A Call to observe the principle of 'uti possidentis' in resolving Sudan's North-South border dispute (Part I)

BY: Rengo Gyyw Rengo, Jr., Southern Sudan

Introduction

FEB. 14/2011, SSN; Over a span of six years since 2005, in practical terms, hardly can anyone find peace in the absence of the North-South border ‘demarcated’. There is quite an impasse over the demarcation of the North-South international border, sponsoring fears the whole phenomenon might result to arms-solutions similar to Eritrean-Ethiopian case. The factors that hamper border demarcation are political than factual or legal.  The Southern Sudanese’s choice to attain their independence without a North-South border demarcated and the international community’s fear for South Sudan’s independence without a border are two importance schools of thoughts under public debates in this era, seemingly, wearied of the Sudanese conflicts. Thus looking for peaceful solutions in both its short and long-term contexts. 

I have opted talk about the border and its pending case in this article. Perhaps, as one of the crucial post referendum issues under dicussion, border analyses in this paper will assist negotiators and third parties’ mediators in arriving at peaceful resolutions. I also have intended to give a brief background to the design, and development of the Sudan’s North-South border since 1956 for public benefits since in the Sudan there are no cases of terra nullius or even terra incognita. Every piece of land in the Sudan has been/is occupied by a certain group on historical and legal basis. In the whole of Sudan, no free or unowned land! I am happy to announce this at the beginning.

Of course, Nature gave us the original land mass without borders or God’s borders by the dint of valleys and mountains became irrelevant to man’s applicability and needs. As a result, man adopted his own methodology to establish political boundaries to barricade himself within territorries due to scarcity of natural resources, heterogeneity of peoples, selfishness, and perhaps for control to create law and order among others. While the entity called State had existed throughout history, the contemporary states traced their roots in the treaty of Westphalia [1648 ] among the European peoples. The birth of the State brought with it some conditions such as the existence of, a government, a population, a defined territory etc. Otherwise a state lacking any of these requirements is deemed wanting.

Africa was one single nation before her colonization. Europeans imperialists in Africa in the 17th and 18th centuries thought it wise to partition Africa, this huge landmass, into many mini-states, albeit, for their own interests, not for the Africans interests. The scramble was motivated by economic motives in the first place and political motives in the second instance. To own lands or colonies, hence resources for their home countries, they had to partitition Africa into mini-states creating for the first time the presence boundaries under use in Africa and elsewhere. These boundaries became recognised under the International Law as international boundaries between and among nation-states. In Africa, at the eve of decolonization, Africans affirmed the principle of uti possidentis inviolable, otherwise violable only under international laws or through national consensus locally such that it does not cause conflicts.

I need not jump the flows or justification for the existence of Southern Sudan, Northern Sudan and/or Sudan as defined geographically or through their contemporary boundaries not only between the North and the South, but equally with all the neighbours. Respecting the borders with neighbours demands the same law or rule, that the Old North-South Sudan border as established on January 1, 1956 should be respected.

I meant to say the contemporary Sudanese states, South and North, viewed prior Sudan’s 1956 independence, were creation of the British Empire cartographically. God created the Sudanese people; the British created the Sudanese maps. The British maps  created two different and independent colonies, i.e Southern Sudan, and Northern Sudan, based on their local inherent socio-political and geographical disparities found then to be incompatible. While the Southerners were purely of African’s ancestry, animists and indoctrinated christianwise in the most parts of centuries, the North was found to be comprised of two breeds,  converts  of African’s ancestry influenced deeply by minority of arab’s ancestry that became heir to power in the Sudan after 1956. Both became muslims, pronounced arabism and Islam as their “uniting” factors.

Nobody captured this disparity in few words than the late Southern Sudanese veteran politician Aggrey Jaden in his 1965’s March 16, definace at the Khartoum’s Roundtable Conference, in which he protested and declared distinction as follows:, “the Sudan falls sharply into two distinct areas, both in geographical area, ethnic group, and cultural system. The northern Sudan is occupied by a hybrid Arab race who are united by their common language, common cultural and political inspiration. The people of Southern Sudan, on the other hand, belong to the African ethnic group of East Africa. They do not only differ from the hybrid Arab race in origin, arrangement and basic systems, but in all conceivable purposes. There is nothing in common between the various sections of the community, no body of shared beliefs, no identity of interests, no local signs of unity and above all, the Sudan has failed to compose a simple community”. (Ref. John Garang’s book Call For Democracy In Sudan 1992: p 81)

Behind this objective reality laid the rationale for the separateness of Southern Sudan from Northern Sudan historically. The British was aware of this socio-political immiscibility between the Northern Sudanese who claimed Arab’s ancestry and the African peoples of the Sudan, basically those found in the South and their kin brothers in the North. The root causes of North-South Differences are remote to modern history. In Douglas Johnson’s view, “the struggle between the light-skinned desert peoples, drawn by the south’s water, slaves, gold and ivory and the dark-skinned peoples of the swamp, who violently resisted intruders, had marked Sudanese history. For thousands of years Sudan’s contemporary civil war was in some ways a continuation of this antediluvian clash”. This refutes the idea that the North and the South shared history and ancestry and that the British is responsible for Sudan’s problems. It could not be true. For clarity, that brings me to my next question, Does the population defines the border or does the border define the population, hence a state?

While most colonial boundaries were done arbitrarily as to put heterogeneous people together under one political entity, others were conscious of such heterogeneity as to cause animosity and strife. This guided mapping of the Sudanese colonies. Well however, there are other factors always considered when drawing a boundary or political map of a people such as natural features, resources, human settlements, strategic positions, etc. 

Therefore, in the ‘presence geographical Sudan’ as may be known to many people, were two different and independent States, Southern Sudan and Northern Sudan, not autonmous, and with explicit-clear-cut boundaries between each other  and with all their neighbours. Darfur was another entity with its own boundaries.

Let’s see what happened after the North/South Unification.

UNIFICATION OF SOUTHERN SUDAN WITH NORTHERN SUDAN AND CREATION A NEW1956 BORDERLINE.

Although, I do not want to venture beyond the scope of this work, the single main reason that led to the unification of Southern Sudan with Northern Sudan was the question of the Nile River. The main partners in this endavour were the British and Egypt. Neither Southern Sudanese nor Northern Sudanese wanted Sudan’s unity. Northern Sudanese were tools for the Egyptian’s interests especially of the need for North/South unity, and later Sudan’s unity with Egypt which never came to fruition. That was a strategy. The British compromised the South over Suez Canal.

So it was the Nile that made us to be sold at ransom for unity of geography and borders! Why the Nile? The Nile has been a covetous River throughout history and its controversies are still ongoing hitherto, about ownership, property and utility rights.

Despite all these, we believe as evidenced by historical records, that the first inhabitants of the Nile are children of Cush, correctly or incorrectly called the Nilotics! This is no longer a hypothesis.

While the early Africans in Egypt had contiguous use of the Nile River,  it was the Nile that enticed and lured the British to conquer Egypt and Africa. British later took control of the colonies along the Nile to boost her economies, political influence, naval power etc. Egypt wanted the same control, the “unity of the Nile Valley”, invoking geopolitics that had its climax in the Suez Canal’s politics, rapid and impromptu decolonization of the Sudan which saw the British’s handover of Southern Sudan to the uncalled for unification with Northern Sudan. Without popular plebiscite, and without agreement from Southern leadership, the South was taken and handed over to the North. This is proven by the presence of the Egyptian officials in 1947 Juba Conference alongside the Northern Sudanese officials and the British officials on the other. None stood with the South.

On 1 January 1956, a date associated currently with Sudan’s Independence, the first North-South boundary line between the North and the South within a unified Sudan were promulgated, announced, and affirmed by the British officials and the New Sudanese officials and acknowledged by Southern Sudanese.

The merger between the North and the South in 1956 had created the presence geographical Sudan. However, care was to be taken such that the borderline is not erased to meet the condition of the new unity.  Rather the new borderline resulting out of unity was affirmed, keeping in minds these were two different colonies, should they one day decide to denounce unity, and regain their separate independents or should mild dispute arise. Suggestively,  someone must have been conscious of this expected and would-be outcome. True to their forecasts, it has come to pass.

Thus, the contemporary Sudan is a colonial assemblance of various unique parts with clear socio-political demarcations and independence.  There was no Sudan. Sudan then meant Africa or vast lands running to the West of the continent. The present Sudan was created over times. Darfur was added to it in 1916, Abyei in 1905, Southern Sudan in 1947/1956, and other Closed Districts Administrations such as the African Nuba, Funj, and Beja which were amalgamated into Sudan during various time intervals.

At this moment, disintegrations of Sudan into two or more independent states means a lot to borderlines since every part that goes away would be interested to know or claim its erstwhile borderline. This is the case for Southern Sudan. That is why it is important to trace this history because Khartoum due to various political and economic reasons would want us to look at the border as terra incognita, a subject that is completely new, never discussed before and that borders are subject of new definition. The border question has been raised twice in the past, 1972 agreement and in the CPA 2005. The reasons as to why it was raised especially by Southern Sudanese are found within the content and contexts of the paper.

EMPHASIS ON JUSTIFICATION

Reiteratively,  the North-South border is a British colonial border delineated on 1/1/1956, the same year in which Sudan gained her independence from the British. Simply because the British annexed, Southern Sudan, which was a self-governing separate colony, through June 1947 Juba conference and independence motion in which Southerners induced participated to create the present geographical Sudan with a hope of federalism afterwards.

Thus, for the sake of Sudan’s unity following independence, the map of the South and that of the North were merged together, leading to the delineation of the North-South border in 1956. It happened that the South was adamant in calling for a federal state within a united Sudan, something that made Khartoum  to deploy many political and economic sophistries to rob the South.

For example, the minerals and agricultural rich areas in Northern Bhar el Ghazal were annexed to Northern Sudan in 1960s just because of their economic potentials and riches.

When the AAA was signed, the parties were urged to observe, respect and invoked the January 1 1956 North/south borderline as the only legal and legitimate border between the two regions. The first agreement did not ignore the issue of the north-south border as we shall see below. This allusion had its major connotations for future talks on the same issue.

The North/South Past Agreements And Application Of A Principle Of Uti Possidentis

In 1972, SSLM/A  signed an agreement with Khartoum in Addis Ababa, known after this city as the Addis Ababa Agreement [AAA] signed in March 1972. The South was granted her ‘federal’ status, though the meanings and nature of that political status remains disputable to writers, thinkers, political historians and analysts up to this day. Of course an agreement couldn’t have talked of an autonomous region without referring to its borders! Eritrea and Cabinda had similar arrangements.

So, it was the duty of the agreement and its architects to re-affirm the 1/1/1956 North-South borderline, that resulted in the first place from  the merger of the two regions and which was officially re-affirmed at independence as part of the new state internal borders’ mapping.

Thus, specifically, the Addis Ababa Agreement had the following to say about the North/South border, under its chapter two: on definitions, article 3,  which said, that, the "Southern provinces of the Sudan means the province of the Bhar-el-Ghazal, Equatoria and Upper Nile in accordance with their boundaries as they stood on January 1, 1956”.  This clause also included another relevant issue that I will highlight later in this work.  That the Southern Sudan as defined by the above border still had a claim beyond the contemporary border and it was recognized by the agreement, that the South comprised of the three provinces “ and any other areas that were culturally and geographically a part of the Southern Complex as may be decided by a referendum” [Ref to AAA on the problem of South Sudan 1972]

While the question of the South was thought “resolved”, there were areas such as Abyei, Funj, and Nuba etc that were supposed to go through plebiscites to decide their political status of either returning to the South or to remain in the North. Hurtingly,  no referenda took place and that explained their controversial status hitherto [ otherwise known as the disputed areas]. In their communiqué or open letter to the CPA mediator, Gen. Lazarous Sumbeywo on August 14th  2002 at a time of Machakos agreement, the Nubian people through their leaders and Civil Society representatives wrote that “Our main concern relates to the political future of the Nuba people and the people of Southern Blue Nile and Abyei which has become inextricably linked to international perceptions as to what are, or are not, the legitimate boundaries between “North and “South Sudan”. In particular we are worried by what appears to be a growing assumption that the boundaries drawn at the time of independence in 1956 are still relevant to the current negotiations. It is essential that all stake-holders realize that any proposals which leave the people of the Nuba Mountains Southern Blue Nile and Abyei under the administrative jurisdiction of the current NIF Regime (or any future unrepresentative government) in Khartoum can not hope to succeed in generating a durable peace or cessation of conflict.

[...] The GoS may argue that the Nuba people are part of the North for several reasons. Firstly, because it is geographically located in the center of Sudan. Secondly, the majority of people are currently living in areas under the GoS control. Thirdly, around one-third of the Nuba people are Muslim and their culture is closer to that of the north. Fourthly, there is a significant number of Arabs living and moving through the region.

Examining the GoS arguments deeper, Nubas connection to the north is unjustifiable. Though located in the center of Sudan, it borders directly connected with SPLM/A positions to the south. Though the majority of Nuba people are in GoS areas, most were displaced by GoS offensives (especially in the late 80s early 90s) and are living in refugee camps or impoverished in shantytowns outside of the region.

Though one third are Muslim [...] Ethnically, culturally and socially the Nuba are much closer to the black African people of Southern Sudan and Southern Blue Nile than to the Northern Arabs who have marginalised the Nuba and other Africans for so long.

Specifically, the Nuba should be part of the South for the following main reasons:

1. Nuba have been fighting under the SPLM/A since 1984 against Khartoum regimes.
2. Common experience in armed struggle since 1975 under Anya-nya-2.
3. Joint political struggle since 1965 under the umbrella of the then congress of the New Forces.
4. Treated together under the closed District Ordinance from 1922 to1947 by the condominium Rule.
5. The Resolution of SPLM National convention 1994, that New Sudan is composed of five (5) Regions namely, Upper Nile, Equatoria, Bahar Ghazal, Southern Kordofan and Southern Blue Nile.
6. Nuba Mountains Regional Congress Resolutions June 2002 to continue the struggle under SPLM/A.
7. Marginalization and under development.
8. Slavery and slave trade.
9. Religious persecution.
10. Ethnically and culturally all Africans. Versus Arab North.
11. Geographical inter-relation and interconnection.
12. Racial discrimination and social segregation.
13. Continuous atrocities and human rights violations by GOS

The Nuba people cannot live in harmony and coexist peacefully with the peoples of the North. Our strong adherence to religious tolerance, our strong African cultural identity and traditions, and our keen interest in freedom of belief are in direct contrast and conflict with the intolerant, dominating, and exclusive culture of the Arabs in the North.

Therefore, the political future of the Nuba is inextricably linked to that of the people of Southern Sudan, Southern Blue Nile and Abyei in one Southern state that is secular, democratic and federated. Any attempt to de -link the Nuba from that of the South would run the risk of jeopardizing the whole peace process in the Sudan. This position has recently been unambiguously endorsed by the recent meeting of the Nuba Regional Congress in the Nuba Mountains last June where over 1,000 Nuba people participated.

Given these realities, we strongly urge the international community and other stakeholders in the current IGAD talks to consider very carefully the key issue of borders.”

Thus this Nubian’s position represented the [...] any other areas that were culturally and geographically a part of the Southern Complex and which were to decide their political future through and by a referendum. Their position on the north-south border was equally articulated. That it was no longer the question of the 1/1/1956 borderline that would leave them in the North but a new borderline that would bring them back to the Southern state.

The lack of plebiscite on these areas aided the arbitrary colonial decision to place these African peoples in the Northern Sudanese hemisphere. Rendering the provisions of the Addis Ababa Agreements redundant,  it sufficed then therefore, that the South benefited from these lessons that the north would never allow any referendum under its nose with impunity and that future referenda might need and must have guarantees, among which was the creation of a separate army, the SPLA to protect any new referenda or protect the region altogether.

If I could bypass the definition of the disputed areas, however, a little bit, the decision to adopt and maintain the North-South borderline as it stood on 1/1/1956 then during the Addis Ababa Agreement was inline with the relevant question of the merger. Violating that borderline would mean violating the unity of Sudan, because this was part and parcel of the body parts that merged into a ‘united country’ at the wake of Sudan’s independence. Secondly, Sudan map was not being re-created, cartographized by the agreement but just alluding to a merger of North/South with distinct parts, each with unique borders that they carried before the merger.

Thirdly,  the  reaffirmation of the North-South borderline in 1972 and again in the CPA [2005] was based on the principle of  Uti possidentis juris, which is a principle in international law, and adopted by the OAU in early 1960s as part of minimizing border conflicts. The principle of Uti possidentis ensures that frontiers or borders should and must follow the original boundaries of the old colonial territories as delineated and cartographized by colonial powers! This principle became universal during the decolonization of colonies from colonial powers who created the contemporary inland world maps and especially Africa.

In this case, Sudan could not be an exception. The current map of Sudan, for the South and for the North are British’s because they both emerged from there.

This principle has been very important in averting border conflicts across the world. It is believed to have originated from South America during the withdrawal of the Spanish Empire in the 19^th century. By declaring that uti possidentis applied, the new states sought to ensure that there was no terra nullius [unowned land or territories] in South America when the Spanish withdrew and to reduce the likelihood of border wars between the newly independent states.

Uti possidentis was applied to Africa and Asia following the withdrawal of European powers from these continents and in Locations such as the former Yugoslavia and the Soviet Union where former centralized government fell and created 15 constituents states gained independence.

Without such principle, the contemporary Africa would not be the way it is, probably new maps with new shapes would have been redesigned by the Africans, and one could imagine what would have happened. The OAU passed uti possidentis resolution in 1960s to create stability of borders, hence promoting peace throughout Africa.

By the time of resolution, most of Africa had already gained their independents. That means the resolution was principally a political directive to ‘settle teething disputes by treaty’ based on preexisting borders rather than by resorting to force. It can be proudly claimed that OAU adopting that principle has helped most African countries to avoid border conflicts and wars. However, the most vivid exception is that of Eritrean-Ethiopian 1998-2000 border war, resulting out of the Eritrean secession from Ethiopia in 1993 and maybe now, the Sudan North-South border.

There has been a widely fear that, without uti possidentis being applied in Africa, the arbitrariness with which the colonialists created Africa, without consideration to ethnic differences and homogeneity [Jaden’s arguments above] could create redefinition of identities, that would otherwise be affecting borders and colonial maps besides possible unleashing of catastrophes.  Even with that knowledge and principle, violent and bloody civil wars have been witnessed throughout the continent during the post colonial Africa. Our case of the Sudan is a live case, among others.

In yet another example, the principle of uti possidentis was applied in the 1986 case of Burkina-Faso versus Mali border dispute which was referred to the International Court of Justice, and in which the court made the following observations, that

[Uti possidetis] is a general principle, which is logically connected with the phenomenon of obtaining independence, wherever it occurs. Its obvious purpose is to prevent the independence and stability of new states being endangered by fratricidal struggles provoked by the changing of frontiers following the withdrawal of the administering power.

The conflicts over Aouzou strip between Chad and Libya, Bakassi Peninsula between Cameroon and Nigeria went through the same principle.

Due to adherence to this principle, the CPA architects made themselves judges of their own by simply abiding with the tradition using another principle, stare decisis et non quieta movere, Latin which means  “maintain what has been decided  and do not alter that which has been established” . Nonetheless, this principle is applied in court in most cases. Thus, the CPA Part 111[3.1], on government of Southern Sudan states that, “in respect of the Southern Sudan,[...] As per the borders of 1/1/1956[...]”

Part IV on the resolution of Abyei conflict, article 1.4 states “the January 1, 1956 line between north and south will be inviolate”, except when shall be affected by Abyei referendum results.

Part VI security arrangements article 3 on redeployment states “[a] the two forces shall be disengaged, separated, encamped and redeployed...[b]...the rest of the forces  of SAF currently deployed in the south shall be redeployed north of the south/north of 1/1/1956[...]

“The redeployment of SPLA forces from eastern Sudan to south of the south/north border of 1/1/1956 shall be completed within the one year of the beginning of the pre-interim period”

This simply mean agreements-wise we have abided by the colonial border between the north and the south that existed before Sudan’s independence and which was re-affirmed on 1/1/1956, 24/3/1972 and 9/1/2005 respectively.  Some people might have thought, that there was no border demarcation or line that existed in  the first place between the North and the South and hence we are gambling and scrambling for new places in the interest of greediness or territorial occupations. Between the north and the South, there was no and there is no questions of terra nullius or terra incognita.

In a nutshell, the old legal and legitimate borderline as stood on January 1 1956 are known and must be observed. Otherwise these boundaries established and existing at the moment of unification and independence on January 1, 1956 should not be altered unless both parties, South and North consent to any change or alteration.  Border shifts carried out by the colonial authorities prior to Sudan’s independence can not be used to justify any alteration to the 1/1/1956 borderline except for the case of Abyei, or any other area that may go through a future plebiscite to determine their political status between Southern Sudan and Northern Sudan.

 I will explain, why the new conflicts in the border area if there were such borders before in the next publication of this article.  The Next article will concentrate on the resource aspects of the North/South border.

About the author: Rengo Gyyw Rengo, Jr is a Masters degree candidate  in International Relations and Diplomacy, Nkumba University [U] with specialized masters dissertation on the Transboundary waters conflicts. Can be reached at: rgrengo@yahoo.com

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