962 Vol II, 161Google Scholar (emphasis added).

⁴⁰ United Nations Conference on the Law of Treaties, (2nd Session) Vienna, 9 April–22 May 1969, Official Records, Documents of the Conference, 31^st plenary meeting, p 170 (representative of the Swiss Government, the proposer of the preamble language on customary international law).

⁴¹ Bell (n 32) 380.

⁴² S Rosenne, The Law of Treaties: A Guide to the Legislative History of the Vienna Convention (AW Sijthoff, Leiden, 1970) 43.

⁴³ Treaty Providing for the Renunciation of War as an Instrument of National Policy, 27 August 1928, 94 LNTS 57; UKTS (1929) 29 206.

⁴⁴ See generally, International Law Commission, Analytical Guide, Law of treaties, plenary discussions under ‘H Reports of the International Law Commission’, available at: http://untreaty.un.org/ilc/guide/1_1.htm.

⁴⁵ International Law Commission, Special Rapporteur on the Law of Treaties, ‘Fourth Report on the Law of Treaties’ (19 March, 25 March and 17 June 1965) UN Doc A/CN.4/177, 17 (by Sir Humphrey Waldock), http://untreaty.un.org/ilc/documentation/english/a_cn4_177.pdf.

⁴⁶ ibid.

⁴⁷ See CC Joyner, International Law in the 21st Century: Rules for Global Governance, (Rowman & Littlefield, Lanham, 2005) 24 (‘Various categories of actors participate in today's interdependent world of complex transactions and global telecommunications. These actors are subjects of international law—that is, they possess international legal personality, or the legal capacity that conveys certain entitlements and obligations arising from international legal rules. States are foremost among these participants, but also included are international organizations, transnational groups, multinational corporations, private associations, and even the individual persons.’)

⁴⁸ See Bell (n 32) 380 (it ‘leaves a grey area … that has assumed far greater importance than … in 1969); Rosenne (n 42) 10–33.

⁴⁹ For example, see Bell ibid 383–384; C Bell (n 5) 130–135; Rosenne ibid; R Higgins, Problems and Process: International Law and How We Use It (OUP, Oxford, 2004) 39–55 (Higgins notes at 49–50 that ‘the whole notion of ‘subjects’ and ‘objects’ has no credible reality, and, in my view, no functional purpose', and adds that ‘there are no ‘subjects’ and ‘objects,’ but only participants. Individuals are participants, along with states, international organizations …, multinational corporations, and indeed private and non-governmental groups.'); R McCorquodale, ‘The Individual and the International Legal System,’ in M Evans, International Law (2nd edn, OUP, Oxford, 2006) 307–332; Restatement of the Law (Third), Foreign Relations Law of the United States, 68–72 (1986); A Clapham, Human Rights Obligations of Non-State Actors (2006) 79; J Alvarez, ‘Are Corporations “Subjects” of International Law?’ Santa Clara Journal of International Law (forthcoming) 7–10, available at: http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1703465##; cf I Brownlie, Principles of Public International Law (2003) 57; P Malanczuk, Akehurst's Modern Introduction to International Law (Routledge, London, 1997) 91.

⁵⁰ Whippman, D, ‘Treaty-Based Intervention: Who Can Say No?’ (1995) 62 U Chi L Rev 607CrossRefGoogle Scholar, 641.

⁵¹ See Bell (n 32) 381, for an elaboration of a number of peace agreements.

⁵² International Court of Justice, Reparation for Injuries Suffered in the Service of the United Nations, Advisory Opinion [1949] ICJ Rep 174, 178 (emphasis added).

⁵³ See Quigley, J, ‘The Israel-PLO Interim Agreements: Are They Treaties?’ (1997) 30 Cornell Int'l L J 717Google Scholar, 733; Malanczuk, P, ‘Some Basic Aspects of the Agreements between Israel and the PLO from the Perspective of International Law’ (1996) 7 EJIL 485CrossRefGoogle Scholar.

⁵⁴ This is a large area of research. For example, see Sivakumarah, S, ‘Binding Armed Opposition Groups’ (2006) 55 ICLQ 2Google Scholar, 369. This author discusses agreements between armed opposition groups and the government to respect certain IHL rules. See also A Clapham, Human Rights Obligations of Non-State Actors (OUP, Oxford, 2006); Bell (n 5) 130. Bell refers to, by way of example, Common art 3 of the 1949 Geneva Conventions (75 UNTS 31; 75 UNTS 85; 75 UNTS 135; 75 UNTS 287); Additional Protocol I to the Geneva Conventions (1977) 1125 UNTS 3; Additional Protocol II to the Geneva Conventions (1977) 16 ILM 1442; Declaration on the Granting of Independence to Colonial Countries and People, UN GA Res 1514 (XV) (1960) (referring to ‘national liberation movements’); ICCPR 999 UNTS 171, article 1; ICESCR, 993 UNTS 3, article 1.

⁵⁵ Yearbook of the International Law Commission (1962) 161.

⁵⁶ Prosecutor v Morris Kallon and Brima Buzzy Kamara, Special Court for Sierra Leone, SCSL-2004-15- AR72(E) and SCSL-2004-16-AR72(E), Decision on Challenge to Jurisdiction: Lomé Accord Amnesty, at para. 42 (Appeals Chamber, 13 March 2004).

⁵⁷ Cassese, A, ‘The Special Court and International Law: The Decision Concerning the Lome Agreement Amnesty’ (2004) 2 J Int'l Crim Just 1133–1135CrossRefGoogle Scholar. Cassese referred to the detailed, careful text of the agreement, the references to the Constitution of Sierra Leone, the authoritativeness of the text in the two different languages, the provisions on implementing and supervising mechanisms, those on dispute settlement. For Bell's discussion of the Kallon case, see (n 5) 140.

⁵⁸ Quigley (n 53) 719.

⁵⁹ Fitzmaurice, in Institut de Droit International, Livre du Centenaire, 233.

⁶⁰ J Crawford, The Creation of States (2^nd edn, OUP, Oxford, 2007) 124.

⁶¹ Bell (n 32) 387.

⁶² See ‘State Responsibility, Comments and Observations received from Governments’, A/CN.4/515, 19 (19 March 2001) at 25. See also Yearbook of the International Law Commission (1980), Vol II 87–106.

⁶³ For a detailed discussion of the case law see J Crawford, The International Law Commission's Articles on State Responsibility: Introduction, Text and Commentaries (CUP, Cambridge, 2002), commentaries on art 10 at 116–120; O De Frouville, ‘Attribution of Conduct to the States: Private Individuals’, in J Crawford, A Pellet and S Olleson (eds), Law of International Responsibility (OUP, Oxford, 2010) 249.

⁶⁴ PH Kooijmanns, ‘The Security Council and Non-State Entities as Parties to Conflicts’ in K Wellens, International Law: Theory and Practice: Essays in Honour of Eri Suy (Martinus Nijhoff, The Hague, 1998) 333–340.

⁶⁵ See Bockenforde, M, ‘The Abyei award: Fitting a Diplomatic Square Peg into a Legal Round Hole’ (2010) 23 LJIL 2CrossRefGoogle Scholar, 555; J Matus, The three areas: a template for regional agreements, Conciliation Resources (2006), http://www.c-r.org/our-work/accord/sudan/three-areas.php (‘The Comprehensive Peace Agreement (CPA) is a national agreement negotiated by two parties …’).

⁶⁶ Bockenford ibid 563.

⁶⁷ Machakos Protocol (n 20) art 3.1.1.

⁶⁸ Bockenforde (n 65) 560.

⁶⁹ Bell (n 5) 152.

⁷⁰ CPA (n 7) Machakos Protocol, art 1.2; Constitution, (n 26) art 25(a).

⁷¹ ibid.

⁷² The Interim National Constitution of the Republic of Sudan (2005), art 26(1)(a).

⁷³ In the CPA there are no general binding dispute resolution procedures. As stated above, while the Constitution states that the law of the Sudan is ‘supreme’, the CPA is also clear that the Constitution incorporates the provisions of the CPA.

⁷⁴ Abyei arbitration (n 3) 153 (para 425).

⁷⁵ Bockenforde (n 65) 555, 564.

⁷⁶ As the Permanent Court of Arbitration's self-description provides: ‘Its [the PCA's] caseload reflects the breadth of PCA involvement in international dispute resolution, encompassing territorial, treaty, and human rights disputes between states, as well as commercial and investment disputes, including disputes arising under bilateral and multilateral investment treaties.’ Available at: http://www.pca-cpa.org/showpage.asp?pag_id=1027.

⁷⁷ Abyei arbitration (n 3) paras 429–432.

⁷⁸ See the definition of a treaty in the VCLT (n 37) art 2(1)(a).

⁷⁹ A Aust, Modern Treaty Law and Practice (2^nd edn, CUP, Cambridge, 2007) 20.

⁸⁰ Temple of Preah Vihear case [1961] ICJ Rep 26, 31–32; 33 ILR 48.

⁸¹ Bell (n 5) 128; see M Koskenniemi, From Apology to Utopia (CUP, Cambridge, 1989) 300, on the difficulty in determining intention.

⁸² Case Concerning Maritime Delimitation and Territorial Questions between Qatar and Bahrain [1994] ICJ Rep 112, paras 28–29. Schacter at 297.

⁸³ ibid para 29. The Court held that there was not any evidence before it which would justify deducing Qatar did not intend to conclude, and did not consider it had concluded, an international agreement. Further, the Court said ‘nor could any such intention, even if shown to exist, prevail over the actual terms of the instrument in question.’

⁸⁴ See Foreign and Commonwealth Office, ‘Treaties and MOUs: Guidance on Practice and Procedures’ (2^nd edn, 2004) 15–16; Aust (n 79) 33.

⁸⁵ Aust ibid 33.

⁸⁶ See CPA (n 7) xii, para (1).

⁸⁷ ibid art 2.6 of the Machakos Protocol.

⁸⁸ Final Act of the Conference on Security and Cooperation in Europe, Final clauses (1974), at 59, available at: http://www.osce.org/documents/mcs/1975/08/4044_en.pdf.

⁸⁹ VCLT (n 37) art 7(2)(a).

⁹⁰ ibid art 7(1)(a).

⁹¹ Aust (n 79) 7.

⁹² ibid. Aust notes though it is only prudent to seek confirmation of the willingness to dispense with them.

⁹³ The CPA also provided that copies be lodged with the IGAD Secretariat in Djibouti, the League of Arab States and the Republic of Kenya. See CPA (n 7) Chapeau, item (4).

⁹⁴ See (n 70).

⁹⁵ See Schachter, O, ‘The Twilight Existence of Non-Binding International Agreements’ (1977) 71 AJIL 296CrossRefGoogle Scholar, 298.

⁹⁶ See, for example, P Clottey, ‘Sudan's Ruling Party Accuses SPLM of CPA Violations’ Voice of America (12 December 2010) http://www.voanews.com/english/news/africa/Sudans-Ruling-Party-Accuses-SPLM-of-CPA-Violations-111763174.html (describing how a prominent member of Sudan's National Congress Party accused the SPLM of violating the CPA by declaring support for secession.); Sudan's NCP Says It Is Prepared For ‘Plan B'Against The South’ Gurtong (28 November 2010). http://www.gurtong.net/ECM/Editorial/tabid/124/ctl/ArticleView/mid/519/articleId/4448/Sudans-NCP-says-it-is-prepared-for-Plan-B-against-the-South.aspx (describing how a leading member of the NCP warned the South of ‘repercussions if it violates the [CPA].’); T Tadesse, South Sudan says Khartoum is reneging on CPA deal, Reuters, (25 August 2009) http://www.reuters.com/article/idUSTRE57O3LC20090825 (describing that the South's Minister for Cooperation accused the NCP of trying to ‘sabotage and betray’ the right of the people of South Sudan to self-determination. This official claimed that any delay of the referendum would be a ‘clear violation’ of the CPA.)

⁹⁷ See (n 3) para 249.

⁹⁸ idid paras 432, 433.

⁹⁹ See Bell (n 32), 385, 394, 402, 407–410; see also generally, Bell (n 5) ch 3.

¹⁰⁰ CPA (n 7) Chapeau, xiii.

¹⁰¹ Bell (n 5)178.

¹⁰² CPA (n 7) Machakos Protocol, at 3, art 2.4.1.

¹⁰³ ibid.

¹⁰⁴ ibid. Wealth Sharing Protocol, art 3.3.

¹⁰⁵ ibid. Security Arrangements Protocol, art 2.

¹⁰⁶ ibid. Abyei Protocol, art 7.3, art 7.4.

¹⁰⁷ UN Security Council Resolution 1590, 24 March 2005; CPA ibid Ceasefire Agreement, art 15.

¹⁰⁸ Bell (n 5) 155.

¹⁰⁹ For example, see Security Council resolution 1919 (29 April 2010), para. 8. This argument supports that the agreement is potentially binding has also been used in respect of Israel and the PLO. See Quigley (n 52) 738.

¹¹⁰ See (n 37) art 36(1).

¹¹¹ CPA (n 7) Machakos Protocol, art 1.3.

¹¹² ibid art 2.5.

¹¹³ The right to succession is often separated from right to self-determination. For example, see Klabbers, J, ‘The Right to be Taken Seriously: Self-Determination in International Law’ (2006) 28 Human Rights Quarterly 1CrossRefGoogle Scholar, 186.

¹¹⁴ Bell (n 5) 395.

¹¹⁵ CPA (n 7) Abyei Protocol, art 1.3, art 8.2.

¹¹⁶ See (n 28).

¹¹⁷ Abyei protocol, art 1.1.3.

¹¹⁸ ibid Chapeau, art 1.1.

¹¹⁹ In fact, Ali Ahmed Karti, the Minister for Foreign Affairs of Sudan, recently commented that allowing the South its right to self-determination; as outlined in the CPA, was ‘among the more daring decisions taken in Africa.’ This indicates that the government of Sudan recognized that the inclusion of the right to self-determination in the CPA had serious legal implications and was not merely a statement of intention. See ‘Full, Timely Implementation of Sudan's Comprehensive Peace Agreement Essential to National, Regional Stability, Security Council Presidential Statement Says’, Security Council 6425^th Meeting (16 November 2010), available at: http://www.un.org/News/Press/docs/2010/sc10086.doc.htm.

¹²⁰ Legal Consequences for States of the Continued Presence of South Africa in Namibia (South West Africa) notwithstanding Security Council Resolution 276 (1970) (Advisory Opinion) [1971] ICJ Rep 16, para 52; Western Sahara (Advisory Opinion) [1975] ICJ Rep 12, para 54–59; East Timor (Portugal v Australia) (1995) ICJ Rep 90, paras 31, 27.

¹²¹ South West Africa Cases (Ethiopia v South Africa; Liberia v South Africa), Preliminary Objections [1962] ICJ Rep 319, 330 (‘[The Mandate] is an instrument having the character of a treaty or convention …’).

¹²² International Law Commission, Articles on State Responsibility (n 63), commentary to art 40, para 5; East Timor case (n 120) para 29 (‘In the Court's view, Portugal's assertion that the right of peoples to self-determination, as it evolved from the Charter and from United Nations practice, has an erga omnes character, is irreproachable’).

¹²³ International Law Commission, Articles on State Responsibility (n 63) art 48(1)(b).

¹²⁴ It has been suggested that certain types of treaties, for example international canal treaties, should be seen not as contracts having effect for third parties, but rather as instruments intended to establish legal effects valid erga omnes. Lord McNair distinguishes the ‘predominantly contractual type of treaty whose main object is to create obligations (both rights and duties) in personam’, as distinguished from ‘dispositive’ or ‘constitutive or semi-legislative treaties. See Lord McNair, The Law on Treaties (reissued 1986) 255–256. The ILC considered this broader approach and rejected it, stating in 1966 that article 36 ‘goes as far as is possible at present’. See Yearbook of the International Law Commission (1966) Vol II, 231Google Scholar.

¹²⁵ See Bell (n 32) 391, for discussion of the ‘hybrid’ nature of peace agreements.

¹²⁶ Bell (n 5) 149.

¹²⁷ Dayton Agreement, 21 November 1995, see UN Doc S/1995/999.

¹²⁸ Aust (n 79) 101; Gaeta, P, ‘The Dayton Agreements and International Law’ (1996) 7 EJIL 147CrossRefGoogle Scholar.

¹²⁹ See (n 127) eg see Annex 3 (Elections) and Annex 4 (Constitution).

¹³⁰ This view is also taken by Bell (n 5) 14; Bell (n 32) 380.

¹³¹ Bell also refers to the peace agreements related to New Caledonia and Bougainville (Papua New Guinea) as providing for a postponed right of self-determination. See Bell (n 5) 213.

¹³² Case Concerning Oil Platforms (Islamic Republic of Iran v United States of America (Preliminary Objection) [1996] ICJ Rep, 803 at 820. (The Court stated concerning the treaty in question: ‘Its Article 1 has, as already observed, been drafted in terms so general that by itself it is not capable of generating legal rights and obligations.’)

¹³³ See (n 3) para 435.

¹³⁴ Bell (n 5) 137–138.

¹³⁵ For more detailed discussion, see Bell (n 32) 385–386, referring to the work of Abbott, KW, Keohane, RO, Moravcsik, A, Slaughter, A-M and Snidal, D in ‘The Concept of Legalization’ (2000) 54 Int'l Org 401CrossRefGoogle Scholar.

¹³⁶ ibid.

¹³⁷ Bell (n 32) 407–409.

¹³⁸ See (n 37) art 54.

¹³⁹ ibid art 56(1)(a).

¹⁴⁰ Aust, A, ‘Theory and Practice of Informal International Instruments’ (1986) 35 ICLQ 787CrossRefGoogle Scholar, 807.

¹⁴¹ van Dyke, V, ‘Self-determination and Minority Rights’ (1969) 13 Int'l Studies Q 223CrossRefGoogle Scholar.

¹⁴² CPA (n 7) Machakos Protocol, para 1.3 at 2, para 1.3 8.

¹⁴³ ibid 8.

¹⁴⁴ M Weller, Escaping the Self-Determination Trap (Brill, NL, 2008) 34.

¹⁴⁵ See (n 122).

¹⁴⁶ See the UN Charter, art 1(1) and art 76(b); Declaration on the Granting of Independence to Colonial Countries and Peoples (UNGA Res 1514 (XV) (14 December 1960); International Covenant on Economic, Social and Cultural Rights (1966), art 1(3); International Covenant on Civil and Political Rights (1966), art. 1(3); the Friendly Relations Declaration (1970), UNGA Resolution 2625 (XXV) 24 October 1970, Principle 5.

¹⁴⁷ Crawford (n 60) 115.

¹⁴⁸ Opinion No 2, Arbitration Commission, EC Conference on Yugoslavia (11 January 1992) 92 ILR 167.

¹⁴⁹ Frontier Dispute Case (Burkina Faso v Republic of Mali) [1986] ICJ Rep 554, paras 20–25; The Friendly Relations Declaration, ibid, the declaration provides that: ‘Nothing in the foregoing paragraphs shall be construed as authorizing … any action which would dismember or impair, totally or in part, the territorial integrity or political unity of sovereign and independent States’ (emphasis added); see generally H Ghebrewebet, Identifying Units of Statehood and Determining International Boundaries: A Revised Look at the Doctrine of ‘Uti Possidetis’ and the Principle of Self-Determination (Peter Lang, Oxford, 2006).

¹⁵⁰ Weller (n 144) 37.

¹⁵¹ Frontier Dispute Case (n 149) paras 21, 23.

¹⁵² Weller (n 144) 38.

¹⁵³ F Ansprenger, The Dissolution of the Colonial Empires (Routledge, London, 1989) 103.

¹⁵⁴ ibid.

¹⁵⁵ H Hannum, Autonomy, Sovereignty, and Self-Determination (1990) 309. Hannum draws this historical analysis at 308–327 from inter alia RA Gray, History of the Southern Sudan 1839–1889 (1961) and PM Holt and MW Daly, The History of the Sudan (Longman, London, 1979).

¹⁵⁶ ibid 309–310.

¹⁵⁷ R Collins, A History of Modern Sudan (CUP, Cambridge, 2008) 56–61.

¹⁵⁸ See discussion of the conflict in Collins ibid 65–67.

¹⁵⁹ For example, see Weller (n 144) 59–69.

¹⁶⁰ ibid.

¹⁶¹ See Crawford's discussion (n 60) 118–119. See also the Canadian Supreme Court, Quebec Succession case (1998) 115 ILR 585, at paras 132–135.

¹⁶² ibid.

¹⁶³ Accordance with international law of the unilateral declaration of independence in respect of Kosovo (Advisory Opinion) (2010), the Court did not take a position on the relevance of this claim, see para 83. By contrast, see separate opinion of Judge Trindage Cancado, para 175, declaration of Judge Simma, para 6, separate opinion of Judge Yusuf, para 16, separate opinion of Judge Sepulvada Amor, para. 35, available at: http://www.icj-cij.org/docket/index.php?p1=3&p2=4&k=21&case=141&code=kos&p3=4.(Judge Trindade Cancado states: ‘It is immaterial whether, in the framework of these new experiments, self-determination is given the qualification of ‘remedial’, or another qualification. The fact remains that people cannot be targeted for atrocities, cannot live under systematic oppression. The principle of self-determination applies in new situations of systematic oppression, subjugation and tyranny.')

¹⁶⁴ ibid.

¹⁶⁵ ibid. Judge Yusuf also states that ‘[a]ll possible remedies for the realization of internal self-determination must be exhausted before the issue is removed from the domestic jurisdiction of the State …’

¹⁶⁶ ibid.

¹⁶⁷ See (n 120) 32.

¹⁶⁸ Klabbers, J, ‘The Right to be Taken Seriously: Self-determination in International Law’ (2006) 28 Human Rights Quarterly 1CrossRefGoogle Scholar, 189.

¹⁶⁹ ibid 198–199.

¹⁷⁰ See Human Rights Watch, ‘Abandoning Abyei: Destruction and Displacement’ (July 2008); OCHA situation report No 20 for reporting period 28 June to 4 July 2008, ‘South Sudan—Abyei Displacement’ (2008).

¹⁷¹ See ILC Articles on State Responsibility (n 63) East Timor case (n 120); Case concerning the Barcelona Traction, Light and Power Co Ltd (New Application: 1962) (Belgium v Spain) (Second Phase) (1970) ICJ Rep 3, paras 33–34.

¹⁷² International Law Commission, Articles on State Responsibility (n 63) art 3 (which makes clear that a State's internal law cannot override its international law obligations).

¹⁷³ ibid art 40 and art 41.

¹⁷⁴ ibid art 40(2).

¹⁷⁵ This perspective is somewhat consistent with the UN Legal Counsel Hans Corell's legal advice on exploitation of resources of Western Sahara. See Letter dated 29 January 2002 from the Under-Secretary-General for Legal Affairs, the Legal Counsel, addressed to the President of the Security Council, 12 February 2002, S/2002/161, paras 24–25.

¹⁷⁶ Schachter (n 95) 298.

¹⁷⁷ L Henkin, R Crawford Pugh, O Schachter, H Smit, International Law: Cases and Materials (Sweet & Maxwell, London, 1980) 154 (‘some agreements not intended to be binding by the parties need to be construed as such because of their particular ‘international’ nature').

¹⁷⁸ CPA (n 7), Wealth Sharing Protocol, art 5.6. (Under the CPA, the Sudanese Government receives 50 per cent of the oil revenues derived from South Sudan, the other 50 per cent is provided to the GoSS.)

¹⁷⁹ South West Africa case (n 120) 16.

¹⁸⁰ Bell (n 5) 22.

¹⁸¹ Higgins (n 49) 1–2 (‘The role of law is to provide an operational system for securing values that we all desire—security, freedom, the provision of sufficient material goods’); Schachter, O, ‘The Place of Policy in International Law’ (1972) 2 Ga J Int'l & Comp L 5Google Scholar, 8 ([I]t is evident that the body of [legal] norms involves more than rules … they embody policies and social values … [t]heir function in the legal process is to express the ends to be attained').

¹⁸² Higgins ibid 3–5 (Higgins states that: ‘Reference to ‘the correct legal view’ or ‘rules’ can never avoid the element of choice (though it may seek to disguise it), nor can it provide guidance to the preferable decision. In making this choice one must inevitably have consideration for the humanitarian, moral, and social purposes of the law.'); Koskenniemi states that: ‘as every national judge knows … [t]here is always choice and policy involved in law application, the relevant norms being open-textured and open to exceptions.’ See Koskenniemi, M, ‘The Place of Law in Collective Security’ (1996) 17 Mich J Int'l L 455Google Scholar, 474.

¹⁸³ Nambia Advisory Opinion (n 120) 69.

¹⁸⁴ Crawford (n 60) 110.