By Mabor Maker Dhelbeny, SEPT/02/2015, SSN;
Perhaps, a common man on the street of Juba, does not know the word “reservation” to this international and regional agreement of IGAD-Plus Peace deal. The term ‘reservation’ means an inherent right a State party to international agreement enjoys as an indispensable element of its sovereignty according to international law.
It shouldn’t be understood as a separate place or an area for a particular people to live in, nor flight ticket for reservation, neither hotel booking reservation.
On Wednesday the 26th of August, 2015 in Juba, the Head of State, witnessed by the regional and United Nations leaders, issued statements before signing, accepting or approving the IGAD-Plus Compromise Peace Agreement.
Such statements, however, may be termed as reservations – meaning “interpretative statements” or “interpretative declarations”, this is in accordance with International Law as well as the Law of Treaty.
Subsequently, on the same day, while sipping my tea at home in the evening hours, I received a lot of phones’ calls from the individuals in different States across the country, reacting to the news that the President of the Republic has signed the “PEACE”.
But I managed to explain to them clearly that His Excellency the President signed the text with “serious reservations” to the IGAD-Plus Compromise Peace Agreement.
He did not sign it without your interests as well as the interests of the nation, nor did he sign it because of mounting pressure from Kawaja but he signed it to end the untold sufferings and the death of innocent people, Full stop!
This list of reservations includes thereto the things which you do not want to be accepted or be implemented by your Government, such as demilitarization of Juba, the ratio of power-sharing and the two oil rich states, Upper Nile as well as Unity.
What is Reservations?
Article 2 (d) of the 1969 Vienna Convention on the Law of Treaties, defines “reservation”, as a unilateral statement, however phrased or named, made by a State, when signing, ratifying, accepting, approving or acceding to a treaty, whereby it purports to exclude or to modify the legal effect of certain provisions in their application to that State.”
The most important aspect in the above definition is the legal effects of acceptances of and objections to these serious reservations raised by the Government.
In essence, Troika and IGAD countries may either accept or object to serious reservations in two folds:
Firstly, if States of Troika and IGAD accept the reservations, the IGAD-Plus Peace Agreement will enter into force between the accepting and reserving states with effective modification and no further legal consequence between other parties to the agreement.
Secondly, if States of Troika and IGAD object to the reservations, just like what the US did after the agreement was signed, then the two possible results will be realized:
(a) Objecting and accepting states will still be a party, but the provisions to which the reservation relates to do not apply between the two states;
(b) Objecting state refuses to be a party and if the objecting state does not only object but also express intention than the entire agreement will be of no legal effect between it and the reserving state.
Thus, the “imposed IGAD-Plus Peace deal”, seems to be a treaty because it was negotiated, drafted and mediated by the US, UK, Norway (Troika), UN, EU and AU in the name of IGAD-Plus, minus the warring parties.
It is a treaty or international and regional agreement in the sense that it is full of contractual character between the Republic of South Sudan and the UN, EU, Troika and IGAD’s countries, creating legal rights and obligations.
It is also a treaty in the sense that its acts as means of settling disputes between the warring parties in South Sudan and finally act as charters of international organizations, e.g. UN, EU, IMF, and etc. Precisely, treaty means an agreement concluded between states in a written form and governed by international law (Art. 2 of the VCLT, 1969).
It therefore, compels this writer to invoke article 19 of the 1969 VCLT, which stipulates that; “a State may, when signing, ratifying, accepting, approving or acceding to a treaty make a reservation, unless:
1. The reservation is prohibited by the treaty;
2. The treaty provides that only specified reservations, which do not include the reservation in question, may be made; or
3. In cases not falling under the above categories, the reservation is incompatible with the object and purpose of the treaty”.
Of course, this IGAD-Plus Peace deal does not necessarily mean a treaty but it reflects some principles that empowered foreigners to intervene in the internal affairs of our country – South Sudan.
These principles, for instance include the Board of Special Reconstruction Funds (BSRF) chaired by a foreigner, CTSAMM or Ceasefire and Transitional Security Arrangements Monitoring Mechanism, chaired by a foreigner, Joint Monitoring and Evaluation Commission (JMEC), chaired by a foreigner to mention but a few. Hitherto, this country will be like South Africa, where you may find white and black people working in the same office.
But the question that poses itself is: Does the IGAD-Plus ‘Imposed’ Peace text provide reservations or is it silent on reservations?
The answer of the above-mentioned question could be ‘NO’, simply because the IGAD-Plus Peace does not provide reservations. Hence, that’s why the US immediately opposed it after H.E. the President signed the deal.
Nevertheless one may argue that if an IGAD-Plus Peace text is silent on reservations and thus a list of reservations is formulated and subsequently circulated to the IGAD and Troika’s Countries including the US then they (foreign countries) would have to take some months in order to object to the reservations beginning from the date on which the Republic of South Sudan expressed its consent to be bound by the IGAD-Plus Peace Agreement.
Indeed, Troika, particularly the US happens to oppose the reservations without proper analyses or rationale whether these reservations could be incompatible with the IGAD-Plus Peace Agreement.
But one thing the US should understand as an international actor is that the implementation of the agreement by the Government would be somewhat difficult if Troika did not reconsider or recognize the list of reservations.
In the legal point of view, Government has upper hand and moral obligations to implement the agreement to the letter in return to the consideration of reservations.
This has been strongly emphasized by the President Gen. Salva Kiir in his speech when he said: “Such reservations if ignored would not be in the interests of just and lasting peace. …the text was not a Bible, not the Koran, why should it not be revisited.”
Critically, if you could analyse these words, they were not just the mere utterances from the Speaker, but they should be treated with caution and care, given the fact that the Government shall be the sole implementer of this imposed agreement.
Had it been the treaty, it would have taken the US 12 months to object to the reservations beginning on the date the depository notification on which the Republic of South Sudan expressed its consent to be bound by the treaty.
Unfortunately this IGAD-Plus Peace deal turned out to be a “sellout agreement” as called for by the Team of Government’s Negotiators. It can also be called “agreement for invasion” since it allows outside powers to interfere in the domestic affairs of our nation.
But again when I read thoroughly this more than 70 pages of IGAD-Plus Peace Agreement on the Resolution of the 20 months Conflict in the Republic of South Sudan, I found that the text was a powerful document which captures the profound aspirations of all South Sudanese people to live in harmony, peace, prosperity, dignity and equality, and with provisions of maximum standards, full of legally-binding framework which if it is going to be implemented then, it will turn the already established weak institutions into strong institutionalization to fight the graft through initiation of reform.
The Writer is an Advocate and Legal Consultant at Deng Awur Wenyin & Co. Advocates in Juba. He can be reached through his Email: firstname.lastname@example.org