When Colonial Borders Still Matter: The Emergence of South Sudan

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When Colonial Borders Still Matter: The Emergence of South Sudan1

Kateřina Rudincová∗

Abstract

This article deals with the problem of the maintenance of colonial borders in contemporary Africa through reference to a case study of South Sudan. Even though South Sudan had been part of the Anglo-Egyptian condominium, it was de facto administered separately from northern Sudan. As a consequence, it went through a unique process of political, economic and social development. The principles of the inviolability of colonial borders and uti possidetis limit the potential for new states to emerge in the contemporary international system. However, in the case of South Sudan, the previous and separate colonial administration of this territory helped to constitute the southern Sudanese nation. Therefore, we see that the claims for independence were formulated on the basis of the right of the Southern Sudanese nation to self-determination. The author argues that the existence of previously delimited colonial borders was one of the crucial factors which helped the creation of the independent state of South Sudan.

Introduction

When the southern Sudanese electorate voted for independence in the plebiscite of 9th January 2011, and the southern Sudanese political representation subsequently declared the independence of South Sudan on 9th July 2011, this came as no surprise to the international community. In fact, the declaration of independence of South Sudan was the result of a long-term peace process, which had culminated in 2005 with the signing of the Comprehensive Peace Agreement (CPA) between the Sudanese government and the leading opposition movement in southern Sudan, the Sudan People`s Liberation Movement (SPLM). The signing of the CPA was perceived as being the initiative that brought an end to a long-term civil war that had caused the deaths of millions of people as well as the devastation of southern Sudanese territory.

The principle of uti possidetis2, which generally means the inviolability of colonial borders, sets out to resist disintegration tendencies in Africa and generally

1 This study is a part of SGS-2014-005 research grant.2 The term “uti possidetis” (in English: as you possess) is a principle of international law which originates in Roman law and was developed in order to preserve the status quo. In the African context, it means that the boundaries of newly independent states should remain the same as the previously delimited colonial boundaries, provided that the colonial borders have not been changed by virtue of consent. Malcolm N. Shaw, “Peoples, Territorialism and Boundaries,” European Journal of International Law 8, no. 03 (1997): 478-507.

JAHPSVol. 1, No. 1, pp. 89-115

∗Kateřina Rudincová is a Ph.D. candidate at the at the University of West Bohemia in Pilsen, contact: [email protected]

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When Colonial Borders Still Matter

limits the possibility of the emergence of new states in Africa. Since the international system is state-centric, it promotes the interests of states in the areas of territorial integrity and sovereignty. Nevertheless, the concept of uti possidetis is not universally applied in contemporary African politics. In special cases where territorial units with different colonial histories have been adversely affected, such as South Sudan or Somaliland, the same principle may be used to legitimize claims for independence. It is possible for claims made by sub-state groups and independence movements to be supported, in situations where the sovereignty or internal security of a particular state might be threatened in other ways. This is especially the case in relation to the long-term civil war in southern Sudan.3

The author of this article argues that the earlier existence of an administrative colonial border during the Anglo-Egyptian condominium played a significant role in the process of nation building, as well as in relation to “identity-making” in southern Sudan. The southern Sudanese nation, which had, according to the CPA, the right to self-determination, had been identified as such on the basis of the previous colonial experience, represented by the previously delimited administrative colonial borders as well as on the basis of ethnic and territorial affiliation. The colonial administrative borders were an important factor which helped the Southern Sudanese political representation to claim independence for Sudan and it was therefore easier for the international community to accept this form of territorial disintegration when the borders of the new state (with the exception of the region of Abyei and other disputed areas) had already been delimited.

The main argument put forward in this article is that the southern Sudanese case for secession only superficially contradicted the principle of uti possidetis. Even though the boundaries between South and North Sudan were not demarcated during the colonial period, they existed de facto as a result of the ethnic and religious composition of Sudanese society and British colonial policy in particular. Therefore, invisible boundaries created by the divisions became the visible boundaries of the independent southern Sudanese state.

The theoretical background of this article is based on the principle that people have a right to self-determination and also on the theoretical concept of the inviolability of colonial borders, the so called principle of uti possidetis. In the second part of the article, these theories are applied to the case study of southern Sudan. Since it is necessary to understand the causes of the Sudanese conflict, the identity-building process in southern Sudan and the ethnic, religious and historical foundations of southern Sudanese identity will be evaluated. The invisible boundaries between southern and northern Sudan were created during the colonial era, and therefore the British colonial administration of Sudan and its policies will also be analyzed. The

3 Ingrid Barnsley and Roland Bleiker, “Self-determination: From Decolonization to Deterritorialization,” Global Change, Peace & Security: formerly Pacifica Review: Peace, Security & Global Change 20, no. 02 (2008): 127-128.

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Kateřina Rudincová JAHPS

core of the article is an analysis of the creation of South Sudan and its boundaries on the basis of the agreements concluded between the Government of Sudan and the Sudan People’s Liberation Front (SPLM). Even though an independent South Sudan was declared and recognized by the international community, a number of border issues and disputed areas still await resolution and these will be examined in the final part of the article.

The right to self-determination and the way this concept is limited by the principles of uti possidetis and the inviolability of colonial borders

in Africa

The right to self-determination has traditionally been understood in connection with the right of colonial peoples and territories to achieve their independence. However, during the decolonization process this concept was transformed and, currently, the right to self-determination is regarded as a universal human right that is exercised by all peoples of a particular state and is also associated with the rights of ethnic, religious or linguistic minorities.4

The application of the right of self-determination in its extreme form encompasses the possibility of secession. Therefore, it necessarily challenges existing state boundaries and the territorial integrity of states. For this reason, the possibility of new states emerging, or for nationalities to exercise their right to self-determination, is limited in post-colonial settings by international law instruments such as the principle of uti possidetis. Despite this, several cases of secession have occurred in the post-Cold War era, such as the disintegration of the Soviet Union and Yugoslavia, the dissolution of Czechoslovakia and the independence of Eritrea as a result of the armed struggle.5

The right to self-determination has been incorporated in numerous international treaties and instruments, for example it appears in article 1(2) of the Charter of the United Nations (1945), which establishes as one of the aims of the UN a commitment “to develop friendly relations among nations based on respect for the principle of equal rights and self-determination of peoples...”6 Consequently, self-determination became the core principle of the 1960 Declaration on the Granting of Independence to Colonial Countries and Peoples (Resolution 1514 (XV), which calls for the independence of the then dependent territories. In addition to other international instruments, this right has been incorporated into the 1981 African Charter on Human and Peoples’ Rights, which means that it was perceived as being a basic human right.7

4 Abdullah An-Naim and Francis Deng, “Self-determination and Unity: The Case of Sudan,” Law & Policy 18, no. 02-03 (1996): 202.5 An-Naim, Deng, ‘Self-determination and Unity’, 202-203.6 “UN Charter.” (1945).7 Lloyd C. Brown-John, “Self-Determination, Autonomy, and State Secession in Federal Constitutional and

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However, a problem arises in relation to the definition of which peoples are permitted to exercise their right to self-determination under the terms of these treaties and covenants. Neither the UN declaration nor the African Charter defines the term “peoples” and various interpretations have been developed by authors over time. In the African context, it has been commonly understood that peoples who exercise the right to self-determination are territorially defined peoples who live within existing colonial boundaries.

Given that the boundaries in Africa were created as a result of the agreements between the European powers, they are often perceived as an artificial construct. In reality, all boundaries are man-made dividing lines imposed on a territory. In this respect, borders in Africa are no exception.8 However, in comparison with other continents, many African borders are constructed through recourse to straight lines and, according to Jeffrey Herbst, 44 percent of African borders follow astronomical lines.9

In comparison with borders in Europe, boundaries in Africa were created only recently and were not the result of long-term historical development, but were the result of decisions on the part of colonial powers, regardless of the make-up of the local population. The idea of border delimitation in Africa was first proposed at the Berlin Conference, which took place between 1884 and 1885 and on which the then European powers, Great Britain, France, Belgium and Germany divided up the spheres of influence in Africa.10 In particular, the political boundaries of modern Africa were created over a period of about thirty years after the Berlin Congress as a result of international agreements concluded between the European powers. In Africa, there are two kinds of boundaries: the boundaries established pursuant to international agreements and borders between different regions of a colony, which were unilaterally created by the colonial powers.11 The delimitation of borders in Africa took place in the early stages without any basic knowledge of geographic conditions and did not reflect local demographic or ethnographic factors.

Therefore, with the emergence of the newly independent states in Africa, the concept of the inviolability of territorial borders was adopted by new African elites and self-determination was guaranteed solely within the already existing colonial units in order to prevent conflicts resulting from any border demarcation. For this reason, newly decolonized states chose to follow the administrative or legal borders created or respected by the previous sovereign power, i.e. created during the colonial era.12 In addition, territorially defined nations in post-colonial Africa were

International Law,” South Texas Law Review 40 (1999): 590-591.8 Saadia Touval, The Boundary Politics of Independent Africa (Harvard University Press, 1972), 3.9 Jeffrey Herbst, “The Creation of National Boundaries in Africa,” International Organization 43, no. 04 (1989): 674-675.10 Ieuan Griffiths, “The Scramble for Africa: Inherited Political Boundaries,” The Geographical Journal 152, no. 2 (1986): 204-205.11 Touval, The Boundary Politics of Independent Africa, 4.12 S. Kwaw Nyamkeke Blay, “Changing African Perspectives on the Right of Self-Determination in the Wake of the Banjul Charter on Human and Peoples’ Rights,” Journal of African Law 29, no. 02 (1985): 149.

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composed of various ethnic groups and it was extremely difficult to create a single national identity with which all sections of society could identify. Therefore, those in power prioritized the maintenance of the existing borders in order to prevent ethnic conflicts and disintegration tendencies.

This approach by African elite groups can best be illustrated by the declaration of the Ethiopian Prime minister made at the summit in Addis Ababa in 1963, at which the Organization of African Unity was established: “It is in the interest of all Africans today to respect the frontiers drawn on the maps, even though they were drawn by the former coloni[z]ers.”13

A similar approach has since been adopted by African regional organizations. The founding document of the Organization of Africa Unity, the OAU Charter signed in 1963, is more restrained in relation to self-determination when compared to previous pacts, resolutions and agreements and instead places greater stress on the stability of existing African borders. According to Paragraph 3, Article III “respect for the sovereignty and territorial integrity of each State and for its inalienable right to independent existence” is the crucial commitment expected from newly established African states.14 It means that no state should claim the territory of another state and the states should neither interfere in the internal affairs of others nor should they support separatist movements in the territories of other states. However, in addition to the principles of respect for sovereignty and the territorial integrity of existing states, the OAU Charter calls for the immediate and complete emancipation of all African territories which were still not independent at the time of the adoption of the Charter.15

The principle of the inviolability of colonial borders in Africa was formally adopted during the OAU summit in Cairo in 1964 and it was confirmed by the adoption of Resolution 16(1), which addressed the issue of border disputes between African states. In this resolution, it was enshrined that “the borders of African States, on the day of their independence, constitute a tangible reality” and the member states reaffirmed their respect for the existing borders as delimited by colonial powers at the moment of their independence.16

Consequently, the African Union, as the successor organization of the OAU, adopted the principle of the inviolability of colonial borders in its founding document, the Constitutive Act of African Union, adopted at the Lome summit in 2000. Article 3 of this Act enumerates the objectives of the newly established organization, among which is to “defend the sovereignty, territorial integrity and independence of its Member States”, included in Paragraph (b). Additionally, the principle of “respect of borders existing on achievement of independence“ is explicitly expressed in Article 13 Halim Moris, “Self-Determination: An Affirmative Right or Mere Rhetoric?” ILSA Journal of International & Comparative Law 04 (1997): 206.14 “OAU Charter.” (1963).15 Ibid.16 “Resolution on Border Disputes among African States.”OAU Document AHG/Res. 16(I). (1964).

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4(b). However, in the cases enumerated in Article 4(h), such as war crimes, genocide, and crimes against humanity, the AU Constitutive Act acknowledges the right of the AU to intervene in the internal affairs of member states.17 Moreover, similar principles have been incorporated in the Protocol Relating to the Establishment of the Peace and Security Council of the African Union, adopted in 2002.18 It means that the position of the African Union has shifted from a non-interference to non-indifference approach when addressing conflicts in Africa.

Since the principle of uti possidetis has been adopted in various international instruments, it has become obvious to independence movements that the only possible way for secession claims to succeed is through stressing the administrative or international borders delimited during the colonial era. On one hand, the principle of uti possidetis and respect for colonial boundaries has been used by both individual African states and the African Union to restrict the demand for secessions, but on the other hand, it has been used by secessionist movements to legitimize their claims. Therefore, Katanga and Biafra were not successful in achieving their objectives, while Eritrea succeeded in part as a result of reference to the tradition of distinct colonial administrative regions and previously delimited borders. Likewise, Somaliland has based its legitimization strategies on the previously delimited colonial borders of the British protectorate of Somaliland. Analogically, the independence of South Sudan was enabled, in addition to other factors, by the distinct de facto administration boundaries established during the Anglo-Egyptian condominium.19 However, respect for colonial boundaries is only one of the factors enabling the creation of new states in contemporary Africa and therefore Somaliland has not yet achieved international recognition. In the case of South Sudan, the prolonged civil war and successful negotiation with the central Sudanese government contributed to the achievement of a separate south Sudanese state.

Sources of southern Sudanese identity

Before we attempt an analysis of the border issues in Sudan, it is necessary to briefly outline the historical and ethnological background of the Sudanese conflict. The conflict between North and South in Sudan may be characterized as a conflict of identities or, in Francis Deng’s words, a “war of visions”.20 Divisions in Sudan have

17 “Constitutive Act of African Union.” (2000); Freddy Mnyongani, “Between a Rock and a Hard Place: The Right to Self-Determination versus UtiPossidetis in Africa,” Comparative and International Law Journal of Southern Africa 41, no. 03 (2008): 467.18 “Protocol Relating to the Establishment of the Peace and Security Council of the African Union.” (2002); Solomon Dersso, “The African Human Rights System and the Issue of Minorities in Africa,” African Journal of International and Comparative Law 20, no. 01 (2012): 64.19 Garth Abraham, “Africa and Its Boundaries, a Legal Overview: From Colonialism to the African Union,” in Big African States, ed. Christopher Clapham, Jeffrey Herbst, and Greg Mills (Wits University Press, 2006), 286.20 Francis Deng, War of Visions. Conflict of Identities in the Sudan.(Washington: The Brookings Institution 1995).

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very old origins, dating back to the pre-colonial era, and have their origins in the ethnic and religious structure of the Sudanese population.

The united Sudan was characterized by a high degree of cultural, ethnic, linguistic and religious diversity. Generally, Sudanese ethnic groups may be divided up as follows: 52 % of African ethnicity, 40 % Arab, and 6 % Beja.21 Sudanese Arabs constitute the largest ethnic group in northern Sudan, although this group is itself heterogeneous and can be divided into tribes, such as the Ja’alayin, the Juhayna and the Kawahla. Even though this group constitutes only 40 % of the Sudanese population it was the dominant force in the pre-colonial era. Their language is Arabic and their religion is Islam.22

Nevertheless, the inhabitants of northern Sudan, who perceive themselves as being Arabs, are themselves the result of a mix of indigenous Africans and migrants of Arabic, Turkish or Greek origin, all of whom arrived in the Sudanese territory by way of the Red Sea and the River Nile. They settled there in order to establish businesses and, through marriage, they mixed with the indigenous inhabitants; the Jellaba group was thus created. Even though the Jellaba exhibit the physiological characteristics of Africans, they have adopted the culture and religion of the Arabic world. On the basis of their distinct culture, the Jellaba identify themselves as Arabs and have established themselves as an economically and socially powerful class, as well as gaining a significant share of political power in Sudan.23

However, clearly defined boundaries between individual groups in Sudan are not easy to delimit since the process of mixing Arab migrants with African indigenous inhabitants was a very slow process. As a consequence of this process, it is, according to Jok Madut Jok, impossible to identify the racial affiliation of Sudanese on the basis of their physical characteristics. It is more likely that each individual or group chooses its own identity on the basis of identifying with a particular ethnic or religious group.24 Therefore, Muslims from northern Sudan perceive themselves as being Arabs, even though their physical appearance refers back to their African origins. In this context, Christopher Zambakari talks about the Arab identity in Sudan as a political identity which is not based on ethnic origin.25

Another Muslim community in Sudan constitutes the Nubians, who were forced to abandon their original lands and were resettled around Port Sudan due to the construction of the Aswan High Dam. The Beja people constitute 6 % of the

21 Jack Kalpakian, “War over Identity: the Case of Sudan,“ in Big African States, ed. Christopher Clapham, Jeffrey Herbst, and Greg Mills (Wits University Press, 2006), 42.22 Kalpakian, “War over Identity: the Case of Sudan,” 43.23 Raphael Badal, “The Rise and Fall of Separatism in Southern Sudan,” African Affairs 75, no. 301 (1976): 469; John Garang de Mabior, “Pan-Africanism and African Nationalism: Putting the African Nation in Context – The Case of the Sudan,” in Pan-Africanism/African Nationalism: Strengthening Unity of Africa and Its Diaspora, ed. B.F. Bankie and K. Mchombu (Asmara: Red Sea Press, 2008), 216.24 JokMadutJok, Sudan. Race, Religion and Violence (Oxford: One World Publishers 2007), 4.25 Christopher Zambakari, “South Sudan: Institutional Legacy of Colonialism and the Making of a New State,” The Journal of North African Studies 17, no. 03. (2012): 522.

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Sudanese population, speak the Cushitic language and follow a nomadic way of life. African ethnic groups who profess the Islamic religion may be found in Darfur. Despite being Muslims, the Fur, Masalit, Daju, Berti and Zaghawa do not perceive themselves as being Arabs.26 As well as these groups, Darfur is inhabited by the Baggara, a nomadic Muslim ethnic group of mixed Arab and African origin, who perceive themselves as being Arabs.27

Around 60 % of the southern Sudanese population comprises Nilotic peoples. The largest Nilotic ethnic groups in southern Sudan are the Dinka, Nuers and Shilluk. Most Nilotic peoples adopted Christianity, but some of them, however, remained followers of traditional African religions and some of them adopted Islam. The province of Kordofan is populated by the Nuba people who speak a variety of Kordofanian languages. Southern Sudan is homeland to other non-Nilotic ethnicities, which constitute 40 % of the local population. Among them, we can identify the Azande, who speak a Niger-Congo language, or the Ingessana, who inhabit the Blue Nile province.28

The source of another split in Sudan has been the religious division between the Muslim north and the Christian and animist south. However, it is difficult to explain the conflict in Sudan simply through reference to ethnic and religious issues; it is essential to reflect on historical developments in order to understand the origins of divisions within Sudanese society. In contrast with the northern territories, South Sudan was resistant to Arab expansionism, due to geographic factors such as the inaccessibility of the territory, or natural barriers, such as insects, diseases and the tropical environment, to which the conquerors from northern Sudanese desert regions were not accustomed. In addition to the natural barriers, the traditional composition of society, divided into tribes, also contributed to the development of resistance to Arab expansionism. At the time when the Arabs failed to conquer southern Sudan, the region started to be perceived as a “territory of war” (Arabic: dar al-harb) and as a territory ripe for economic exploitation.29 Therefore, southern Sudan became a particularly important source of black slaves. Arab Muslims from northern Sudan did not attempt to Islamize the southern territories of Sudan, since had the local population been Islamized it would have not have been possible to submit the indigenous southern Sudanese population to slavery and an important source of revenue would have been lost.30

The relationship between the center and the outlying regions had already been defined during the early history of the regions, i.e. when the Muslim states established themselves in the Nile valley. Consequently, the Christian kingdoms organized slave raiding expeditions in their own peripheral regions, with the Muslim rulers of the

26 Kalpakian, “War over Identity: the Case of Sudan,” 43-44.27 Kwame Essien and Toyin Falola, Culture and Customs of Sudan(Westport, CT: Greenwood, 2009), 7.28 Kalpakian, “War over Identity: the Case of Sudan,” 45.29 RiangYerZuor, Modern Sudan. Its History and the Genesis of the Current Crises(Publish America 2005), 18-19.30 Francis Deng, “Self-Determination and National Identity Crisis: The Case of Sudan,” in The Self-Determination of Peoples. Community, Nation, and State in an Interdependent World, ed. Wolfgang Danspeckgruber (London: Lynne Rienner Publishers, 2002), 261.

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Sennar or Darfur sultanate, in the 16th and 17th centuries respectively, being happy to continue this tradition. Islam was introduced to these states mainly by means of trade and by the presence of holy men and this was connected to the introduction of Arab culture and legal system. Arabic genealogies helped to establish the new legitimacy of the ruling class. At the same time, the adoption of Islam served to sharpen the divisions between the center and the peripheral regions, from which the slaves who served in the army were drawn.31

Muhammad Ali’s invasion of the Sudan in 1820 was intended to provide Egypt with a safe supply of gold and slave soldiers. Douglas Johnson marks the period of Turkiyya as the beginning of a North-South divide in Sudan. According to him, it was the impoverishment of northern Sudan through taxation which caused the mass expansion of slave-raiding into the southern Sudanese territories. The Mahdist state, which overthrew Turkiyya in Sudan in 1883, based its power on its slave army. It developed its own form of internal colonialism when the country was divided between the followers of Mahdi (ansar) and the remaining “unbelievers”.32

The colonial administration, which was established after the defeat of Mahdiyya, determined the relations between particular ethnic, religious and regional groups and set the conditions for the distribution of resources. As Essien and Falola argue, “colonial rule facilitated the process of the exploitation and the enslavement of non-Arab people.”33 Support for the Christian missions in southern Sudan and efforts to prevent the spread of Islam was another part of colonial policy which was officially incorporated into the southern Sudanese policy of the Anglo-Egyptian administration of Sudan between 1922 and 1947.34

After achieving independence, the newly created government sought to dominate the south and to subjugate the local indigenous population, which was perceived as being inferior. Therefore, the inhabitants of this part of the newly independent state did not identify themselves as Sudanese and they continued to preserve their particular ethnic identities since there was nothing that drew all Sudanese together under a common unifying banner. This “crisis of national identity“ is commonly identified as being the issue that led to the final partition of Sudan.35

By studying the socio-historical development of Sudan, it is possible to identify the factors that created the national identity of the South Sudan population. These include: the common struggle against the Islamization and Arabization efforts of Arabs, resistance to political and economic marginalization, a common colonial past, and a shared territory of three former provinces of the Anglo-Egyptian

31 Douglas H. Johnson, The Root Causes of Sudan’s Civil Wars(Oxford: James Currey 2006), 2-3.32 Ibid, 4-7.33 Essien, Falola, Culture and Customs of Sudan, 5.34 Deng D. Akol Ruay, The Politics of Two Sudans: The South and the North 1821 – 1969 (Uppsala: The Scandinavian Institute for African Studies, 1994), 38.35 Deng, War of Visions. Conflict of Identities in the Sudan, 9.

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condominium, Bahr el-Ghazal, Equatoria and Upper Nile. The concept of a South Sudanese nation is thus based on territorial awareness since the identity-forming and nation-building processes took place within the boundaries previously defined by the colonial power, even though it comprised various ethnic groups.

The colonial administration and the de facto separation of southern Sudan

The territory of the current state of South Sudan corresponds with the territory of three provinces of southern Sudan during the era of the Anglo-Egyptian condominium, Bahr el-Ghazal, Equatoria and Upper Nile. The condominium was established in 1899 after the overthrow of Mahdiyya. During this era, the provincial boundaries were constructed, in the earliest stages without reference to any awareness of the geography, topography or demography of the state. However, the condominium administration set out to avoid separating peoples from the same tribe, as well as to achieve the resolution of disputes by not placing rival groups within the same province.36

From the 1920s on, Great Britain administered the Sudan in the same way that it administered other parts of British Africa, i.e. by means of an indirect rule approach, referred to as the “native administration” of Sudan, which meant that it used local tribal leaders and indigenous political - as well as - social structures. This way of administration was not only less costly, but was also consistent with the British concept of good governance.37 The basis of colonial indirect rule was that members of a particular tribe were required to live solely within a reserved tribal territory (Arabic: dar). As a consequence of this order, the southern Sudanese ethnic groups only lived in the territories reserved for them and were not allowed to migrate to other parts of the condominium. In some cases, they even had to migrate back to the regions which were designated for the tribe of their origin.38

Native administration, which was based on traditional law, made for a de facto division between the Muslim and non-Muslim populations. Therefore, it led to the evolution of the so-called “Southern Policy”, formally announced in 1930, and an arrangement to which both the non-Muslim and non-Arabic-speaking peoples in southern provinces were subjected.39 The separate administration of southern Sudan had been motivated by the provision of support for the authority of the traditional chiefs, who participated in the justice and administration systems. However, the crucial problem in southern Sudan was that the nature of the traditional segmentary

36 Douglas H. Johnson, When Boundaries Become Borders. The Impact of Boundary-Making in Southern Sudan’s Frontier Zones (Nairobi: Rift Valley Institute, 2010), 21.37 Amir Idris, “The Racialized and Islamicised Sudanese State and the Question of Southern Sudan,” in State Crises, Globalisation and National Movements in North-East Africa, ed. AsafaJalata (Routledge, 2004), 37.38 Yoshiko Kurita, “The Social Bases of Regional Movements in Sudan 1960s-1980s,” in Ethnicity &Conflict in the Horn of Africa, ed. Katsuyoshi Fukui and John Markakis (Oxford: James Currey, 1994), 204.39 Johnson, When Boundaries Become Borders, 23.

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lineage society of the Nuers, Dinkas and other southern Sudanese ethnic groups, did not require any chiefs for the administration of their territories. Therefore, the British had to create such a class that would be able to govern southern Sudan according to the system of British indirect administration and to collect payments from the subjugated groups. For example, the British “created“ the Kababish “tribe” and its tribal system in Kordofan, including its tribal territory and genealogies, in order to gain support for a particular tribal chief who was supposed to help the British with the administration of the entrusted territory.40

Since the beginning of the 20th century, British colonial administrators had endeavored to achieve “tribal purity” in southern Sudan and change the perception that the Arabs from the north were superior to the non-Arab ethnic groups from southern Sudan. At first, they closed off the three provinces of southern Sudan, Bahr el-Ghazal, Equatoria and Upper Nile, and consequently, through reference to the Closed Districts Ordinance of 1922, they isolated southern Sudan from the north by introducing the requirement for inhabitants to possess passports and residence permits. As a consequence of these ordinances, which remained valid until 1947, Arabic-speaking elites were eliminated from southern Sudan and were replaced by local elites, educated in Christian missionary schools. After this time, southern Sudan was de facto isolated from the north and foreigners were not allowed to enter without the prior acquisition of permits.41 The separate administration of southern Sudan was motivated by efforts to protect the local inhabitants from the external and foreign influence of Islam from the north, which would have undermined the power of traditional local leaders and would have possibly endangered the success of the indirect rule policy in the South. Therefore, it attempted to preserve the cultural and ethnic diversity of southern Sudan.42 In southern Sudan, the British were not perceived as intruders and they styled themselves as the saviors of the southern Sudanese inhabitants, protecting them from the raids of the northern Sudanese slave traders.43

Moreover, the British made efforts to connect southern Sudan with eastern Africa, both politically and administratively. In this context, the governors of southern Sudan were not allowed to participate in the annual meetings of the governors of northern African colonies and they were required to coordinate

40 Kurita, “The Social Bases of Regional Movements in Sudan 1960s-1980s,” 203; Robert Collins, A History of Modern Sudan (Cambridge University Press, 2008), 42.41 Idris, “The Racialized and Islamicised Sudanese State and the Question of Southern Sudan,” 38; Salman M.A. Salman, “South Sudan Road to Independence: Broken Promises and Lost Opportunities,” Pacific McGeorge Global Business & Development Law Journal 26, no. 02 (2013): 347. 42 Collins, A History of Modern Sudan, 54; Kinfe Abraham, The Horn of Africa. Challenges of Conflicts, Security and Conflict Mediation Efforts (Ethiopia International Institute for Peace and Development a Horn of Africa Democracy and Development International Lobby, 2006), 176.43 Francis Deng, “The Turbulent Road to Nationhood” in New Sudan in the Making? Essays on a Nation in Painful Search of Itself, ed. Francis Deng (The Red Sea Press, 2010), 220.

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their activities with the British colonies of eastern Africa.44 According to Francis Deng, the British policy of separating southern Sudan left the future possibility for Great Britain to attach southern Sudan to one of the eastern African colonies, such as Uganda, or to create a state which would be independent of northern Sudan.45

British indirect rule was formulated in the official “Policy for Southern Provinces”, the aim of which was to ensure the distinct socio-economic, administrative as well as political development of the southern and northern parts of Anglo-Egyptian Sudan. According to Deng D. Akol Ruay46 this policy included the elimination of Arabic-speaking administrators from southern Sudan; the exclusion of Arab traders from the north, known as Jallaba, as well as Muslim businessmen of Egyptian and Middle Eastern origin, from trading opportunities with southern Sudanese partners; the replacement of Arabic by local languages, with English acquiring the status of official language.

Another strategy for separating southern Sudan from the north was by the introduction of an education and language policy. English was implemented as the language of instruction and the official language, while the use of Arabic was forbidden. Christian missionaries gained a monopoly over the education system and therefore graduates from southern Sudanese schools were neither qualified to continue their education at institutes of higher education in northern Sudan, nor were they able to work in the north. For this reason, they continued their studies in Uganda, which confirmed the link between southern Sudan and eastern Africa.47

The economic policy of the British colonial administration was reduced solely to the area of restricting the sphere of trade and the migration of the labor force. In contrast with the situation in northern Sudan, plans for agricultural development were not adopted in the south and investments in infrastructure were significantly limited; the intention being that southern Sudan would remain isolated from the other territories.48

The Southern Policy also involved the territorial dimension, since, according to Douglas Johnson, its legacy “was the creation of the idea of a distinct territorial base for a non-Arab, non-Muslim, “African” southern Sudan.”49

44 Ruay, The Politics of Two Sudans, 39.45 Deng, “Self-Determination and National Identity Crisis,” 255.46 Ruay, The Politics of Two Sudans, 39.47 Abdel Ghaffar M. Ahmed, “Multiple Complexity & Prospects for Reconciliation & Unity. The Sudan Conundrum,” in The Roots of African Conflicts. The Causes & Costs, ed. Alfred Nhema and Paul TiyambeZeleza (Ohio University Press, 2008), 76-77.48 A. Ali Ali, Ibrahim Elbadaur and Atta El-Batahani, “The Sudan`s Civil War: Why Has It Prevailed for so Long?” in Understanding Civil War: Evidence and Analysis. Volume I: Africa, ed. Paul Collier and Nicholas Sambanis (Washington DC: World Bank, 2005).49 Johnson, When Boundaries Become Borders, 23.

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The marginalization of southern Sudan during the time of the indepen-dent Sudanese state

The historical factors, as outlined in the previous section, culminated in two different economic and political structures prior to independence. As a consequence, it was very difficult to re-unite both parts into a single state after the achievement of independence in 1956. The power center of the new Sudanese state was situated in the northern region, with Khartoum being declared as the capital of the united state. Sudanese elites were concentrated in the northern regions of the Nile basin, from Aswan to Khartoum. Their culture, including the usage of Arabic, but also their dress code, housing and gender relations had become the norm for Sudanese identity during the colonial era. Arab-Islamic elites in Sudan often received western style education at the University of Khartoum and came from traditional Sudanese sectarian families.50 They tended to have close links to the al-Mahdi family, and have personal connections with the Ansar religious sect and the National Umma Party. Another powerful group in Sudan was the al-Mirghani family, whose members held a similar position within the Khatmiyya sect and supported the National Unionist Party, which in the 1960s merged with the People`s Democratic Party to form the Democratic Unionist Party.51 An additional powerful Islamic political organization was the Islamic Charter Front (ICF), which based its platform on the ideology of the Muslim Brotherhood and was founded in 1965 under the leadership of Hasan al-Turabi. The basis of its program was a call for the establishment of an Islamic state in Sudan.52

The Arab and Islamic elites from northern Sudan promoted Arabizing tendencies and Islamic fundamentalism as the basis of their power and thus created another center of power which rivaled the official government and state institutions. Francis Deng refers to this dominance of the north over the south in Sudan as “internal Arab colonialism”53. It consisted of efforts to root out the influences of the British colonial system and to unify the whole state on the basis of a single religion and culture emanating from northern Sudan, and to achieve this by the means of a process of Islamization and Arabization. Owing to the fact that the members of the Arab-Islamic culture of northern Sudan perceived themselves to be superior to the indigenous peoples of southern Sudan, who were professors of traditional African religions and were living in traditional tribal systems, the cultural unification of the whole state was considered to be a “civilizing mission”.54 As a result, the inhabitants

50 Rex S O´Fahey, “Islam and Ethnicity in the Sudan,” Journal of Religion in Africa 26, no. 3 (1996): 261.51 John O. Voll, “The Eastern Sudan, 1822 to the Present,” in The History of Islam in Africa, ed. NehemiaLevtzion and Randall L. Powels (Ohio: Ohio University Press, 2000), 161.52 Gabriel Warburg, “Mahdism and Islamism in Sudan,” International Journal of Middle East Studies 27, no. 02 (1995): 227.53 Deng, “Self-Determination and National Identity Crisis,” 256.54 Ibid, 265.

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of southern Sudan did not have any political group in the new state with which they could identify and therefore had little possibility of influencing policy formed in Khartoum since the dominant power were the elites concentrated in northern Sudan.

In southern Sudan, the local elite, which comprised only 5 % of the inhabitants due to the underdeveloped system of education, took the lead. These elites were not educated in Arabic and therefore were not able to hold important posts within the central administration. Moreover, this small group was deeply influenced by its own ethnic and tribal affiliations. Therefore, it failed to generate a political consciousness within the inhabitants of southern Sudan during the first phase of the existence of the state, which might have created the concept of a southern Sudanese nation. For this reason, at least until the 1960s, claims for the independent existence of southern Sudan did not have the full backing of the majority of southern Sudanese society. The only unifying factor at that time was dissatisfaction with the government in Khartoum and a deep resistance to its policies. As a consequence, many of the inhabitants of the marginalized regions in southern Sudan created their own collective identity, which was not dependent on ethnic, religious and linguistic differences.55

The marginalization of southern Sudan had begun before independence as all senior positions in the southern administration were occupied by Northerners. A fear of the domination of the North over the South had led to the mutiny of southern Sudanese soldiers in Torit. Moreover, the Sudanese government refused to create a federal system, which it had earlier promised to southerners, because it feared that this would lead to separation. Unfulfilled expectations led to the creation of an organized opposition movement in the South, represented by the Federal Party.56

The rise of Islamic fundamentalism had a considerable influence on the South Sudan opposition movement. Arab and Islamic identity was officially promoted by the government of General Ibrahim Abboud, who came to power in the military coup of 1958. In addition to the promotion of Arabic as the official language and Islam as the state religion, Abboud reduced the Christian missions in southern Sudan by enacting the 1962 law covering the rights of missionary societies. Christian missionary schools were replaced by Koranic schools and instead of English, Arabic became the language of instruction. Another side-effect of Abboud’s Arabizing and Islamizing policy was interference in the life of Christian churches in southern Sudan and the construction of mosques.57

The politics of repression led to the formation of organized opposition movements, such as the Sudan African National Union (SANU), founded in exile in 1960 and supported from neighboring countries. In Sudan itself, insurgent organizations were represented by the Southern Front (SF). These two political movements were not based on ethnic affiliations and incorporated all southern 55 Raphael Badal, ‘The Rise and Fall of Separatism in Southern Sudan’, 469.56 Johnson, The Root Causes of Sudan’s Civil Wars, 26-30.57 Kalpakian, “War over Identity: the Case of Sudan”, 49;Abraham, The Horn of Africa. Challenges of Conflicts, Security and Conflict Mediation Efforts, 190.

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Sudanese ethnic groups. In 1962, due to internal disagreements, the armed Anyanya movement was created and the former army officer, Emilio Tafeng, became its leader. This guerrilla organization was the main force behind the anti-government struggle until 1972.58

In its early history as a main opposition movement, the leadership of SANU was predominantly Equatorian, represented by Fr. Saturnino and Joseph Oduho, both Lotukos from Torit, and Aggrey Jaden who was a Bari from Juba. The first influential Dinka in the southern Sudanese opposition movement was William Deng, who came from Bahr el-Ghazal. After the 1965 Round Table Conference in Khartoum, the SANU split because of disagreements about the form that self-determination for southern Sudan should adopt. In 1967, the Southern Sudan Provisional Government was formed, led by Aggrey Jaden with the support of Emilio Tafeng, and including for the first time Dinka leaders such as Gordon Muortat Mayen and Akwot Atem. During the 1960s, other small guerilla groups established their own self-governing “republics” in southern Sudan. However, in 1970, the opposition in southern Sudan was united under the leadership of Joseph Lagu, who created the Southern Sudan Liberation Front (SSLF).59

The first Sudanese civil war was brought to a conclusion by the regime of General Muhammad Nimeiri in 1972, and resulted in the Addis Ababa agreement, which established regional autonomy for southern Sudan. On the basis of this document, a regional government and an autonomous elected regional parliament should have been created. The regional government should have been led by a president, who would also serve as vice president of the entire country and would be elected by a regional parliament and appointed by the President. Ministers of the regional government should have been chosen by the regional parliament and the president. Moreover, representatives from South Sudan were to be guaranteed the right to represent South Sudan in the national parliament and central government.60 Southern Sudanese regional autonomy and religious freedom were also enshrined in the interim constitution, which was approved in 1972.

In the 1970s, the conflict in southern Sudan acquired an economic dimension when, in 1974, the American company Chevron Oil discovered huge oil reserves in southern Sudan and won the concession to produce crude oil in southern Darfur, Kordofan, Upper Nile and Blue Nile, with the oilfields in southern Sudan near Bentiu proven to be the most productive.61

Chevron, in order to secure control over the oil deposits, supported the regime of President Nimajri. At the same time, the company indirectly supported the efforts of

58 Abraham, The Horn of Africa.Challenges of Conflicts, Security and Conflict Mediation Efforts, 179 – 180.59 Johnson, The Root Causes of Sudan’s Civil Wars, 32-33.60 Badal, “The Rise and Fall of Separatism in Southern Sudan”, 471.61 Peter Nyot Kok, “Adding Fuel to the Conflict: Oil, War and Peace in the Sudan.” in Beyond Conflict in the Horn. Prospects for Peace, Recovery and Development in Ethiopia, Somalia and the Sudan, ed. Martin Doornbos, Lionel Cliffe, Abdel Ghaffar M. Ahmed and John Markakis (Trenton: Red Sea Press, 1992), 104-105.

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the regime to gain control over the oil fields and to subsequently encourage violations of the Addis Ababa peace agreement.62 Given that the Sudanese government was aware of the significant oil deposits in South Sudan, it feared any move towards southern Sudanese separatism because economic emancipation was likely to lead to a further rise of separatist tendencies in the south, calls for independence, and calls to join the East African States.63

Oil was another tool used by the central government to further marginalize southern Sudan. For example, the Sudanese government rejected Chevron’s request to build a base in Malakalin southern Sudan and instead promoted its construction in South Kordofan, which officially belonged to the north. In addition, the government decided to include areas with oil reserves and profitable agricultural production, i.e. Upper Nile and Bahr El-Ghazal in northern Sudan and change the boundaries that were designed by the colonial powers.64 In 1980, the government created a new province, which included the territory around Bentiu, which held the largest oil fields, and which came under the direct jurisdiction of the central state. In addition, a year later, the central government, together with Chevron established the White Nile Petroleum Company, in which representatives of southern Sudan were not represented.65

The period of relative peace in Sudan ended when President Jafar Nimairi, in order to conciliate his critics from the Islamic opposition, proclaimed the so-called “September Laws” of 1983, by means of which Sudan was declared an Islamic state and Islamic sharia law was introduced throughout the country.66 Another factor leading to renewed conflict in southern Sudan was the decision of the Sudanese government to divide southern Sudan into three provinces, administered by governors directly appointed by the President.67 The second civil war in Sudan was to last for twenty years, resulted in the deaths and displacement of millions of people, and the devastation of the southern Sudanese territory. The main opposition movement during this period was the Sudanese People’s Liberation Movement (SPLM), along with its military wing, the Sudanese People’s Liberation Army (SPLA), led by John Garang de Mabior, who came from the Dinka ethnic group. This period of civil war was settled by the signing of the Comprehensive Peace Agreement in 2005 between the Government of Sudan and the SPLM, which we will consider further in the next section of this article.

62 Paul Goldsmith, Lydia Abura, Jason Switzer, “Oil and Water in Sudan,” in Scarcity and Surfeit. The Ecology of Africa´s Conflicts, ed. Jeremy Lind and Kathryn Sturman (Pretoria: Institute for Security Studies, 2002), 223.63 Abel Alier, Southern Sudan. Too Many Agreements Dishonoured. (Reading: Ithaca Press, 1990), 236.64 Ibid, 236-240.65 Goldsmith, Abura, Switzer, “Oil and Water in Sudan”, 223.66 Bona Malwal, “The Challenge of the South to Sudanese National Politics,” in Conflict in the Horn of Africa, ed. Georges Nzongola-Ntalaja (Atlanta: African Studies Association Press, 1991), 122-123.67 Guy Arnold, Africa. A Modern History (London: Atlantic Books, 2005), 648.

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The creation of South Sudan on the basis of colonial boundaries

When considering the right of southern Sudan to attain independence, legitimized on the basis of the right of nations to self-determination, it is impossible to avoid the issue of exactly which groups might be considered as nations in the Sudanese context, given the ethnic heterogeneity of this region. In the southern Sudanese case, the term “nation” is used in the context of territoriality. It means that the nation which was seeking to exercise its right to self-determination comprised the inhabitants of the three provinces of the former Anglo-Egyptian condominium, which had been administered separately according to the “Southern Policy”. The territorial concept of nations in Africa has its origins in the decolonization process, when the inhabitants of the colonies were granted the right to self-determination solely within already delimited colonial borders.

Therefore, the main limitation on the right of nations to self-determination has been the desire to preserve the territorial integrity of states and the principle of uti possidetis. According to certain opinions “the ‛free will’ of populations can only apply within boundaries that have been colonially defined”.68 In its colonial history, the whole territory of modern Sudan constituted one colonial entity, the Anglo-Egyptian condominium. Therefore, on the basis of the principle of uti possidetis, the whole territory of Sudan exercised its right to self-determination. The creation of the unified state of Sudan as a single state entity was the result of the decolonization process in the 1940s, when Great Britain decided to unify both parts of Sudan into one independent state. Therefore, the southern Sudanese inhabitants were not granted their right to self-determination at that time, or in other words were denied the right to determine their future. Moreover, the creation of a unified state composed of southern and northern Sudan was confirmed by the unilateral declaration of independence in the Sudanese parliament on the 19th December 1955, i.e. without the consent of southern Sudanese representation. Disagreement with the political developments sponsored by the political elites from northern Sudan in the period preceding independence had been manifested in southern Sudan in the form of an armed struggle against the marginalization of this territory. Even at that time, there had been calls for the self-governance of southern Sudan.69 Following the example established in relation to other countries in the context of decolonization it would appear that southern Sudanese claims to self-determination were only slightly in contradiction of the right of nations to self-determination and the principle of uti possidetis, since southern Sudan had been administered separately and de facto

68 Marc Weller, Escaping the Self-Determination Trap (Leiden: Koninklijke Brill NV, 2008), 37.69 Scott P. Sheeran, “International Law, Peace Agreements and Self-Determination: The Case of the Sudan,” International and Comparative Law Quarterly 60, no. 02 (2011): 451; Marc Weller, “Self-Governance in Interim Settlements. The Case of Sudan,” in Autonomy, Self-Governance and Conflict Resolution. Innovative Approaches to Institutional Design in Divided Societies, ed. Marc Weller and Stefan Wolff (London: Routledge, 2005), 140.

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independently of the north. Whereas the northern Sudanese elites were committed to a policy of Arabization and Islamization for the entirety of the united state, the southern Sudanese felt that they had become the subjects of another foreign power. This situation resulted in the “war of visions”70 between the Sudanese central government and the southern Sudanese opposition movements.

The prolonged civil war in southern Sudan ended with the signing of the Comprehensive Peace Agreement between the Government of Sudan and the leading opposition movement in the south, the Sudan People`s Liberation Movement/Army (SPLM/A) in Nairobi on the 9th January 2005. The CPA included six protocols which had been agreed in the three years prior to the signing of the final agreement.71 The Machakos protocol had been the result of negotiations chaired by the Intergovernmental Authority on Development (IGAD) in the presence of the regional powers. It represented the basic framework, on the basis of which specific articles of the agreement were supposed to be negotiated. The Protocol acknowledged the historical abuses which had occurred in Sudan and moreover, it explicitly acknowledged the right of the southern Sudanese nation to self-determination by means of a referendum, planned for 2011.72According to this arrangement, Articles 1.2 and 1.3 of Part A (Agreed Principles) stipulate:“1.2. …the people of South Sudan have the right to control and govern affairs in their region and participate equitably in the National Government. And 1.3. …the people of South Sudan have the right to self-determination, inter alia, through a referendum to determine their future status.”73 Considering the prolonged civil war and the sense of grievance felt by the inhabitants of the southern Sudan, it was obvious that if the referendum on independence were to take place in southern Sudan, the majority of the electorate would vote for independence. This assumption remained true until 9th January 2011 and consequently the independence of South Sudan was declared seven months later.

The accepted practice in relation to the emergence of new states is that the new state is defined on the basis of the borders which correspond with the most recent agreed territorial arrangements. In accordance with this assumption, the administrative border which existed between southern and northern Sudan at the time of its independence on 1st January 1956 was accepted by the CPA as the boundary between two potential independent states.74 Therefore, South Sudan emerged within the framework of the borders delimited during the period of the 70 Francis Deng, War of Visions. Conflict of Identities in the Sudan.71 IdrisSalim El Hassan, “Managing the Process of Conflict Resolution in the Sudan,” in The Resolution of African Conflicts.The Management of Conflict Resolution & Post-Conflict Reconstruction, ed. Alfred Nhema and Paul Tiyambe Zeleza (Ohio University Press, 2008), 106.72 Kalpakian, “War over Identity: the Case of Sudan,” 52.73 The Comprehensive Peace Agreement between The Government of the Republic of The Sudan and The Sudan People`s Liberation Movement/Sudan People`s Liberation Army. (2005).74 Jure Vidmar, “South Sudan and the International Legal Framework Governing the Emergence and Delimitation of New States,” Texas International Law Journal 47, no. 03 (2012): 558.

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Anglo-Egyptian condominium, when this territory was administered separately and its borders followed the administrative divisions created by the British.75 This was confirmed in the declaration, in which the Sudanese political representation recognized the independence of South Sudan: “The Republic of Sudan announces that it recognizes the Republic of South Sudan as an independent state, according to the borders existing on 1st January 1956.”76 The fact that the boundaries of South Sudan correspond to the previously delimited colonial administrative borders signifies that the colonial territorial order still matters in contemporary African international relations. Therefore, in addition to other factors, such as the violation of human rights, the existence of colonial administrative borders during the Anglo-Egyptian condominium enabled the southern Sudanese population to exercise its right of self-determination.

Border issues and the disputed areas of an independent South Sudan

Despite the clear definition of the South Sudanese borders in the CPA, the delimitation and demarcation of South Sudanese boundaries were problematic and became a source of renewed conflict because of continued disputes over disputed areas, such as Abyei. According to the CPA, the boundaries were delimited on the basis of the borders which had existed at the time of the independence of Sudan on 1st January 1956. The CPA established the North-South Border Technical Committee to ensure the correct demarcation of the boundaries and the Sudanese government at least endeavored to demarcate the non-disputed boundaries up until the independence referendum. At that time, at least 80 % of the boundaries between southern and northern Sudan had already been demarcated, even though there were still disputes over such areas such where oil extraction was taking place.77 One of these territories was Abyei, where, according to the CPA, people should have had a vote as to whether they wished to be part of a northern or southern Sudanese state. In another two disputed territories, Southern Kordofan/Nuba Mountains and the Blue Nile State, referenda were not planned, even though the will of the people should have been incorporated into the decision-making process. These territories are not only ethnically diverse but also economically important since rich oil reserves have been found in Abyei and Southern Kordofan.

On the basis of the border agreements from 1956, Abyei should have belonged to the territory of northern Sudan as declared in the new territorial order adopted in 1905. By this order, the Anglo-Egyptian condominium administration transferred nine Dinka tribal territories from the province of Bahr el-Ghazal to the

75 AsterisHuliaras, “The Unanticipated Break-up of Sudan: Causes and Consequences of Redrawing International Boundaries,” Commonwealth & Comparative Politics 50, no. 03 (2012): 265.76 “South Sudan Counts Down to Independence.” BBC, July 7, 2011.77 Roberto Belloni, “The Birth of South Sudan and the Challenges of Statebuilding,” Ethnopolitics: Formerly Global Review of Ethnopolitics 10, no. 03-04 (2011): 419.

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administration of the province of Kordofan. However, its inhabitants are mostly from the Dinka tribe and are connected, therefore, ethnically, culturally and historically with southern Sudan.78 In addition to the Dinka, Abyei is inhabited by the nomadic Arab Misseriya tribes, which have competed with the Dinka over this territory since the 18th century, when both ethnic groups arrived in the region. During the first civil war, Arab Misseriya tribes sympathized with the north, whereas the Dinka from Abyei supported the southern Sudanese struggle for self-determination and independence. This rivalry became the source of conflict between the two ethnic groups over the territory of Abyei.79

The status of Abyei was addressed by the Protocol agreed between the Government of Sudan and the Sudan People´s Liberation Movement/Army on the Resolution of the Abyei Conflict (the Abyei Protocol). On the basis of this document, the territory of Abyei attained a special status during the transition period, according to which the inhabitants of Abyei became citizens of Western Kordofan and the province of Bahr el-Ghazal at the same time. Abyei should have been administered by the local executive council composed of elected representatives. The economic profits from oil extraction in this area should have been divided according the following formula: 50 % for the Sudanese government, 42 % for the South Sudanese government, 2 % each for the administration of Bahr el-Ghazal and Western Kordofan and the Ngok Dinka and Misseria ethnic groups. Alongside the referendum on southern Sudanese independence, a plebiscite in Abyei should have taken place, in which its inhabitants were to decide whether they would keep their special administrative status within northern Sudan or would vote to join the southern Sudanese province of Bahr el-Ghazal.80 However, what was not agreed was the territorial definition of the Abyei area. According to Douglas Johnson, the agreement about the definition of the Abyei region was not achieved because of the oil reserves present in this territory. If Abyei chose not to be included in the southern Sudanese territory, it would be excluded from the wealth-sharing protocol outlined in the CPA. The second reason behind the non-resolution was the demographic shift that had been caused by the civil war, which had resulted in the occupation of the formerly Dinka territories by Misseriya settlers, and which the SPLM was unwilling to include in its definition of the Abyei area.81 South Sudan refused to accept the loss of this territory and included it as one of its territories in the interim constitution of South Sudan. Therefore, the proposed Abyei referendum was the only exception to

78 ZoltanIllés, “Towards an Independent Southern Sudan,” in TheAfricanState in a Changing Global Context. Breakdowns and Transformations, ed. IstvánTarrósy, LorándSzabó and GöranHyden (Berlin: LIT Verlag, 2011), 106-107.79 DorinaBekoe, Kelly Campbell and Nicholas Howenstein, Resolving the Boundary Dispute in Sudan´s Abyei Region (United States Institute of Peace, 2005).80 “Protocol between the Government of Sudan (GOS) and the Sudan People´s Liberation Movement/Army (SPLM/A) on the Resolution of Abyei Conflict.” (2004).81 Johnson, When Boundaries Become Borders, 37.

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the agreement to set the boundaries on the basis of the 1956 borders.82 However, this referendum has still not taken place because of the controversies surrounding the definition of the electorate.

Conclusions

It is clear that in addition to other factors, such as the prolonged civil war connected with the violation of human rights and the final agreement with the central Sudanese government, the earlier de facto separation of southern and northern Sudan during the colonial period made it possible to create the independent state of South Sudan in 2011. In contemporary Africa, both the existing states and the international organizations, led by the AU, continue to insist on the inviolability of colonial borders and the principle of uti possidetis as they seek to preserve the existing territorial order, prevent conflicts and thwart the disintegration tendencies of particular separatist groups. However, this principle not only limits the potential for independence groups to declare independence but also helps to legitimize the claims of regions where administrative borders had been delimited in the past, e.g. in cases such as Eritrea or Somaliland. Moreover, in those extreme situations where any insistence on territorial integrity might lead to ongoing civil war and the violation of human rights, the international community does not insist on compliance with the principle of uti possidetis and the disintegration of this type of state is considered as being one of the options for achieving peace. The case of South Sudan is an example of this approach, since the prolonged civil war had captured the attention of the international community and the general public. The fact that its territory corresponded with the previously delimited area of the three provinces of the Anglo-Egyptian condominium, which had been administered separately during the colonial era, helped the southern Sudanese political representation to legitimize its claims to self-determination and to gain the support of the international community. In addition, the separate existence of southern Sudan during the condominium era had led to the creation of a distinct identity for the southern Sudanese nation, particularly when compared to the north. These differences were already in evidence during the pre-colonial period, when southern Sudanese ethnic groups were subjected to slave-raids directed from the north. In the colonial period, the whole territory of modern Sudan was united, yet also de facto divided. Southern Sudan was administered according to the “Southern Policy”, developed in order to support the legitimacy and power of the local chiefs who participated in the native administration introduced by the British. Also during this era, the invisible borders between southern and northern Sudanese society were established as a result of the perception by the Northerners that the southern Sudanese were second class citizens.

After the achievement of independence from Great Britain, the differences

82 Vidmar, ‘South Sudan and the International Legal Framework’, 554.

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between those two parts of the new state became even more obvious and resulted in the long-term struggle for independence by southern Sudan. It culminated in the 2005 signing of the Comprehensive Peace Agreement, which set the boundaries of the two potentially separate Sudanese states, basing their decision on the previous colonial administrative borders of the southern Sudanese provinces. This was the moment when the previously established invisible boundaries created as a result of the divisions in Sudanese society became visible in the form of borders on the political map of Sudan. In this respect, as well as in relation to the current border issues and disputes between northern and southern Sudan, the ongoing importance of the colonial period and its delimited borders in current African political affairs is still apparent, even more than fifty years after the end of colonial rule in Sudan.

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When Colonial Borders Still Matter: The Emergence of South Sudan

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