Key Threats of Statelessness in the Post-Secession Sudanese and South Sudanese Nationality Regimes

In: Tilburg Law Review
Author: Mike Sanderson1
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  • 1 University of Exeter

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Following the secession of South Sudan from Sudan on 9 July 2011 both countries have passed new citizenship legislation with dramatic effects for the rights of individuals on both sides of the new border. While the South Sudanese nationality provisions appear generous its regime is at once both over and under-inclusive. It grants citizenship to a broad range of persons with little connection to South Sudan but fails to guarantee citizenship for individuals habitually resident in South Sudan and children born in South Sudan to stateless, undocumented or foreign parents. The Sudanese Act provides for the automatic denationalisation of South Sudanese nationals only and reserves to its own authorities the discretion to determine whether South Sudanese nationality has been acquired. This will lead to de jure statelessness as individuals denationalised by operation of the Sudanese law struggle to establish their nationality claims in South Sudan. Those individuals who have acquired South Sudanese citizenship but remain in Sudan are left as de facto stateless in the continuing absence of effective state protection from South Sudan.

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    Manley O Hudson, ‘Report on Nationality, Including Statelessness’ UN Doc No. A/CN.4/50 Yearbook of the International Law Commission 1952, Vol II, para 10; ‘Germany undertakes to recognise any new nationality which has been or may be acquired by her nationals under the laws of the Allied and Associated Powers and in accordance with the decisions of the competent authorities of these Powers pursuant to naturalisation laws or under treaty stipulations, and to regard such persons as having, in consequence of the acquisition of such new nationality, in all respects severed their allegiance to their country of origin.’ Treaty of Versailles 28 June 1919, art. 278; Paul Weis refers to this process as “substitution”: ‘(…) automatic loss of nationality upon acquisition of another nationality (…) by operation of law (…)’ Paul Weis, Nationality and Statelessness in International Law (2nd edn, Sijthoff & Noordhoff International Publishers BV 1979) 116.

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    Rezek explains, ‘(…) the judicial relationship of nationality should not be based on formality or artifice, but on a real connection between the individual and the state.’ J.F. Rezek, ‘Le Droit International de la Nationalite’ in Collected Courses of the Hague Academy of International Law (Vol 198, Martinus Nijihoff 1987) 357; see also the views of UNHCR in the context of the dissolution of Czechoslovakia, ‘(…) it is in the interest of the successor State (…) to come as close as possible, when defining its initial body of citizens, to the definition of persons having a genuine link with that State. If a number of persons are considered to be “foreigners” in “their own country” clearly that is not in the interest of the State itself.’ UNHCR Regional Bureau for Europe ‘The Czech and Slovak Citizenship Laws and the Problem of Statelessness’ in Citizenship in the Context of the Dissolution of Czechoslovakia European Series Vol 2(4) September 1996 (both cited in ILC Draft Articles (n 7), art. 5 commentary).

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    Ian Timberlake, ‘Convoy takes South Sudanese Home from Khartoum’ Agence France-Presse 19 March 2013 <http://reliefweb.int/report/sudan/convoy-takes-south-sudanese-home-khartoum> accessed 15 April 2013.

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