Post Referendum Civil Rights

Post Referendum Civil Rights

Introductions:

Justice Africa (Sudan) assigned me a job of presenting a paper regarding the above subject with respect to basic civil rights (nationality, residence and movements). This is because the subject falls under the interest of the citizens and what is deemed to be basic rights for them. As the paper tackles post referendum issues in case of secession, I would like to highlight those issues in light of international laws and practices and their impact on each party. The most important legal and political issue is the on that relates to the nationality, other issues like residence and mobility are not so critical and normally easy for both nationals as well as foreigners. But still for the nationals it is considered a basic right, just like the right to live.

Article(3) of Universal Declaration of Human Rights:

“Everyone has the right to life liberty and security of a person”.

Article(13):

-          Everyone has the right to the freedom of movement and residence within the borders of each state.

-          Everyone has the right to leave any country including his own and to return to his country.

Also every one has the right to own, work and express himself in addition to other basic rights expressed in the universal declaration of human rights of 1948 and acknowledged by the CPA and the constitution of Sudan (2005) Human rights declaration is meant for restoring the dingily of the people where they live normal life and enjoy the basic rights presented by international declaration and principles. State sovereignty and authority as considered major threats for enjoying human rights by the people.

The state:

International law definition of the state:

“A group of people, living in the same area subjected to a governing body”

The state is also defined as:

“As legal and political institution for group of living permanently in a certain region , subjecting to a high authority practicing sovereignty over them”.

Fro this definition it’s apparent that the state has three elements:

1. 1.People
2. 2.Region
3. 3.Sovereignty

The people:

The state is basically farmed of group of individuals with political and legal links to it. These individuals are called the people. The volume of population does not affect the legal status on the number of population. it can have billions of people (china- India) as well as couple of thousands (st Matio ).

People can be homogenous or heterogeneous some states are formed of multi-nations and multi-cultures and multi-languages. The people of the state are formed of nationals and foreigners.

Nationals:

State powers extend to reach normal characters as well as business men reacting business activities in the state. Normal characters are the people who are legally born to the state through nationality.

The nationality is deemed to be the legal relationship between individuals and the state where they are considered members in the state based on the nationality. The nationality was defined by International Court of Justice (1955) in the case of Nottebohm.

Legal relationship between individuals and the state based on social relations, real consolidation of existence, interests and feelings connected with exchange of rights and duties.

The rationality, as legal standard of balance, plays a very important role in the existence of individuals and state as well. The legal statuses of individuals rely on the presence.

Of nationality ties with the state in which he lives. Citizens enjoy the rights of settlement, elections and nomination in parliamentary councils. Based on the nationality the state protects its individual in the international community, the international communities treat individuals in light of their nationalities, and without nationalities individuals can not defend their rights in the international community.

State authority in determining pre-requites of the nationality:

Each state has the right to specify the criteria for offering nationalities to its individuals in light of number of population its need for attracting or discouraging immigrants. There are two criteria for acquiring a nationality.

1. 1.Blood relations: this id based on kinship that children are awarded the nationality of their fathers.
2. 2.Regional relations: nationality is awarded if an individual is born in specific region, irrespective their father nationalities. For example if an individuals born in France then he is French or Britain if he was born in England.

There are also some jurisdictions regarding nationalities, where some individuals were offered nationalities although the carry other nationality. The right for awarding a nationality is a sole discretion of the state in accordance with international laws that the particular state is committed to.

Article (1) Nationality Treaty:

Signed in Lahay 12/4/1930 (every state have the right to determine in its laws the persons that can be granted its nationality. Other country has to pay recognition to these laws as far as they are not conflicting with international laws, international customs and legal principles recognized by international community)

Individuals are not free to choose their nationalities there should be strong relationship between him and the particular state. Even if individuals are free to choose their nationality, states are not compelled to respond. The only time when an individual is free to choose his nationality is when there is secession of part of state along with its residences. In this case international agreements specify that residence of secession region acquire the nationality of the new state and they can still retain the old nationality on the agreement of the principal state.

The jurisdiction of the new states may lead to situation where individuals can have more than a nationality. In some countries nationality laws allow women/men quire nationalities of other partner. On the contrary some jurisdiction does now allow this Lahay conference call for arrangements to minimizing the number of nationalities that an individual may bear. One of the problems that complicate nationalities is the military service.

The legal status for citizens:

Although status has discretion to determine the legal status for citizens; international partnerships emerged that limit the authorities of states in the sovereignty of enacting laws relating to citizens rights and duties:

1. 1.International treaties relating to colonized region: prescribes protection and respect to basic rights and duties.
2. 2.Treaties relating to labor, work conditions, labor rights which are monitored by the international labor organization.
3. 3.Respect and consideration of minority’s basic rights.
4. 4.United Nations conventions are respect of human right by member countries.

The international declaration for Human Rights article (1) December 1948 “everyone has the right to liberty and security of person”.

Article (3-21) personal and political rights (freedom of movement) and residence in all countries and the right for leaving and retuning to his countries.

Article(15):

The right for acquiring a rationality.

Article(17):

The right to possess.

Articles (22---27):

Cultural and social rights (23) & education (26).

The international declaration for Human rights was issued in a form of a work program) that all countries are committed to implement its principles by adapting their local laws to international human rights principles.

The declaration covered the following rights:-

1. 1.No education segregation treaty (UNSCO 12/1958)
2. 2.Irradiation of all kinds of apartheid (UN 12/1956)
3. 3.Economic , social and cultural rights treaty
4. 4.Civil and political rights treaty 1966.

Sudan post referendum:-

There are two opportunities:-

1. 1.In case referendum resulted in Unity, then there will not be any change in the status of the civilians in both parts of the country.
2. 2.The second assumption is that referendum result in secession (a new country) in this case the situation of citizens in the two states is as follow:-
   1. a)Either the mother country accepts the residence as citizens enjoying all rights including the rationality .during the last decades inter-marriage has taken place between southerners and northerners , a situation that brought about siblings the can not easily be traced to south or north . Blood relation allow for granting a nationality but the regional link allow giving the nationality on the basis of birth.

Article(15) of HR Declaration:

1-      Every one has the right to a nationality.

2-      No one shall be arbitrary neither deprived of his nationality nor denied the right to change his nationality.

Article(30):

Nothing in this declaration many be interpreted as implying for any state, group or persons any right to engage in any activity or to perform any act aimed at the distract of the right and freedom set forth herein .

• Some countries refuse to abide by international treaties and conventions although they are members in those treaties. They stick on their absolute right in implementing their national jurisdictions.
• If any of the two countries chose to consider citizens as foreigners. These citizens have their rights and every state has to enact the laws that determine the basis for exit and entry, basic rights and work regulations.

Although every country has got the right to accept or reject foreigners in their regions , specify their legal positions, prevent discrimination according to nationalities , still the international law has specified the minimum level of treatment of foreigners that most counties are adhering to , even some of the countries have signed treaties and conventions , like wise :

1. 1.Minimum level of treatment for foreigners according to the international law with respect to the following rights :

a-      Legal recognition for foreign characters.

b-      Recognition of acquired rights. Its properties shall not be confiscated unless for public interest. in that case , reasonable and quick compensation has to be provided.

c-      Recognizing personal liberties, w r t belief, religions practices, personal freedom, accommodation, movement without violating public regulations.

d-     The refuse right to resort to courts.

e-      The refuse right for protection against atrocities.

It is worth mentioning that as a general rules, the country has the right to deport foreigners, Guarantees, Society involvements, permissions, deportation.

Since the referendum may result in a new country, that will have its legal and constitutional entity, it will be added to the international community. This is termed in the international law as an international heritage and it covers all the outcomes and consequences that may emerge as a result of the newly born state (agreements, National wealth, Debts, Nationality) .in this case individuals shall have the right to choose between the two nationalities. If an individual chooses the nationality of the new country, then the mother country has the right to:

1-      Ask them to leave to their new country

2-      After the transitional period each country has the right to exercise power and sovereignty.

3-      In case of court case not yet settled, shall be transformed to the new state.