On 22 July 2009 the Arbitral Tribunal deciding on the borders of the oil-rich Abyei region in southern Sudan, delivered its Final Award at the Permanent Court of Arbitration, in The Hague. The five-member Tribunal issued an Award delimiting the boundaries of the region, which will be part of the referendum on independence of South Sudan in 2011 under the 2005 Comprehensive Peace Agreement.
On 7 July 2008 the Government of Sudan and the Sudan People’s Liberation Movement /Army (SPLM/A) signed an Arbitration Agreement in order to settle the issue of Abyei. The dispute focused on whether a commission of experts known as the Abyei Boundaries Commission (ABC Experts) exceeded their mandate in determining the region’s borders. According to the Agreement, if the ABC Experts were found to have exceeded their mandate with respect to the delimitation, the Tribunal was to establish its own delimitation.
The parties had publicly agreed to abide by the Tribunal’s ruling in the lead up to the announcement, amid prevailing fears that the dispute could see the country slide back into the conditions of the 21-year civil war, which ended after the peace agreement was signed. Under the 2005 deal, the borders of the oil-rich Abyei region were not clearly established, with the ABC Experts tasked with this job.
Reasoning of the Tribunal
The Tribunal first examined whether the ABC Experts had exceeded their mandate with respect to interpreting their own competence. The Tribunal found that the ABC Experts had adopted a “tribal” interpretation of their mandate, requiring them to delimit and demarcate the area of the nine Ngok Dinka Chiefdoms as of 1905. The Government of Sudan had advocated a “territorial” interpretation of the experts’ mandate, which included determining a defined area of land that was administratively transferred by the Anglo-Egyptian Condominium in 1905. The Tribunal found that the “tribal” interpretation was not unreasonable, and therefore that the ABC Experts did not exceed their mandate.
The Tribunal did find, however, that the ABC Experts exceeded their mandate by failing to give sufficient reasons for some of their conclusions. The ABC Experts were found to have failed to give adequate reasoning with respect to the Northern shared boundary and the Eastern and Western boundaries.
The Tribunal then turned to the issue of defining the boundaries, based on scholarly, documentary, cartographic and oral evidence submitted by the parties. The new borders reduce the size of the region as established by the ABC Experts and give greater territorial control to the Government of Sudan to areas containing oil fields. The Tribunal also emphasised that the Award does not prejudice the traditional grazing rights of the people in the Abyei region.
Judge Awn Shawkat Al-Khasawneh issued a dissenting opinion on the Award. In his dissent, he claims the logic of the Tribunal to be “unpersuasive (let alone convincing), self-contradicting, result-oriented, in many respects cavalier, insufficiently critical and unsupported by evidence, and indeed flying in the face of overwhelming contrary evidence.”
Court Documents / Documents juridiques
22 July 2009
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