Abyei Arbitration
| Jurisdiction | England & Wales |
| Judgment Date | 22 July 2009 |
| Date | 22 July 2009 |
| Court | Arbitration |
Arbitration Tribunal
(Dupuy, Presiding Arbitrator; Al-Khasawneh, Hafner, Reisman and Schwebel, Arbitrators)2
Arbitration Jurisdiction Extent of mandate Power to interpret mandate Comptence de la comptence Finality and review of arbitral awards Panel of experts Arbitration tribunal with power to review decision of experts Standard of review Test of whether experts exceeded mandate Whether interpretation of mandate reasonable Whether implementation of mandate reasonable Failure to state reasons Whether amounting to excess Procedural irregularities Whether power to annul decision in part implicit in mandate of arbitration tribunal Arbitration Agreement between the Government of Sudan and the Sudan People's Liberation Movement/Army
Arbitration Evidence Value of different types of evidence Cartographic evidence Requirement that findings be based on evidence and properly reasoned
Territory Boundaries Internal administrative boundary Relevance of international law principles respecting boundaries between States Territory inhabited by tribal and nomadic peoples Transfer of the area of certain chiefdoms from one province to another in 1905 Extent of territory so transferred Whether to be approached on tribal or territorial basis Grazing rights of nomads Sudan Abyei area
Treaties Interpretation Vienna Convention on the Law of Treaties, 1969 Application of principles of treaty interpretation in international law to agreements between Government of Sudan and Sudan People's Liberation Movement/Army
Summary:3The facts:In July 2002, following a lengthy period of civil war which had divided Northern Sudan, controlled by the Government of Sudan (the GoS), from Southern Sudan, controlled by the Sudan People's Liberation Movement/Army (the SPLM/A), the GoS and the SPLM/A concluded the Machakos Protocol. The Protocol provided for the implementation of a peace agreement between the Parties, which was to include the holding of an internationally monitored referendum in which the people of Southern Sudan would vote on whether to secede from Sudan. There were, however, differences between the Parties regarding whether the Abyei area should be included in Southern Sudan. The principal inhabitants of the Abyei area were the Ngok Dinka, a Nilotic people organized into nine chiefdoms whose centre of affairs is present-day Abyei Town, with each chiefdom said to have an area of permanent habitation and seasonal grazing; and the Misseriya, an Arab cattle-herding people with a largely nomadic existence which took them through a wide area, including the Abyei area where they grazed their cattle during the dry season. In 1905, during the period of colonial rule in Sudan (the Condominium), the area of the nine Ngok Dinka Chiefdoms had been transferred to the administrative unit which, by 2002, was known as the Province of Kordofan.
In May 2004, the GoS and the SPLM/A signed the Protocol on Resolution of Abyei Conflict (the Abyei Protocol) which provided that the residents of Abyei would cast a separate ballot to determine whether Abyei would remain with Northern Sudan or be part of Southern Sudan. The Abyei Protocol also established the Abyei Boundaries Commission (ABC), which was given the task of defining and demarcating the Abyei Area. The Abyei Protocol contained a definition of the Abyei area (the Formula) as the area of the nine Ngok Dinka chiefdoms transferred to Kordofan in 1905. Under the December 2004 Understanding on Abyei Boundaries Commission (the Abyei Appendix), the ABC was to be composed of one representative and four nominees from each of the GoS and the SPLM/A and five impartial experts knowledgeable in history, geography and any other relevant expertise (the ABC Experts) nominated by the United States of America, the United Kingdom and the Inter-Governmental Authority on Development (a seven-State regional development organization in East Africa). In January 2005, the Parties signed the Comprehensive Peace Agreement (the CPA), in which they reaffirmed their commitment to the foregoing agreements.
With the approval of the Parties, the ABC Experts drew up their Rules of Procedure and proceeded to hear testimony, conduct site visits and obtain archival evidence. The ABC Experts presented their report to the Sudanese Presidency in July 2005. The Report concluded that the Abyei Area
consisted of an area of legitimate dominant claim for the Ngok Dinka up to the Goz (a sandy area of transit south of Muglad) and an area of shared secondary rights for both the Ngok Dinka and the Misseriya through the Goz; consequently, the ABC Experts considered it reasonable and equitable to divide the Goz between the parties and to locate the northern boundary of Abyei in a straight line at approximately latitude 10 22 30 N. The western and southern boundaries were found to be the KordofanDarfur and KordofanBahr el-GhazalUpper Nile provincial boundaries as defined at independence (1 January 1956), respectively. The eastern boundary was delimited as extending from the line of the KordofanUpper Nile boundary at approximately longitude 29 32 15 E northwards until it met latitude 10 22 30 N.4Following the delivery of the Report, a dispute arose between the GoS and the SPLM/A as to whether the ABC Experts had committed an excess of mandate in their delimitation of the Abyei Area. In June 2008, they agreed to refer this dispute to arbitration. On 7 July 2008, they signed an agreement (the Arbitration Agreement) referring the dispute to final and binding arbitration under the Arbitration Agreement and the Permanent Court of Arbitration (PCA) Optional Rules for Arbitrating Disputes between Two Parties of Which Only One is a State. Under the Arbitration Agreement, the Tribunal was given a maximum of 90 days from the closure of submissions to render its final award and, overall, the Tribunal was required to complete the arbitration within nine months from the date proceedings commenced.
Article 2 of the Arbitration Agreement provided that the Tribunal was first to determine whether the ABC Experts had exceeded their mandate to define (i.e. delimit) and demarcate the area of the nine Ngok Dinka chiefdoms transferred to Kordofan in 1905. If the Tribunal determined that the ABC Experts had not exceeded their mandate, it was to make a declaration to that effect and issue an award for the full and immediate implementation of the ABC Report. If, however, the Tribunal determined that the ABC Experts had exceeded their mandate, it was to make a declaration to that effect and then itself define the boundaries of the area of the nine Ngok Dinka Chiefdoms transferred to Kordofan in 1905, based on the submissions of the Parties. The Tribunal was required to reach its decision based on the following applicable law: the CPA (particularly the Abyei Protocol and the Abyei Appendix), the Interim National Constitution of the Republic of Sudan (2005), general principles of law and practices that the Tribunal deemed relevant, and the Arbitration Agreement itself.
The GoS submitted that the ABC Experts had exceeded their mandate and that the area of the nine Ngok Dinka Chiefdoms transferred to Kordofan in 1905 was the area bounded on the north by the Bahr el-Arab river and otherwise by the boundaries of Kordofan as at independence (see map in para. 38). The SPLM/A submitted that the ABC Experts had not exceeded their mandate
and that their Report should be implemented at once. In the alternative, the SPLM/A submitted that, if the Tribunal determined that the ABC Experts had exceeded their mandate, a declaration should be made that the boundaries of the area of the nine Ngok Dinka Chiefdoms transferred to Kordofan in 1905 were the current boundary of Kordofan and Bahr el-Ghazal to the south extending to 10 35 N latitude to the north and the current boundary of Kordofan and Darfur to the west extending to 29 32 15 E longitude to the eastHeld (by four votes to one, Judge Al-Khasawneh dissenting):The ABC Experts had in part exceeded their mandate. The boundaries of the area of the nine Ngok Dinka chiefdoms transferred to Kordofan in 1905 were as follows:
(a) the northern boundary followed the line of latitude 10 10 00 N from longitude 27 50 00 E to longitude 29 00 00 E;
(b) the southern boundary followed the line established by the ABC Experts, namely the KordofanBahr el-GhazalUpper Nile boundary as defined on 1 January 1956;
(c) the eastern boundary followed a straight line along longitude 29 00 00 E from latitude 10 10 00 N south to the KordofanUpper Nile boundary as defined on 1 January 1956; and
(d) the western boundary followed a straight line along longitude 27 50 00 E from latitude 10 10 00 N south to the KordofanDarfur boundary as defined on 1 January 1956, and continuing along the Kordofan Darfur boundary until it met the southern boundary as defined by the ABC Experts (para. 770 and final map at Appendix I at back of volume).
The exercise of established traditional rights within, or in the vicinity of, the Abyei Area, particularly the right of the Misseriya and other nomadic peoples to graze cattle and move across the Abyei Area remained unaffected (para. 770).
(1) Article 2 of the Arbitration Agreement limited the mandate of the Tribunal. The first task of the Tribunal was to determine whether the ABC Experts had exceeded their mandate. Only if, and to the extent that, it concluded that they had done so was the Tribunal empowered to determine the boundaries of the Abyei Area itself by defining the boundaries of the area of the nine Ngok Dinka chiefdoms transferred to Kordofan in 1905 based on the submissions of the Parties (paras. 395400).
(2) Under international law the annulment of arbitral awards was an exceptional remedy. The Tribunal's first task was to be approached on a similar basis. The test was not whether the ABC Experts' decision was correct...
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