IGAD-Plus Peace Agreement isn’t a Treaty to incorporate Reservations

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.

Conclusion
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: mabor.lawyer@gmail.com

4 Comments

  1. Ghol Chot says:

    Brother Mabor Maker Dhelbeny,

    We are back; you have clearly detailed the ‘rubbishes’, the low-lives that are slyly sponsoring and his Riek Machar’s Nuers sociopath’s and his corporate America; wants to experiment in country, South Sudan.

  2. Mabor Maker Dhelbeny,
    After 20 months of soul searching means to stamp off war and bring peace in south Sudan, the leaders of our country failed to bring any reasonable solution on the table. The government in Juba had no interest in signing any peace deal at all, they have been always looking for loop holes to frustrate the peace talk while innocent people are dying. Seven agreements has been stalked and violated, and when IGAD finally came up with this Comprise Peace Agreement the president expressed doubt about it. He refused to sign it in Addis Ababa that he needed 15 days to consult, consult what? Mr. Mabor, the truth needs to be told. As you said, the president signed this peace deal because of the “mounting pressure from Kawaja.” It is only when he realized that American, Trokia, and European countries are serious with sanctions this time Salva Kiir gave in. And now he said he signed it with reservation. That is none sense, signing with reservation means with doubt, doubt about what? After 20 months and two weeks on consultation, you still have doubt for peace in your country? My friend, let God help south Sudan.
    Secondly, the issue of militarization of the capital Juba is nonsense. Mr. Mabor, we have already over 10 thousand Uganda troops in south Sudan who are jealously guiding our airport, president palace, various roads, and important infrastructures in the country. Leave alone their heavy military vehicles, tanks, and helicopter gunships that has been rambling in our states. They have committed colossal damage to our country and they have murder thousand of civilian in Jongolei and Upper Nile states. Are we not demilitarized already? As you said, ” a common man on the street of Juba, does not know the word “reservation.” That may be true, and the common man in the street of Juba may also not know that we have already been “demilitarized by Uganda troops.” Since this troops support Salva Kiir, you ignore their presence but our our people has been manipulated and brain washed to demonstrate against the international peace keeping force that are supposed to come and see the implementation of the Compromise Peace Agreement. You call it “a sell-out agreement” but you don’t know that the government in Juba was incapable to bring any peace. Besides, you don’t even know that our country has already been sold to the neighboring Uganda and China. The USA made us achieved our independent and also the USA that will help us implemented this agreement. As as a lawyer you should know this reality, tell the truth, and be objective. Otherwise, our country is in grave danger and it will suffer in the hands of people like you who are supposed to uphold the truth.

  3. Joana Adams says:

    Mabor,

    Your article is a well argued legal analysis of Kiir’s addendum of reservations to the Compromise Peace Deal between the warring parties. However, I am disappointed that you sought to have a sectional/tribal interpretation of the Agreement. You said you assured those who phone you that ” he did not sign it without your interests nor the interests of the nation”. …you went on to explain that the reservations expressed by Kiir included “. demilitarisation of Jubà, power-sharing formula, especially in the greater Upper Nile region”…. Then you went on quoting politically loaded labelling of the Agreement, as a “sell -out…….or empowering foreigners to intervene in national affairs of our country”.
    There is so much one can say in response to your article but ofcourse you are entitled to your opinions.
    I will therefore restrict my self to three points:

    1. Partial interest of a section of the population does not amount to national interests. Did you phone around to people of Central Equatoria State to seek their opinion about the demilitarisation of Jubà and found that they greed with you and the people who phoned you? Did you similarly phone all the constituents in Upper Nile states and found that they are unhappy with the power-sharing scheme there or that the majority actually wanted to have 60% contro or more?
    2. How sovereign is South Sudan under Kiir? There is a lot of misinformation that the country will be ruled by foreigners thereby infringing on our sovereignty. Whereas sovereignty was an ideal we struggled for for neatly half a century and finally voted for in an internationally supervised referrundum in 2011, the incumbent called in foreign troops to protect him and help contain the rebellion he created by ethnically cleansing Nuers in Dec 2013. To date UPDF is fighting alongside SPLA soldiers in South Sudan. There are disturbing information of Rwandan, Burundian, Congolese mercenaries fighting alongside SPLA. Sudanese SPLA-North, and other terror groups have long fought alongside SPLA. Are these not foreigners interfering in our national affairs?

    True, the Compromise Agreement gives foreigners a hand to support implementation of the Agreement during the transitional period. These same foreigners had 12 thousand UNIMiSS forces in South Sudan during implementation of the CPA. It was the same foreigners who contributed billions for reconstruction of South Sudan from 2005- 2011 and provided capacity building for us. It was the same foreigners who supported our liberation struggle and helped to negotiate the CPA and it was the same foreigners who GoSS always ran to when Khartoum was not imp,evening the CPA in good faith.

    The Agenda of the Troika and others of goodwill, to see South Sudan as an independent, prosperous, democratic country – a modern country that observes human rights, equal opportunities and treats all its citizens fairly, has not changed. What has transpired is the inability of the incumbent to rule his country fairly to the benefit of all but instead sought to reign in tyranny, genocide, and occupation of people’s land for grazing of cattle. It is a duty of the International community to ensure that one of its members rules its citizens according to international norms and standards, and hold those who willingly deviate to account.

    There is no need to indulge in Makuei’s anti – West rhetoric s. It’s the Arab North that had been our enemies and not the West. People like Mugabe have the right to hate Westerners because they experienced their direct colonisation. We did not. So we cannot jump on their anti- West bandwagon for the sake of it.

    3. The Compromise Agreement is a negotiated political settlement which has been negotiated by the warring parties but mediated by IGAD. Troika is a vey late and recent addition. When the president claims this is an imposed Agreement, you should have helped your people to ask what has he and his government delegation to the talks headed by Nial Deng and hateful Makuei been doing in Addis since Jan 2014? Have they been roaming around, living in luxurious hotels and been paid exceesive per diems by money from the tax payers of these kawaja. That is what they should be held to account.

    There are many stakeholders whose interests have been ignored in this deal. We all know that ideally Kiir should never lead the transitional government of national unity because he abused the goodwill of the nation, attempted genocide and quite simply is unfit to lead a diverse nation. But he and his hated henchmen will lord over us for another 3 years!

    What Kiir and all those who have “seriuos reservations” are beginning to realise is that if the Agreement is fully implemented, Kiir will no longer be able to misrule the country like a “spoilt” monarch that he has been emulating. The powers he has been abusing left and right since 2005/6, he will not be able to do so. He will not be able to call in foreign troops, or squander our national resources for fattening his (once empty ) bank account or for buying arms instead of investing in developing the nation. He will not be able to use terror to silence his critics and turn Jubà into a killing field or “open prison”. This Agreement will spare us from “dictatorship of the majority” the only legitimacy Kiir has to power. It is my desire that this Agreement creates a levelled playing field for all.

    I am not a lawyer therefore I cannot comment on the legal status of “reservation/s”, but as a lay person I will say this, we do not want nor encourage any grey areas in the Agreement at this critical juncture in the history of our country and people. The incumbent should have either signed or not signed. There is nothing like signing with reservation, which can be construed as negating what has been signed.

    It was fraudulent of Kiir to have lured the regional leaders to Jubà claiming he couldn’t go to Addis for security reasons or threat of coup d’état by Malong simply to manouver an opportunity cheat them by inserting his premeditated list of reservations. By cheating the regional leaders, he attempted to cheat the world and most importantly taking the lot of his citizens for fools. If the world didn’t know Kiir before, now they do. Kiir is a man who has no principles, cheating and lying are imprinted in his DNA. It is a cultural issue. I hope he will implement the Agreement in good faith and proves me wrong.

    Joana

  4. False Millionaire says:

    Mr Mabor,
    If u,”found that the text was a powerful document which captures the profound aspirations of all south sudanese people…”,what’s the need to contradict it than to accept to cooperate in your capacity however small to help it transform into a practical realiity?

Leave a Reply

Your email address will not be published. Required fields are marked *

This site uses Akismet to reduce spam. Learn how your comment data is processed.