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The Birth of South Sudan and theChallenges of StatebuildingRoberto Belloni aa University of Trento , ItalyPublished online: 15 Sep 2011.

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BRIEFINGS AND ANALYSIS

The Birth of South Sudan and theChallenges of Statebuilding

ROBERTO BELLONI

University of Trento, Italy

ABSTRACT This paper examines some key statebuilding challenges confronting South Sudan in theaftermath of the January 2011 referendum that separated this region from the Republic of Sudan.Following the referendum, the two states—the Republic of Sudan and South Sudan—face theimmediate challenge of negotiating the terms of their relationship over a number of criticalissues, including: the future of the contested border town of Abyei, the problem of how to divideoil revenues, the definition and demarcation of the border between the two entities, and theestablishment of a citizenship regime. At the same time, even if a settlement between the twoover these issues was reached, South Sudan’s internal political, security and developmentalchallenges remain enormous. For the foreseeable future, South Sudan will remain a fragile statein need of international assistance and support. In conclusion, this paper briefly assesses theimplications of the birth of South Sudan for other simmering conflicts and for the doctrine ofself-determination.

Introduction

In January 2011 the people living in Southern Sudan voted overwhelmingly in a referen-

dum to separate from the Republic of Sudan and create a new, independent and sovereign

state. According to the Southern Sudan Referendum Act, which was adopted by Sudan’s

Parliament to regulate the referendum process, a simple majority (50% plus one) was suf-

ficient to validate the vote—provided that at least 60% of the registered voters cast their

ballots. Of the 4.8 million Southern Sudanese eligible to vote, nearly four million of them

went to the polls, with 98.83% of them voting in favour of independence. On 9 July 2011,

when the interim period stipulated by the 2005 Comprehensive Peace Agreement (CPA)

terminated, South Sudan declared independence officially. Since summer 2010 the ruling

National Congress Party (NCP) for the North and the Sudan People’s Liberation

Movement (SPLM) for the South have been negotiating several post-referendum issues

Ethnopolitics, Vol. 10, Nos. 3–4, 411–429, September–November 2011

Correspondence Address: Roberto Belloni, School of International Studies, University of Trento, via Verdi 8/10,

38122 Trento, Italy. Email: roberto.belloni@unitn.it

Ethnopolitics, Vol. 10, Nos. 3–4, 411–429, September–November 2011

1744-9057 Print/1744-9065 Online/11/03–40411–19 # 2011 The Editor of EthnopoliticsDOI: 10.1080/17449057.2011.593364

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(among others, citizenship, borders and division of oil wealth). If and when the parties

strike a deal, the full transfer of sovereignty to the new state, which includes the implemen-

tation of numerous practical details, will probably take several years.

This paper discusses some of the main statebuilding challenges that South Sudan faces

in the transition from a neglected and marginalized Sudanese region to a sovereign and

independent state. It does not aim to predict the outcome of this transition, which, some

analysts fear, may also include a return to war, costing Sudan as a whole an estimated

US$50 billion in lost GDP and imposing a burden of about US$25 billion on neighbouring

countries and of about US$30 billion on the international community in peacekeeping and

humanitarian costs (Frontier Economics, 2010). Rather, this paper attempts to isolate and

examine the key issues that will probably dominate the political landscape in South Sudan

for the near future. It is structured as follows. First, it provides brief background infor-

mation on the 2005 CPA, which ended the war between the North and the South, and

its implementation. Second, it addresses some of the main issues in the evolving and trou-

blesome relationship between the North and the South: the situation of the contested

border town of Abyei, the problem of oil and wealth sharing, the challenge of defining

and demarcating the new North–South border and the issue of citizenship. Third, the

paper discusses South Sudan’s internal governance and developmental challenges and

concludes by assessing the implications of Southern Sudanese independence for other sim-

mering conflicts and for the doctrine of self-determination.

The Comprehensive Peace Agreement

The CPA was signed in January 2005. It was actually composed of six documents signed

over the previous 2 years: the Machakos Protocol (July 2002), the Agreement on Security

Arrangements (September 2003), the Agreement on Wealth Sharing (January 2004), the

Protocol on Power Sharing (May 2004), the Protocol on the Resolution of Conflict in

Southern Kardofan and the Blue Nile States (May 2004), and the Protocol on the Resol-

ution of Conflict in the Abyei Area (May 2004). This set of documents proved successful

in terminating a 21-year conflict between the mainly Arab and Muslim North and the

mainly African and Christian South, and which killed more than two million people

and displaced four million more. The CPA represented only the last step in a long

history of conflict and attempts at reconciliation between the North and the South of the

country. To some accounts, the roots of the conflict date as far back as the pre-colonial

times. The slave trade involved raiders form the North who kidnapped people from the

South. From 1899 to 1955 Sudan was jointly administered by Egypt and the UK.

During this period the South was marginalized and excluded from the rest of the

country (Johnson, 2003, pp. 11–19). When Sudan reached independence on 1 January

1956, the two sides found themselves together unprepared in the same political and admin-

istrative entity. The South remained economically underdeveloped and politically margin-

alized, while turning increasingly to Christianity. The North came to be dominated by a

small Arab elite ideologically motivated by Arab nationalism. A civil war soon broke

out, only temporarily stopped by the 1972 Addis Ababa peace agreement.1

In 1983 a new cycle of violence broke out. The growing Arabization and Islamization of

the North, including the imposition of Sharia law and the slow process of expropriation of

the South’s prerogatives in the national government, contributed to the resumption of war.

Rather than spreading Arabness, the policy of Arabization provoked hostility and

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resistance, while sharpening self-consciously African identities (Johnson, 2003; Sharkey,

2008). The scramble over oil, which was found in the 1970s, also played a role in the col-

lapse of the Addis Ababa agreement, but ultimately it was political exclusion that drove

the southern rebels to fight for over two decades (Hashim, 2008). Arab elites in Khartoum

interpreted the rebellion as an uprising of former slaves that required a military not a pol-

itical response. Khartoum’s policy of marginalization and simultaneous Arabization of the

Sudanese peripheries also provoked a rebellion in Darfur in 2003, and growing tensions in

Southern Kardofan and areas of the eastern part of the state.

The signing of the CPA provided Sudan with an opportunity to redress some southern

grievances. The CPA’s major achievement was to end a long and bloody war, but much of

the agreement was never implemented, or was implemented only notionally. The CPA’s

ultimate objective was to ‘make unity attractive’ to the South through a process of demo-

cratic transformation. Yet, the promised reformation did not occur, or occurred only at the

margins. The ruling NCP signed the CPA for a number of pragmatic reasons, mostly

related to its international standing: in particular, it wanted to end its pariah status and

to divert international pressure to ending the killings and displacements in Darfur. Yet,

the NCP resisted implementation because it considered it as a threat its survival, and

chose to manage the transition period without allowing for fundamental changes to take

place. By contrast, the SPLM was more eager to implement the agreement, but did not

possess the capacity to do so. John Garang, the southern leader who signed the peace

agreement on behalf of the South, insisted that union in a ‘New Sudan’ was his preferred

option (see e.g. Garang de Mabior, 1987). His sudden death in a helicopter crash in July

2005 complicated the implementation of this vision. In fact, partnership between the NCP

and the SPLM was predicated on strong personal ties between Garang and Vice-President

Ali Osman Taha. Garang’s death changed decisively the political conditions that could

have supported a fuller implementation of the CPA.2

Early on after the signing of the agreement, the NCP discouraged SPLM interest and

involvement in nationwide issues. This policy found a fertile ground in the South

where, particularly after Garang’s death, the long-standing division within the SPLM

between those who subscribed to the vision of a united, democratic and secular state

and those who favoured self-determination and even secession resurfaced. Without

Garang, who enjoyed considerable support as a political figure transcending the North/South divide, the ‘New Sudan’ ideology gradually lost attraction. Rather, the SPLM

increasingly focused on southern issues, relegating nationwide matters to second-order

priorities, while many southern citizens came to identify the referendum on self-determi-

nation as the key clause of the CPA. Thus, while the CPA foresaw the creation of a Gov-

ernment of National Unity predicated on a close partnership between the NCP and the

SPLM, the collaboration between the two parties during the peace implementation

process remained limited to the protection of each party’s own interests. Perhaps a good

indicator of the SPLM’s waning commitment to national unity is found in the statements

of Garang’s successor and South Sudan President Salva Kiir, who, as early as October

2009, identified independence as the only option to elevate Southern Sudanese to first-

class citizens from their second-class status within a united Sudan (BBC News, 2009).

Kiir’s statement effectively ended any residual attempt to ‘make unity attractive’ and elev-

ated the planned January 2011 referendum on independence to the centre of political

debate.

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A Cold Peace

As a result of these broader political dynamics, peace implementation proceeded between

(few) advances and (many) setbacks. The CPA created a complex system of power-sharing

provisions aimed at addressing three major aspects at the heart of the dispute between the

North and the South.

First, it created an asymmetrical federation in which the South was represented in a

Government of National Unity. Sudan’s Vice-Presidency and 28% of all Cabinet posts

were assigned to the SPLM. In addition, the South was granted a considerable degree

of self-government. All institutions were supposed to be democratically legitimated, but

elections were held only in April 2010, that is, 1 year after schedule. This delay in the

first multi-party national election for 24 years meant that the power-sharing system

created by the CPA was neither endorsed nor democratically tested for over 5 years

after the signing of the peace agreement. When elections were finally held most citizens

were disillusioned by the pace of implementation of the agreement and few had any

doubt that the South was heading towards independence (International Crisis Group

(ICG), 2010a).

Second, a ceasefire deal terminated more than two decades of armed confrontation. The

CPA mandated that the Sudanese Armed Forces (SAF), controlled by the North, and the

Sudanese People’s Liberation Army (SPLA), controlled by the South, would remain sep-

arate armies, but both with the right to participate in Sudan’s newly constituted National

Armed Forces. A process of demobilization and reintegration was also planned. However,

implementation of the security aspects of the agreement was hampered by a fundamental

lack of trust between the parties. The creation of Joint Integrated Units including both the

SAF and SPLA units, prescribed by the CPA, was never properly implemented, and dis-

armament and demobilization occurred only in part. Clashes between the two sides have

been frequent—especially in oil-rich areas. Considerable quantities of weapons flowed to

both sides. Just a month before the referendum, WikiLeaks documents revealed that, start-

ing from 2007, several shipments of Ukrainian weapons were sent to South Sudan through

Kenya (Gettleman & Gordon, 2010). For its part, the government in Khartoum has been

accused of arming tribal militias along the North–South border and even in the South

itself (Small Arms Survey, 2009).

Third, the CPA created a system of revenue sharing between the North and the South.

Needless to say, oil revenue is a matter of major interest to both sides, but particularly to

the South, which gets 98% of its budget from this source. The CPA prescribed that 2% of

all revenue would remain in those areas where the crude is extracted, while the rest would

be divided equally between the North and the South. Although the oil wealth-sharing

agreement led to the flow of about $10 billion from the North to the South, thus contribut-

ing decisively to keeping the peace, its implementation has actually been hindered by both

political tensions and lack of administrative capacity. In particular, the absence of any

reliable data about Sudan’s oil production made it impossible to determine precisely

how to divide oil-generated wealth (Global Witness, 2009), and was one of the key

reasons for the South’s temporary withdrawal from the power-sharing agreement in

2007. In the South, alleged corruption further hampered the creation of a framework for

calculating and sharing oil revenues. For example, in March 2007 the Finance Minister,

Arthur Klein, was suspended following a corruption scandal. Other corruption allegations

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frequently unsettled the Government of South Sudan, and several more ministers lost their

position.

All things considered, the centrepiece of the CPA was the promise of a referendum, to

be held 6 years after the signing of the peace agreement, in which Southern Sudanese citi-

zens would decide whether to remain within a united (and reformed) Sudan, or become

independent. Residents of the so-called ‘Three Protocol Areas’ bordering the South and

where the SPLA was active during the war—Southern Kardofan, Blue Nile and

Abyei—were also given a voice over their future. While Southern Kardofan and Blue

Nile remained constitutionally part of the North and their residents could engage in a

popular consultation exercise, Abyei was given the right to stage a referendum to deter-

mine its future status. The simple fact that the referendum took place on time almost every-

where (with the exception of the disputed border town of Abyei—see later), and without

major technical or security problems, is an important accomplishment. Indeed, the general

atmosphere of mistrust between the two sides raised serious concerns about the entire

process. Little over 2 months before the referendum, Sudan’s UN Ambassador warned

that the country could fall back into civil war (AFP, 2010). According to a journalist,

no one seemed ‘certain about what will happen before, during, or after the vote’ (Thurston,

2010). Moreover, a week’s extension in the deadline for voter registration and a delay in

printing ballots testified to the technical difficulties of preparing for the historic day. Dire

poverty and lack of roads in the South augmented the logistical challenges of holding the

vote on time. Eventually, the January 2011 week-long vote passed off peacefully. A week

after the referendum, the South Sudan Referendum Commission acknowledged that some

parts of the semi-autonomous region had a voter turnout that exceeded 100% of the regis-

tered voters. However, despite some irregularities, there is no doubt that the South voted

overwhelmingly in favour of secession.

The Challenges of Statebuilding

The January 2011 referendum represented only a step, although clearly a crucial one, in the

process of formation of a new state. The North and the South will have to find a compro-

mise on a number of important issues arising from the separation. A 2010 Chatam House

report identified 12 distinct post-referendum issues the parties will have to address

(Thomas, 2010, p. 24). The Government of South Sudan’s (GoSS) own list of priorities

includes 11 major problems (GoSS, 2009). On 23 June 2010, the NCP and the SPLM

signed a Memorandum of Understanding laying down the modalities for solving post-

referendum issues (European Coalition on Oil in Sudan (ECOS), 2010). Some of these,

however, are particularly thorny and will probably affect the relationship between the

two states for the foreseeable future. They include finding a solution to the disputed

border town of Abyei, the sharing of natural resources (most notably oil), the final delinea-

tion and demarcation of borders and new citizenship laws. These issues are reviewed and

assessed briefly below.

Abyei

Abyei is an oil-rich area alongside the North–South border, with a population of around

50,000. The CPA included a separate agreement on Abyei, allowing the territory to hold a

special administrative status under the Presidency, and foreseeing a separate referendum to

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be held simultaneously with the southern referendum in order to decide whether the area

would remain in the North or join the South. The referendum, however, did not take place,

officially because of a lack of the necessary technical preparation—including a census of

the population eligible to vote. In reality, both North/South and local tensions intertwine

in Abyei, making the area a trouble spot. In particular, the government in Khartoum was

reluctant to permit the referendum to take place and, as a result, the Abyei Area Referen-

dum Commission, prescribed by the CPA, was never set up. The prospect of losing control,

in total or in part, over Abyei’s oil wealth proved to be an important deterrent for the NCP

(Johnson, 2008).

The key dispute between the North and the South, which ultimately derailed the refer-

endum on the town’s future status, involved the determination of Abyei’s territorial bound-

aries and the criteria determining voters’ eligibility. According to the CPA, Abyei consists

of the territory of nine Dinka Chiefdoms, which were transferred from the southern state of

Bahr el-Ghazal to the northern state of Kardofan by British administrators in 1905. The

CPA established the Abyei Boundaries Commission (ABC), composed equally by repre-

sentatives of the NCP, SPLM and international experts, and tasked it to determine those

boundaries as of 1905. Furthermore, the CPA affirmed that the ABC report would be

‘final and binding’ and that the traditional rights of passage for pastoralists, in particular

for the pro-Khartoum Misseriya, would be guaranteed regardless of the ABC’s ruling

(Johnson, 2007).

The ABC delivered its verdict to the Sudanese Presidency on 14 July 2005 (ABC, 2005).

The report identified a large territory as belonging to Abyei—including oil-producing

areas that the government in Khartoum expected would remain in the North regardless

of the outcome of the referendum. The Presidency rejected the report and worked to

mobilize the Misseriya against the ABC report. Latent conflict developed into open fight-

ing in 2008, when the SAF and the SPLA clashed in and around Abyei town, causing tens

of thousands to flee (Human Rights Watch, 2008). The dispute found its way to the Per-

manent Court of Arbitration (PCA) in the Hague, which ruled in 2009 that only one oil

field, that of Diffra, is part of Abyei, while two more oil fields (Heglig and Bamboo)

belong to South Kardofan (that is, to the North). The ruling significantly decreased the

importance of the town as an oil-rich area—passing from producing about 25% of Suda-

nese oil to about 1%. While the ruling was expected to lower tensions in Abyei, in practice

it did not have such a positive impact. In part, this is due to the belief that new oil fields

may be found in the area. Equally important, however, is the dispute between the main

local groups over the future of the region.

At the local level, tensions between the Ngok Dinka community, the majority of

Abyei’s residents and more broadly the backbone of the southern rebel army during the

civil war, and Misseriya pastoralists, who bring their livestock into the region to graze

during the dry season (January–May), have been escalating, in particular in the run-up

to the January 2011 vote. In its 2009 ruling the PCA argued that the principal intent of

the Abyei Protocol was to give the Ngok Dinka the possibility to choose their status

through the referendum. The Misseriya feared that they could lose access to valuable

land if the Ngok Dinka voted to join the new southern state. Thus, they have been threa-

tening to restart the hostilities if they are not allowed to vote on the area’s future. The gov-

ernment in Khartoum has backed the Misseriya’s claim that Abyei remains in the North—

both to preserve access to current and future oil revenues and to maintain the Misseriya,

who fought in large numbers for the North during the civil war, on its side in the conflict in

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Darfur. Often overlooked by this set of claims and counterclaims is the PCA’s ruling that

traditional rights are not affected by boundary changes. Rather, ‘the transfer of sovereignty

in the context of boundary delimitation should not be construed to extinguish traditional

rights to the use of land’ (CPA, 2009, p. 260, cited in Johnson, 2010, p. 39).

In the weeks just before and after the referendum, clashes north of Abyei left more than

30 people dead. The clashes were apparently caused by false reports in the northern press

that the Ngok Dinkas were planning unilaterally to annex Abyei to the South during the

referendum days. Such a prospect provoked a reaction by the Misseriya. In the referendum

aftermath, intermittent clashes have continued (Small Arms Survey, 2011). The SAF has

increased its presence in the area, while the government in Khartoum has been recruiting

and arming Misseriya fighters just north of Abyei. The reasons for this recruitment may

have more to do with Darfur—where Khartoum is losing some ground vis-a-vis the

Justice and Equality Movement3—and less with the possibility of deploying these fighters

against the Dinkas in Abyei. None the less, NCP’s actions mirror those of the SPLA, which

is said to expand the Joint Integrated Police Units in Abyei with ‘SPLA in police uniform’

(Small Arms Survey, 2010, p. 2).

Needless to say, these developments are worrisome for those international observers

and Sudanese citizens alike who fear that a military escalation may further complicate

finding a compromise between the North and the South. The government in Khartoum

has been proposing to split Abyei and divide the Misserya and the Ngok Dinka between

the two states. This scheme has some international support, including that of the High-

Level Implementation Panel on Sudan and of the US Special Envoy to Sudan, Scott

Gration. However, it is problematic and resisted by the South in that it is a violation of

previous reports and rulings, such as that of the Abyei Boundaries Commission and of

the Permanent Court of Arbitration. Instead, in its Transitional Constitution, adopted

when the region became independent on 9 July 2011, and constituting a temporary

Charter until a permanent constitution is drafted, the South has reaffirmed that ‘[t]he ter-

ritory of the Republic of South Sudan . . . (includes) the Abyei Area . . . as defined by the

Abyei Arbitration Tribunal Award of July 2009’ (GoSS, 2011, preamble, art. 1.2).

As a solution to this impasse Douglas Johnson, one of the five international experts

appointed to the ABC, argues that the implementation of the Abyei referendum and the

protection of the traditional grazing rights for the Misseryia is the best way forward

(Johnson, 2011). The establishment of an integrated police force composed of both

Ngok Dinka and Misseriya and internationally guaranteed rights of passage across the

border could also constitute parts of a settlement. As with other disputed border areas

(see below), the best long-term answer is to establish a porous border. The CPA defined

Abyei as ‘a bridge between the north and the south’ and granted its inhabitants citizenship

of both the North and the South. Although Abyei may become in the future such a bridge,

at the time of writing it remains in a dangerous limbo.

Oil and Wealth Sharing

Although land and water conflicts affect a considerable number of both northern and

southern Sudanese citizens, oil-sharing remains the crucial issue in the relationship

between the North and the South and is likely to be an important point of future contention

(Patey, 2010; Nour, 2011). The best part of the oil fields, generating about 85% of the total

oil production, is found in the South, which, however, is a land-locked region still

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dependent on a 1,300-km pipeline running from Southern Sudan to Port Sudan, on the Red

Sea, for export. In the long run, a new pipeline financed by foreign loans could be built

through Uganda and Kenya. However, the economic feasibility of an alternative pipeline

must take into consideration the expected longevity of oil fields, currently estimated at

between 10 and 25 years, as well as projected construction costs. Toyota Tsusho Corpor-

ation is considering the construction of a 1,400-km pipeline from South Sudan to the

Kenyan port of Lamu at a cost of $1.5 billion. The overall difficulty of this alternative

project is perhaps best testified by the fact that, to date, no feasibility studies have been

completed and even Sudanese authorities are questioning the economic viability of the

project (United Press International, 2010). Meanwhile, the absence of new discoveries

has lowered expectations for the oil sector. Some oil companies operating in Sudan,

such as Total, have downgraded their exploration programmes, while no other new com-

panies have shown an interest in the country (ECOS, 2010, p. 5).

Thus, in the short term reaching an agreement is a matter of mutual interest for both

sides. Negotiations, however, have been hampered by a fundamental mistrust between

the two sides—compounded by a persistent lack of clear and transparent information on

Sudan’s oil revenues. Since 2005, inconsistencies in reporting between oil companies

and the Ministry of Finance and National Economy have raised doubts about the willing-

ness of the North to share fairly oil revenues with the South (Global Witness, 2009). The

government in Juba has also speculated about the existence of off-the-record deals

between oil companies and Khartoum aimed at lowering the official amount of oil extrac-

tion (Patey, 2010, p. 626). In 2010, Transparency International ranked Sudan as the

seventh most corrupt country in the world—prompting both a new wave of accusations

between the North and the South and requests for greater accountability and transparency.

Despite demands for reform, since June 2009 Khartoum has been publishing even less

information than it did before that date, making it increasingly difficult to verify

whether oil revenues have been shared fairly (Global Witness, 2011). Eventually, an

agreement on sharing wealth generated by oil production might be reached in the

context of a broader financial package taking into account other monetary and financial

issues, in particular the question of how Sudan’s national debt (amounting to $35

billion in external debt obligations) will be allocated between the two states (Leo, 2010).

A new oil-sharing deal should be comprehensive, easily verifiable, commercially attrac-

tive, and should include a dispute-resolution mechanism. A new revenue management

agreement could contain either a form of continued revenue sharing or payments for the

use of the infrastructure in the North—or a combination of the two. On balance, a fee-

for-service arrangement represents the most practical outcome (ECOS, 2010, pp. 5–6).

South Sudan may agree to pay as much as 30% of its oil revenue to the government in

Khartoum as a fee for using the pipelines that transport the oil to Port Sudan (Chmaytelli

& Mazen, 2011). In the long term, increased transparency (that is, the regular and timely

publication of disaggregated data on oil production, revenue figures, fees and oil sector

contracts) as well as independent verification (including a disclosure system whereby

both oil companies and authorities are required to publish oil sector data and accept inde-

pendent monitoring and audits) would greatly improve the management of oil wealth

(Global Witness, 2011, p. 11).

In addition, the environmental costs and consequences of oil extraction will have to be

taken into account. Currently, social and environmental impact assessments are confiden-

tial. The lack of transparency and lack of effective governance of the oil sector encourage

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poor environmental practices among oil companies. Southern independence is unlikely to

change what is now a generally permissive environment for oil companies. Disparities in

power, knowledge and experience between oil industries and new southern governments,

both national and regional, will make monitoring and enforcing environmental standards a

very difficult objective to achieve (Hamilton, 2011). The lack of stringent environmental

regulation might have serious consequences at the local level, where local populations, in a

Niger Delta scenario, might end up suffering the most from the externalities of oil extrac-

tion. In fact, so far, marginalized Sudanese have had little benefit from oil. In some cases,

as a result of oil-related activities and despite the CPA’s requirement to consider the views

of local communities on the development of natural resources, local people have even

been forced to leave their ancestral homes without compensation (Moro, 2009, pp. 17, 19).

In sum, the oil sector needs improvements in operational standards and practices, as

well as stricter environmental regulations. South Sudan’s public commitment to sign up

to the Extractive Industries Transparency Initiative (EITI)—a broad coalition of govern-

ments, companies and civil society groups promoting revenue transparency—may rep-

resent an important step towards the application of appropriate standards and principles.

The North–South Border

Determining the boundaries between the two states is another issue complicating the

relationship between the North and the South. In part, this problem is related to the fact

that some oil fields are found along the border, and both the government in Khartoum

and that in Juba wish to maintain or gain control of these areas. The resource-rich areas

of Abyei, mentioned above, Blue Nile and South Kardofan, are major flashpoints.4 More-

over, at the local level nomadic groups, who routinely move across administrative bound-

aries, worry that changes in the border regime might negatively affect their access to

grazing land in South Sudan and, more broadly, their livelihood. Predictably, existing tra-

ditional mechanisms for negotiating access and resolving disputes are under stress.

The CPA resolved that the boundaries of South Sudan are those in existence at the time

of Sudan’s independence, 1 January 1956, and called for the border to be demarcated

within 6 months. Unfortunately, no source is available that establishes authoritatively

the exact location of those boundaries on that date, and since 2005 the question of delineat-

ing and demarcating the frontier has opened simmering disputes between groups living

along the border.5 The CPA also established a North–South Border Technical Committee,

but this was unable to carry out its task owing to procedural disputes and accusations of

political interference (ICG, 2010b, pp. 3–4). In late August 2010, faced with the possi-

bility of messy post-referendum claims and counter-claims, the Sudanese Presidency

agreed to proceed with the demarcation of at least the non-disputed areas. As a result,

about 80% of the border has been so far identified and demarcated (Uma, 2011), but the

remaining 20% continues to be contested. Most of these areas contain oil reserves and

agricultural lands, particularly in Upper Nile and Northern Bahr El Ghazal states. The

area straddling across the border between Southern Darfur and Western Bahr El Ghazal

is also rich in copper deposits and other resources. An agreement might eventually be

reached in a context of a broader post-referendum package involving several issues, but

such an agreement may not be enough to assuage local grievances. Communities in the

borderlands claim that they have not been consulted about the location of the 1 January

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1956 line, and have expressed concerns about the implications deriving from the definition

of the North–South frontier (Concordis International/USIP, 2010, p. 13).

In particular, pastoralists worry about the possibility that access to land might be hin-

dered by a new border regime. Historically, pastoral conflicts have their roots in struggles

over land, grazing areas and water resources (Peters, 2004). Conflicts, however, are far

from being inevitable. Nomadic and sedentary modes of production can, and frequently

do, complement each other, in Sudan as elsewhere (Assal, 2009). In order to find an accep-

table modus operandi for all groups involved, the traditional distinction in communal land

ownership, access and use distinguishing between ‘dominant’ and ‘secondary’ rights will

have to be taken into account. ‘Dominant’ rights belong to those individuals and groups

who have permanent homes and cultivations in an area. ‘Secondary’ rights are seasonal,

enjoyed by those who occasionally access the land and its resources. ‘Dominant’ rights

may be exclusive, and limited to the members of that community. They could also be

‘non-exclusionary’ or ‘shared’ in that they allow for non-members of the community to

enjoy access and use of land, either on a seasonal basis or continuously (ABC, 2005,

part 2, appendix 2; Johnson, 2010, p. 24). Pastoralists have traditionally enjoyed access

to land as a result of this particular regime of land ownership and use. Relying on this

regime, some Misseriya in the Abyei area have advanced claims of land ownership, not

just land-use rights, and attempted to convert secondary rights into dominant rights, but

the legal basis for this claim is weak. Seasonal movement and the use of the same

grazing territory may have given a right of way and use, but not a right to raise a permanent

claim to that territory (Johnson, 2010, p. 25).

Thus, the challenge of guaranteeing the customary rights of both pastoralists and culti-

vators remains. In this context, the nature and management of the North–South border

involving issues pertaining to seasonal migration and grazing rights, as well as security

and economic activities, must be determined. A hardening of the border may result in a

threat to pastoralists’ livelihood, and thus be highly problematic. However, while

borders in Africa have often been considered as barriers, they can also be a bridge—pro-

viding opportunities and resources to people living in borderland areas (Feyissa & Hoehne,

2010). Notably, this view of the border runs against common sense, often described in the

western popular press and academic literature as ‘realism’ in handling difficult-to- resolve

conflicts, and suggesting that the clear separation of former enemies is the best solution to

end ethnic, national and/or religious conflicts. Rather, contrary to this widely held view,

historically segregation has often led to an increase, not a decline, in conflict, as some

groups might find themselves on the ‘wrong side’ of the border and decide to take up

arms. In the case of Sudan, the attempt to draw the provincial boundary between Upper

Nile and Mongalla Provinces along tribal lines before World War I ended up exacerbating

hostility and was abandoned in the 1920s (Johnson, 2008, p. 5). The very concept of

‘separation’ is unknown to communities who have interacted for centuries without any

substantial governance of borders (Concordis International/USIP, 2010, p. 16).

Without the presence of a ‘soft border’ permitting and regulating the free movement of

people, herds and goods, access to grazing and water resources for livestock will continue

to be an important source of tension between pastoralists and settled communities. More-

over, not only will separation probably augment conflicts, but also it would be economi-

cally counterproductive. Across East and West Africa livestock mobility represents

an effective approach to poverty alleviation and sustainable livelihood (de Jode, 2009).

In the case of the North–South Sudanese border, existing agreements regulating access

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to land may, in some cases, support cross-border movements; but given the level of mutual

mistrust in many border areas, new agreements, including broader development plans for

borderlands, may be necessary. Johnson (2010, p. 113) outlines a number of sensible

measures to address economic, social and security issues, including the creation of

cross-border authorities and the development of cross-border infrastructure, the drafting

of a demilitarization plan for flashpoints, and the enhancement of Sudanese research

capacity on key questions of long-term development.

The solution to the border problem may also benefit from West Africa’s experience. In

1998, ECOWAS (Economic Community of West African States) created an International

Transhumance Certificate (ITC) authorizing cross-border transhumance. ITC regulates

pastoralists’ migration through a series of measures aimed at controlling departing live-

stock herds, assuring the health protection of local animals in the host country, and inform-

ing the population of receiving areas of the arrival of herds from neighbouring countries. A

Conciliation Commission composed of representatives of all major stakeholders provides a

venue to manage conflicts (Common Market for Eastern and Southern Africa, 2010). These

general provisions may need to be adapted to the Sudanese reality by specifying which

documents are required to cross the border, for how long, and where entry and exit

points are located. A particularly contentious issue will remain the pastoralists’ request

to carry weapons. Pastoralists claim that they need arms to protect themselves and their

animals against community conflict, cattle raiding and banditry. By contrast, southern auth-

orities request the disarmament of nomadic groups before they enter South Sudan. Ulti-

mately, the effective governance of borderlands will demand confidence-building

measures to connect border communities, including access to a material ‘peace dividend’

for all groups living close to the border (Saeed, 2010; Schomerus & Allen, 2010), as well as

the presence of clear policies for sound land management and use.

The Citizenship Question

After the signing of the CPA more than a million people returned home, prompting obser-

vers to hail the agreement as a success. However, the United Nations High Commissioner

for Refugees estimates that 1.5 million–2 million southerners still live in northern areas, in

most cases among the urban poor in Khartoum. Northern authorities view the presence of

this numerous population as a potential political and security threat, a sort of a ‘fifth

column’ or ‘Trojan horse’ within northern territory. Southerners’ behaviour contributed

to augmenting the government’s distrust. In the aftermath of the signing of the CPA

more than two million people greeted Garang in Khartoum. After he died in a helicopter

crash a few weeks later, southerners rioted in the Sudanese capital, burning down parts of

the city. Since then, northern authorities have remained ‘terrified of the displaced popu-

lation’ (Natsios & Abramowitz, 2011, p. 22). Both displaced people and humanitarian

agencies have expressed concerns about the possibility that the NCP will turn against

southerners in the referendum’s aftermath. NCP’s officials have made menacing speeches

about southerners who continue to live in the North in the post-independence period. In

particular, they threatened to strip them of their citizenship and jobs (Garang, 2011).

For its part, the SPLM might react in kind to northern discriminatory initiatives and, in

turn, deny southern citizenship to northerners (Assal, 2011, pp. 10, 12).

At least with regard to citizenship, this move would be illegal. To be sure, states main-

tain some degree of discretion in determining who is a national and who is not. States may

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adopt ethnicity, a highly subjective and discriminatory criterion, as a defining character of

and basis for citizenship, but strict adherence to this principle could have dire conse-

quences in the Sudanese context. Historically, in a multiethnic country such as Sudan,

ethnicity has been used to disenfranchise the less privileged part of the population

(Assal, 2011, p. 1). Currently, the legal framework in place in the North is the Sudan

Nationality Act 1994, amended in 2005, and widely regarded as containing discriminatory

provisions, for instance against women (Abdulbari, 2010, pp. 8–10). In the South, the

SPLM Secretariat of Legal Affairs and Constitutional Development adopted the New

Sudan Nationality Act in December 2003. Politically this document contradicts John

Garang’s visions of a ‘New Sudan’ based on the recognition of ethnic, religious and

tribal diversity. Rather, this document links citizenship rights to descent and in particular

to affiliation to a southern indigenous group, prohibits dual citizenship and also discrimi-

nates against women. The South Sudan Transitional Constitution confirms that citizenship

is granted to individuals ‘born to a South Sudanese mother or father’, but opens up the

possibility for South Sudanese to hold dual citizenship and for non-South Sudanese to

acquire the nationality of South Sudan by naturalization—as prescribed by the law

(GoSS, 2011, part III, chapter 2, p. 45).

Although these provisions may represent a step forward in the process of defining non-

discriminatory citizenship principles in South Sudan, the final characterization of citizen-

ship will be determined by the post-independence permanent Constitution, still to be

drafted, and related laws. Meanwhile, the North may also revise its laws in more restricted

terms. If ethnicity emerged as the key citizenship criterion for both the South and the

North, access to state documents and services could be undermined (Assal, 2011,

pp. 4–7). In the worst case scenario, southerners residing in the North might lose their citi-

zenship while northerners in the South might not obtain it. As a result, a significant number

of people could find themselves stateless and/or forced to leave their homes (Manby,

2011, p. 16). The experience of Eritrea and Ethiopia, where following Eritrea’s indepen-

dence in 1993 thousands were made stateless and expelled from Ethiopia to Eritrea and

vice versa (GoSS, 2009, p. 75), is a dramatic warning of the potential negative conse-

quences of the process of separation between the North and the South.

Although ethnicity might become the default basis for citizenship in both the North and

the South, it is not the only option available. International human rights provide standards

that limit states’ discretion in their choices. Documents such as the 1948 Universal

Declaration of Human Rights, the 1966 International Covenant on Civil and Political

Rights, the 1989 UN Convention on the Rights of the Child, as well as the Draft Articles

on Nationality of Natural Persons in Relation to the Succession of States, prepared in 1999

by the International Law Commission, address nationality-related problems by setting

down a general prohibition against discrimination and the arbitrary deprivation of citizen-

ship. Such a prohibition is also enshrined in regional human rights instruments. The

African Charter on Human and People’s Rights, for example, stipulates that everyone

has a right to a nationality and prohibits attempts to denationalize individuals and make

them stateless.

Setting aside the specific details contained in each of these documents, they converge

towards two main principles to determine citizenship in cases of state secession or

break-up: birth location and residency. Given the high number of internally displaced

persons, the birth criterion alone may prove to be discriminatory. Thus residency, or,

more precisely, ‘habitual residency’, could provide a criterion compatible with

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international human rights norms. The North may not withdraw nationality from those

individuals ‘habitually resident’ on its territory (Manby, 2011, pp. 6, 24). Likewise, indi-

viduals can be granted the nationality of a successor state such as South Sudan on the basis

of their ‘habitual residence’. Moreover, in addition to the residency principle, many cases

of state succession have demonstrated the existence of a ‘right to opt’ for a particular

nationality. This right is available to those people who have an ‘appropriate connection’

with a particular state. Descent from a national of a state can be taken into account in deter-

mining citizenship requirements, but in international law this is a lower priority than habit-

ual residence or birth in the territory (Manby, 2011, pp. 8–10). In practice, the application

of these international human rights principles would lead to a situation whereby souther-

ners who were displaced by the war and have been living in the North preserve Sudanese

nationality, unless they explicitly indicate their will to the contrary. Likewise, (far fewer)

northerners who reside in the South should become South Sudanese.

A particular problem involves pastoralists who regularly move across borders. In such

cases, it may be difficult to define ‘habitual residence’. For example, in Abyei the resi-

dency issue has been particularly controversial for the Misseriya—pastoralists who

migrate across the North–South border and whose ‘dar,’ or home, is in the North. Their

eligibility to vote in the referendum on the future of the area, yet to be held, has been a

source of great tensions. In practice, for most migratory pastoralists coming through

Abyei and all other border towns the continuing citizenship of North Sudan will be the

most likely outcome. Ultimately, migrant pastoralists, as well as southerners living in

the North and northerners living in the South, would probably benefit from an arrangement

similar to the Four Freedoms Agreement between Egypt and Sudan, guaranteeing citizens

of both countries the right to move about, work, reside and own property in the other. At

the time of writing, the NCP has made it known its rejection of this prospect; however, as

with the other contentious matters, it may eventually be accepted as part of a broader

‘package’ of issues.

Faced with the shadow of the future, many southerners have decided to move. Accord-

ing to the United Nations Office for the Coordination of Humanitarian Affairs (OCHA),

between October 2010 and March 2011 more than 264,000 southerners left the North

and headed for their ancestral homes in South Sudan (OCHA, 2011). Some of them had

been living in the Khartoum area for two generations and thus they do not have a home

village to return to. Needless to say, their return, and the possibility that many more

will follow, puts considerable pressure on the fragile infrastructure of urban areas in the

South and is complicating and exacerbating land conflicts (Pantuliano, 2009). The

return of southerners who spent years in the North (and, in some cases, in neighbouring

countries) during the civil war will have at least two important consequences. First,

mass return poses a considerable strain on the new state, which remains very poor and

chronically underdeveloped despite oil wealth. Even major towns lack basic infrastructure,

such as running water, electricity and even roads (it is estimated that the South has less

than 100 km of paved roads). Return deprives the South of remittances, which have

recently constituted an important source of income. Second, returnees present South

Sudan with an integration challenge that is not only economic but also cultural, because

many of them, particularly the younger ones, are returning to a land they are seeing for

the first time, and where English is both the official language and one they do not under-

stand. In sum, the South will have to face considerable developmental challenges—as

discussed further below.

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Building a Failed State?

Even granted the possibility that the North and the South will be able to negotiate,

implement and, if needed, revise an agreement on the critical issues affecting the prospects

of both countries, there remains an enormous internal challenge for South Sudan. Some

observers fear the birth of a failed state. In fact, the new state is one of the world’s

poorest and least developed and will require considerable international support for years

to come. The donor community will have to invest a considerable sum to support southern

development. The post-CPA years represented a missed opportunity. Most of the donor

resources were directed to provide humanitarian assistance in Darfur at the expense of

the implementation of much-needed infrastructure projects in the South. In addition,

since 2005 the government in Juba has allocated the majority of oil revenues to salary-

and security-related expenses rather than development projects (Patey, 2010, p. 629).

As a result, South Sudan suffers from both lack of administrative capacity (GoSS, 2010)

and chronic underdevelopment (Oxfam International, 2011). In 2010, the UN Mission to

Sudan compiled a fact sheet titled ‘Scary Statistics’, which demonstrated that social and

economic indicators are extremely poor. It is worth quoting some of these ‘scary data’

at some length: 50.6% of the population live on less than US$2.5 a day; the maternal mor-

tality rate is 2,054 per 100,000 live births; infant mortality stands at 102 per 1,000 births;

only about 10% of children are fully vaccinated; more than 70% of women aged 15–49

have no knowledge about HIV prevention; more than 50% of the population do not

have access to improved drinking water; less than 50% of all children receive 5 years

of primary school education; 92% of women cannot read or write;6 and in 2010, about

215,000 people were newly displaced by armed conflicts (United Nations Mission to

Sudan (UNMIS), 2010). Even by the standards of other trouble states in Africa, these

are scary statistics indeed. Although these data may overlook the fact that ‘the south

has effectively been a functioning state’ since the signing of the CPA and that ‘it has

made remarkable progress under very difficult circumstances’ (Natsios & Abramowitz,

2011, p. 26), it none the less reveals a worrisome situation.

This socio-economic fragility is compounded by troubling failures of governance and

political divisions. The end of the struggle with the North not only deprived southern

leaders of their historic common enemy, but also opened the way for internal divisions

to (re)emerge. Several corruption scandals raised doubts about the southern government’s

capacity to ensure acceptable governance standards. In June 2009, former Foreign Minis-

ter Lam Akol founded a new party, the SPLM for Democratic Change (SPLM-DC), citing

‘financial and administrative corruption’ as one of the key reasons stalling the democracy

building process in South Sudan (SPLM-DC, 2009). Facilitated by the widespread avail-

ability of arms, since 2009 violence has also increased considerably. In 2010 alone almost

a 1,000 people were killed and an estimated 223,000 displaced as a result of tribal fighting

(OCHA, 2010, p. 4). In the first 3 months of 2011 more than 800 people have died while

about 94,000 more fled their homes (AFP, 2011). Tensions at the local level have been

triggered by growing competition for limited natural resources. Communal clashes are

augmented by quarrels over water and land, disputes over cattle raiding, and the lack of

internal border demarcations. The absence of accountable local governance structures

able to deal with violence has contributed further to tensions (Schomerus & Allen, 2010).

Meanwhile, political differences within the southern establishment have been degener-

ating into military confrontation. In October 2010 all major Southern Sudanese political

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parties had agreed on a roadmap for post-referendum governance. This included holding a

constitutional review conference to decide on the specifics of a new transitional broad-

based government and on a constitutional system for the newly born state (Sudan

Tribune, 2011a). Since then, however, internal tensions have escalated. Heavy clashes

in the post-referendum aftermath between southern forces and rebel factions in three

southern states have left hundreds dead, many of them civilians (Martell, 2011).7 Less

than a month after the January 2011 referendum in the Southern Jonglei state fighting

involving forces loyal to George Athor, a former army officer and Presidential candidate,

left over 200 people dead (Reuters, 2011). In the town of Malakal, close to the North–

South border, a rebel group refused to turn over its weapons to the SPLM, and heavy fight-

ing erupted. One hundred orphans were briefly held hostage. Clashes prompted Khartoum

and Juba to trade bitter accusations. Southern officials claim that Khartoum has been

arming militias in order to destabilize the South—an accusation flatly rejected by the

NCP. As a result of this war of words, the southern government briefly walked out of

talks with Khartoum over post-independence issues. An emergency meeting in mid-March

2011 between President al-Bashir and his southern counterpart Salva Kiir re-established a

channel of communication, but the pace of progress in the negotiations remains slow.

Regardless of its relationship with the North, any future southern government will have

to be based on a careful ethnogeographic balance.

Wartime divisions are also re-emerging. The SPLA has attempted to downplay or even

repress internal dissent, but with modest results. For example, General Paulino Matip is a

Nuer who fought alongside northern forces but reconciled with the SPLA a year after the

signing of the CPA. In order to reward him for his new-found loyalty, he was made Deputy

Commander-in-Chief of the SPLA. However, tensions between his forces and the Army

never dissolved. In October 2009 clashes between the two left more than 15 people

dead (Mayom, 2009). In an independent South Sudan, economic interests related to the

exploitation of natural resources could deepen political differences. Currently, Matip

maintains close ties with an American investment company, Jarch Capital, which is

likely to attempt to gain lucrative contracts in the ongoing process of sovereignty

changes. In 2010, Jarch had already leased 800,000 hectares of land in Southern Sudan

and has been accused by some Sudanese politicians of grabbing communal land and

leading an attempt to exploit Sudanese resources (Vidal, 2010).

Needless to say, among these natural resources, which include gold, diamonds and

copper, oil figures predominantly. For the near future, a reliance on oil production and

export may present important advantages in supporting economic growth. However, as

the experience with the North over the last decade suggests, oil can also have a negative

impact on the economy, due to the volatility of fluctuating oil prices in the international

market, uncertainty related to the sustainability of oil revenue, the lack of diversification

and the possibility of the emergence of the phenomenon known as ‘Dutch disease’ (Nour,

2011, pp. 36–43). A risky dependency situation suggests exploring alternatives, in par-

ticular strengthening the agricultural sector in order to sustain a growing population.

South Sudan includes large areas of arable land and benefits from abundant water from

the Nile River (although this water will have to be shared with the North, Egypt and

other East African countries). More than 80% of the population still depends on it for

their livelihoods; because of the war, the agricultural sector did not develop and currently

requires massive investment in infrastructure to expand productivity (Integrated Regional

Information Networks (IRIN), 2011). Again, experience in the North suggests some

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caution, as the introduction of mechanized farming in some areas created tensions

between, on the one hand, landlords, and, on the other hand, migrants and subsistence

farmers following customary usage systems.

Conclusion

Despite the enormous weight of the problems currently still unsolved, South Sudan may be

able to develop a political and economic system able to address its main statebuilding chal-

lenges. Politically, the main difficulty may lie in avoiding replicating the kind of autocratic

regime that the South has just been able to leave. In fact, the risk of developing a one-party

state system dominated by the SPLA (a sort of replica of the system in the North domi-

nated by the NCP) is real. Economically, the South faces perhaps one of the most difficult

challenges ever undertaken. International attention and support will probably be indispen-

sible to meet these challenges. International agencies have been drafting a Southern Sudan

Development Plan for 2011–2013, but the government in Juba has not bought completely

into this initiative.8 The broader risk for South Sudan is that, after the successful January

2011 referendum, the international community may move quickly to other global hotspots,

in particular Northern Africa.

While the fate of South Sudan remains in the balance, the broader implications of the

birth of a new state must be briefly assessed. Southern secession has important potential

consequences both for other simmering conflicts in the North and for the broader sub-

Saharan region. To begin with, the implications for Darfur are complex, as secessionists

there could be motivated to continue their fight in order to reach a political deal similar

to that achieved by the SPLA with the signing of the 2005 CPA—which granted the

South self-determination and, ultimately, independence. In addition, the birth of South

Sudan has important consequences for the region. The whole of Sudan, comprising both

the North and the South, borders with nine other states, all of which have varying

degrees of interest in political developments in their neighbourhood. Ethiopia, Kenya

and Uganda have been developing ties with Juba, and interpret favourably the presence

of a state with an African, as opposed to Arab, identity. However, countries with a

large and ethnically diverse population, such as the Democratic Republic of Congo and

Nigeria, might witness increasing secessionist demands. In general, however, fears of a

domino effect might be exaggerated. Since the end of the Cold War, Eritrea, Timor-

Leste ad Kosovo have achieved independence, but none of these cases has triggered

broader secessionist demands. Ultimately, a politically viable rebellion requires both a

strong secessionist movement and a weak central government—a situation that remains

fairly uncommon.

Perhaps the most consequential outcome of the Southern Sudanese experience lies in the

further development of the doctrine of self-determination. Ever since the establishment of

the modern state system in the seventeenth century, and more recently with the principles

enshrined in the UN Charter, the doctrine of self-determination has been skewed in favour

of the maintenance of territorial integrity. According to the UN Charter, ‘peoples’ do have

a right to self-determination, but only when under colonial domination, foreign military

occupation or racist regimes that practice apartheid (such as Rhodesia and South Africa

during the Cold War). In all other cases, national governments may grant various

degrees of autonomy to ethnic groups concentrated in parts of the state territory, but

they have no international legal obligation to do so. For a variety of complex reasons,

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after the end of the Cold War the self-determination principle began to change. The prac-

tice of ‘interim settlements’ (Weller, 2005) has contributed considerably to this change.

Such settlements typically involve a period of self-governance within established political

boundaries. At the same time, they include the possibility that a referendum on indepen-

dence is carried out. In addition to South Sudan, the examples of Bougainville, Northern

Ireland and Serbia/Montenegro all testify to the growing influence of this trend. This

emerging practice has undermined the presupposition that a change in boundaries is objec-

tionable. The independence of South Sudan may contribute further to making boundary

changes as a solution to internal conflict more acceptable internationally.

Notes

1. On the history of Sudan and the roots of the conflict, see, for example, Collins (2008) and Johnson (2003).

2. On the difficulties of CPA’s implementation, see Grewert (2010) and ICG (2005, 2007).

3. On the conflict in Darfur, see, for example, Belloni (2006).

4. For detailed analyses of the entire 2,000-km-long border, see Concordis International/USIP (2010), Saeed

(2010), ICG (2010b) and Johnson (2010).

5. Delineation refers to the mapping of the boundary, whereas demarcation involves the physical marking of

the boundary on the ground.

6. The Southern Sudan Centre for Census, Statistics and Evaluation (2010) estimates the number of women

who cannot read or write at 84%.

7. On South Sudan’s militias, and the challenge they pose to the formation of a stable new state, see Bubna

(2011).

8. Author’s private email communication with a UN official in Juba, April 2011.

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