Dividing Divided States. Gregory F. Treverton
or permanent residence for a set period. Still, the Ethiopia-Eritrea case shows how fragile such agreements can be.
Start Discussions or Negotiations Early
In virtually no case did this happen because criteria for citizenship are a sovereign right. As a result, it was easy to focus—as in Sudan’s case—on the referendum and postpone citizenship until the new sovereign state was created. Yet, again, the situation in Ethiopia and Eritrea is a stark example of the risk of deferring these issues, and Serbia and Montenegro a less dramatic one. Citizenship may be a sovereign right, but the overlap of sovereignties when new states are created can lead to tragedy until agreements are reached.
Immediate Issues on Secession: Sudan as Case Study
If the general principle for citizenship is to start discussions or negotiations early and give people time to decide, the immediate issues can be very pressing. Before the secession vote, Sudan exemplified them. The real concern was that if the South voted for independence, there could be serious repercussions for southerners currently living in the North, among them one to two million IDPs.
Before secession, Sudan operated under an Interim National Constitution (INC). Although the INC demonstrated a fair amount of tolerance for other religions and ethnicities and accorded all citizens equal rights, the government of Sudan (GoS) had not historically shown a similar tolerance, hence the concern that a secession vote would lead to Khartoum using the new constitution to revoke the rights of southerners or other non-Muslims living in the North. This discussion of Sudan’s national law, presecession, is less relevant than the discussion of international law that follows. But it does illustrate, graphically, the challenge confronting IDPs during a secession.
Citizenship Rights Under National Law
Despite the INC safeguards, at secession there remained the question of how the GoS would react to a vote for independence in the South. If it chose to react in a vengeful or spiteful manner, there was the possibility that those assurances would be stripped away. On that score, the GoS’s record was unpromising notwithstanding the protections that the INC and international law provided: it was a history of discrimination and abuse with regard to southerners and non-Muslims.
Like many well-meaning constitutions, the INC provided that every human being had the rights to life and human dignity, rights to personal liberty and security, freedom from arbitrary arrest and from slavery and torture, equality before the law, rights to a fair trial, litigation, and privacy, freedom of creed or worship, and freedom of assembly and association. The Bill of Rights provided other rights and freedoms only to citizens, including freedom of movement and residence, the rights to own property and to vote, access to public health care and education, and freedom of expression and media.10 Although the freedom of worship and the freedom of assembly are safeguarded even for noncitizens, the freedom of movement, the freedom of expression, and the right to own property are worrisomely absent.
The INC granted an “inalienable right to enjoy Sudanese nationality and citizenship” to any person born to a Sudanese mother or father. Thus, Sudanese citizenship was not automatically provided to all people born in Sudan, but rather was contingent on having a parent who was a citizen. This, coupled with a new geographical definition of the boundaries of the Republic of Sudan, could mean that many southerners in the North would be considered to no longer have a “Sudanese mother or father” for purposes of nationality and citizenship.
Citizenship was “the basis for equal rights and duties for all Sudanese” according to article 7 of the INC. However, article 22, the “Saving Clause,” provided that some INC provisions were not, by themselves, enforceable in a court of law. Given that rights and governmental obligations were derived only through citizenship, the large-scale revoking of citizenship would have serious consequences for southerners living in the North, leaving them without many rights and without the ability to legally enforce the ones they are left with.
Moreover, the rights provided in the INC’s Bill of Rights were full of conditional language, granted only if they accorded with and were regulated by “the law,” or conditioned upon “morality” or other similarly ambiguous terms. If “morality” is based on the government’s idea of Muslim morality, this could be used to discriminate against southerners and non-Muslims. Given that the current northern government had not encouraged tolerance for divergent religions and cultures, despite the fact that the words “religion” and “culture” were plural in the INC, new constitutions for Sudan might not reflect that plurality of belief.
The rights of non-Muslims in Khartoum were dictated and protected through the Non-Muslims Rights Special Commission,11 which guaranteed the protection of non-Muslims through procedural mechanisms and safeguards. These safeguards included judicial guides for the courts on how to deal with non-Muslims with regard to Sharia law, as well as specialized courts and attorneys to investigate and address any violations of the mandated protections. These safeguards could also be threatened removing the language in the constitution that supports the existence of multiple religions or cultures. Table 1.2 lays out national law and citizenship in Sudan at the time of the secession vote.
Citizenship Rights in International Law
Under international law, several safeguards pertain to the rights of noncitizens. These come in several categories—customary law, refugee law, and international conventions. While the GoS is state party to a number of international laws and conventions, its adherence to those has been limited. Also, the government has not accepted the jurisdiction of any enforcement mechanisms, making it questionable whether rights under the treaties could be enforced in any case.
Under customary international law, two main laws apply to the rights of noncitizens. First, the principle of non-refoulement is binding on all states regardless of their accession to international treaties. This principle prohibits states from deporting noncitizens to a state or territory where they may face serious human rights abuses. Second is the principle of nondiscrimination, which requires all noncitizens to be treated equally. Nondiscrimination is further detailed in the International Covenant on Civil and Political Rights (ICCPR) and the International Convention on the Elimination of All Forms of Racial Discrimination (ICERD), to both of which Sudan is party.
Although the ICERD permits states to make distinctions between noncitizens and citizens, and recognizes that states have the right to determine the laws regulating nationality, it does not permit a state’s laws to “discriminate against any particular nationality.” Thus, the nondiscrimination clause simply ensures that all noncitizens can be equally repressed. GoS is also a party to the International Covenant on Economic, Social and Cultural Rights (ICESCR), the Convention on the Rights of the Child (CRC), and the Convention Relating to the Status of Refugees (CSR).
Table 1.2. National Law and Citizenship in Sudan
| Issue | Explanation | Policy approach |
| Citizenship in original Sudan was conferred on a person who had a mother or father who was a Sudanese citizen. | If South Sudan seceded, it was unclear what would happen to the citizenship of those living in the North. If the North decided to revoke citizenship for individuals and all of their ancestors, then southerners living in the North—including IDPs—could be disenfranchised. | Define the extent to which citizenship will be affected in the case of secession. Potentially change the requirement for citizenship to being born in Sudan. |
| Rights appeared to be enforceable only for Sudanese citizens. | The INC said citizenship “shall be the basis for equal rights and duties for all Sudanese,” suggesting that the GoS was not obliged to provide for or protect the rights and duties provided in the INC to noncitizens. | Even if the GoS did not want to give equal rights to citizens and noncitizens, it should have made all rights enforceable regardless of citizenship status. |
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Conditional language in the |