By: Paul Baak / The Dawn News / March 10, 2018
Well, we are not talking about the possibility of it happening or not. The Media Authority has already done it. Radio Miraya 101 FM has been shutdown – though not taken off air just yet – allegedly for its “persistent non-compliance and refusal” to be regulated under media laws of South Sudan.
So we are left to ponder on the lawfulness of the decision taken by the national media regulator.
While it is appropriate for any sovereign state to ensure compliance with domestic laws over media houses operating within its national borders, it is also important to note that certain media outlets operate outside the realm of national laws.
A UN-owned radio is one such entity. Its operations are regulated exclusively under the Status of Forces Agreement (SOFA) – signed by UNMISS and South Sudan’s government – and the International Telecommunication Convention and Regulations.
As a subsidiary organ of the United Nations, UNMISS enjoys the privileges and immunities under the Convention on the Privileges and Immunities of the United Nations which South Sudan expressed its intention to ratify. In this regard, the government of South Sudan supposedly recognizes the international nature of UNMISS along with its exclusive rights and obligations under international law.
These privileges may be limited through an agreement with a host country – and SOFA was concluded for this purpose.
Under SOFA, UNMISS, on the one hand, enjoys among other privileges, the right to install and operate UN radio stations with exclusive editorial control of programmes broadcast and subject to no form of censorship by the government of South Sudan.
On the other hand, the government of South Sudan enjoys – rather surprisingly – few rights but lots of obligations under the agreement. Respect for freedom of communication; ensuring safety and security of UNMISS, protection of its members and property – are some examples of these obligations. Despite the disparities, the agreement was signed anyway.
Accordingly, we ask the question which lies at the core of this issue. How do the parties resolve their differences under SOFA? Or put differently, what if UNMISS has possibly abused its freedom of communication and other privileges?
SOFA stipulates that all disputes between the parties arising out of the application or interpretation of the agreement are to be settled by negotiation or submitted to a tribunal of arbitrators.
Better still, an aggrieved party may invoke Section 30 of the Convention on Privileges and Immunities – a procedure necessary when the intention is to have the dispute resolved at the International Court of Justice.
So it is clear that sufficient avenues are available for parties to resolve their disagreements before resorting to unilateral, if not arbitrary, action against one another.
What is not clear though is South Sudan’s decision to shut down the radio station without prior negotiation with its co-signatory. The Media Authority argues it had issued numerous “notifications” which UNMISS disregarded.
However, the media regulator does not seem to appreciate the facets of the international legal personality of the United Nations. Asking one of the auxiliary organs of the UN to comply with domestic media laws is an invitation for the international organization to surrender its immunity and submit to national jurisdiction – a situation it would always be careful to avoid like a plague. In fact, if UNMISS had responded in any way to notifications, which apparently did not invoke SOFA or the Convention, it would have amounted to such submission. And that should explain why there was no reply.
So what is the implication of this action? And how do we get out of the unwanted spotlight?
South Sudan’s image is at stake. The country’s poor ranking in 2017 World Press Freedom Index should concern the government.
It is therefore important to settle the issue procedurally – through discussion and in accordance with the terms and conditions of the Status of Forces Agreement. That way, the government stands to achieve both understanding with UNMISS and to save the image of the country. It is a lot healthier. It is the rule of law.