Reservations: IGAD-Plus Incompetence vs. Long Lasting Peace for South Sudan (Part 1)
By David Mayen Ayarbior, Juba, South Sudan
August 29, 2015 (SSB) — Soon after presenting reservations on certain aspects of the IGAD-Plus Compromise Peace Agreement, the United Nations gave the government of South Sudan up to 1st September to withdraw them. Few, if any, may have a recollection of any case of international law where the UN decided to force a government to withdraw its reservations over an agreement it has actually signed. Indeed, the current case of South Sudan could be an awkward precedent that may, ironically, most likely be later overridden by the International Court of Justice as a bad precedent and an illegal one.
If the CPA’s hitherto unresolved just cases of Abyei, Blue Nile, and the Nuba Mountains could serve as the most recent involving IGAD-Plus, UN Security Council and South Sudan, then these organizations should learn not to go around reservations as a means of stamping agreements they broker as sealed. Usually, when conflict popped up again, the west has been no way to be seen at best, or hurling condemnations on the aggrieved parties. Ida refugee camps and accusing South Sudan of interfering in “internal affairs” of a sovereign state stand as testaments.
Not helping parties to address the real logjams on the way to sustainable solutions to civil wars has characterized an endemic western approach to conflict resolution across the globe. No matter how good are their intentions, the western world should accept that reservations present an opportunity for more constructive engagement along the way to sustainable peace. They may not be always equal to intransigence.
Having received the good news from Juba, South Sudanese across the artificial divide created by political ambition have greeted precedent Kiir’s signature of the IGAD-Plus CPA with high hopes and appreciation. Even the President’s adversary (former), Dr. Riek Machar, FDS (former) as well as heads of state across the continent, and UN SG have registered their optimism about what this signature is going to entail.
While requesting the two parties to abide by the letter and spirit of the signed agreement, if only for the sake of the future of this great country and dignity of its resilient people, an immediate shift to the issue of reservations became a preoccupation of all concerned. President Obama, who spoke on behalf of the international community, stated that they do not recognize our government’s reservations, without giving the legal reasons why.
In international law, a reservation is an inherent right a state party to an international agreement enjoys as an indispensable element of its sovereignty. The main legal instrument creating that sovereign right, the Vienna Convention on the Law of Treaties (VCLT) 1969- Article 2(1) refers to a reservation as a “unilateral statement” through which a state modifies the legal effect of certain provisions.
The United States of America, a founder and self-proclaimed vanguard of international law and order, made use of that sovereign right to make its reservations in 1986 over certain provisions of the UN Convention on the Prevention and Punishment of the Crime of Genocide. These reservations were essentially assertions of the supremacy of the U.S. Constitution and rejection of ICC’s jurisdiction over U.S. citizens. Way before that, in the 1956 landmark case of Reid v. Covert, the US Supreme Court stated that its rulings are superior to international treaty obligations, something that goes beyond a mere reservation.
Procedurally, when the text of an agreement did not explicitly prohibit reservations, which omission is taken by the state parties concerned as implicit latitude for them to annex what they feel could lead to bottlenecks. Or, if states feel strongly against a provision, they could specify their outright rejection of those singled out elements; yet they proceed to signing the agreement. From the looks of it, the IGAD-Plus imposed text did not include a clause prohibiting the right of both parties to this agreement to issue a reservation.
The Way Forward
There seems to be only four ways out of this unnecessary confusion. The first way out exposes IGAD envoy’s ineptitude, which has been evident from the beginning of their numerous flip-flopping with proposals. It occasions re-opening the agreement and including that prohibitive clause, before presenting it to the two parties for re-signing without reservations. But this solution would be rejected by the entire people of South Sudan from both sides of the conflict who cannot be taken through another round of negotiations; having seen hope on the horizon.
The second way out is to accept the reservations and work with the parties in finding mutually acceptable and amicable solutions. In essence, this could be undertaken while implementations of the other aspects are underway. This alternative might be attractive to the government and suffering people of the country, and to a lesser extent the international community. However, it may be rejected by Dr. Riek whose mistrust of the government led him to call for foreign protection throughout the interim period (which has not been denied anyway). Hopefully, he may be convinced by a promise from international partners that they value their moral obligation to walk with South Sudan until the end of the interim period and elections.
The third way out is for the parties to recognize the sovereignty of South Sudan, which is recognized by international law, and accommodate these reservations. This option may also not be attractive to the SPLM-IO since it signed the agreement rationalizing that it was a take-or-leave one, albeit the verbal pronouncement made by IGAD-Plus partners might not in any way shape or form constitute a binding obligation in international law.
The fourth option is for the government of South Sudan to withdraw its reservations to avoid what seems to be a not so good-faith[ed] attempt by some elements in the international community to impose sanctions on a country that is already on the brink of economic collapse. Considering that these reservations have already been noted and received by IGAD-Plus as part of the agreement, withdrawing them, as a way of bending for the strong and seemingly malicious win to pass, may sound prudent; yet injurious to South Sudan’s national pride.
This last (fourth) option may be seen workable by the IO and IGAD-Plus since it would make the former look triumphant and let the latter off the hook of gross incompetence. But, the attempt to project the government of South Sudan as the villain could go against the deeply rooted principle of law, which holds that one, shall not be punished when they act within their legal rights.
Having argued that the right of sovereign states to have a caveat to their agreeing to sign an internationally sanctioned agreement is a right enjoyed by all members of the world community of nation-states, South Sudan being no exception, “new” as it is; giving short-timed strong ultimatums might not be a legally- indeed morally- right way of addressing this case. It unnecessarily traps the dignity of nations when their motive is just- remember Zimbabwe?
Instead, let the world community help us implement what is implementable in the short-run and work to find solutions to a problem of their creation. There is no reason whatsoever to regard a country’s reservation as a bad-faith sign when that country agreed to sign an entire agreement against its will just to bring peace to its people.
IGAD-Plus partners and the entire international community, represented by the UN will have made a great disservice to the people of South Sudan if they take measures to stall the implementation of this much awaited peace agreement.
Irrespective of the twenty verbal reservations of IO and twelve written ones of GoSS, with both sides having signed the agreement, let the war stop; resettlements and reconstruction of towns and lives begin in earnest; Dr. Riek come home and be the first Vice President of more or equal powers to his comrade and current VP; FDs get back to their positions and more.
Let power percentages not be used as reason for stalling implementation and the people start genuine heartfelt reconciliation, rehabilitation, and forgiveness. It is time the people should be the exclusive target of restoration, not ultimatums and sanctions, which would not be felt by the “targeted” ones anyway.
David Mayen Ayarbior, BA Econ-Poli.Science (KIU-Uganda), MA International Security (JKSIS -University of Denver), LLB (University of London) – mayen.ayarbior@gmail.com.
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