Will Bashir halt the flow of oil of South Sudan?

By Luka Biong Deng

July 24, 2013 – The abrupt declaration of Bashir not to ever allow the flow of oil from the South shocked the people of the two countries and international community. However, such decision was almost watered down when the two vice presidents, Dr Riek Machar and Utaz Ali Osman, met in Khartoum as a High Level Committee which is one of the joint mechanisms for the implementation of the Cooperation Agreement. The two vice presidents agreed to resolve any dispute through the mechanisms agreed upon by the parties. In fact the two countries signed on 23rd April 2013 “Mechanisms for Implementation, Monitoring, Evaluation and Dispute Resolution Relating to the Cooperation Agreement”. These mechanisms provide for recourse to third-party dispute resolution mechanisms in case the two countries fail to resolve any dispute relating to the implementation of the Cooperation Agreement.

In the spirit of these dispute resolution mechanisms, the two vice presidents succeeded to bringing optimism, wisdom and reasoning to the implementation of the Cooperation Agreement. The people of the two countries received the outcome of this meeting with enthusiasm with expectations that it will inject new life to their ailing economies and as a result the currencies of the two countries gained strength. However, such optimism was dashed again by Bashir when he notified the South that he will not allow the flow of the oil of the South after 7th August unless there is a clear evidence that the South has ceased supporting the Sudan Revolutionary Front (SRF).

In fact this date of 7th August 2013 was fixed by Sudan without any legal basis as a reference to the expiry of sixty (60) days of its notification to the South about its intention to shut down the processing and transportation of the oil of the South. There are only two cases when Sudan has the right to terminate the Oil Agreement: (1) if the shut down by Sudan of the processing and transportation facilities for the oil of the South continues for more than 60 days because of failure of the South to pay its financial obligations to Sudan; and (2) if South commits a material breach to the Oil Agreement and such breach is not remedied within sixty (60) days. The South did not fail to pay Sudan its financial obligations nor did it commit a material breach of the Oil Agreement.

During his sudden and humiliating visit to Ngeria, Bashir did not go to participate in the African summit on HIV/AID, tuberculosis and malaria but to use the opportunity to misinform the African leaders that he is going to halt the flow of the oil of the South by alleging that the forces of the SRF supported by the South are posing a real threat to Khartoum. The real question is whether Bashir will really halt the flow of the oil of the South by 7th August?

It is clear that Bashir does not have any legal basis to take such decision even if the South is hypothetically assumed to be supporting the SRF as such act would not constitute a material breach of the Oil Agreement. In particular the Oil Agreement is a commercial agreement with mutual economic benefit and as such it is not made conditional to the implementation of other agreements. It is in the best economic interest of Sudan to implement the Oil Agreement. The International Monitory Fund recently welcomes the agreement between the two vice presidents and described it as a genuine effort to breathe new life into the beleaguered economies of the two countries. With this agreement, Sudan is expected to receive about $ 2 billion a year in fees from exporting the oil of the South.

It will certainly be an economic suicide if Bashir continues with his decision, particularly in the light of political development in the Arab countries. Sudan used to depend mainly on benevolent financial aid from Qatar, Saudi Arabia and Iran. With the second popular revolution in Egypt that deposed and aborted not only political Islam in Egypt but also the international political Islam, the Arab and Islamic countries are alerted of the danger of political Islam. The bold decision by Qatar to ban the activities of Muslim Brothers and to generously support with Saudi Arabia and others the post-Muslim brothers Egypt have understandably made Bashir extremely nervous as he will not expect further aid from the Arab countries.

Also the new leadership of Iran will not be the same as his predecessor and he will be relatively moderate and may gradually move away from Islamic radicalism with the aim of improving relations with international community. Certainly, Bashir will be one of the victims of this political change in Iran. Importantly, the Egyptian second revolution sent powerful message to the regimes in Sudan, Libya and Tunisia that the people are likely to rise up against Political Islam. Although Sudan and possibly Libya may try to instigate Muslim brothers to create civil unrest and possibly civil war in Egypt, the army with the determination of the great people of Egypt will be able to restore stability and normalcy in Egypt.

The drama of Bashir’s recent visit to Nigeria shows that the African countries that he will be visiting are shrinking as the voices of civil society are getting too loud to be ignored by their leaders. This unjustified decision by Bashir to stop the flow of oil of the South is a clear defiance to an agreement facilitated by the African Union. Also the countries that have been sympathetic with Bashir such as China and Russia may take a firmer position towards this irrational decision by Bashir. The US government and EU may now abandon the moral equivalence approach and may take clearer position in supporting the efforts of the South for building alternative pipeline, trucking oil and building oil refineries.

Internally, the NCP is getting weaker as there is now a consensus to hold to the leadership of Bashir as unifying figure with more reliance on reformists. The First Vice President Ali Osman may be a victim and he may be relegated and possibly moved to head the parliament. These changes will make NCP more divided and vulnerable with a leader who is on run from the ICC. If Bashir runs for another term, it will not only be unconstitutional but it will discourage SRF and other democratic forces to participate in the permanent constitution-making process and general elections in 2015. The outcry of Bashir about the danger posed by SRF with support from the South is a reflection of the lack of morale and weakness of his army that is becoming increasingly incapable to fight.

Also the situation in Eastern Sudan is a political volcano that is about to erupt at any time. The people of Eastern Sudan have been betrayed by Bashir who dishonoured the Eastern Sudan Peace Agreement and the development assistance that was mobilized from Arab countries in their name. With this tension and frustration in Eastern Sudan, Eritrea may feel equally betrayed by Sudan and that may restrain the diplomatic relations between the two countries. Also with political changes in Qatar, it is likely that the Darfur Doha Document will not survive.

As for the South, the decision of Bashir not to allow the oil of the South to flow will certainly work to consolidate the unity of the people of the South as well as the leadership of the SPLM. Importantly, the South will seriously consider alternative pipeline, trucking of oil and building more refineries in the South. Diplomatically, the South should not only focus on attracting new investors to oil sector from USA and EU but also from other countries such as Qatar and Saudi Arabia. The South may need to strengthen its relations with Arab countries and should seriously consider the status of observer in the League of the Arab Countries.

On the basis of this account, Bashir will either voluntary reverse his decision or he will be made to back down from his decision through pressure by the international community. If, however, Bashir insists on his decision, he will then be digging his own grave by hastening the collapse of regime in Khartoum. On the other hand, the South will have a legal basis after 7th August 2013 to terminate the Oil Agreement as the act of Bashir to unilaterally halt the flow of the oil of the South constitutes a material breach of the Oil Agreement. I hope and I am confident that the wisdom and pressure of international community will eventually prevail and Bashir will be made to come to his sense to allow the oil of the South to flow through Sudan.

The author who is a fellow at Harvard Kennedy School can be reached at [email protected] . this article is also published by the New Nation Newspaper York, UK.