March 29, 2024

Abyei: The “let’s avoid war” decision

Today the ad hoc tribunal at the Permanent Court of Arbitration in The Hague handed down what reads to me like a “let’s avoid war” decision on the contested Abyei area; it gives both the SPLM/A and the GOS something they can claim as a victory.

The tribunal’s first task, under the terms of the Arbitration Agreement (see background here), was to decide if, consistent with the GOS position, the Abyei Boundaries Commission (ABC), exceeded its mandate (which was to demarcate “the Area of the nine Ngok Dinka Chiefdoms transferred to Kordofan in 1905 . . . “) The tribunal divided its response to this question into two parts. First it asked about the interpretation of the mandate, and second it turned to the implementation.

With respect to the ABC’s interpretation of their mandate, the tribunal decided that the standard upon which to judge whether the mandate was exceeded was a (relatively low) standard of “reasonableness.” Thus, unless the ABC’s interpretation of its mandate was unreasonable, the tribunal could not say that they exceeded their mandate on the interpretation prong. The tribunal found that in using what it called a “tribal” interpretation (focused on the area the nine chiefdoms were occupying and using in 1905), the ABC’s interpretation of their mandate was not unreasonable. Had they stopped there, the area established by the ABC would have stood.

Turning to the second aspect of their analysis, namely the issue of the implementation, the tribunal decided that the mandate would be exceeded if the ABC did not provide “sufficient reasoning” to support their conclusions. This then allowed the tribunal to leave untouched aspects of the ABC’s boundaries for which there was, on the tribunal’s view, sufficient reasoning, while – under the terms of the Arbitration Agreement – redrawing boundaries with respect to whichever of the ABC’s boundary lines were not sufficiently justified. With this, they were able to ensure that the ABC’s decision to place Abyei town inside the Abyei area was maintained (something the GOS brief argued against, but would have been an enormous loss for the SPLM/A had it not gone their way), while reversing the ABC’s decision to include certain key oilfields (Heglig and Bamboo) in the Abyei area, thereby handing the GOS a victory on this score. (The tribunal has provided a map of what will constitute the Abyei area which I will upload tomorrow provided I get a strong enough net connection.)

There was one dissenter – Jordanian judge, Awn Al-Khasawneh. He was one of the two arbitrators appointed by the GOS. His position was that the “reasonableness” test for interpretation of the ABC’s mandate was too low, and the test should have been one of “correctness.” On this standard he believes that the ABC exceeded their mandate across the board. Moreover, he criticizes the majority for replacing “the Experts’ unreasoned delimitation lines by equally unreasoned lines of its own.” In his view, the rights of the Misseriya have not been properly taken into account and “the extent of the location of the Ngok Dinka was nowhere near that of the area ascribed to them by the Experts or the Tribunal.”

While I disagree with Awn Al-Khasawneh overall, his claim that this was a “result – oriented” decision, rings true. The question is whether the result will be one that both sides can live with. Initial press reports provide positive indications in this regard – fingers crossed it stays that way, but I for one have doubts . . .

Comments

  1. Nell Okie says:

    My take, as well.

    Thank you for your posts, Bec!!
    Nell

Trackbacks

  1. […] Bec Hamilton gives a more detailed analysis of the ruling, including the remarks of a dissenting judge. […]

  2. […] The Promise of Engagement Investigating the past 6 years of Darfur policy and citizen advocacy Skip to content Bec HamiltonAuthor’s resumeAbout the projectAbout the interviewsUPCOMING PODCASTSSubmit a question « Abyei: The “let’s avoid war” decision […]

  3. […] Following up on my last post regarding the ongoing contestation of the Heglig oilfield following the Abyei decision, this piece was sent to me by a friend of a friend that I first worked with in South Sudan five years ago. Garang Kuot Kuot works at the Council of Ministers, Northern Bahr El-Ghazal State, and writes from there on last week’s Abyei ruling. […]

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