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ISApaperSarahNouwenSudan8

ISApaperSarahNouwenSudan8

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19
 Hague Yearbook for International Law
(2007), 113-134
Sudan's Divided (and divisive?) Peace Agreements
Sarah M.H. Nouwen
1. Introduction
In the space of less than two years, three major peace agreements were concluded in theSudan. The Comprehensive Peace Agreement (CPA) halted the North-South conflict, whilethe Darfur Peace Agreement (DPA) and Eastern Sudan Peace Agreement (ESPA)
 
weresupposed to do the same for Darfur (West-Sudan) and the East.The peace agreements concern three different regions of Africa’s largest country. The regionsare in several respects worlds apart and require different responses. So as one expects, thereare differences among the agreements. The differences on overlapping issues raise difficultquestions of compatibility and hierarchy.More remarkable, however, are the similarities among the three agreements. The agreementshave a comparable structure. They all have a declaration of principles; chapters on political,economic and security matters; in the cases of Darfur and the East, on consultativemechanisms; and all have implementation modalities. Both the CPA and the DPA have ahuman rights catalogue. Some provisions, particularly of the DPA and ESPA, are identical.Rather than addressing local root causes of the conflict, the three agreements are mainlyconcerned with one cause of conflict that characterises entire Sudan: the centre’smarginalisation of the periphery. The assumption seems to be that if the agreement addressesthe problematic relationship between the centre and the region it will also help solving thelocal causes of conflict.If the main issue is the relationship between the centre and the periphery, the question ariseswhether this piecemeal approach to peace, regional peace agreement after regional peaceagreement (CPA, DPA, ESPA, ….), is the right way forward. Root causes that vary among theregions require region specific agreements. However, if the main focus of the peaceagreements is the centre’s marginalisation of the periphery, a region by region approach runsthe risk of perpetuating instead of reversing the phenomenon. Legal inequality among regionsis continued, now between those with and those without their own peace agreement. Theconcern inspiring this article is that a predominantly piecemeal and regional approach to peace could in the long run actually provide an incentive for more armed conflict.On the basis of a description of some of the similarities (section 3) and the differences(section 4) among the agreements, the article sets out the concern about the piecemeal
 
Sarah Nouwen (PhD candidate International Law Cambridge (UK), MPhil International Relations Cambridge(UK), LLM Utrecht University School of Law (the Netherlands)) worked in Sudan as a consultant to the Netherlands Embassy from August 2005 to September 2006. This paper has been written
à titre personnel 
anddoes not necessarily reflect the opinion of any of the institutions to which the author was or is affiliated. She isgrateful to the diplomats, experts and activists who commented on earlier drafts. Mention of their names mayimpede their work, but they know who they are. This article, written in an academic ivory tower, pales with their inspiring indefatigable work for peace and justice, in the complexities of the real world.
1
 
approach to peace (section 5) and two important qualifications (section 6). First it provides ashort background of the three conflicts and the peace agreements (section 2).
2. CPA, DPA and ESPA in context
The
Comprehensive Peace Agreement 
(CPA) was signed on 9 January 2005 by theGovernment of Sudan (mainly composed of the National Congress Party (NCP)) and theSudan People’s Liberation Movement/Army (SPLM/A).
1
After over a decade of negotiationsfacilitated by the Inter-Governmental Authority on Development (IGAD), an East Africanregional organisation, the CPA concluded Africa’s longest civil war. The conflict over self-determination of the South, the role of religion in the state, sharing of political power andresources had taken over two million lives and had uprooted over four million people.As its title suggests, the CPA is comprehensive in that it is an agreement that spans a range of issues. It is an example of modern peace agreements that do not only attempt to resolve issuesdirectly related to the conflict, but also contain elements aimed at reshaping fundamentalaspects of the state and society. The CPA attempts to resolve issues directly related to theconflict. It grants substantial competencies to the South, such as participation in the nationalgovernment, establishes an autonomous Government of Southern Sudan and provides for thesharing of revenues from Southern oil and a referendum on external self-determination by2011. However, the CPA is also, in line with the vision of the late SPLM Chairman Dr JohnGarang, a roadmap for a
new Sudan
. The philosophy is that the Southerners will not opt for secession if the parties make “unity attractive” through fundamental changes in the style of Sudanese governance.
2
It contains a catalogue of human rights, provides for a Government of  National Unity, a new constitution, substantial decentralisation and democratic elections before 2009. In all these aspects, the CPA is more than a cessation of hostilities between the National Government and the South; it changes the essence of how those occupying the palace in Khartoum have governed the country since its independence in 1956.At least, it would if the CPA was implemented, which happens in fits and starts. Whereasmost of the important
institutions
(Government of National Unity, Government of SouthernSudan, National Assembly, Southern Sudan Assembly, state governments and assemblies andseveral independent commissions) have been established, the major 
 processes
are still to take place (census, elections, referendums).
3
 The most important criticism of the CPA has been that it is “incomprehensive” in that it is a bilateral agreement between the most powerful parties of the North (NCP) and the South(SPLM). In the CPA, the two parties determined how Sudan’s political and economic cakewas to be divided. Exemplary is their agreement on the power sharing percentages for theexecutive and legislative at the national, southern and state level. At the national level, for instance, they allocated themselves 80% of the seats in the National Assembly and NationalExecutive (52% for the NCP and 28% for the SPLM), only leaving 20% for the opposition
1
The Comprehensive Peace Agreement, signed on 9 January 2005, available athttp://www.unmis.org/english/documents/cpa-en.pdf (last accessed 4 April 2007).
2
Idem, tenth preambular paragraph (‘The parties further acknowledge that the successful implementation of theCPA shall provide a model for good governance in the Sudan that will help create a solid basis to preserve peaceand make unity attractive and therefore undertake to fully adhere to the letter and spirit of the CPA so as toguarantee lasting peace, security for all, justice and equality in the Sudan’).
3
See for the implementation of the CPA, the
CPA Monitor 
, written by the United Nations Mission in the Sudan,available at http://www.unmis.org/english/cpaMonitor.htm (last accessed 4 April 2007).
2
 
 parties (14% for the Northern, 6% for the Southern).
4
 Opposition parties have claimed thathad there been democratic elections beforehand, the results would have shown that they wereentitled to higher percentages. Nevertheless, most parties swallowed the power sharingformula, calculating that the CPA at least provides for democratic elections by 2009.
5
Also for them this is gain: the last democratic parliamentary elections were in 1986.Initially a two-party deal, the CPA nevertheless became the “common property” of allSudanese through its transformation into the new Interim National Constitution (INC).
6
Theimportance of this “constitutionalisation” is often neglected. As an agreement between two parties, they could agree to modify it whenever and how they wanted, for instance, bychanging the power sharing percentages. The INC, however, can only be amended inaccordance with constitutionally prescribed procedures.
7
Violations of the CPA are no longer limited to violations of the rights of the two parties but of the constitution of all Sudanese.The
 Darfur Peace Agreement 
(DPA) was signed in May 2006 and was supposed to end theviolence that had killed several hundred thousand and displaced millions.
8
 The violence haderupted in 2003 when the Government forcefully responded to an insurgency launched by tworebel groups fighting against political and economic marginalisation of Darfur. Exploitinglocal tensions over land and water between the sedentary and nomadic tribes, the Governmentrecruited the so called
 Janjaweed 
to suppress the rebellion.As we know, the DPA has not brought peace. The violence has persisted and in some respectsincreased.
9
A fundamental reason is a lack of ownership of the parties to the conflict. The
CPA
had been negotiated by the Government and the SPLM over a many years, line by line. IGADhad facilitated the negotiations, external advisors had been available as resource persons andin the end external lawyers had assisted in couching the text in legal language. Over time themediator and the parties limited the role of international observers (among which UK, US,
4
CPA Chapter II sections 2.2.5 (National Assembly) and 2.5.5 (National Executive), incorporated in Interim National Constitution, signed into law on 9 July 2005, available athttp://www.mpil.de/shared/data/pdf/inc_official_electronic_version.pdf (last accessed 4 April 2007) sections 80(Government of National Unity) and 117 (National Assembly).
5
CPA Chapter I section 1.8.3 provides that “General Elections at all levels of government shall be completed bythe end of the third year of the Interim Period.” The end of the third year of the interim period is July 2008.However, section 9c and d of the implementation modalities of the power sharing agreement determine that theGeneral Elections shall be held “not later than the end of the fourth year of the Interim Period.” That date is alsoincorporated into section 216 Interim National Constitution,
 supra
note 2. The elections are thus to take place before July 2009. The Umma party and Popular National Congress have not taken up their seats in theGovernment of National Unity and in the National Assembly, expecting to be more successful in the elections byremaining in the opposition beforehand.
6
See
 supra
note 2.
7
INC section 224: “(1) This Constitution shall not be amended unless the amendments are approved by three-quarters of all the members of each Chamber of the National Legislature sitting separately and only after introduction of the draft amendment at least two months prior to deliberations. (2) Any amendment affecting the provisions of the Comprehensive Peace Agreement shall be introduced only with the approval of both Partiessignatory to the Comprehensive Peace Agreement.” The latter provision shows that the parties to the CPA have aveto power as regards the INC provisions that stem from the CPA and in that sense have a stronger claim of ownership.
8
Darfur Peace Agreement, signed on 5 May 2006, available athttp://www.unmis.org/english/2006Docs/DPA_ABUJA-5-05-06-withSignatures.pdf (last accessed 4 April 2007).
9
In a situation of spreading lawlessness, the attacks against humanitarian agencies have increased, threateningthe life line of millions of people depending on humanitarian aid. See “Darfur: New Violence ThreatensHumanitarian Response in Darfur”,
Oxfam Press Release
, 15 December 2006, available athttp://www.oxfam.org/en/news/pressreleases2006/pr061215_darfur (last accessed 4 April 2007).
3

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