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CHAPTER 1

Citizenship

The first people issue is citizenship. It is the essence of state sovereignty, for it identifies “us,” and separates “us” from “them.” Thus, if ensuring the safety of refugees is usually the most acute challenge of secession, the most enduring one is creating citizenship processes that will be fair and be regarded as such by all the states involved in the secession.

For instance, in Sudan at secession, as many as two million southerners were internally displaced persons (IDPs) living in the North. In addition, there were both southerners and northerners who were not IDPs but lived and worked in the other region—southerners who were members of a military joint integrated unit or civil servants in Khartoum, the capital, and northerners who had settled in the South and been resident there for years, owning businesses and property. Thus, it was necessary not just to safeguard the movements of IDPs and others who became refugees with secession and wanted to return to their chosen homeland but also to establish some process by which those who wanted to stay could become, if not citizens, at least permanent residents with some legal protection.

This chapter proceeds somewhat differently from the others. Rather than laying out specific cases in some detail, it elaborates models, bases, and principles of citizenship, then illustrates them with examples from other nations. Using Sudan as an example, a final section spells out the rights of people who wind up located in the state to which they do not feel allegiances in the immediate aftermath of a formal division.

Drawing on the experience of other nations, in principle there are three models of citizenship—single citizenship, dual citizenship, and long-term (or permanent) residence without citizenship. The two other main policy choices are the basis for determining citizenship and the principles on which the process ought to be based.

Models, Bases, and Principles of Citizenship

There are no universally accepted international norms or standards that compel states’ decisions on citizenship when they divide or fracture. Under international law, states have the authority to establish criteria for citizenship.¹ However, as discussed in more detail in the last section of this chapter, international organizations and institutions have adopted nonbinding declarations concerning citizenship when states divide.² These declarations generally discourage discrimination in determining citizenship in the context of the breakup of a state and advocate providing people who are affected by that breakup with the option to freely choose their future citizenship.³ That duty not to discriminate includes actions not only against individuals but also against their property based on people’s choice of citizenship.⁴ The presumption is that anyone holding the nationality of the predecessor state at the time of division has a right to citizenship in at least one of the resulting states, and that anyone with established residence in the region that secedes will acquire the nationality of the new state.⁵ In general, state principles for citizenship when states divide should “respect, as far as possible, the will of the person concerned,” and provide for a reasonable time in which the choice can be made.⁶ They should also discourage linking the citizenship decision to property rights, and prohibit discrimination based on race, ethnicity, religion, language, or political opinion.

Basic Models of Citizenship

Single

This is straightforward. In a secession, it would mean that residents of the seceding state would automatically become citizens of it unless they chose otherwise. Those, say, northern and southern Sudanese living in the “other” state would have the right to choose, under some conditions, of which state to become a citizen. In cases elsewhere in the world, the “condition” is residence, with those seeking citizenship in the “other” required to prove some continuing residency in that other state. All those accepting or choosing citizenship in the seceding state would lose their citizenship in the original state.

Dual

This would be similar to the above except that, perhaps under some conditions, those people living in the “other” state might be permitted to acquire a new citizenship in the new state without losing citizenship in the original state. This choice would entail negotiating arrangements for which laws dual citizens would be subject to, where they would pay taxes, which army they would be subject to being conscripted into, and the like. The presumption would be that most of the arrangements would be based on the primacy of the state in which a person resided.

Long-Term (or Permanent) Residence Without Citizenship

At least thirty countries in the world have provisions permitting citizens of other nations to reside in them without citizenship. Indeed, in an increasingly globalized world where people may want or need to reside in another country primarily for economic reasons but have little interest in citizenship, some analysts have begun discussing “sojourner rights.” These might permit people to work where they need to but not acquire health care, social security, or other specific benefits of citizenship.⁷

For some, though not all, of the countries that permit permanent residence, that status is a way station to full citizenship. In general, permanent residents have the same rights as citizens except that they usually cannot vote or run for office, hold government jobs, or sometimes own certain kinds of property. Often, but not always, they are restricted from jobs in the national security area. That is not the case in the United States, where permanent residents not only are subject to U.S. taxes, but also were subject to conscription into the U.S. military when the country had a draft. Now, they can serve in the U.S. military; indeed, that service may be a fast track to citizenship.

The risk of permanent residence is that it may become a second-class status. The German case is instructive. Germany—and, on a smaller scale, Belgium and the Netherlands—reached agreements with a number of countries to send Gastarbeiter (“guest workers”), low-skill industrial workers, to fill jobs during the boom of the 1960s and 1970s. In Germany, the largest influx was from Turkey. The workers were given the right to live and work for two years, with the expectation that they would return home afterward. Some did, but others stayed and brought their wives. Their children were given the right to live in Germany but not citizenship. They came to form separate communities, sometimes quite large ones scarcely integrated in broader German society and sometimes the target of extremist politicians.⁸ Table 1.1 summarizes the models, bases, and principles for citizenship.

Table 1.1. Models, Bases and Principles of Citizenship

Citizenship Examples from Other Countries Dividing

The situation of Czechoslovakia is similar to that of Sudan in that prior to the 1993 dissolution of the country, it had two levels of citizenship, one national (Czechoslovakian) and the other regional (Czech or Slovak). When the country divided, both of the resulting countries granted national citizenship to their former regional citizens. And both allowed citizens who had held regional citizenship in the other region to apply for citizenship in their newly independent states. However, the new Czech Republic also applied a residence requirement to Slovakian nationals desiring Czech citizenship, requiring them to demonstrate uninterrupted residence for two years in the Czech Republic. The two states also differed in that Slovakia allowed for dual citizenship, while the Czech Republic did not.

So, too, Slovenia, Croatia, and Macedonia all took slightly different approaches to citizenship in their respective new states following independence from Yugoslavia. As in the Czechoslovakia case, each new state’s laws automatically granted citizenship in the new state to individuals who were previously citizens of their respective former republics. However, for others wishing to apply for citizenship, Croatia also imposed a residency requirement, requiring “habitual residence,” in its case defined as five years, in addition to some other conditions. In contrast, Slovenia and Macedonia allowed citizens from all of the former Yugoslav republics to apply for citizenship, although the latter applied a number of conditions, requiring applicants to have fifteen years of residence in the former Yugoslavia, be at least age eighteen, receive personal income, and apply within a year.

Similarly, Serbia and Montenegro made somewhat different choices about citizenship following Montenegro’s declaration of independence in 2006. In particular, Serbia allowed Montenegrins who held a registered residency in Serbia prior to the succession to apply for Serbian citizenship, and allowed for dual citizenship. In contrast, in March 2008 after the referendum Montenegro enacted legislation that precluded dual citizenship except through separate agreements with other countries, although it did allow Montenegrins who had gained Serbian citizenship after the 2006 succession to retain these citizenship rights until Serbia and Montenegro concluded a formal agreement. Unfortunately, as of 2011, such an agreement had not been concluded, with Montenegro opposing and Serbia supporting the idea of letting those initially allowed to keep both citizenships to retain them.

Ethiopia and Eritrea opted for a kind of dual citizenship when they divided in 1993, agreeing—but only after the Eritrean referendum—to continue to respect traditional rights of people to reside in another territory.⁹ That state of affairs continued for three years, though the two states could not agree on permanent citizenship arrangements for Eritreans living in Ethiopia. The issue remained stalled amid disagreements over borders and trade when civil war erupted between 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 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.
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.