By: Daniel Juol Nhomngek, Kampala, Uganda, AUG/23/2016, SSN;
The relationship between states or nations is founded on respect of national sovereignty. Sovereignty according to the Black’s Law Dictionary is the supreme, absolute, and uncontrollable power by which independent state is governed.
In sovereign state, there is supreme political authority like parliament. In that respect, sovereignty is represented by paramount control through the Constitution and frame of government and its administration.
In addition, in sovereign State, there is the sufficient source of political power, from which all specific powers are derived. In this regard, sovereignty is the core of the international law on the independence of a state, combined with the right and power of regulating it internal affairs without foreign dictation.
In the case of South Sudan, when it became independent on 9th July, 2011, it immediately acquired the status of effective sovereignty that enabled it to enjoy all the immunities other countries, whether big or small or whether strong or weak enjoy.
I have mentioned the words “effective sovereignty” above to show that South Sudan was recognized by all Members of the United Nations without any exception, and therefore, as a matter of international law, it must enjoy equal rights with other nations including the USA.
Thus, the USA does not have more rights over South Sudan to treat it like one of its State. Instead, the USA must deal with South Sudan in accordance with international law, which sanctions the sovereignty of every nation in the world.
In sovereign nation, there is a political sovereignty, or State, which is sovereign and independent. The recognition of a state by other States to have political sovereignty is a matter of comity.
The Federal Supreme Court of the United States of America defined comity in Hilton v. Guyot, 159 U.S. 113, 163-64 (1895), as follows: “Comity,” in the legal sense, is neither a matter of absolute obligation, on the one hand, nor of mere courtesy and good will, upon the other.
But it is the recognition which one nation allows within its territory to the legislative, executive or judicial acts of another nation, having due regard both to international duty and convenience, and to the rights of its own citizens, or of other persons who are under the protection of its laws.
In other words as explained in Société Nationale Industrielle Aérospatiale v. United States District Court for the Southern District of Iowa, 482 U.S. 522, 544 n.27 (1987), comity refers to the spirit of cooperation in which a domestic tribunal approaches the resolution of cases touching the laws and interests of other sovereign states.
In this regard as provided under the public international law, sovereignty gives the country, its government and people the power to do everything within the country without accountability to external powers.
For instance, the state or her government makes laws, executes and applies them; imposes and collects taxes and levies contributions, makes war or peace, enters into treaties and forms alliances with or of commerce with foreign nations without being forced to do so.
Hence, sovereignty is the supreme power by which citizens are governed through their will as represented by persons or body of persons in the state who are politically empowered though not superior to the citizens.
Under the international law, sovereignty is a heart or core of the existence of all the states, their rights and powers that they enjoy.
The Constitution of the United Nations Organization (the UN Charter, 1945) zealously protects national sovereignty. This is because adulterating the concept of national sovereignty may seriously affect the international peace and relations among the nations.
Hence, the strong protection the concept of sovereignty enjoys under the UN Charter of 1945 is something that cannot be done away with stroke of a pen by one nation unless agreed by all nations and done in transparent manner.
Therefore, Article 2 (1) of the United Nations Organization Charter of 1945 provides that the United Nations Organization and its Members must be governed by the principle of the sovereign equality.
It should be observed that the United Nations Organization has 193 member countries with South Sudan as the newest nation which got her independence in 2011.
Under the UN Charter of 1945, all countries including the strongest countries like the USA and Russia and the newest and weakest country like South Sudan are equal and must be accorded the same treatment.
The above statement is supported by Article 2 (4) of the UN Charter of 1945, which is the basis of the international law governing sovereignty and equality of all the States. Article 2 (4) prohibits all states from using threat or military force against a sister state or any other measures that are inconsistent with the purposes of the United Nations.
The purposes of the United Nations Organization (UNO) are provided under Article 1 of the United Nations Charter, which provides that the purposes of the UNO are:
–firstly, to maintain international peace and security; to take effective collective measures for the prevention and removal of threats to the peace, and for the suppression of acts of aggression or other breaches of the peace, and to bring about by peaceful means, and in conformity with the principles of justice and international law, adjustment or settlement of international disputes or situations which might lead to a breach of the peace;
–Secondly, to develop friendly relations among nations based on respect for the principle of equal rights and self-determination of peoples, and to take other appropriate measures to strengthen universal peace;
–Thirdly, to achieve international co-operation in solving international problems of an economic, social, cultural, or humanitarian character, and in promoting and encouraging respect for human rights and for fundamental freedoms for all without distinction as to race, sex, language, or religion and
–Finally, to be a centre for harmonizing the actions of nations in the attainment of the common ends as stated above.
In implementing the above purposes of the United Nations, the UN is enjoined to have regards to Article 2 (4) of the UN Charter which, refrain all the States from using force or threat of force against the State or use any other measures which are contrary to the international law.
The prohibition of the use or threat of force against State above under article 2(4) includes prohibition against interference with the State internal affairs by other states or invasion or sending external force without the consent of the State in question.
In reference to South Sudan, in which some members of the UN led by the USA have passed a resolution to send 4000 troops without the consent of South Sudan, such a move is contrary to the international law on the use of force as stated above unless justified under article 39 of the UN Charter of 1945.
Article 39 referred to above provides that the Security Council shall determine the existence of any threat to the peace, breach of the peace, or act of aggression and shall make recommendations, or decide what measures to be taken to maintain or restore international peace and security.
Reading Article 39 above with article 2 (4) as already explained above, it implies that before the UN takes the course of military action or resort to military means, the Security Council must try all alternatives to restore peace before resorting to the use of force.
In fact, the use of force under the international law is the last method applied in the rarest cases. As a general rule, the UN in settling dispute must apply pacific (or peaceful) settlement of disputes as provided under article 33 of the UN Charter.
Article 33 (1) of the Charter provides that where there is the continuance of any dispute, which is likely to endanger the maintenance of international peace and security, the parties to that dispute shall, first of all, seek a solution by negotiation, enquiry, mediation, conciliation, arbitration, judicial settlement, resort to regional agencies or arrangements, or other peaceful means of their own choice.
The problem with the UN, the USA and the African Union in the case of South Sudan is that there are a lot of conflicting interests in bringing peace in South Sudan. These bodies are interested in showing that there is a peace in South Sudan than South Sudanese themselves believe it to be.
They have not paid attention to the saying that the absence of war does not necessary mean the presence of peace. In order to bring permanent peace, reconciliation and justice in South Sudan, South Sudanese should be given greater freedom under the supervision of the UN and African Union to negotiate their own means of bringing peace as provided under Article 33 of the UN Charter as already referred to above.
It is only when the Country fails to follow the above means of settle of dispute that is when the other methods as provided under articles 41 and 42 of the Charter may be invoked by the regional body like the African Union and the UN Security Council.
For proper understand, Article 41 of the Charter provides that the Security Council may call upon the Members of the United Nations to apply measures, which include complete or partial interruption of economic relations and of rail, sea, air, postal, telegraphic, radio, and other means of communication, and the severance of diplomatic relations. This Article is the basis of economic sanction.
In addition, Article 42 of the Charter provides that should the Security Council consider that measures provided for in Article 41 would be inadequate or have proved to be inadequate, it may take such action by air, sea, or land forces as may be necessary to maintain or restore international peace and security.
The actions may include demonstrations, blockade, and other operations by air, sea, or land forces of Members of the United Nation. Hence, Article 42 as referred to above is the basis of economic and arms embargo not the basis of external intervention.
The reading of the articles 2 (4), 33, 39, 41 and 42 as already discussed above shows that it is not in the best interest of the UN to invade the country, or South Sudan in this case unless there are serious compelling reasons that justify such invasion.
The argument above is based on a simple logic that all options to bring peaceful dispute of the conflict must first be exhausted.
However in the case of South Sudan, the government and rebels have never been opportunities to explore other means of bringing peace in South Sudan as they have never been given chance since the war broke out in 2013, and thereafter, followed by peace talks, to talk freely.
The government and rebels have been put under intense pressure to bring peace, hence, ending up creating peace which sometime proves very disastrous. This is because the USA is blind to the truth that lasting peace can only be achieved through understanding and trust between the warring parties.
Instead, the USA is posed to ensure that the so-called protection troops are sent to South Sudan that will never be neutral as they will come and join opposition with the aim of changing the government and cause more human sufferings.
The USA and the UN should understand the war is not confined in Juba only and the protection force based in Juba will not achieve anything. Rather, what South Sudan needs currently is a comprehensive plan to bring peace throughout the country. This can only be achieved through leaving things as they are and then engage all parties, that is, the government and oppositions to talk freely in order to bring true peace.
However, despite the other arrangements by the African Union to bring peace to South Sudan as provided under the international law, the USA is ignoring such arrangements contrary to the UN Charter.
Article 52 (1) of the UN Charter provides for the regional arrangements for dealing with matters relating to the maintenance of international peace and security.
The recent arrangement made by the African Union in the agreement of the government of South Sudan was in line with Article 52 (1) above but the UN under the supervision of the USA acted contrary to Article 52, which exposed the USA hidden agenda of seeing regime change in South Sudan not restoring peace in the country.
In fact, if the USA and the UN just wants peace to prevail in South Sudan not something more than that they would have taken advantage of the recent development and engage different opposition groups to rally behind the First Vice President, Mr. Taban, with the aim of creating the unified front to achieve lasting peace in South Sudan.
However, the way the USA and the UN are taking the issue of South Sudan is something that leaves much to be desired. It appears that the USA and the UN are bent to see the regime change whether by crooks or fair means.
Hence, in that regard, it is quite unfortunate that the UN and the USA have not learned from the first mistakes of regime change that they effected in different countries; notably, Iraq and Libya, which are now in more mess than before invasions and even more have become threats to the international peace.
It is now regretful to see the USA and the UN watching helplessly as Libya and Iraq have become sanctuaries of militants who unleash suicides mission as they wish, which further result in untold and uncontrolled human sufferings.
As it is well-known, the invasion of Libya and Iraq was coerced by the USA through the use of its financial muscles without a prior plan of what would come in the aftermath of such invasions, hence, plunging the two countries into messes and uncontrolled sea of human sufferings.
In reality, the protection force the USA is pushing on with regardless of other means is a sugarcoated invasion force as it is being done in disregard of other methods as already explained above and without the consent of South Sudan as provided under the international law.
Thus, the action of sending any force without the consent of South Sudan may constitute aggression under the international law, and South Sudan as a sovereign State, is entitled to reject such troops and instead mobilize other countries to treat such an action as pure invasion.
If South Sudan deems it fit and declares such an action of sending troops to South Sudan to be an invasion act, than it has a right to self-defense under Article 51 of the UN Charter. This Article provides that nothing in the UN Charter shall impair the inherent right of individual or collective self-defense if an armed attack occurs against a Member of the United Nations.
As I know the USA very well, it has already manipulated the law to legalize its illegal action by pushing members of the Security Council to pass the resolution as it has already been done to provide a basis for its illegal action of sending troops to South Sudan.
However, once the action is illegal then it is illegal and nothing can cure illegality under the international law unless the action has its basis in the UN Charter.
For instance, when the USA wanted to invade Iraq in 2003, the USA ensured that her actions against Iraq were legalized through Security Council Resolution but that resolution in which the invasion of Iraq was sanctioned did not cure the illegal action against Iraq by the USA and the UK and the whole enterprise has remained illegal up to date.
In summary, the USA should immediately reconsider its move against South Sudan before it is too late. I know the USA will never look back unless it has achieved what it wants because it lives on Machiavellian principle of end justifies the means.
However the fact is that the indifference of the USA to other countries problems will not take away the moral blameworthiness of the USA under the international law.
The invasion of countries like Libya and Iraq and the planned South Sudan invasion may affect the standing of the USA and even in long run will have an effect on the UN as a body, which may lead to its collapse like what happened to the League of Nations in 1945.
One of the reasons for the collapse of the League of Nations in 1945 was unwarranted invasions of weaker nation by stronger nations. Hence, the USA and the UN must stay warn that they are digging cancerous holes in the UN system that may trigger its collapse in the long run.
NB// the Author is South Sudanese lawyer residing Uganda and can be reached through: +256783579256; or firstname.lastname@example.org;