Dividing Divided States. Gregory F. Treverton

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СКАЧАТЬ 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.
Conditional language in the INC provided the opportunity to deny rights to southerners.	Many of the rights in the interim constitution were conditioned on their accordance with the law or with “morality.” If, post-independence, “morality” changed to mean morality in accordance with Islam, this could be used to deny southerners or non-Muslims equal rights.	Remove problematic conditional language or, failing that, fully define what is meant by “morality,” “except in accordance with the law,” and other ambiguous language.

      Although Sudan is state party to all of these conventions, it has lodged various exceptions to them. For instance, GoS is a party to the CSR but does not recognize the right to movement. Although it has ratified the ICCPR, Sudan does not recognize the competence of the Human Rights Committee to hear interstate complaints, nor has it ratified the optional protocol that allows individuals to file communications with the committee. Beyond these state-level disagreements with law, international law supports a state’s right to depart from a number of human rights in, for instance, “time of public emergency which threatens the life of a nation” (ICCPR). So there will remain opportunities for the GoS to avoid providing rights to refugees or other South Sudanese living in the North if it so desires.

Table 1.3. International Law and Citizenship in Sudan

Issue	Explanation	Policy approach
Customary international law requires nondiscrimination and non-refoulement.	International customary law is binding on all states regardless of accession to any international treaties and safeguards nondiscrimination among noncitizens and also bars the deportation of noncitizens to any state where they might face serious human rights violations.	GoS does not have a strong track record of adherence to customary or other international law. Furthermore, these laws don’t lessen the opportunity for repression of noncitizens within Sudan, just requires that all be repressed equally.
Sudan is party to ICCPR, ICESCR, ICERD, and CRC.	These international treaties are binding and have been successfully adjudicated in the International Court of Justice (ICJ) (Georgia v. Russia).	So long as the GoS has signed an international law without reservations, its provisions should be subject to enforcement by the ICJ.
Sudan is a state party to the Convention Regarding the Status of Refugees.	The CSR should guarantee the rights of refugees living in a host country, so long as they fulfill the definition of a refugee under the definition of the protocol.	GoS signed the CSR with an exception to an article that allows for freedom of movement. In addition, if GoS refused to recognize IDPs as refugees, they could be denied the rights outlined in the CSR and its protocol.

      Following a secession, IDPs living in the “other” state are no longer considered internally displaced but instead may qualify as refugees, stateless persons, or legal or illegal immigrants in the territory. In the Sudan case, the GoS was bound to protect the rights of refugees under the CSR; however, this would be binding only if the IDPs fit the criteria of refugees, postindependence. If they were declared stateless persons or otherwise, they might not be able to access the rights given under CSR. Moreover, Sudan signed the CSR with a reservation to the right of movement for refugees, meaning that they would not have to honor that particular clause.

      Two conventions relate to stateless persons—the 1954 Convention Relating to the Status of Stateless Persons and the 1961 Convention on the Reduction of Statelessness, which refer to de jure and de facto (respectively) stateless persons. However, Sudan is not a party to either, and thus they are not directly relevant to the secession, although they may provide theoretical guidance. Sudan is state party to both the 1951 CSR and its 1967 protocol that elaborates the rights, obligations, and consequences for breach of international refugee law. However, if Sudan refused to recognize the status of a refugee, it would not be bound to deliver to them the rights guaranteed in these conventions.

      Above all, whether the Sudan will fulfill the rights obligated by international treaties is deeply in question. The GoS has not accepted the jurisdiction of any of the enforcement bodies of these treaties, so individual enforcement of obligations could be difficult or impossible. It is, however, subject to the jurisdiction of the International Court of Justice for infringements of obligations under ICERD and CSR, so there is at least some possibility of redress of discrimination. Table 1.3 summarizes international law and immediate citizenship issues.

      Because citizenship is an essence of sovereignty, national discretion is high and international enforcement weak. Indeed, outside parties have difficulty influencing decisions until it is too late, even when national track records are poor, as they were in the case of the GoS. There is also a binary quality to citizenship, though that can be muted through permanent residency and long periods for individual decision making. Yet that binary quality increases the risk that, in a secession, citizenship will become subject to a “drop-dead” date—a deadline that touches off panic, mass migration, and violence.

      CHAPTER 2

      Refugees and Security

      If СКАЧАТЬ