Reservations: IGAD-Plus Incompetence vs. Long Lasting Peace for South Sudan (Part 2)
By David Mayen Ayarbior, Juba, South Sudan
September 1, 2015 (SSB) — In part one of this article (title slightly refined) on South Sudan’s written reservations over specific elements in the IGAD-Plus agreement, we have seen that states have a sovereign right to make reservations as they sign or ratify international treaties. The subject treaty here is governed by international law because the case was referred to IGAD by the United Nations Security Council; both being entities that are composed of nation-states.
We have also seen how the IGAD-plus secretariat did not include a prohibition on the right of either party to the agreement to annex a reservation. It is immaterial whether or not that omission was an inadvertent mistake or intentionally made in order to give the parties a leeway, but the fact remains that the agreement allowed a space for reservations to be legally made.
It could also be argued that not both parties to this agreement had the same right to annexing a reservation(s) as the SPLM-IO is a non-state actor, hence, legally speaking, not in possession of that exclusive privilege. That notwithstanding, if it had made its reservations in writing the issue areas or concerns raised by those reservations would have been noted.
Since the ultimate objective of the international partnership represented by IGAD-Plus is to comprehend all the elements that might make implementation a rough ride, then carrying such elements along the implementation path appears an imperative choice. This is informed by the legal fact that a reservation in international law does not translate into a total rejection of the pinpointed provisions in an agreement. In effect, it only excludes the legal obligation of the state concerned in terms of its being legally bound to undertake all the provisions stipulated in the agreement without any variation whatsoever.
This point above means that the agreement is signed in its totality, but the singled out provision shall not be like verses from the Bible or Quran, to borrow the President’s analogy; yet they are nevertheless part of the accepted totality of the agreement. The apparent nuances inherent in this legal interpretation of reservations is that, according to the state making them, total acceptance of most provisions is already shown by signing. On the flip side, the other aggrieved parties, SPLM-IO and or FDs, may interpret that as a sign of disingenuous use of state sovereignty on the part of GoSS.
While each party to an international agreement is free to interpret the intentions of the other party that has used its sovereign right to make a reservation, it is not illogical to assume that a reservation is constructive in the sense that it allows space for parties to work out better arrangements. Considering that such reservations are not over human rights obligations, there is no rational ground to assert that other fields and structures of governance such as the one at hand must equally be subjects of their prohibitions.
To all intents and purposes, considering that it will be on the driving seat, rising beyond the legality of its position towards the submitted reservations will be needed on the part of the government of South Sudan. Surely, the same flexibility is expected from SPLM-IO that should internalize its moral duty towards the direct victims of this senseless carnage all over the country in general and the innocent civil populations of Greater Upper Nile in particular. It should not link implementation of the agreement with withdrawal of the reservations, lest we are flung back to square one (the abyss), God forbid!
Not finding a consensus around areas of reservations, especially during a transitional period that is as short as thirty months is something that is future bound. With good will (true goodwill), considering that the people of South Sudan have been removed from the chauvinistic flames of Khartoum only to be unexpectedly thrown onto the nightmarish frying pan of Juba’s elitist politics, a consensus on the subject matter by the SPLM leadership across the party’s multiple divides is urgently required.
Having successfully organized the people of South Sudan in their collectively executed protracted fight for liberation, no citizen of this great country would wish their historic movement a free fall from greatness.
Whether or not the coming thirty months will unfold the birth of three major political parties, which might be good for democracy (as argued by many sensible writers), ALL the citizens of this destined nation expect the three warring factions to immediately take a solemn oath that: ‘even if we die South Sudan shall not die in our hands’. That is the true meaning of this abused word: patriotism.
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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