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The Abyei Award: Fitting a Diplomatic Square Peg into a Legal Round Hole

Published online by Cambridge University Press:  30 July 2010

MARKUS BÖCKENFÖRDE
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Abstract

On 22 July 2009 a Tribunal of five leading international lawyers rendered their award at the Permanent Court of Arbitration (PCA), thereby redrawing the boundaries of Abyei, a small patch of land in the centre of Sudan and source of violent conflict throughout recent years. The arbitration was initiated by the two signatories of the Comprehensive Peace Agreement (CPA) that in 2005 brought an end to the longest civil war in Africa. Both parties, the government of Sudan and the Sudan People's Liberation Army/Movement, expressed satisfaction with the award, which conceivably saved the CPA from potential collapse. This article examines the legal oddities which accompanied the settlement of the dispute over the Abyei area. It analyses both the referral of the dispute to the PCA through the lens of the Sudanese Constitution and the legal ambiguities of the award itself.

Keywords

AbyeiarbitrationComprehensive Peace AgreementInterim National ConstitutionSudan
Type
HAGUE INTERNATIONAL TRIBUNALS: Permanent Court of Arbitration
Information
Leiden Journal of International Law , Volume 23 , Issue 3 , September 2010 , pp. 555 - 569
Copyright
Copyright © Foundation of the Leiden Journal of International Law 2010

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References

1 The Comprehensive Peace Agreement between the Government of the Republic of Sudan and the Sudan People's Liberation Movement /People's Liberation Army (hereinafter CPA), 2005, available at the MPIL Sudan site, www.mpil.de/shared/data/pdf/cpa_complete.pdf (last visited 30 January 2010). The CPA comprises six protocols (inter alia the Machakos Protocol, the Protocol on Power Sharing, the Abyei Protocol), their annexes (inter alia the Abyei Annex), and the implementation modalities.

2 Infra at note 29.

3 S. Srinivasan, ‘Abyei: Is Everyone a Winner?’, 22 July 2009, on file with the author.

4 The Interim National Constitution of the Republic of Sudan (hereinafter INC), 2005, available at www.mpil.de/shared/data/pdf/inc_official_electronic_version.pdf (last visited 30 January 2010)

5 See below at notes 46–51.

6 INC, supra note 4, Art. 3.

7 International Crisis Group (ICG), ‘Sudan: Breaking the Abyei Deadlock’, Africa Briefing No. 47, October 2007.

8 D. Petterson, ‘Abyei Unresolved: A Threat to the North–South Agreement’, paper contributed to the 11 September 2006 symposium, ‘Sudan's Peace Settlement: Progress and Perils’, available at www.ndu.edu/inss/symposia/sudan2006/pettersonpaper.pdf. This point is especially noteworthy, since throughout the upcoming decades, the southern and northern parts of Sudan were administrated as two distinct entities with limited exchange between the two.

9 ICG, supra note 7, at 3.

10 1972 Addis Ababa Peace Agreement, Art. 3(c), available at http://madingaweil.com/addis-ababa-peace-agreement-1972.htm (last visited 30 January 2010).

11 Johnson, D. H., ‘Why Abyei Matters – The Breaking Point of Sudan's Comprehensive Peace Agreement?’, 2008 107 (426)African Affairs 1, at 5CrossRefGoogle Scholar.

12 Ibid., at 7.

13 Machakos Protocol, 2002 (hereinafter MP), available at www.mpil.de/shared/data/pdf/cpa_complete.pdf (last visited 30 January 2010), Art. 3(1). See below at note 34 for a detailed analysis.

14 ICG, supra note 7, at 4.

15 Abyei Protocol, available at www.mpil.de/shared/data/pdf/cpa_complete.pdf (last visited 30 January 2010), Art. 1(3).

16 Ibid., Art. 1(1)(2).

17 Ibid., Art. 5.

18 The Interim Period was set to start six months after the signing of the peace agreement and after the completion of the Pre-interim Period.

19 Abyei Protocol, supra note 15, Art. 2(2); IGAD nominated three members and the United States and the United Kingdom each nominated one; see Petterson, supra note 8.

20 See Abyei Annex, Art. 5: ‘[T]he report of the experts, arrived at as prescribed in the ABC rules of procedure, shall be final and binding on the Parties’, available at www.mpil.de/shared/data/pdf/cpa_complete.pdf (last visited 30 January 2010).

21 Ibid., Art. 5.

22 Ibid.

23 Petterson, supra note 8, at. 3.

24 Depending on the reading of the term ‘define’, the ABC was vested either with fact-finding power (GoS's view) or with decision-making power (SPLA/M's view); see Final Award, paras. 475–478; see also Dissenting Opinion, para. 174

25 The term ‘to identify’ is described as to ‘show, [or] prove who or what somebody or something is’, which presupposes that the person/thing to be identified is, or was, already there and just has to be traced; A. Hornby et al. (eds.), Oxford Advanced Learner's Dictionary of Current English (1974).

26 Merriam-Webster Online Dictionary, available at www.merriam-webster.com/netdict/define; see also Websters Dictionary, available at www.webster-dictionary.net/definition/define.

27 Para. 3 of the Chapeau of the Comprehensive Peace Agreement stipulates, ‘The agreed Arabic and English texts of the CPA shall both be official and authentic. However, in the event of a dispute regarding the meaning of any provision of the text, and only if there is a difference in meaning between the Arabic and English texts; the English text shall be authoritative as English was the language of the peace negotiations.’

28 The ABC report defined the Abyei area as follows: ‘locate the northern boundary in a straight line at approximately 10°22′30″ N. The western boundary shall be the Kordofan–Darfur boundary as it was defined on 1 January 1956. The southern boundary shall be the Kordofan–Bahr el-Ghazal–Upper Nile boundary as it was defined on 1 January 1956. The eastern boundary shall extend the line of Kordofan–Upper Nile boundary at approximately longitude 29°32′15″ E northwards until it meets latitude 10°22′30″ N.’ D. Petterson et al., Abyei Boundaries Commission Report, 14 July 2005, available at www.sudanarchive.net/cgi-bin/sudan?e=—1025-10-1-0-&a=d&d=Dl1d18.18 (last visited 30 January 2010), at 22

29 supra note 13.

30 Ibid., Art. 3(1)(2).

31 Ibid.; see also INC, supra note 4, Art. 225, stipulating that ‘the Comprehensive Peace Agreement is deemed to have been duly incorporated in this Constitution; any provisions of the Comprehensive Peace Agreement which are not expressly incorporated herein shall be considered as part of this Constitution.’

32 Protocol on Power Sharing, available at www.mpil.de/shared/data/pdf/cpa_complete.pdf (last visited 30 January 2010), Art. 2(12)(2).

33 MP, supra note 13, Art. 3(1)(1).

34 According to Art. 224(1) INC, amendments are to be approved by three-quarters of all the members of each chamber of the National Legislature sitting separately and only after introduction of the draft amendment at least two months prior to deliberations.

35 Art. 224(2) INC reads, ‘Any amendment affecting the provisions of the Comprehensive Peace Agreement shall be introduced only with the approval of both Parties signatory to the Comprehensive Peace Agreement.’

36 ICG, supra note 7, at 5.

37 Pursuant to Art. 121(2) INC, ‘Southern Sudan shall be adequately represented in the Constitutional Court.’ In line with the assumed share of ‘Southerners’ in the population of Sudan, three out of nine justices came from the South, but court decisions are taken by simple majority. During the negotiations of the CPA, it was suggested to follow the model as applied in Bosnia and Herzegovina where six out of nine seats were proportionately assigned among the entities (4–2), while the remaining three seats were allocated to foreign judges selected by the president of the European Court of Human Rights (see the Constitution of Bosnia and Herzegovina, Art. VI(1)(a), (1996) 35 ILM 117). This suggestion was dismissed.

38 Although President al-Bashir was initially in favour of inviting the experts, senior NCP officials urged him to change his mind. They were worried that the experts would simply defend the ABC report and not advance the NCP position. The NCP's reading of the term ‘define’ was a narrow one, equivalent to the term ‘identify’. Since no records or maps have existed that had allowed for the clear identification of the pertinent borders as of 1905, the NCP was of the view that the ABC should have returned to the parties asking for a broader mandate. The five experts explained their findings in a public hearing at the South Sudan Legislative Assembly in Juba in September 2007. See ICG, supra note 7, at 15.

39 Reading the figures of oil revenues in the Abyei area as defined by the ABC report might shed some light on the NCP's rejection of the report. Placing various oilfields within Abyei means that the national government must share half the revenues instead of keeping them entirely for the national budget; see ICG, supra note 7, at 9–10. Considerable discussions on a political agreement were centred on how a revenue-sharing formula in favour of the national interest could be agreed upon.

40 ICG, supra note 7, at 5.

41 The Abyei Roadmap is available at www.sudantribune.com/spip.php?article27519 (last visited 30 January 2010). The four main points outlined were security arrangements, the return of IDPs, an interim administration; and final arbitration. See also United Nations Mission in Sudan, 5 (49) CPA Monitor (2009), para. 9, available at http://unmis.unmissions.org/Portals/UNMIS/CPA%20Monitor/CPA%20Monitor%20December%202009.pdf (last visited 30 January 2010).

42 The Arbitration Agreement is available at www.pca-cpa.org/upload/files/Abyei%20Arbitration%20Agreement.pdf (last visited 30 January 2010).

43 Permanent Court of Arbitration, Optional Rules for Arbitrating Disputes between Two Parties of Which Only One Is a State (1993), available at www.pca-cpa.org/upload/files/1STATENG.pdf (last visited 30 January 2010).

44 The five arbitrators were Professor Pierre-Marie Dupuy (Presiding Arbitrator), HE Judge Awn Al-Khasawneh, Professor Dr Gerhard Hafner, Professor W. Michael Reisman, and Judge Stephen Schwebel.

45 The CPA required the parties to have general elections before 9 July 2009. It was not warranted that the existing majorities had to be sustained (if elections had taken place at this date, the Umma party, the DUP, and others might together have gained more than 25 per cent of the seats). The commitment to be bound by the arbitration award might have also required constitutional amendments authorizing its implementation.

46 In the Matter of an Arbitration before a Tribunal Constituted in Accordance with Article 5 of the Arbitration Agreement between the Government of Sudan and the Sudan People's Liberation Movement/Army of Delimiting Abyei Area, Final Award, 22 July 2009, (hereinafter Final Award), para. 450.

47 In recital 3 of the preamble of the Arbitration Agreement, supra note 42, the parties still referred to the original mandate to which they agreed in the CPA.

48 Hence the quotation marks in Art. 2 of the Arbitration Agreement are simply incorrect.

49 See In the Matter of an Arbitration before a Tribunal Constituted in Accordance with Article 5 of the Arbitration Agreement between the Government of Sudan and the Sudan People's Liberation Movement/Army of Delimiting Abyei Area, Dissenting Opinion of His Excellency Judge Awn Shawkat Al-Khasawneh Member of the International Court of Justice (hereinafter Dissenting Opinion), at 1, 3.

50 Ibid., para. 183: ‘the very issue that became their [ABC Experts] mandate, namely, “to define, i.e., delimit and demarcate the area of the Nine Ngok Dinka Chiefdoms transferred to Kordofan”’. One can see how Judge Al-Khasawneh could be led to make this error. According to Art. 2(a) of the Arbitration Agreement, the original text of the ABC Experts’ mandate reads: ‘“to define (i.e. delimit) and demarcate the area of the nine Ngok Dinka chiefdoms transferred to Kordofan in 1905” as stated in the Abyei Protocol, and reiterated in the Abyei Appendix and the ABC Terms of Reference and Rules of Procedure’. In fact, according to the Abyei Protocol, the mandate of the ABC Experts was 'to define and demarcate the area of the nine Ngok Dinka Chiefdoms transferred to Kordofan in 1905, referred to herein as Abyei Area’ (Art. 5.1 of the Abyei Protocol, emphasis added). No mention is made in the original text of the phrase ‘i.e. delimit’ which appears in the Arbitration Agreement.

See Abyei Annex, supra note 20, para. 1.

51 Again, constitutional law in this respect is the INC, which incorporated the CPA (Art. 225 of the INC).

52 The ABC's interpretation of its mandate was reviewed solely on the basis of Art. 31 of the Vienna Convention on the Law of Treaties. Methods of interpretation of national law were not considered. Most of the reasoning was supported by referring to international law cases; see, for instance, Final Award, supra note 46, paras. 481, 501 (with regard to the Kompetenz-Kompetenz principle), paras. 505–10 and 528–531 (with respect to standard of review), and para. 708 (with respect to the failure to state reasons). The only considerable reference to national law is made while exploring the standard of review; see paras. 401–402.

53 Ibid., para. 401.

54 Ibid., para. 410.

55 Ibid., para. 402.

56 Dissenting Opinion, supra note 49, para. 181.

57 Abyei Annex, supra note 20, para. 2.2.

58 Ibid., para. 4.

59 Ibid., para. 5.

60 See Dissenting Opinion, supra note 49, para. 181.

61 Final Award, supra note 46, para. 483.

62 For the definition of ‘define’, see supra at notes 24–8.

63 Final Award, supra note 46, para. 482.

64 Supra at notes 15–23.

65 Final Award, supra note 46, para. 582.

66 Abyei Annex, supra note 20, Art. 4.

67 Final Award, supra note 46, para. 522.

68 Supra at note 39.

69 Final Award, supra note 46, paras. 684, 704–705.

70 Ibid., paras. 401–409.

71 Ibid., paras. 705, 713.

72 Dissenting Opinion, supra note 49, para. 43.

73 A. D. McNair, Law of Treaties (1961), 365.

74 Dissenting Opinion, supra note 49, para. 199.

75 Final Award, supra note 46, para. 398.

76 Ibid., para. 714.

77 Dissenting Opinion, supra note 49, para. 174, relating to the term ‘define’.

78 Ibid., para. 185, with respect to the formula ‘the area of the nine Ngok Dinka chiefdoms transferred to Kordofan in 1905’.

79 Ibid., paras 100–164, and Abyei Arbitration: Final Award Map, Appendix 1, available at www.pca-cpa.org/upload/files/Abyei%20Award%20Appendix%201.pdf (last visited 30 January 2010).

80 Srinivasan, supra note 3, at 1.

81 Dissenting Opinion, supra note 49, para. 202.

82 Johnson, supra note 11, at 14.