April 19, 2009 (THE HAGUE) — The Permanent Court of Arbitration in The Hague heard oral arguments Saturday and Sunday on the validity of the Abyei Boundary Commission’s determination made in 2005. Within 90 days of the close of the oral hearings, the arbitration will issue their final and binding decision.
Abyei’s boundary is at the centre of a firestorm of mistrust and bad blood between the government and the Sudan People’s Liberation Movement (SPLM). It is one of the major outstanding issues holding up implementation of Sudan’s north-south peace agreement, according to an interview last month with the SPLM Secretary General.
The proceedings stem from the government’s rejection of the ruling of the Abyei Boundary Commission (ABC), a group of experts whose mandate was to delimit the area of the Nine Ngok Chiefdoms transferred to the administration of Kordofan province in 1905.
Misseriya Arabs and Ngok Dinka, the two ethnicities predominant in the Abyei area, were on opposite sides of the battle lines during Sudan’s 1983-2005 civil war, but historically they have coexisted closely in shared grazing areas and seasonal migration routes. The core legal dispute today is whether the ABC experts violated their mandate to delimit the 1905 boundaries of the chiefdoms – a decision of potentially major economic significance because of the oil fields beneath the Abyei grasslands.
The tribunal dedicated two sessions on Saturday for the hearing of the representatives of the Government of Sudan (GOS) on the topic of whether the experts exceeded their mandate. Hearings on Monday morning will allow both parties to reply to the others’ argument on excess of mandate. Then hearings from Monday afternoon through Wednesday will approach the topic of delimitation, while Thursday morning is dedicated for closing arguments.
The different co-agents of GOS accused the members of the ABC of partiality, violations of the arbitration principles, as well as contradictions and transparency during their proceedings.
The government lawyers tried to demonstrate the experts exceeded their mandate and violated the rule of proceedings. The experts were accused of holding meetings and contacting third parties without referring or informing the parties. They also said the experts issued a final report without trying to reach a consensus from the concerned parties. “The experts did not enjoy unlimited procedural discretion,” said Ms. Loretta Malintoppi, one of the GOS lawyers.
GOS Agent, Ambassador Dirdeiry Mohamed Ahmed, yesterday retorted SPLM accusations that Khartoum hindered the obtaintion of some documents from the National Achieves Center. Also he dismissed statements made by SPLM officials on the payment of the SPLM fees of the Tribunal, as agreed to in the arbitration agreement submitted in July 2008.
He also informed the court of threats that received by one of witness of the Sudanese Government called Majed Yak. Dirdeiry said Yak, who is from the Dinka Ngok had been threatened to death if he travels to The Hague. However the SPLM dismissed the accusation.
The Co-agents or lawyers who intervened on Saturday are Professor James Crawford QC, S.C., Matrix Chambers, London; Professor Alain Pellet, University of Paris Ouest, Nanterre – La Défense; and Mr. Rodman Bundy and Ms. Loretta Malintoppi, Eversheds LLP, Paris.
DISPUTE OVER EVIDENCE
In written filings the government had presented the case that the panel of experts improperly used evidence from after 1905 in their assessment of the territory of the Ngok Chiefdoms. Again on Saturday a legal representative of the Government of Sudan, Dirdeiry Mohamed Ahmed, argued “there is not a shred of evidence to support the line of latitude” claimed by the SPLM.
But on Sunday the SPLM Agent — Gary Born, an American lawyer of WilmerHale in London — countered, “It beggars belief for the government to claim that the experts ignored the 1905 date.”
As pointed out by Born, the Abyei experts had noted in their report that no map exists showing the area inhabited by the Ngok Dinka in 1905, nor was there enough evidence produced during that year by the Anglo-Egyptian Condominium to establish the extent of the chiefdoms.
Therefore, he continued, experts availed themselves of relevant historical material produced before and after the 1905 date precisely in order to determine what the state of affairs was in 1905.
Each of the two sides presented different historical interpretations of the 1905 transfer of the area of the nine Ngok chiefdoms. Until 1905, colonial administrators in Bahr El Ghazal of south Sudan, had authority over the Ngok until their area was transferred to the administration of Kordofan Province. The government characterized the incident as the transfer of a particular territory, clearly defined, within which the nine Ngok Dinka tribes happened to live, whereas today the SPLM lawyer noted “It was a tribal transfer, not a territorial one.”
ABC TAKE ON GRAZING RIGHTS AS EXCESS OF MANDATE
Another point of contention has to do with the experts’ attention to tribal rights — primary, equal or secondary — to certain grazing areas, water points and transit routes.
Government lawyers said that the ABC report’s discussions on these matters are evidence that the experts sought to confer on the Ngok grazing rights beyond the Abyei area proper. They argued that rather than demarcating the transferred area, the experts addressed a land use claim.
However, the SPLM legal team denied this, saying that the ABC report “did not purport to create or alter any other rights of the Ngok and the Dinka.”
Moreover, the SPLM representative countered that the discussion of grazing rights was done precisely in order to determine the proper delimitation. This discussion was the rationale that the experts used for the line they drew bisecting the “goz”, an uninhabited area of historically shared rights.
In order to prove their case, the Government of Sudan must present evidence of a “glaring, flagrant or manifest” excess of mandate by the ABC, according to the SPLM Agent.
After the conclusion of the oral pleadings, the court will issue their final and binding decision within 90 days.