The Permanent Court of Arbitration and the Sudanese peace process: legal issues from the Abyei Arbitration in reviewing the mandate of an ad hoc body.

• Author: McKay, Jennifer

Introduction

The Abyei Arbitration ('the Arbitration') arose from a 2008 agreement between the Government of Sudan and the Sudan People's Liberation Movement/Army ('SPLM/A'). The Arbitration dispute regarded land boundary demarcations that were referred to the Permanent Court of Arbitration ('PCA') for a final, binding decision. (1) The issue that arose was whether two groups created as part of the 2005 Comprehensive Peace Agreement ('CPA')--the Abyei Boundaries Commission ('ABC) and the ABC's Experts (2)--had exceeded their mandate. The fundamental issue was the delimitation of the Abyei area. This is a region of considerable strategic importance as it is resource rich and could potentially become the basis for a new international boundary. The short-term political objective under the CPA was the delimitation of the boundaries of the Abyei area to determine who would be entitled to vote in the 2011 plebiscite. At issue, in particular, was whether the Abyei area should retain its special administrative status in the North, or whether it should instead be part of the province of Bahr el Ghazal in the South. (3)

The CPA required the ABC Experts to define and demarcate the area of the nine Ngok Dinka chiefdoms transferred to Kordofan in 1905. The transfer occurred after the Ngok Dinka tribe complained about rival Humr tribal raids. Great Britain responded to these complaints by placing the Ngok Dinka and Humr under the control of the same governor. (4) The ABC Experts were appointed by the United Kingdom and the United States. These individuals were experts in African history and law, geography, politics, public affairs, ethnography, and culture. (5)

The Arbitration Tribunal ('the Tribunal') reviewed the work of the ABC and the ABC Experts to consider if the mandate exceeded the Experts' power. The Tribunal found that the ABC Experts made a reasonable interpretation of their mandate after adopting a tribal interpretation scheme. (6) However, in implementing the mandate, the ABC Experts' failed to provide sufficient reasons for the actual lines drawn on the map. As a result, the lines were redrawn by the Tribunal. (7) The Tribunal determined that the Abyei northern boundary lies along latitude 10[degrees]10' North, the western boundary along longitude 27[degrees]50' East, and the eastern boundary along longitude 29[degrees]00' East. (8) There was no dispute over the southern boundary.

1. Procedure

   The Arbitration occurred in the Peace Palace, The Hague, from 7 July 2008 to 27 July 2009 under the supervision of the Permanent Court of Arbitration. (9) The PCA resorted to the optional arbitration rules regarding disputes between two parties, of which only one is a state. (10) These rules are a slight modification of the UNCITRAL Arbitration Rules, (11) originally designed for private commercial arbitrations. (12)

   The Arbitration utilised experts in the field, at least 21 lawyers--notably Australian Professor James Crawford, and agents. The Tribunal was composed of five arbitrators, with two selected by each party from a list provided by the PCA. The Government of Sudan selected HE Judge Awn Al-Khasawneh and Dr Gerhard Hafner. The SPLM/A appointed Professor W Michael Reisman and Judge Stephen M Schwebel. These arbitrators then appointed Professor Pierre-Marie Dupuy, the final presiding arbitrator. The Tribunal thus consisted of independent, impartial, highly qualified lawyers and experienced arbitrators competent to preside over such disputes. (13)

   The 4:1 decision was handed down on 22 July 2009 and subsequently accepted by all parties. Furthermore, the relevant groups announced plans to complete demarcation of the boundary on the ground by September 2009. (14)

2. Key issues

   The Arbitration extensively referenced significant legal issues from other jurisdictions, namely various international courts and domestic practices in the United States and the United Kingdom. It is of particular interest for the following reasons:

   * characterisation of the type of ad hoc bodies constituted by the ABC and the ABC Experts;

   * the actual terms of the agreement for the ABC and ABC Experts;

   * the standard applicable to the ABC Experts as an ad hoc body interpreting their mandate;

   * characterisation of the role of the Arbitration Tribunal and the terms of its mandate;

   * discussion and...