Dividing Divided States. Gregory F. Treverton

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СКАЧАТЬ the two countries in 1998. The Ethiopian government revoked the citizenship rights of Ethiopians who had voted in the Eritrean final status referendum, equating voting with a forfeiture of Ethiopian citizenship. Ethiopia forcibly expelled 75,000 Eritreans, a move condemned by the international community. For its part, Eritrea also subsequently expelled Ethiopian citizens from its territory, though the numbers were much smaller. This humanitarian aftermath of the war remains a sharp point of contention between the parties.

       Principles and Special Considerations

      The models and examples suggest several critical principles in handling citizenship during secession.

      Establish the Basic Principle Permitting Choice in Light of Residence

      The first presumption is that people should be allowed to choose their citizenship. The second is that, in general, it will be based on residence. In all the cases, the starting point was that those people residing in the territory of the new state would become citizens of that state unless they chose otherwise. The harder issue is dealing with those who regard themselves as “belonging” to the state other than the one in which they reside. For them, special provisions or agreements may be required.

      Think Carefully About Dual Citizenship and Permanent Residence

      In thinking of special provisions, dual citizenship is tempting. It can be complicated, and it can become a bone of contention, as was the case, tragically, in Ethiopia and Eritrea and, less dramatically, in Serbia and Montenegro. The complications are clear in the Sudan case. On one hand, dual citizenship would be less on the agenda if, for instance, formal independence meant that southerners in the Khartoum civil service or in joint military units returned to the South. So, too, northerners who had long residence and business in the South might have found it best to become citizens of that state. The challenge was the southern IDPs who in principle wanted to return to the South but were prevented by economics from doing so, at least for some time. At a minimum, some agreement on their rights was necessary, perhaps in the form of dual citizenship 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 СКАЧАТЬ