UNHCR discussion paper on nationality issues in Sudan and South Sudan. International Law and Prevention of statelessness in state succession

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1 UNHCR discussin paper n natinality issues in Sudan and Suth Sudan UNHCR s mandate 1. The United Natins General Assembly has entrusted UNHCR with a glbal mandate t prtect stateless persns, and t prevent and reduce statelessness 1. This mandate includes the UNHCR s respnsibility fr prviding legal advice n the tw internatinal Cnventins addressing statelessness, namely the 1954 Cnventin relating t the Status f Stateless Persns and the 1961 Cnventin n the Reductin f Statelessness. 2. In Sudan and Suth Sudan, UNHCR has been advcating fr the preventin f statelessness arising frm the successin f Suth Sudan in July In particular, the internatinal legal bligatin t prevent statelessness means that n individual shuld lse their Sudanese citizenship unless it is cnfirmed that they have btained the citizenship f anther state. UNHCR als supprts a right fr individuals t retain their Sudanese natinality where they have an apprpriate cnnectin t the Republic f Sudan (including individuals with lng residence in Sudan and thse with ne r mre parent r ancestr wh has Sudanese natinality). 3. UNHCR is als cncerned abut the rights f Suth Sudanese in the Republic f Sudan and Sudanese in Suth Sudan wh were displaced frm their places f rigin due t cnflict t be able t remain in their current place f residence r t return vluntarily t their places f rigin if they s wish. Internatinal Law and Preventin f statelessness in state successin 4. Under internatinal law, everyne has the right t a natinality 2 and n-ne shuld be arbitrarily deprived f their natinality 3. States therefre have an bligatin t ensure that n individual is left stateless (withut the natinality f any state) as a result f state successin 4 and that natinality laws d nt discriminate n the basis f sex 5, race, clur r natinal r ethnic rigin In situatins f state successin, questins arise as t wh shuld acquire the natinality f the new (successr) state and wh shuld lse the natinality f the ld (predecessr) state and hw natinality will be retained r newly acquired. If an individual lses the natinality f the predecessr state withut acquiring the natinality f the new state, they wuld be stateless. 6. Internatinal best practice prmtes the fllwing standards fr regulating natinality in situatins f state successin. N individual shuld be left stateless as a result f state successin. 1 A/RES49/169 f 23 December 1994 and A/RES/50/152 f 21 December 1995 endrsing Executive Cmmittee Cnclusin N. 78 (XLVI) Universal Declaratin f Human Rights, Article 15(1); Internatinal Cvenant n Civil and Plitical Rights (ICCPR), (Sudan signed in 1986), Article 24(3); African Charter n the Rights and Welfare f the Child, Article 6(c). (Sudan signed in 2008). 3 UDHR, Article 15; UN General Assembly Reslutin 50/152 f 1996 (A/RES/50/152), para Cmmittee n the Eliminatin f Racial Discriminatin, General Recmmendatin N. 30: Discriminatin Against Nn Citizens: 10/01/2004. Human Rights Cuncil, Human rights and arbitrary deprivatin f natinality reslutin adpted , A/HRC/RES/13/2. 5 Article 26 ICCPR equal prtectin f the law and nn-discriminatin n grunds f sex. 6 Cnventin n Eliminatin f all frms f Racial Discriminatin (Sudan signed in 1977) Art. 5(d)(iii).

2 Thse habitually resident n the territry f the successr state shuld acquire the natinality f the successr state 7 Dual natinality can be granted if bth states agree 8 Thse with a link t bth the new and ld state can be given chice f citizenship 9 Internatinal standards prmte a right fr individuals t chse citizenship where they have an apprpriate link t bth the successr and the predecessr states. This particularly applies t individuals f mixed Sudanese, Suth Sudanese ancestry since Article 7 f the Interim Cnstitutin gives any individual brn t a Sudanese mther r father an inalienable right t acquire Sudanese natinality. The ld state may withdraw natinality frm thse wh acquire citizenship f the new state. 10 Hwever, states shuld als put in place legal r administrative prcedures t allw individuals t cnfirm their citizenship status where this is in dispute. The prcedures shuld be based n exchange f infrmatin between the tw Gvernments and respect fr legal due prcess including written cnfirmatin f decisins t withdraw natinality and access t administrative and judicial review. The status f habitual residents shuld nt be affected 11 In this cntext, it is very psitive t nte the recent cmmitment frm Sudan and Suth Sudan t respect the Fur Freedms f residence, free mvement, ecnmic activity and prperty rights fr natinals f the ther state n their territry. This will help t prevent invluntary large scale ppulatin mvements n either side f the brder. States shuld nt discriminate against individuals frm any particular natinality in relatin t access t dual natinality and naturalisatin prcedures. 12 The Sudan Natinality Act 1994 and 2011 Amendments 7. The Sudan Natinality Act 1994 recgnises as a Sudanese natinal by birth, any individual brn t a Sudanese father. Any individual brn t a Sudanese mther can acquire Sudanese natinality fllwing an applicatin prcess. Any individual als acquires Sudanese natinality by birth where he r his paternal ancestrs have been residing in Sudan since 1 January Under Article 7 f the Sudan Natinality Act (as amended in 2011), an individual may be granted Sudanese natinality by naturalisatin where he meets certain cnditins including establishing 10 years f cntinuus and lawful residence in Sudan. Under Article 6 a wman married t a Sudanese man may acquire Sudanese natinality by naturalisatin after residing in Sudan fr tw years with her husband. 9. Accrding t the 2011 amendment t the Sudan Natinality Act, all individuals wh have acquired Suth Sudanese natinality, in law r in fact, autmatically lse their Sudanese natinality. 14 A child under 18 will lse his Sudanese natinality where his respnsible parent has lst Sudanese natinality (nrmally the father unless the mther has legal custdy f the child) Draft Articles n the Natinality f Natural Persns Art.; Article 5. 8 Ibid Art. 9 Ibid Art Ibid Art Ibid Art Cnventin n the Eliminatin f Racial Discriminatin, Article 1(3). 13 Sudan Natinality Act 1994 (as amended in 2005), Article Article 10(2) Sudan Natinality Act (as amended in 2011). 15 Article 10(3) Sudan Natinality Act (as amended in 2011).

3 Suth Sudan Natinality Act The Suth Sudan Natinality Act entered int frce in July 2011 and adpts very brad criteria fr acquiring Suth Sudanese natinality. Under Article 8 f the Suth Sudan Natinality Act, the fllwing individuals autmatically acquire Suth Sudanese natinality where they were brn befre the act entered int frce. Individuals fr whm any f their parents, grandparents r great grandparents were brn in Suth Sudan, Individuals wh belng t ne f the indigenus ethnic cmmunities f Suth Sudan, Individuals wh were cntinuusly resident in Suth Sudan since 1956, r whse ancestrs were s resident. 11. An individual brn after the act entered int frce acquires Suth Sudanese natinality if any ne f their parents, either the mther r the father, is a Suth Sudanese natinal. Practical and Legal Cnsequences f Sudan Natinality Act ( 2011 amendment) 12. Under the natinality law f Sudan, as amended, any individual wh meets ne f the requirements f Article 8 f the Suth Sudan Natinality Act has lst their Sudanese natinality. Therefre, lss f Sudanese natinality ptentially applies t a very wide sectin f the Sudanese ppulatin (including thse with ne grandparent r great grandparent brn in Suth Sudan). The natinality status f ther grups is uncertain (including individuals with mixed Sudanese-Suth Sudanese parentage and ancestry). 13. N implementing regulatins have been issued under the 2011 amendment t the Sudan Natinality Act r the Civil Registratin Act These regulatins shuld instruct civil servants n hw t determine whether r nt t withdraw Sudanese natinality. The regulatins shuld incrprate adequate prcedural safeguards t ensure that n individual will lse their Sudanese natinality unless they have acquired the natinality f anther state. 14. In the absence f implementing regulatins, decisins t refuse Sudanese natinality dcuments may be made n a case by case basis, with a higher risk f decisin being taken n the basis f tribal/ ethnic rigin (even thugh individuals frm indigenus Suth Sudanese cmmunities nly represent ne f the fur categries f individual wh are cnsidered as Suth Sudanese natinals under the Suth Sudan Natinality Act.) 15. In the absence f regulatins, it is als unclear hw the law applies t certain grups including individuals f mixed Sudanese-Suth Sudanese parentage, individuals f mixed ancestry and thse with lng residence in Sudan. Further clarity is als needed n the status f unaccmpanied children and individuals f unknwn parentage as well as individuals frm tribes living at and acrss the brder between Sudan and Suth Sudan. 16. Additinally, cnfirmatin is required that Suth Sudanese natinals can take the benefit f these naturalisatin prcedures n the same basis as natinals f ther states. Recmmendatins fr preventing statelessness Prcedures fr withdrawal f natinality 17. UNHCR strngly encurages the Gvernment f Sudan t intrduce regulatins and prcedures fr withdrawal f Sudanese natinality. This includes prviding clear instructins n the evidence that shuld be adduced by the Gvernment f Sudan in rder t demnstrate that an individual has acquired Suth Sudanese natinality and is n lnger a Sudanese natinal. Clarifying natinality status fr certain grups

4 18. Individuals with ne Sudanese parent and ne Suth Sudanese parent (including thse f mixed ancestry) have a cnstitutinal right t Sudanese natinality under Article 7 f the Interim Natinal Cnstitutin. Their status as Sudanese natinals shuld be cnfirmed. 19. Individuals with lng residence in Sudan since 1 January 1956 qualify fr natinality under Article 4(1)(b) f the Sudan Natinality Act Their status as Sudanese natinals shuld be cnfirmed. 20. Prcedures fr determining the natinality f unaccmpanied children and individuals f unknwn parentage shuld include a prvisin that allws children t acquire the natinality f their primary caregiver where the identity f the parents cannt be established. 21. Individuals living clse t brder regins including the Frghe, Kara, Yulu, Kresh and Binga are at particular risk f statelessness due t the risk that they culd be perceived by bth Sudan and Suth Sudan as being natinals f the ther state. Bth Gvernments are encuraged t make effrts t jintly identify and establish the natinality status f these grups with the aim f ensuring that n individual is left withut a natinality. 22. Laws and regulatins n dual natinality shuld apply t individuals wh qualify fr Sudanese and Suth Sudanese natinality n an equal fting with all ther natinalities. Fr example, take the case f an individual whse parents are bth Sudanese natinals but whse father was brn in Renk. He is entitled t the natinality f bth Sudan and Suth Sudan. The same wuld apply t an individual brn t a Sudanese mther and Suth Sudanese father. Under the cnstitutin, Sudanese natinals are entitled t enjy dual natinality in accrdance with the law As indicated abve, Article 1(3) f the Cnventin n the Eliminatin f Racial Discriminatin requires that individuals frm all natinalities shuld be treated equally in relatin t legal prvisins relating t natinality (including dual natinality). 24. On the same basis, Suth Sudanese natinals wh have lst their Sudanese natinality shuld be entitled t acquire Sudanese natinality by naturalisatin based n residency accrued prir t the secessin f Suth Sudan, in line with natinals f ther states. Gender Equality 25. UNHCR wuld strngly encurage the Republic f Sudan t amend the natinality law, in line with the cnstitutin and internatinal bligatins n gender equality, s as t ensure that Sudanese mthers can autmatically pass n their natinality t their children and freign men married t Sudanese wmen benefit frm the accelerated prcedure fr acquiring natinality by naturalisatin n the same basis as freign wmen married t Sudanese men. Supprt UNHCR has prvided advice and expertise t bth Gvernments n develping laws, regulatins and prcedures cncerning natinality, birth registratin and civil registratin. UNHCR has cntributed t raising awareness f new natinality laws and imprving access t legal advice fr cmmunities affected by new natinality laws. 16 As indicated abve, Article 1(3) f the Cnventin n the Eliminatin f Racial Discriminatin requires that individuals frm all natinalities shuld be treated equally in relatin t legal prvisins relating t natinality (including dual natinality).

5 T the Gvernment f Sudan, UNHCR is ffering supprt t expand the peratin f the natinal civil registratin prgramme, including t areas with displaced persns and remte brder lcatins where peple ften lack dcumentatin. We are als willing t prvide technical advice and training supprt t make sure that this system is secure, reliable and rbust. T many peple in Sudan remain withut natinality dcumentatin. With the secessin f Suth Sudan, access t these vital identity dcuments and prf f affiliatin t ne r ther state, becmes an even mre urgent need t avid situatins f ptential statelessness. Fr Suth Sudanese natinals living in Sudan, UNHCR has ffered supprt t the Gvernment f Suth Sudan t set up a dcumentatin prcedure in cperatin with the Suth Sudan Ministry f Interir and the Suth Sudanese Embassy in Khartum. There are real challenges fr dcumenting peple wh may have spent decades away frm their place f rigin. Others were brn here in Sudan. UNHCR is prviding training supprt t increase the capacity f Suth Sudan s natinality fficers t address cmplex cases. Cnclusin 26. The denial f a natinality implies nt nly the denial f safety and dignity n an individual level; it als fsters cnflict and unrest n the cllective level. By acknwledging the ecnmic and scial rights f stateless persns, the cncerned individuals are able t make a psitive cntributin t the scial and ecnmic develpment f the cuntry. 27. Risk f statelessness fr large sectins f the ppulatin undermines a stable and secure envirnment in Sudan. By decreasing the risk f statelessness, the incentives fr ppulatin mvements, including invluntary displacement, wuld be reduced. The resulting internal stability enhances the cnditins fr sustainable peace, security and develpment in Sudan.