cc. Embassy of United States of America, Juba
cc. United Nations Mission in South Sudan.
By: Bol Madut Ayii, Juba University, MAR/29/2015, SSN;
The leaked report and proposals made by AUCISS prompted me to react and question its legality under the principle of international law, with this regards, the functions and powers of the AUCISS were not extended to call for the exclusion of the constitutionally elected president in the proposed transitional government of national unity but rather to investigate the atrocities committed during the crisis and the persons responsible.
Under the principle of international law, it is a violation of the state sovereignty and peoples’ rights to meddle into the internal affairs of sovereign state.
The proposal made by African Union Commission of Inquiry on South Sudan (AUCISS) is beyond its mandate and therefore amounts to ultra vires.
My legal argument is based on the followings;
Part A: powers and mandate of AUCISS:
The mandate of the African Union Commission of Inquiry on South Sudan were the following:
–To investigate the human rights violations and other abuses.
–To investigate the causes underlying the violations.
–To make recommendations on the best ways and means to ensure accountability, reconciliation and healings among South Sudanese communities with view to deterring and preventing the occurrence of the violations in the future.
–To make recommendations on how to move the country forward in terms of unity, cooperation and sustainable development.
Having spelt out the mandates of African Union Commission of inquiry above, the leaked report by AUCISS which recommended the exclusion of the constitutionally elected president from the transitional government of national unity is a clear demonstration that the AUCISS acted beyond its mandate and therefore amounts to ultra vires.
What the AUCISS did to South Sudan is the same cause that led Morocco withdraw its membership from African Union and up to date, Morocco is not a member of Africa Union.
Morocco withdrew from African Union due to the following reasons:
1–The AU recognition of Sahrawi Arab Democratic Republic which is a portion of Western Sahara that shows the bias of African Union.
2–The African Union is undoubtedly a corrupt and weak institution and includes countries of even worse human rights record.
Part B: UN trusteeship:
Trusteeship Council, one of the principal organs of the United Nations (UN), designed to supervise the government of trust territories and to lead them to self-government or independence. With the independence of Palau in 1994, the council suspended operations.
The Charter does not specify the actual territories to be placed under UN trusteeship. Article 77 merely states that the system shall apply to three categories:
–(1) territories still under mandate,
–(2) territories “detached from enemy states as a result of the Second World War,” and
–(3) territories voluntarily placed under the system by states responsible for their administration.
South Sudan doesn’t fall within the category of UN trusteeship, Article 76(b) of the UN Charter provides; to promote the political, economic, social, and educational advancement of the inhabitants of the trust territories, and their progressive development towards self-government or independence as may be appropriate to the particular circumstances of each territory and its peoples and the freely expressed wishes of the peoples concerned, and as may be provided by the terms of each trusteeship agreement; as the definition signifies, South Sudan is an independent state and has its elected government, South Sudan is not under the mandate of any colony and therefore it doesn’t fall in trust territory.
South Sudan did not declare its inability to administer and run its administration and therefore, there was no voluntary placement of UN trusteeship, lastly South Sudan gained independence as the outcome of the internationally recognized referendum and thus it was not just a detach from an enemy state.
With the above detailed conditions of placing a country under the UN trusteeship, there are no legal grounds that qualify south Sudan to be placed under the trusteeship.
Again, the Charter is equally nonspecific on designating the administrators of trust territories. It states simply that the individual trusteeship agreements shall designate the authority in each case, which may be “one or more states or the Organization itself.”
Therefore, it will give UN and its influential members such as United States of America a chance to nominate a person of their choice which might not be in the interest of the said trust country as well as international law norms.
During the World War 1, there were 11 trust territories placed under UN trusteeship, and seven countries were designated as administering authorities. These figures exclude the former German colony of South West Africa, which after World War I had been mandated to the Union of South Africa, because South Africa refused to place the territory under UN trusteeship.
Among those placed under the UN trusteeship and their administers are:-
–In East Africa: Ruanda-Urundi administered by Belgium, Somaliland by Italy, and Tanganyika by the UK;
–In West Africa: Cameroons administered by the UK, Came-roons by France, Togoland by the UK, and Togoland by France;
–In the Pacific: Nauru, administered by Australia and on behalf of New Zealand and the UK, New Guinea by Australia, Western Samoa by New Zealand, and the Pacific islands of the Marianas, Marshalls, and Carolines by the US.
–In September 1975, when New Guinea acceded to independence, the Trust Territory of the Pacific Islands became the only Territory on the agenda of the Trusteeship Council.
All these countries were placed under UN trusteeship because they were not independent and the objects of Article 83 of the UN charter apply to their territories.
Article 83 in its entirety doesn’t apply to south Sudan and therefore any unilateral attempt by AU and its counterpart to place south Sudan under UN trusteeship is of no legal base under the principle of customary international law.
Part C: Sanctions framework and United States of America resolution
The draft resolution of United States of America was unanimously adopted by UN Security Council without deliberations and was swiftly voted for, this makes the writers to ask the distinction between UN and US?
The interest of U.S as a member of UN is not the interest of the whole world, no doubt that U.S is the world super power but that does not imply impunity.
We are pessimistic that peace and reconciliation cannot be achieved by imposition of sanctions, moreover sanctions will hinder the search for peace and increase the suffering of the people of south Sudan, under international law, we are not aware of the country that attained peace by sanctions imposition and that sanctions are not the practical solution to south Sudan problem.
Relatedly, US as a member of UN is at a right track to raise a motion before the UNSC expressing its position and opinion about South Sudan but its opinion is not absolute rather than subject to debate on its merits.
As I have stated above that there is no difference between US and UN, the facts of violation of South Sudan Sovereignty by AU, US and UNSC is of no doubt to what US did to Nicaragua where US supported the rebellion in Nicaragua by passing the budget in the Congress to back the rebellion.
In this case, Nicaragua brought a suit in the International Court of Justice ICJ and the court found US guilty, so in relation to this there is clear evidence that US and UN are supporting the rebellion in South Sudan directly and indirectly. Example is the arrest of weapons in Lakes state Rumbek in 2014.
To find the full text of the above cited case see Nicaragua v. United States of America (1984).
Travel Ban, Paragraph 9. Of the sanctions draft resolution states; decides that. For an initial period of one year from the date of adoption.
Of this resolution, all Member States shall take the necessary measures to prevent the entry into or transit through their territories of any individuals who may be designated by the Committee, provided that nothing in this paragraph shall oblige a State to refuse its own nationals entry into its territory.
My question is, how will travel ban bring inclusive and sustainable peace in South Sudan? Of course the answer will be definitely NO because the denial of entry and transit of some individuals cannot be durable solution to South Sudan problem.
In conclusion I do hereby recommend the following:
1. AU must refrain from South Sudan internal affairs otherwise we will have no option than what Morocco did.
2. US must revive its resolutions and make sure that there is different between it (US) and UN.
3. UNSC must not sit idly waiting for US proposals to endorse without studying its effectiveness.
4. Removal of elected president through illegal means due to foreign interest will deteriorate the situation in South Sudan.
Drawn and Filed by Law Student from University of Juba and he can be reached through the following address: Bol Madut Ayii, firstname.lastname@example.org or 0956252721