Abyei arbiters receive final written arguments
March 3, 2009 (THE HAGUE) — As Sudan awaits the decision of the International Criminal Court (ICC) on the indictment of President Al-Bashir, another judicial process, also in The Hague, is entering its final stages.
The dispute concerns Abyei, an oil-rich region where a committee of experts called the Abyei Boundary Commission (ABC) had made a “final and binding” ruling that was rejected by the government of Sudan.
The Sudan People’s Liberation Movement (SPLM) and the Government of Sudan (GoS) submitted their final written arguments to the Abyei Arbitration Tribunal, a five-member body formed under the mandate of the Permanent Court of Arbitration (PCA).
The ICC and the PCA are both based in the Netherlands but they are not the same: the ICC is a court for criminal cases against individuals, but the PCA is a court for disputes between countries.
The submissions given to the tribunal on Saturday are called a “rejoinder.” They are the final arguments to the court before an oral debate, April 18-23.
According to a statement from the SPLM General Headquarters, the SPLM rejoinder argues that the boundary experts had not exceeded their mandated in delimiting the disputed area.
The mandate of the expert boundary commission, as set forth in the Comprehensive Peace Agreement, was to delimit “the area of the Nine Ngok Chiefdoms transferred to Kordofan in 1905.”
“The Government’s refusal to honor that decision is a cynical attempt to relitigate the Abyei dispute in a new forum and to delay the full implementation of Abyei Protocol including the allocation of oil revenue resources in accordance with provisions of the CPA,” said the statement signed by Luka Biong Deng, the Minister of Presidential Affairs for the Government of Southern Sudan
Deng serves as SPLM co-agent for the arbitration.
Meanwhile, the GoS rejoinder seeks to depict the ruling of the boundary experts as a way to conveniently hand over oil producing areas to the South. It implies that the experts were more knowledgeable on the location of oil wells than they were on the historical circumstances essential to their mandate.
The GoS rejoinder also dismisses the consideration given by the experts to “secondary rights” to land and pasture that had defined the migratory livelihoods of the Ngok and Misseriya pastoralists.
The experts had fixed a boundary line within the territory of shared secondary rights that separates the land of the nine Ngok Dinka chiefdoms and the Misseriya.
However, SPLM highlighted that “the Government has abandoned significant elements of its earlier excess of mandate analysis while also rewriting or mischaracterizing other elements of its claim.”
It added, “despite the importance of the excess of mandate challenge, the Government’s counter-memorial [argument] devotes shockingly little attention (32 pages of its 199-page submission) to the essential issue, apparently with the hope that it could create sufficient enough confusion to get the Tribunal to turn immediately to the issue of redefining the border already established by the final and binding decision of the ABC experts.”
Substantial parts of the arguments on both sides rely on cartographic and historical evidence for the 1905 boundary. The government argument stresses the importance of certain maps from the era, pointing to a clear, determinate boundary. By contrast, the SPLM uses additional historical documentation, map evidence and environmental and cultural evidence.
SPLM argues that the 1905 transfer was the transfer—in administrative terms—of the nine Ngok Dinka tribes from Bahr El Ghazal province to the authority of Kordofan province, whereas the government characterized the incident as the transfer of a particular territory, clearly defined, within which the nine Ngok Dinka tribes happened to live. Therefore the government defines the territory based on certain maps of administrators, whereas SPLM defines the territory based on the entire body of evidence for the location of the tribes at the time, reconstructing what the old maps should have looked like had they actually been accurate.
The tribunal must issue its final decision within 90 days of the oral hearings, which is no later than the end of July of this year.
(ST)