TEXT: The position of the Government of the Sudan on the outstanding issues

ADDIS ABABA, August 2, 2012 — Hereunder, the Government of Sudan (GoS) publishes this paper which reflects its position on the outstanding issues under discussion on the process of the post-secession negotiations:-

Introduction 1

References 3

Principles 5

Security 7

Borders 9

Oil and Related Payments 11

Non Oil Arrears 13

Trade 14

Status of Nationals and related issues 15

Abyei 16

Annexes 17

The position of the Government of the Sudan on the outstanding issues under discussion

Introduction

This paper reflects the position of the Government of the Sudan (GoS) on the outstanding issues under discussion on the process of the post-secession negotiations.

The position is based on the commitment of the parties to peaceful settlement of all the issues that are a requirement for the implementation of the CPA. In pursuance of this objective, the Republic of the Sudan facilitated the Referendum and was the first country to recognize the newly born state of South Sudan.

In this spirit the Republic of the Sudan engaged with the Government of Southern Sudan (GoSS) before secession since the year 2010, subsequently the Government of the Republic of South Sudan (GoRSS) after the secession of South Sudan in 2011, to resolve the pending issues from the CPA (particularly Abyei, borders disputes and security in the two states of Southern Kordofan and Blue Nile).

The engagement has been enhanced by the AUHIP Conceptual Framework calling for a peaceful relation between North and South Sudan built on cooperation and integration in a context of soft borders in case of secession. The engagement was carried further enhanced by the Mekelli Memorandum of Understanding (MMOU) agreed in June 2010, facilitated by the AUHIP.

The issues of post secession were defined in the Referendum Act of 2009 (Art 67 -3) namely:

• a. Nationality ;
• b. Currency ;
• c. Public service ;
• d. Position of Joint Integrated Units ,National Security and Intelligence;
• e. International Agreements and Conventions;
• f. Assets and Debts;
• g. Oil fields, production, transport and export of oil;
• h. Contracts and Environment in the oil fields;
• i. Water;
• j. Property;
• k. Any other issues to be agreed upon by the two parties.

This position of GoS, besides the Referendum Act and the Mekelle Memorandum of Understanding is based on the following references:

• o The Comprehensive Peace Agreement (CPA)-2005.
• o The Guiding Principles for the Post Secession Negotiations- July 2010.
• o The Guiding Principles of the Mutual Viability of the Two States (the economic sector).
• o The GoS Document of the Recognition of South Sudan.
• o The AU-PSC communiqué of 24.4.2012. (The Roadmap)
• o UNSC Resolution 2046 of 2nd May 2012.
• o The Agreement on border Security and Joint Security Mechanism of 29 June 2011.
• o The Agreement on Border Monitoring Support Missions 30th of July 2011.
• o The Memorandum of Understanding on non-aggression and cooperation 10th February 2012.
• o The final report of the Technical Committee for the Demarcation of the Border signed 28th January 2010.
• o The agreement on the demarcation of the boundary 13th March 2012.
• o The establishment of the Ad-hoc Committee on 23 June 2012.
• o The Ceasefire Joint Monitoring Military Committee (CJMC) led by the UN Force Commander of the UN Mission in Sudan (2005-2011-UNMIS) Report No 142 dated 10th May 2011.
• o The agreement on the definition of cessation of hostilities signed 27th June 2012
• o The framework agreement on the status of nationals of the other state and related matters of 13th March 2012.
• o The Abyei Protocol and Modalities of 2005
• o Agreement on the Temporary Arrangement for the Administration and Security of the Abyei Area of 20th June 2011.
• o The award on Abyei PCA 2009.
• o The understanding on Sudan’s Assets and Sudan’s Foreign Debts on the Zero-option principle

PRINCIPLES:

1. The parties shall affirm that the talks be inspired and informed by a strong belief in a prosperous future of all Sudanese and South Sudanese people , rather than burdened by a difficult past.

2. The parties shall reconfirm their agreement to denounce war as a means to resolving conflict and eliminate reasons for future confrontation.

3. The parties shall aim to achieve a win- win situation in reaching an agreement on the economic issues. Both parties shall maintain an environment that will be mutually beneficial for the economies of the Sudan and South Sudan (the concept of Mutual Viability).

4. The GoS Recognition of the Republic of South Sudan as an independent and sovereign state in accordance with the existing boundaries between North and South Sudan as of January 1st 1956, and as they were when the Comprehensive Peace Agreement (CPA) signed in January 9th 2005, and in accordance with the norms and principles of the international law as relates to recognition of state (Recognition statement by GoS of RSS – July 2011).

5. The parties shall remain committed to complete, expeditiously, the demarcation of the international boundary between the two states (13th of March 2012 Agreement on Demarcation).

6. The parties shall remain committed to the Abyei Protocol and Modalities which affirm the parties ownership of the process of Abyei Referendum in the context of the ownership of the parties of the CPA.

7. The parties to re-affirm their full commitment to the agreements signed by them, and their full commitment and compliance with the AUHIP Roadmap and UNSC Resolution 2046.

SECURITY

1. As a critical issue for peaceful neighbourhood between the two countries and a prerequisite for a conducive environment for agreements on other outstanding issues, security was given utmost consideration and attention in the AUPSC Roadmap and UNSC Resolution 2046 and in the negotiation sessions that followed the adoption of the UNSC Resolution.

2. The GoS reconfirms its compliance with the AU Roadmap and the UNSC Resolution 2046, particularly its commitment with respect to ceasing hostilities, cessation of harbouring and supporting political and armed rebel movements against the other state and the non-aggression and non-interference in internal affairs, sovereignty and territorial integrity of the other state.

3. The GoS is fully committed to the agreements signed by the parties as referred to and embodied in the AU Roadmap and the UNSC Resolution 2046 as the sole reference for all security issues. The GoS is committed to the full implementation of security arrangements based on endorsement and use of the existing borders at the independence (1st January 1956) that have been in use since signing of the CPA in 2005 for implementation of all relevant provisions of the CPA including redeployment of forces of the two parties and power and wealth sharing. These borders have also been used by the UN mission (UNMIS) for monitoring the Cease Fire Agreement of the CPA in the interim period 2005-2011, UNAMID of Darfur and the UN Mission (UNMISS) mandated in the Republic of South Sudan after secession to carry out their mandates and activities. It has also been used for the conduct of the national and state elections in 2010 and the referendum in 2011. In addition to that, it has been the basis for recognition of South Sudan by GoS as referred to in the Recognition Statement of 8th July 2011. The 3 maps of the UN Missions are annexed. The position of GoS in accordance with that is to use the existing borders as a centreline for the Safe Demilitarized Border Zone (SDBZ) between the two states, pending the final settlement of the 5 disputed areas between the two states. In this regard, the GoS has expressed timely its non-acceptance (17 November 2011) of the map submitted by the AUHIP to the parties on 15th November 2011 to be used for the determination of the centreline for the SDBZ. The November 2011 Map wrongly placed the centreline to be used for the SDBZ north of the area known as 14 Miles South of Bahr Al-Arab instead of placing it south of 14 Miles South of Bahr Al-Arab. The existing borders (1st January 1956) has been used for similar temporary security mandates as has been mentioned above.

BORDERS:-

1. The accomplished work of the Joint Technical Committee for the demarcation of the border of 1st January 1956 which has been approved in the then Presidency shall be the basis for the negotiations on the borders which has been confirmed in the agreement of the parties on boundary demarcation (13th March 2012). It was stated in the report of the Committee that there are only five disputed areas (4 +1 raised by the parties Joint Political Committee and approved by the then Presidency). That work was based on the administrative borders between the northern and southern provinces at the time of independence (1st January 1956). The Document of the recognition of South Sudan by Sudan in 8/7/2011, affirmed that position regarding the international boundary (annexed).

2. The GoS is committed to negotiate in good faith to resolve the final status of the five disputed areas based on the respect of borders existing on the achievement of national independence in 1/1/1956 and as enshrined in Article 4 (B) of the Constitutive Act of the African Union, and in accordance with the Comprehensive Peace Agreement, and the strict adherence to the principle of the inviolability of the 1/1/1956 boundary between north and south Sudan stated in the CPA and the Sudan’s Interim National Constitution based on the CPA.

3. The two parties accept the assistance of the experts of the AU Border Programme in order to facilitate the achievement of an agreement on the final status of the five disputed areas. The expert’s opinions are not binding on the parties and are meant to assist the parties in the negotiations, and that such opinions are not to be used as evidence in any future litigation. Should the parties fail to reach an agreement, each party shall present its proposals for the way forward and then to agree on one option in line with Article 33 (1) of the Charter of the United Nations.

4. The GoS is committed to start the demarcation of the agreed areas, immediately, in accordance with the 13th of March 2012 agreement on boundary demarcation which entails the formation of the technical committees that shall immediately start their functions.

OIL AND RELATED PAYMENTS

1. Any agreement on oil shall be subject to the implementation of a full and final agreement on security matters without which insecurity at the common border will hinder social and economic movement and flow of citizens, goods and services.

2. The agreement shall conjoin the principles of mutual viability of the two states.

3. The agreement on oil shall be based on the territorial principle that each owns petroleum resources within its territory

4. The agreement shall last for 3 ½ years;

5. South Sudan will enjoy access to the transportation system facilities (including the Marine Terminal)

6. South Sudan shall pay a transit fee

7. South Sudan shall pay central processing charge

8. The parties shall engage in a joint outreach strategy to forgive Sudan’s foreign debts as it is agreed between the parties in the Joint Foreign Debts Subcommittee mutual debt relief effort

9. South Sudan shall exert efforts to lift US unilateral sanctions imposed on Sudan

10. Sudan shall relieve South Sudan of transit fee and service charges for the period from 9 July until the shutdown of the oilfields by GoRSS.

11. South Sudan shall not bring any claims against Sudan with regards to oil diverted to refineries, sold or kept in reserves in Sudan as settlement of unpaid transit fee and services charges after secession.

12. All oil arrears and claims pertaining to the pre-secession wealth sharing mechanisms between the two sides are to be mutually written off.

13. Abstention from bringing claims shall not include individuals and legal personas.

14. The GoRSS shall pay USD 3.028 billion to GoS as a transitional financial arrangement (TFA).

15. The TFA amount shall be paid in a direct banking modality of monthly payment for 42 months (3 ½ years).

16. The two parties shall agree on sovereign transit fees, and service charges (CPF and transport facilities including the pipeline and the marine terminal).

17. The two parties while agreeing on the TFA amount and modality, negotiated the rates for sovereignty transit fee and service charges for the processing and transportation and the total rates ranged between 22.2 (proposed by GoS) and 7.61 (proposed by GoRSS).

18. The parties shall agree to establish procedures movement of personnel in the fields of the oil industry and ease safe cross border operations.

19. The parties, if they wish, can agree on settlement of dues in kind of, sales of crude oil and refined products based on international prices.

20. The parties with the AUHIP and the AU shall engage in joint efforts for a credit outreach plan to secure 3.5 billion dollars in TFA for Sudan which equals 1/3 of the Sudan’s financial gap which is estimated to be 10.5 billion dollars as a weighted average of the IMF estimation of the internal gap (USD 8.7 billion) and the external gap (USD 15.9 billion).

21. The international component of the TFA shall be frontloaded.

22. The parties with the AUHIP and the AU shall also seek development funds for South Sudan.

NON OIL ARREARS:

The GoS is committed to negotiate the issue of the non- oil arrears with the GoRSS. The two parties have already submitted their claims, which shall be either mutually written off, or mutually ascertained and then reconciled.

TRADE:

1. The presence of security at the common border and normalization of the situation therein will pave the way for cross-border trade. The parties agreed before that a Joint High Level Inter-developmental Relevant Authorities Committee shall be formed to formulate modalities.
Status of Nationals and related issues:

1. The implementation of the 13th March 2012 friendly agreement on Status of National and Related Issues (annexed) requires confidence building between the two parties and secure common borders which make it possible for soft borders that furnish the ground for social and economic smooth movement and flow.

2. Accordingly, the GoS is committed to implement the said agreement on the Status of Nationals and Related Issues. It is necessary that Sudanese and South Sudanese continue to interact with each other and enjoy the four freedoms, namely freedom of residence, movement, to undertake economic activity and to dispose of property.

3. The Agreement stipulates that a Joint High Level Committee shall be established to oversee the adoption and implementation of joint measures relating to the status and treatment of the nationals of each state in accordance with laws and regulations prevailing therein.

ABYEI:

1. The settlement of the Abyei area issue was based on the Abyei Protocol and Modalities of 2005, which is part and parcel of the CPA. The implementation of the Protocol was hindered by the disagreement of the two parties on the experts’ ultra vires report at the Abyei Border Commission (ABC) determining the Abyei geographical area. The parties then agreed on temporary arrangements for the administration of the area, and to resort to the Permanent Court of Arbitration (PCA) for a final resolution of the dispute. Accordingly the PCA determined the area’s boundaries in this agreement with the boundaries defined by the ABC.

2. The Abyei Protocol stipulates for a Referendum Commission to specify the criterion for residence in the area which in turn determines eligibility for voting in the referendum that decides whether the area will remain in the north or go to the South.

3. The two parties attempted to reach an agreement on the establishment of the Referendum Commission but failed to agree. Then the parties tried to reach a political agreement other than the Referendum which the facilitators were of the view that it is a zero-sum game that does not achieve socially and politically sustainable peace.

4. The parties in the last round of talks in Addis Ababa continued negotiating political options which call for a high degree of determination. If this political negotiation fails to reach a political settlement, the full implementation of the Abyei protocol and modalities shall be accomplished by the parties which own the process and not any third party.

5. It is imperative that the parties fulfil in the mean time the call by the AU Roadmap and the UNSC resolution 2046 for implementation of the pending elements of the Agreement on the Temporary Arrangements for the Administration and Security of Abyie area of 20th June 2011, in particular the election of the area’s Council, the administration and the formation of the Police service.

6. These institutions shall be established in accordance with the letter of the said temporary agreement without any attempts to selectively implement the agreement or altering its stipulations to be on the basis of ethnic understanding, or prematurely define the residence criteria before being defined by the Referendum Commission which is not established yet.

7. The GoS believes that the full non-selective implementation of the Agreement on temporary arrangements will enhance the security and social coexistence in the area which will positively contribute to a conducive atmosphere for the final settlement.

8. The GoS reiterates its appreciation for the efforts of the Ethiopian forces deployed in the area with the support of the AU and the UN (UNISFA).

Ends