Bashir’s decision, a material breach of the oil agreement
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By Justice Deng Biong
June 15, 2013 - After its ratification by the National legislatures in
both South Sudan and Sudan States, the Cooperation Agreement [CA] (Oil
Agreement included) signed on September, 27th, 2012, technically
became an international agreement, certainly not in the eyes of
fugitive Bashir and his NCP henchmen, but in the eyes of South Sudan
as well as peace loving Sudanese and international community.
The Agreement came as a result of lengthy negotiations of what was
known, first, as post Referendum issues which later became post
Independence issues after the independence of South Sudan on July,
9th, 2011.Chief among those issues were matters related to citizenship
and oil. It is an agreement for cooperation and management of
bilateral relations between the two Sates. According to its Article
5(1) and to ensure its effective implementation, the Parties agreed to
establish and sustain mechanisms including through regular Summit
Meetings of their Heads of State as well as through cooperation at
Ministerial and technical levels.
In anticipation of a dispute that may arise in relation to
interpretation of a provision in the Cooperation Agreement, its
Article 5(2) provided for the agreement of the Parties to establish
viable mechanisms for settling any dispute or difference that might
arise between them and prevent such dispute or difference from
undermining their peaceful relations.
On March, 12, 2013, the Parties signed an Implementation Matrix to be
followed on April, 23rd, with the signature of an Agreement titled:
“Mechanisms for Implementation, Monitoring, Evaluation and Dispute
Resolution Relating to the Cooperation Agreement”. Both documents form
part and parcel of the Cooperation Agreement (See Article 3 of the
Matrix and Article 12 of the Mechanisms).
On June, 8th, this year and in a heated mobilization rally in Khartoum
North, the fugitive President Bashir of Sudan announced a unilateral
termination of the Oil Agreement and indeed the entire Cooperation
Agreement! The reasons, according to him, were that South Sudan
continues in its Khamaj (reckless behavior) by supporting the military
operations of the Sudanese Revolutionary Front (SRF), the main
Sudanese armed opposition against his NCP regime. Today the question
which certainly carries legal significance will be: Under the terms
and provisions of the CA, was Bashir entitled to pass the above stated
decision? If not who should bear the consequences or financial losses
that might emanate from his crazy decision?
When you thoroughly examine the Cooperation Agreement, there is no
exit clause governing the procedure when a Party would wish to exit,
suspend or terminate it. However, the Oil Agreement provided for its
duration as three and half years (Article 22(1)) and a lengthy
procedure for its suspension or termination (Article 6). Also, there
is no clause that the CA will be suspended or terminated due to a
dispute or implementation difficulty related to any of the 8 thematic
agreements contained there-in, nor is there any clause conditioning
the implementation of any of the 8 agreements on the successful
implementation of the other.
In the light of the picture painted above, it is clear that Bashir or
the Government of Sudan (GoS) has committed a material breach of the
CA in general and of the Agreement on Oil and Related Economic
Matters, in particular, for the following reasons:
1) The Government of the Republic of South Sudan (GoRSS) did not fail
to carry out its obligations and undertakings under the Cooperation
Agreement. As stipulated in the Oil Agreement, there are two instances
where GoRSS could default. One is when it fails to pay the processing
and transit fees, transportation tariffs and the Transitional
Financial Arrangements (TFA) transfers. GoRSS so far did not fail to
pay because these amounts will be due in 40 days when GoRSS’ oil is
lifted at the marine terminal on board vessels at Port Sudan from the
dates of respective bills of lading (Art.5.1 and 5.2). Sudan made its
decision a day before GoRSS’ oil could reach Port Sudan! Therefore the
payments are not yet due. The second instance could be when GoRSS
suspend or terminate oil production, which as a matter of common
knowledge, did not so far happen.
2) GoS based its decision on a ground not related to the Oil
Agreement. The allegation that GoRSS militarily supports SRF/SPLM-N
relates to the Agreement on Security Arrangements and should have been
raised and tackled through the already existing JPSM (Joint Political
and Security) Mechanism.
3) If they have a complaint, GoS failed to observe its obligations
under Art.10 of the “Mechanisms …for Dispute Resolution in Relation to
the Cooperation Agreement” signed on April, 23rd, 2013. In particular,
Khartoum should have observed the provision of Art.10.1 which says:
“ The Parties shall, promptly, make every effort to resolve any
difference or dispute that may arise in the course of their bilateral
relations and the implementation of the Cooperation Agreement, in the
first place, through discussion, dialogue and negotiations between
themselves.” And Art.10.8, which says:
“The Parties shall conduct their relations in good faith and shall
strive to reach an amicable, expeditious and fair settlement of any
dispute that may arise between them. In case the two Heads of State
fail to resolve any dispute relating to the implementation of the
Cooperation Agreement, they shall have regard to article 4 of the
Constitutive Act of the African Union, as well as articles 2(3) and 33
of the Charter of the United Nations, which provide for, among others,
recourse to third-party dispute resolution mechanisms.”
4) Above all, GoS’ decision undermined the provisions of Article 2(1)
of the Cooperation Agreement, 2012, in which the GoS and GoRSS
affirmed their commitment to respect the principles of the African
Union Constitutive Act and the United Nations Charter concerning
relations and cooperation between States and shall respect each
other’s Sovereignty and territorial integrity.
Finally, while we should thank the AU HIP (Chaired by former President
Mbeki) for having successfully mediated the Cooperation Agreement and
further assisted the Parties to work out the necessary implementation
matrix and mechanisms including mechanisms for dispute management and
resolution, I personally, think they should stop here and rather
concentrate on the settlement of the outstanding CPA issues of Abyei
and Border. The third-party referred to under Art.10.8 cited above is
most likely the AU Peace and Security Council or the UN Security
Council.
Justice Biong is a member of GoRSS’ Legal Cluster in the ongoing
negotiations with GoS. He can be reached at [email protected]
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