Dividing Divided States. Gregory F. Treverton

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 citizenship is the enduring people issue, refugees and their security will be an acute one in secessions. Even with goodwill on both sides, it will be hard to avoid the perception of drop-dead dates, touching of mass movements of people. Almost any secession will leave some people in limbo. A critical part of that limbo can be citizenship, the issue discussed in the previous chapter.

      More immediately, though, secessions are likely to produce refugees, for those who identify with the original state and those who back the breakaway region will not be neatly separated. Indeed, in the 1990s, the world learned anew the horror of “ethnic cleansing” as the former Yugoslavia split apart. Even in less bloody cases, people will often have moved for military service or government employment, or they may have fled from fighting. If the last, they would become internally displaced persons (IDPs) if they remained in the original state. When secession occurs, however, they become refugees if they are not located in the state with which they identify.

      After secession, the two states can negotiate separately with third countries into which their citizens may have fled. But Sudan, for instance, had to deal with perhaps two million southerners who lived in the North at the time of secession. Those who seek to move to their country of identity will face security risks, and while they may be welcome in principle in the state with which they identify, that state may be ill prepared to integrate them.

      This chapter outlines the major issues related to refugees and secession and makes suggestions based, in particular, on four cases involving breakaway states—India and Pakistan after the partition of British India; Russia and the breakup of the Soviet Union; Bosnia-Herzegovina after the disintegration of Yugoslavia; and Georgia and Abkhazia after Georgia’s independence from the Soviet Union.

       Policy Suggestions

      Start Early in Improving Public Understanding

      It is important to educate the most affected local communities about the implications of a secession well before it happens, and also to give them ample time to digest the new borders. In the India-Pakistan case, in the haste to achieve independence, none of this occurred. In fact, the Radcliffe Line was announced only two days after the two countries declared their independence. This may have added to the uncertainty, fear, and panic in local communities, particularly among religious minorities. In contrast, Sudan had the advantage that division long had been on the agenda, and had occurred de facto to a considerable extent even before the formal secession of South Sudan.

      Assess Refugees’ Intentions

      An assessment of the refugees’ intentions can help countries forge more