On The Applicability Of Divorce Law To The Recognition Of New Sovereign States

On this fifty-fifth anniversary of the independence of Somaliland from the United Kingdom [1], it is worthwhile to discuss the applicability of divorce law to the recognition of new sovereign states by the international community in institutions like the United Nations as well as supranational organizations of a regional and continental basis like the Arab League or African Union. The goal in mind in such an examination is not merely to justify the independence of Somaliland alone, although this is a worthy aim, but rather to set down principles that can be used to justly, and as much as possible impartially, adjudicate the claims of future situations as well as look at the legitimacy of historical grievances. To be certain, the United Nations may not like being the divorce court of first resort for broken nations, but we live in a deeply broken world where numerous nations in the aftermath of imperialism and the fall of the Soviet Union and Yugoslavia, have not behaved in a legitimate manner and have created numerous situations where nascent nations have sought for the United Nations to provide legitimacy for their desire for independent statehood. We ought to at least have a consistent standard by which to adjudicate such claims in such a way that is just.

Assumptions

At the outset, I would like to state some of the assumptions that guide my own examination of calls for the recognition of statehood by other nations as well as by supranational institutions that grant legitimacy as well as a voice to nation-states. First, both marriage and civil government are covenantal bonds between people with mutual rights and obligations of love, honor, and respect, and that the flagrant violation of this covenant carries with it the possibility of a rupture and separation. Second, the biblical legal and prophetic and written corpus provides the foundation for the Judeo-Christian worldview, including our view of international law, and therefore the relationship between marriage and government provides relevant biblical laws and passages that provide for the grounds by which a separation may be considered legitimate. Third, international relations ought to be governed by a just and consistent moral worldview which provides an opportunity by which representatives of nations can hear and act on just causes so as to improve the state of justice in an admittedly fallen and imperfect world. That is to say, the adjudication of what is just places a moral implication upon state actors and institutions to act in accordance with justice.

Relevant Biblical Passages

Although this is not a detailed discussion of divorce as it relates to families, there are numerous passages related to divorce in the Hebrew scriptures as well as in what is popularly known as the New Testament that can serve as analogies from the relationship between husbands and wives to the relationship between the different constituent parts of a nation. This section will briefly lay down the case laws that would apply from the Judeo-Christian scriptures with a look at the relevant passages, a short interpretation, and its relevance to international law concerning the recognition of statehood. Please be aware that this is not an exhaustive look, but seeks at least to be a representative sample of relevant passages:

Deuteronomy 24:1-4: “When a man takes a wife and marries her, and it happens that she finds no favor in his eyes because he has found some uncleanness in her, and he writes her a certificate of divorce, puts it in her hand, and sends her out of his house, when she has departed from his house, and goes and becomes another man’s wife, if the latter husband detests her and writes her a certificate of divorce, puts it in her hand, and sends her out of his house, or if the latter husband dies who took her as his wife, then her former husband who divorced her must not take her back to be his wife after she has been defiled; for that is an abomination before the Lord, and you shall not bring sin on the land which the Lord your God is giving you as an inheritance.” This law refers to the permission given in the Torah for divorce, and prohibits a man from marrying a wife he has previously divorced who has then married someone else afterward. It also specifies that divorce is to be for a cause, because of some sort of immoral conduct. When applied to states, this law would indicate that a separation between states would be the result of cause, such as treachery or abuse of certain citizens, usually because of some kind of ethnocultural grounds which provide the case for which independence is sought. In short, this passage would indicate that there are grounds by which a covenantal union may be pronounced as broken.

Malachi 2:13-14: “And this is the second thing you do: you cover the altar of the Lord with tears, with weeping and crying; so He does not regard the offering anymore, nor receive it with goodwill from your hands. Yet you say, “For what reason?” Because the Lord has been witness between you and the wife of your youth, with whom you have dealt treacherously; yet she is your companion and your wife by covenant.” In dealing with the situation of many Jewish wives who had been divorced by their politically ambitious husbands so that they could marry Gentiles, Malachi condemns such divorces as treachery, for abandoning wives and children for selfish gain. With regards to international law, we are not to look at the legitimizing of independence as a way for a nation to avoid its obligations to citizens, as was the case in the 1970’s with the various Bantustans of South Africa during the apartheid era. We are to deal with both marriage and civil government according to covenantal principles.

Matthew 19:6-8: “So then, they are no longer two but one flesh. Therefore what God has joined together, let not man separate.” They said to Him, “Why then did Moses command to give a certificate of divorce, and to put her away?” He said to them, “Moses, because of the hardness of your hearts, permitted you to divorce your wives, but from the beginning it was not so.” Here we see that divorce is not part of the original design of marriage, and that it was permitted because of the hardness of human hearts. Just as is the case with families, we must not be too quick to sanction divorces for any reason or no reason whatsoever within nations. That said, the hardness of the hearts of mankind, especially those in positions of authority, often means that there are legitimate reasons in many cases for nations to break apart either because of acts of abuse and cruelty or a failure to fulfill the obligations of good government.

1 Corinthians 7:10-16: “Now to the married I command, yet not I but the Lord: A wife is not to depart from her husband. But even if she does depart, let her remain unmarried or be reconciled to her husband. And a husband is not to divorce his wife. But to the rest I, not the Lord, say: If any brother has a wife who does not believe, and she is willing to live with him, let him not divorce her. And a woman who has a husband who does not believe, if he is willing to live with her, let her not divorce him. For the unbelieving husband is sanctified by the wife, and the unbelieving wife is sanctified by the husband; otherwise your children would be unclean, but now they are holy. But if the unbeliever departs, let him depart; a brother or a sister is not under bondage in such cases. But God has called us to peace. For how do you know, O wife, whether you will save your husband? Or how do you know, O husband, whether you will save your wife?” In terms of marriage, this passage enjoins husbands and wives who are believers not to use their newfound Christianity as a cause of causing disagreement and division within their existing marriage. The passage also discusses the fact that spouses that are not pleased to dwell are not bound to spouses that have either abandoned or abused them. With regards to nations, we see that even stark ethnic or religious or cultural boundaries within a nation need not result in a rupture, but that there should be every effort taken to live at peace. That said, if there can be no just peace, then areas that have been abandoned or abused can seek their own national identity where they may live at peace under their own self-government.

Application

While these principles are not particularly difficult to understand, their application can be a matter of considerably delicacy. Let us clearly elucidate these principles so that they may be understood, and so that we may judge the cases of historical and contemporary separation by these principles rather than on account of personal prejudice alone. One principle is that we are to prefer unity but are willing to accept division based on the following grounds: mutual termination of the covenant between them, or a separation with cause due to treachery, abandonment, or abuse. In the first case, we have a historical precedent that such separations are to be considered a divorce. Most notably, the peaceful separation between the Czech and Slovak Republics from the former nation of Czechoslovakia was called the Velvet Divorce, justifying the use of divorce as a suitable metaphor for such situations in general. Although both of these neighboring successor states belong to the EU and are at peace with each other, their former connection has resulted in a separation where neither nation’s citizens tend to have a great deal of closeness with the other nation, in terms of the study of language or other grounds. It may not have been a divorce with violence, but it is a divorce that has led to a lot of silence between the two nations, and a loss of communication that had been encouraged through policies of official bilingualism.

More frequent than the rare cases of mutual termination of a contract without conflict is the case where one nation seeks a separation due to treachery, abandonment, or abuse. When the United States sought its independence from its imperial master, Great Britain, these causes belli were at the base of the case made in the Declaration of Independence, like inciting the native population to rebel as well as the abusive behavior of troops quartered, and the denial of representation for colonists in the metropolitan Parliament. Similarly, Somaliland has a strong case on these grounds for separation from Somalia, including a previous history as its own colony under British rule (as opposed to the history of Somalia under Italian rule), as well as the destructive and abusive behavior of Barre’s regime towards Somaliland in the 1980’s and early 1990’s, and the abandonment after the retreat when the army fled leaving behind damaged infrastructure in its wake with no civil government capable of meeting the obligations towards citizens present in the aftermath of Barre’s fall. Similarly, the abusive behavior of the Communists against their Nationalist opponents in Mainland China provides a strong case for Taiwanese dependence should they wish to exercise it, as is the case of the Western Sahara against Morocco concerning the abusive behavior of the Moroccan army there against the native population of the area. In general, dictatorial governments and imperial regimes provide fertile grievances for areas looking for independence in the absence of legitimate covenantal government that meets its obligations to protect and defend citizens and to seek their best interests.

That said, not all independence movements have legitimate cause. Among the most classic examples is that of the Confederacy in the American Civil War. In this case the rebelling states lost a free and fair election conducted according to the mutually agreed covenant that had bound the people of the two regions together. Then, in the face of a long-term future threat to an unjust domestic institution, one by which the wealthier elite members of that region oppressed and abused some of the citizens of their region and held them as chattel property, they sought to protect their unjust institution through rebellion and treachery, without the consent of the national government, which then proceeded to end their efforts at rebellion through force. In this case there was neither a just cause for separation nor a mutually agreed termination of the covenant between them, making the actions of the Union army just by the principles of international law discussed here. It should be noted, though, that had an appreciable body of slaves sought to make their own independent state, they would have had a legitimate cause of abuse against the states of the Confederacy based on the oppression of the slaveholding elite of the antebellum South, similar to the just case of Haiti against the French Empire in the decades after the American Revolution.

How are we to determine which new states are to be accepted into the international community? For one, such a region has to be able to hold de facto control over the area it claims to rule. For example, Somaliland, Western Sahara, Taiwan, and Northern Cyprus, to give but a few examples, all claim de facto control of large enough areas of territory to possess a claim for statehood. Additionally, recognition of an area depends on the desires of that de facto government to be seen as independent. For example, within the honorary nation of Somalia there are powerful de facto regimes in Somaliland and Puntland. Only the democratically elected government of Somaliland, though, seeks independence for itself. Additionally, the presence of a case for independence based on either mutual agreement or because of misdeeds on the part of the civil government of the larger state is vital in avoiding selective and partial approvals of independence. For example, the clear abuse of the Kosovar population by the government of Serbia made the case of Kosovo for independence a just one, even if unpopular in some quarters. On top of this, a case for independence should be much easier to grant where the de facto regime wishing to be recognized has expressed a willingness and desire to follow by international norms of government. The nation of Somaliland, through its participation in the efforts against Somali piracy, to give but one example, has expressed such a willingness, which makes its case an easier one to accept on moral grounds. After all, it ought to be easy for us to respect and honor others who follow the same standards that we do in our conduct.

Conclusion

Although the United Nations and many other supranational institutions have shown a marked reluctance to play the role of divorce court judges, the last twenty-five years of history have provided many cases where the breakup of large and despotic regimes has led to the proliferation of smaller independent states. This is after the fall of imperialism led to the recognition of many new states in Africa, Asia, the Caribbean, and Oceania. In fact, most of the nations of the United Nations owe their international recognition to the principles discussed here, by which the mutual consent of imperial regimes and independence movements, or the successful prosecution of wars of independence on the part of de facto regimes against oppressive civil governments led to their desire to have their independence recognized, and to take part in international institutions in accordance with the principles of self-government and the norms of the contemporary world. A look at the principles by which divorces can be recognized based on either mutual termination of the marriage covenant or the abuse, abandonment, or infidelity of one spouse against the other provides a fitting linguistic framework by which we may adjudicate the cases of those regimes which want to be recognized in the contemporary world. There are few easy answers, and plenty of unpopular and unpleasant realities about the evil of our present fallen world, but so long as the hearts of authorities remain hard, there will be situations where independence of a region is sought as a redress for the evils suffered by one region or people by those who should have been loving and protective rulers. Their ability to defend themselves, their desire to be recognized as free and self-governing, their adherence to civilized norms of conduct, and the justice of their causes places an obligation on us to accept them as peers and provide them with access to the institutions by which statehood is recognized and rewarded and practiced. It is past time that we meet this obligation.

[1] See, for example:

https://edgeinducedcohesion.wordpress.com/2011/06/26/today-in-history-on-june-26-1960-somaliland-become-an-independent-nation-for-the-first-time/

https://edgeinducedcohesion.wordpress.com/2011/05/18/today-in-history-on-may-18-1991-somaliland-became-a-nation-for-the-second-time/

https://edgeinducedcohesion.wordpress.com/2011/02/19/somaliland-update-norway-aids-somaliland-anti-piracy-efforts/

https://edgeinducedcohesion.wordpress.com/2011/01/25/somaliland-update-student-ambassadors-and-pirate-prisons/

https://edgeinducedcohesion.wordpress.com/2011/05/30/somaliland-update-presidential-address-and-first-female-mayor-in-somaliland-history/

https://edgeinducedcohesion.wordpress.com/2014/05/13/a-modest-proposal-for-a-plebiscite-to-resolve-the-status-of-the-republic-of-somaliland/

https://edgeinducedcohesion.wordpress.com/2012/12/04/somaliland-update-free-and-fair/

https://edgeinducedcohesion.wordpress.com/2011/01/28/somaliland-and-the-hope-of-international-recognition/

https://edgeinducedcohesion.wordpress.com/2012/10/12/somaliland-update-under-the-surface/

https://edgeinducedcohesion.wordpress.com/2012/03/29/somaliland-update-establishing-sovereignty-german-anti-piracy-solution/

https://edgeinducedcohesion.wordpress.com/2012/02/27/somaliland-update-in-the-aftermath-of-the-london-conference/

https://edgeinducedcohesion.wordpress.com/2012/02/24/somaliland-update-dont-look-back/

https://edgeinducedcohesion.wordpress.com/2012/02/10/somaliland-update-risk-opportunity-the-2012-london-conference/

https://edgeinducedcohesion.wordpress.com/2012/02/03/somaliland-update-the-space-between/

https://edgeinducedcohesion.wordpress.com/2012/01/11/somaliland-update-heeding-the-call/

https://edgeinducedcohesion.wordpress.com/2012/01/05/somaliland-update-rebuilding-the-ruins/

About nathanalbright

I'm a person with diverse interests who loves to read. If you want to know something about me, just ask.
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11 Responses to On The Applicability Of Divorce Law To The Recognition Of New Sovereign States

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  10. Kristin Johnson says:

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