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Sanderson
a genuine or effective link with the state in question.16 Second, it ensures that
in practice the individuals who acquire citizenship of a state will actually be
resident in that state.
3
South Sudanese Approach
In contrast with widely accepted international practice, the NASS does not rely
on habitual residence in South Sudan as a test for acquisition of its citizenship.
Instead, this Act relies on connections with the indigenous ethnic communities17 or individuals born18 in South Sudan. The NASS does include a reference
to ‘domicile’ which, as used in the Act, is roughly synonymous with the concept
of habitual residence.19 However, the application of this concept is limited to
those individuals or, for those individuals claiming citizenship through an
operative relative, their parent or grand-parent, ‘domiciled’ in South Sudan
continuously since 1 January 1956.20 This has two key implications. First, a wide
16
17
18
19
20
Rezek explains, ‘(…) the judicial relationship of nationality should not be based on
formality or artifice, but on a real connection between the individual and the state.’
J.F. Rezek, ‘Le Droit International de la Nationalite’ in Collected Courses of the Hague
Academy of International Law (Vol 198, Martinus Nijihoff 1987) 357; see also the views of
UNHCR in the context of the dissolution of Czechoslovakia, ‘(…) it is in the interest of the
successor State (…) to come as close as possible, when defining its initial body of citizens,
to the definition of persons having a genuine link with that State. If a number of persons
are considered to be “foreigners” in “their own country” clearly that is not in the interest
of the State itself.’ UNHCR Regional Bureau for Europe ‘The Czech and Slovak Citizenship
Laws and the Problem of Statelessness’ in Citizenship in the Context of the Dissolution of
Czechoslovakia European Series Vol 2(4) September 1996 (both cited in ILC Draft Articles
(n 7), art. 5 commentary).
‘A person born before or after this Act has entered into force shall be considered a South
Sudanese National by birth if such person meets any of the following requirements: (b)
such person belongs to one of the indigenous ethnic communities of South Sudan.’ South
Sudanese Nationality Act 2011 (n 3), art. 8(1)b.
‘A person born before or after this Act has entered into force shall be considered a South
Sudanese National by birth if such person meets any of the following requirements:
(a) any Parents, grandparents or great-grandparents of such a person, on the male or
female line, were born in South Sudan’ Nationality Act (South Sudan) (n 3), art. 8(1)a.
A person shall be considered a South Sudanese National by birth, if at the time of the coming into force of this Act: (a) he or she has been domiciled in South Sudan since 1.1.1956; or
(b) if any of his or her parents or grandparents have been domiciled in South Sudan since
1.1.1956’ Nationality Act (South Sudan) (n 3), art. 8(2); Sanderson (n 5), 209-212.
1 January 1956 was the date of Sudan’s independence from Britain and Egypt, see PM Holt
and MW Daly A History of the Sudan: From the Coming of Islam to the Present Day (6th edn,
Longman 2011) ch. 11.
tilburg law review 19 (2014) 236-247