|1898 Gleichen Handbook||"Handbook of the Sudan" compiled in the Intelligence Division, War Office by Captain Count Gleichen (1898)|
|1905 Gleichen Handbook||"The Anglo-Egyptian Sudan: A Compendium Prepared by Officers of the Sudan Government" edited by Lieutenant-Colonel Gleichen (1905)|
|ABC||Abyei Boundaries Commission|
|ABC Experts or Experts||The five experts nominated by the United Kingdom, the United States of America and the IGAD to the ABC (Ambassador Donald Patterson, Dr. Kassahun Berhanu, Prof. Shadrack B.O. Gutto, Dr. Douglas H. Johnson, Prof. Godfrey Muriuki)|
|ABC Experts' Report or Report||Report presented by the ABC Experts to the Sudanese Presidency on July 14, 2005|
|Abyei Appendix or Abyei Annex||Appendix to the Abyei Protocol relating to the Parties' "Understanding on Abyei Boundaries Commission"|
|Abyei Area or Formula||the area of the nine Ngok Dinka chiefdoms transferred to Kordofan in 1905|
|Abyei Protocol||Protocol on "The Resolution of Abyei Conflict" signed by the Parties on May 26, 2004|
|Abyei Referendum||A referendum to be held among the residents of Abyei (simultaneously with the referendum of Southern Sudan) allowing them to vote on whether Abyei shall retain its special administrative status in the north or become part of Bahr el Ghazal|
|Abyei Road Map||"Road Map for the Return of IDPs and Implementation of Abyei Protocol" signed by the Parties on June 8, 2008|
|Abyei Town||Town of Abyei located north of the Bahr el Arab river|
|Anglo-Egyptian Condominium (or||Joint British and Egyptian government of|
|Arbitration Agreement||Arbitration Agreement between the GoS and the SPLM/A on delimiting the Abyei Area signed on July 7, 2008|
|Babanusa||Sandy area in southern Kordofan, north of Muglad|
|Baggara||Arab nomadic tribes ofWestern Sudan (southern Kordofan and Darfur) and Eastern Chad|
|Bahr el Arab||Also referred to as Kir in Dinka, Bahr ed Deynka, Bahr el Homr, Bahr el Jange, Chonyan or Gurf; river that runs from Southern Darfur through Southern Kordofan, and flows into the Bahr el-Ghazal river in the Upper Nile Province|
|Bahr el Ghazal||Also known as Bahr el Gazal or Nam; river that runs through the Upper Nile Province; Province of Sudan bordering the southwest corner of Kordofan|
|Bahr el Ghazal Annual Reports||Any of the "Reports on the Finances, Administration, and Condition of the Sudan, Annual Report Bahr El Ghazal Province," including those published from 1902 to 1905|
|Bahr el Homr||A reference to either the Bahr el Arab or the Ragaba ez Zarga in the early 20th century|
|Bayldon, Sub-Lieutenant R.N.||Military officer who explored a portion of the Bahr el Arab in early 1905|
|Boulnois, W.A.||Governor of Bahr el Ghazal Province (19041905)|
|CivSec or Civsec||A reference to the Sudan Civil Secretary's files in Khartoum during the period of the Anglo-Egyptian Condominium|
|Community Mapping Project||Community mapping project conducted in a portion of the Abyei region with the involvement of a professional community mapping expert, Dr. Peter Toole, and members of the Ngok Dinka community|
|CPA||Comprehensive Peace Agreement signed by the Parties on January 9, 2005|
|Cunnison, Professor Ian||Professor of social anthropology who lived with and wrote about the Baggara Humr in the 1950s|
|Dar||Arabic word for homeland or tribal region|
|Darfur||Province of Sudan bordering the west of Kordofan|
|Dinka||Also known as Jange; a collection of tribes of Nilotic origin including, inter alia, the Ngok, the Rueng and the Twic|
|Dupuis, Inspector C.J.||District Commissioner of West Kordofan in 1921|
|GoS||Government of Sudan|
|Goz||Sandy area of transit south of Muglad|
|Henderson., K.K.D. (1903-1988)||Governor of Darfur Province from 1949-1953|
|Howell, P.P.||Anthropologist and District Commissioner at Nahud (Kordofan) in 1948|
|Humr||Also known as Homr; cattle-owning nomadic Arab tribe of southern Kordofan, subgroup of the Messiriya|
|Humr omodiya||Administrative term referring to a sub-group of Humr under a tribal headman (omda)|
|Inter-Governmental Authority on||Regional African organization comprised by|
|Development or IGAD||the seven countries in the Horn of Africa (Djibouti, Ethiopia, Kenya, Somalia, Sudan, Uganda, and Eritrea)|
|Interim National Constitution||Interim National Constitution of the Republic of Sudan adopted on July 6, 2005|
|Khartoum||Capital of Sudan, located in the north of Sudan|
|Kordofan||Also referred to as Kurdufan; Western Province of Sudan bordering Darfur in the west, Bahr el Ghazal in the southwest and Upper Nile in the southeast|
|Kordofan Annual Reports||Any of the "Reports on the Finances, Administration, and Condition of the Sudan, Annual Report Kordofan Province," including those published from 1902 to 1905|
|Lloyd, Captain H.D.W. (1872-1915)||Governor of Kordofan Province (1908)|
|Mahdiyya||Time of Mahdist rule of the Sudan (18851898)|
|Mahon, B.T. (1862-1930)||Governor of Kordofan Province (1901-1906)|
|March 1905 SIR||The Sudan Intelligence Report, No. 128 (March 1905)|
|Mardon, H.W.||author and cartographer who wrote "A Geography of Egypt and the Anglo-Egyptian Sudan" (1906)|
|MENAS Expert Report||"The Boundaries and Hydrology of the Abyei Area, Sudan" by Menas Borders Ltd. (February 2009; expert report commissioned by the SPLM/A for this arbitration)|
|Misseriya||also known as Messeria or Messiria; nomadic tribe of Baggara Arabs|
|Muglad||Home and cultivation area of the Humr, south of the Babanusa and north of the goz|
|Nine Ngok Dinka Chiefdoms||Abyior, Achaak, Achueng, Alei, Anyiel, Bongo, Diil, Manyuar, Mareng|
|Nuers||a nilotic tribe|
|O'Connell, J.R.||Governor of Kordofan in 1906|
|Parties||GoS and the SPLMA, collectively|
|PCA||Permanent Court of Arbitration|
|PCA Financial Assistance Fund||a fund established by PCA Member States that helps developing countries meet part of the costs involved in international arbitration or other means of dispute settlement offered by the PCA.|
|Percival, Captain C.||British officer who traveled to the Abyei region in 1904 and 1905|
|Ragaba||also spelled regaba or regeba; seasonal watercourse|
|Ragaba ez Zarga||also known as Ragaba ez-Zarga, Ngol, Ragaba Zarga; also referred to, in the early 20th century, as Bahr el Arab due to geographic confusion; watercourse located north of the Bahr el Arab and the Ragaba Umm Biero|
|Ragaba Umm Biero||also known as Nyamora, Yamoi, Umm Rebeiro, Umm Bieiro, Umbieiro, Umm Bioro; watercourse located north of, and flowing into, the Bahr el Arab|
|Rizeigat||Also referred to as Rezeigat; Baggara tribe located mostly in the Province of Darfur|
|Robertson, J.W. (1899-1983)||District Commissioner of Western Kordofan (1933-1936); Civil Secretary (1945-1953)|
|Rules of Procedure||Rules of procedure prepared by the ABC Experts pursuant to Section 4 of the Abyei Appendix and agreed to by the Parties on April 11, 2005|
|Sheikh Rihan Gorkwei||also known as Sultan Rihan; chief of the Twic Dinka in 1905|
|SPLM/A||Sudan People's Liberation Movement/Army|
|Sultan Rob||Paramount Chief Arop Biong; chief of the Ngok Dinka of southwest Kordofan in 1905|
|Terms of Reference||Terms of reference adopted by the Parties on March 12, 2005|
|Territorial Interpretation||the GoS interpretation of the Formula (see paras. 232 et seq.)|
|Tibbs, Michael||Assistant District Commissioner of the Western Kordofan District (1952-1953); District Commissioner of the Dar Messeria District (1953-1954)|
|Tribal Interpretation||the SPLM/A interpretation of the Formula (see paras. 232 et seq.)|
|Turkiyya||period of Turkish-Egyptian rule of Sudan (1821-1881)|
|Upper Nile||Province of Sudan bordering Kordofan in the east and the southeast|
|Wilkinson, Major E.B.(1864-1946)||Governor of Gezira Province (1903); Governor of Kassala Province (1903-1908); Governor of Berber Province (1908-1910)|
|Wingate, Sir. R. (1861-1953)||Governor-General of Sudan (1899-1916)|
|Wingate's 1904 Memorandum||Report entitled "Reports on the Finances, Administration, and Condition of the Sudan, Memorandum by Major General Sir R. Wingate" published in 1904|
|Wingate's 1905 Memorandum||Report entitled "Reports on the Finances, Administration, and Condition of the Sudan, Memorandum by Major General Sir R. Wingate" published in 1905|
(a) Whether or not the ABC Experts had, on the basis of the agreement of the Parties as per the CPA, exceeded their mandate which is '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.
(b) If the Tribunal determines, pursuant to Sub-article (a) herein, that the ABC Experts did not exceed their mandate, it shall make a declaration to that effect and issue an award for the full and immediate implementation of the ABC Report.
(c) If the Tribunal determines, pursuant to Sub-article (a) herein, that the ABC Experts exceeded their mandate, it shall make a declaration to that effect, and shall proceed to define (i.e. delimit) on map the boundaries of the area of the nine Ngok Dinka chiefdoms transferred to Kordofan in 1905, based on the submissions of the Parties.
Tribunal: Professor Pierre-Marie Dupuy
Judge Awn Al-Khasawneh
Professor Dr. Gerhard Hafner
Judge Stephen M. Schwebel
Professor W. Michael Reisman
For the GoS: Professor James Crawford SC
For the SPLM: Mr. Gary Born
Ms. Wendy Miles
Professor Paul R. Williams
Ms. Vanessa Jiménez
Dr. Luka Biong Deng
Hon. Deng Arop Kuol
Mr. Kuol Dueim Kuol
Mr. Mathew Otoromoi Martinson
Registry: Ms. Judith Levine
Mr. Aloysius Llamzon
1. The Presidency of the Republic of Sudan shall direct for the payment of the cost of the arbitration from the Unity Fund regardless of the outcome of the arbitration.
2. The Government of the Sudan shall apply to the PCA Financial Assistance Fund and the Parties may solicit additional assistance from the international community.
For the reasons set out in this Memorial, the Government of Sudan respectfully requests the Tribunal to adjudge and declare:
(a) pursuant to Article 2(a) of the Arbitration Agreement, that the ABC Experts exceeded their mandate as stated in the Abyei Protocol, and reiterated in the Abyei Appendix and the ABC Terms of Reference and Rules of Procedure;
(b) pursuant to Article 2(c) of the Arbitration Agreement, that the boundaries of the area of the nine Ngok Dinka chiefdoms transferred to Kordofan in 1905 are as shown on Figure 17 (page 159), being the area bounded on the north by the Bahr el-Arab and otherwise by the boundaries of Kordofan as at independence.
For the reasons set forth in this Memorial, the SPLM/A respectfully requests that the Arbitral Tribunal make an Award granting the following relief:
(a) A declaration that the ABC Experts did not, on the basis of the agreement of the Parties as per the CPA, exceed their mandate which is "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 Annex and the ABC Terms of Reference and Rules of Procedure;"
(b) On the basis of relief in the terms of sub-paragraph (a) above, a declaration that the boundaries of the area of the nine Ngok Dinka chiefdoms transferred to Kordofan in 1905 are as defined and delimited by the ABC Experts in the ABC Report, and that definition and delimitation, and the ABC Report shall be fully and immediately implemented by the Parties;
(c) In the alternative, if the Tribunal determines that the ABC Experts exceeded their mandate and makes a declaration to that effect, a declaration that the boundaries of the area of the nine Ngok Dinka Chiefdoms transferred to Kordofan in 1905 are the current boundary of Kordofan and Bahr el-Ghazal to the south extending to 10°35'N latitude to the north and the current boundary of Kordofan and Darfur to the west extending to 32°15'E longitude to the east;
(d) A declaration that the Tribunal's Award is final and binding on the Parties;
(e) Costs, including the direct costs of the arbitration, as well as fees and other expenses incurred in participating in the arbitration, including but not limited to, the fees and/or expenses incurred in relation to the Tribunal, solicitors and counsel, and any ABC Experts, consultants and witnesses, internal legal costs, the costs of translations, archival research and travel; and
(f) Such additional or other relief as may be just.
The Tribunal notes the statements made by the Sudan People's Liberation Movement/Army ("SPLM/A") in its Rejoinder of February 28, 2009 ("Rejoinder") that the Government of Sudan ("Government") has had full access to archives containing the sketch maps and cartographic records prepared by or for Messrs. Wilkinson, Percival, Hallam, and Whittingham, while the SPLM/A has not, in its view, been fully provided with or given access to these documents. (see, for example, paragraphs 432(g), 458, 460, 485, 564, 569, 571-72, and 574-76 of the Rejoinder).
The Tribunal appreciates that the Government has disclosed portions of the aforementioned maps in its written pleadings. The Tribunal also acknowledges that the Parties were entitled to submit extracts of documents in the exhibits to their written pleadings (see Transcript of the Nov. 24, 2008 Procedural Hearing, pp. 34-35).
However, in light of the potential importance of these contemporaneous documents, and recalling the need for a final and peaceful settlement of this dispute and the principle of equality that the Tribunal has a duty to accord to the Parties (as reflected in Article 15(1) of the PCA Rules):
1. The Tribunal requests, pursuant to Article 24(3) of the PCA Rules, that the Government of Sudan provide the Tribunal and the SPLM/A, by March 30, 2009, with copies of the full sketch maps/records prepared by or for Messrs. Wilkinson, Percival, Whittingham, and Hallam that are within the Government's possession or control, including specifically the full sketch maps and cartographic records relating to the following maps found in Volume III of the Government's CounterMemorial:
a. Map 13b (Wilkinson's Sketch Map);
b. Map 14a (Percival 1904 Route Map - Lake Leilak to Wau)
c. Map 14b (Percival's Sketch Map - River Kir to Wau);
d. Map 16b (Hallam's Sketch Map); and
e. Map 18b (Wittingham's Sketch Map).
2. The Tribunal is prepared to hear from both Parties as to the necessity of granting the SPLM/A full access to relevant archival documents within the Government's control (including access to the Sudan Survey Department), through the following process:
a. the SPLM/A may, by March 27, 2009, send a written request ("Request") to the Government, with a copy to the Tribunal, containing a reasonably specific description of documents, maps and/or cartographic records sought.
b. The Government may either: (i) facilitate full and timely access to the archival documents sought in the Request, or (ii) file before the Tribunal, with a copy to the SPLM/A, by April 6, 2009, a written objection to the Request ("Objection"), containing its specific grounds for objection.
c. The Tribunal will then consider the Request and Objection, and may issue the appropriate order.
The Tribunal thanks the Parties for the following letters in response to its communication of March 17, 2009 ("Communication"):
From the Government of Sudan ("GoS")
1. Letter dated March 19, 2009 from the Minister of the Presidency of the GoS
2. Letter dated March 19, 2009 from the Agent of the GoS
3. Letter dated March 23, 2009 from the Agent of the GoS
From the Sudan People's Liberation Movement/Army ("SPLM/A")
1. Letter dated March 17, 2009
2. Letter dated March 19, 2009
3. Letter dated March 20, 2009
The Tribunal expresses its appreciation at the GoS' assurances that the SPLM/A continues to enjoy full access to the Archives of Sudan (last paragraph, p. 3, letter of the Agent of the GoS dated March 19, 2009; first paragraph, p. 5, letter of the Agent of the GoS dated March 23, 2009). The Tribunal also takes note of the SPLM/A's statement that, "[a]t the present, the SPLM/A does not consider it necessary for the Tribunal to hear the Parties any further on point two of the PCA's letter dated 17 March 2009." (third paragraph, p.1, letter of the SPLM/A dated March 20, 2009). In view of the positions expressed by the Parties, the Tribunal shall take no further action at this time in relation to Point 2 of its Communication.
On Point 1 of its Communication, where the Tribunal requested that the GoS provide it and the SPLM/A with copies of the full sketch maps/records listed therein, the Tribunal notes that "the Government of Sudan will respond further by 30 March 2009." (last paragraph, p.4, letter of the Agent of the GoS dated March 23, 2009) The Tribunal requests that the additional documents sought by the SPLM/A in the penultimate paragraph of its March 20, 2009 letter (i.e., the "full sketch map(s), cartographic records and route reports prepared by or for Mr. Percival in relation to his 1905 trek from River Pongo to Taufikia.") be considered a further document to be provided by March 30, 2009 under Point 1 of the Tribunal's Communication.
The Tribunal looks forward to the GoS' response to Point 1, and expects that the GoS will provide these maps/records or, if necessary, provide satisfactory reasons for the unavailability of those documents not produced. The Tribunal is thankful for the spirit of cooperation the GoS has demonstrated in this matter.
The Tribunal thanks the Government of Sudan ("GoS") for its letter dated April 7, 2009 pursuant to the Presiding Arbitrator's request for comment (contained in the PCA's letter dated April 4, 2009), and acknowledges with thanks the letter dated April 8, 2009 from the Sudan People's Liberation Movement/Army ("SPLM/A"). Both these letters relate to allegations that the SPLM/A continues to be denied full access to the Archives of Sudan, that "it is impossible to determine the extent to which other materials, also directly relevant to the issues in these proceedings, continue to be withheld," and that the SPLM/A "will be" inviting the Tribunal to draw certain adverse inferences from the GoS'alleged conduct (pp. 2-3, SPLM/A letter dated April 3, 2009; see also p. 2, SPLM/A letter dated April 8, 2009).
The Tribunal notes that the SPLM/A is not asking the Tribunal to issue a ruling now and to draw any adverse inferences on account of the GoS'alleged conduct. In effect, the SPLM/A has put the GoS on notice about the adverse inferences that the former will seek from the Tribunal over the course of their argument during the oral pleadings. Accordingly, at this juncture in the proceedings, the Tribunal will take all the arguments made thus far by the Parties under advisement and has decided to remain seized of the issue. In light of the arguments presented at the oral pleadings, the Tribunal will decide, in the fullness of these proceedings, whether any adverse inferences or other appropriate conclusions should be drawn.
The Tribunal thanks the Government of Sudan ("GoS") for its letter dated April 9, 2009 pursuant to the Presiding Arbitrator's request for comment (contained in the PCA's letter dated April 8, 2009) on the Sudan People's Liberation Movement/Army's ("SPLM") request "that the Tribunal order pursuant to the Abyei Arbitration Agreement that the Government of Sudan  direct the Presidency to approve and transfer the funding required by the SPLM/A as a matter of urgency (p. 2, SPLM/A letter dated April 7, 2009).
The Tribunal recalls the obligation of the Presidency of Sudan to fund the "cost of arbitration from the Unity Fund" on behalf of both Parties (Article 11(1), Abyei Arbitration Agreement) and is conscious of its own obligation to ensure that the parties are treated with equality and that at any stage of the proceedings, each party must be given a full opportunity to present its case (Art. 15, PCA Rules). To realize this, and to ensure the integrity of this arbitral process, the Tribunal believes that adequate funding on the part of both Parties is critical. Considering the complexity of this case, its compressed schedule and lengthy submissions, and the critical stage that these proceedings are currently in (among other factors), the Tribunal believes that the amount of US$1,000,000 requested by the SPLM/A is reasonable and should immediately be released. The Tribunal therefore expects that the GoS will facilitate and ensure the immediate release by the Presidency of the Republic of Sudan of the US$1,000,000 in funding sought by the SPLM/A on or before April 14, 2009, and to confirm to the Tribunal no later than April 13, 2009 that the process of transmitting the funds has begun.
Mindful of the stringent time limitations established by Article 4.3 and Article 9.1 of the Arbitration Agreement, the Tribunal has requested, without prejudice of any kind, that the PCA make enquiries as to the availability of possible cartographers and geographers in the event that their assistance might be required for preparation of the Award. Arranging beforehand for the possibility of such assistance (which is envisaged under Article 27 of the PCA Rules) would enable the Tribunal to operate within the prescribed time limits, were it to make a determination under Article 2(c) of the Arbitration Agreement. Such an outcome can in no way be predicted at this stage of proceedings, but such enquiries are being made only out of prudent caution in light of the time restrictions imposed by the Parties' Arbitration Agreement.
As indicated in [...] the PCA's letter dated March 10, 2009, the PCA has, at the Tribunal's request, made enquiries as to the availability of experts in the event and to the extent that their assistance might be required for the preparation of the Award (which can in no way be predicted at this stage). Having reviewed a number of potential candidates, the Tribunal has decided to appoint Messrs Bill Robertson and Douglas Vincent Belgrave to serve as experts in this arbitration. The CVs of Messrs Belgrave and Robertson are attached for your information.
The experts were appointed at this stage in the proceedings to enable the Tribunal to operate within the time limits prescribed by the Parties' Arbitration Agreement.
The Tribunal has instructed the PCA to circulate to the Parties the attached draft Terms of Reference, which articulates the role the Tribunal envisages for the experts within this Arbitration. The Tribunal invites the Parties to submit any comments they may have on the draft Terms of Reference no later than April 8, 2009.
THE TRIBUNAL UNANIMOUSLY ORDERS:
That Messrs. Douglas Vincent Belgrave and Bill Robertson be appointed to serve as experts and provide assistance to the Arbitral Tribunal in this arbitration;
That the attached Terms of Reference for the experts be adopted.
EXPERTS' TERMS OF REFERENCE
2.1 Messrs Bill Robertson and Douglas Vincent Belgrave (the "Experts") shall serve as experts to assist the Tribunal in accordance with these Terms of Reference.
2.2. The Experts hereby declare that they will, as directed by the Tribunal, perform their duties honorably and faithfully, impartially and conscientiously, and will refrain from divulging or using, outside the context of the tasks to be performed by them in this arbitration, any confidential documents, files and information, including the deliberations of the Tribunal, which may come to their knowledge in the course of the performance of their task.
3.1. The Experts shall assist the Tribunal, should it determine that the ABC experts exceeded their mandate pursuant to Article 2(a) of the Arbitration Agreement, in defining (i.e. delimiting) on a map the boundaries of the area of the nine Ngok Dinka chiefdoms transferred to Kordofan in 1905, in accordance with Article 2(c) of the Arbitration Agreement.
3.2. The Experts will also make themselves available to assist the Tribunal as required by it in the preparation of the Award.
3.3 The Experts shall perform their duties according to best international practices in their fields of expertise.
The Permanent Court of Arbitration ("PCA") acknowledges electronic receipt of letters dated April 6 and April 7, 2009 from the Government of Sudan ("GoS"), and a letter dated April 7, 2009 from the Sudan People's Liberation Movement/Army ("SPLM/A"), all relating to the Parties' commitment to determine the appointment of Dinka and Arabic interpreters for the oral pleadings.
On Arabic-English and English-Arabic interpretation, the PCA notes that the Parties have agreed to the appointment of Mr. Yahia Mo'lla Mofarih as interpreter. The PCA would appreciate being furnished with a copy of Mr. Mofarih's CV and contact details.
On Dinka-English and English-Dinka interpretation, the PCA notes that the Parties have not agreed to any appointment. The GoS proposes Mr. Abingo Akok Kshwal, while the SPLM/A proposes Messrs. Charles Deng Majok and Kwaja Yai Kuol Arop.
After consultations with the Presiding Arbitrator, the PCA has determined that each Party may employ its own Dinka-English/English-Dinka interpreter(s) for the examination of its witnesses (for example, Dinka interpretation for each of the relevant GoS witnesses' direct, cross, re-direct, and re-cross examinations shall be conducted by Mr. Abingo Akok Kshwal). Any corrections to the Court Reporter's transcription arising from a perceived error in translation may be brought to the Tribunal's attention no later than one week from the conclusion of the oral pleadings, i.e., April 30, 2009.
In the matter of an arbitration pursuant to the Arbitration Agreement between the Government of Sudan and the Sudan People's Liberation Movement/Army on Delimiting Abyei Area, oral pleadings will be held at the Peace Palace in The Hague from April 18 to April 23, 2009. The oral pleadings will be open to the public and the media, and will be webstreamed live on the Permanent Court of Arbitration ("PCA") website beginning at 9:30 am (CET) on April 18, 2009 (http://www.pca-cpa.org/showpage.asp?pag id=1306).
The PCA International Bureau is acting as Registry and providing administrative support to the Arbitral Tribunal, which is composed of the following members:
Professor Pierre-Marie Dupuy (Presiding Arbitrator)
H.E. Judge Awn Al-Khasawneh
Professor Gerhard Hafner
Professor W. Michael Reisman
Judge Stephen Schwebel
The Parties have agreed to make the pleadings, transcripts, decisions and certain other documents public. These are available at the PCA website.
The PCA was established by treaty in 1899 and is the oldest intergovernmental organization devoted to the peaceful resolution of disputes through arbitration in the world. Its seat is at the Peace Palace, The Hague, The Netherlands. Further information on the PCA is available at http://www.pca-cpa.org.
1. Professor Pierre-Marie Dupuy
2. Judge Awn Al-Khasawneh
3. Professor Dr. Gerhard Hafner
4. Judge Stephen M. Schwebel
5. Professor W. Michael Reisman
For the Registry:
1. Mr. Aloysius Llamzon
2. Mr. Paul-Jean Le Cannu
3. Mr. Dirk Pulkowski
4. Ms. Catherine Quinn
5. Ms. Genevieve Reyes
6. Ms. Evelien Pasman
7. Ms. Gaelle Chevalier
8. Ms. Willemijn van Banning
9. Mr. Paulo Perassi
10. Mr. Thomas Levi
For the GoS:
1. Ambassador Dirdeiry Mohamed Ahmed
2. Dr. Faisal Abdel Rahamn Ali Taha
3. Dr. Abdelrahman Ibrahim Elkhalifa
Counsel and Advocates :
4. Professor James Crawford SC
5. Professor Alain Pellet
6. Mr. Rodman R. Bundy
7. Ms. Loretta Malintoppi
8. Prof. Nabil Elaraby
Legal Advisors :
9. Ms. Angelynn Meya
10. Mr. Jacques Hartmann
11. Ms. Céline Folsché
12. Mr. Paul Baker
13. Mr. Charles Alexander
Witnesses & Expert :
14. Ayom Matet Ayom
15. Zakaria Atem Diyin Thibek Deng Klir
16. Mukhtar Babu Nimir
17. Majak Matit Ayom
18. Majid Yak Kur
19. Mr. Alastair MacDonald
Technical Advisors :
20. Mr. Martin Pratt
21. Ms. Eleanor Scudder
Representatives of the Government of Sudan
22. General [Rtd] Mahdi Babo Nimir Ali, Former Chief of Staff
23. Fathi Khalil Mohamed, Chairman Sudan Bar Association
24. Abd Elgadir Monim Mansour Mohamed, MP, Hamar Paramount Chief
25. Mohamed Aldoreek Bakht, Commissioner
26. Fadlalla Burma Nasir, Deputy Chairman, Umma Party
27. Elkheir Elfahim Elmaki Hamid, Chairman, Kordofan Reconciliation Committee
28. Mariam Elsadig Elsiddig Almahdi, Political Secretary, Umma Party
29. Safieldin Galaleldin Gibreil Omer, Member, CPA Evaluation Commission
30. Siddig El Hindi, Secretary General UDP
31. Hasan Kantabai, Political Bureau, East Sudan Front
32. El Bagir Ahmed Abdalla, Political Bureau, UDP
33. Dr. El Tayeb Haj Atia, All Sudan Initiative
34. Hussein Braima Elnour Algozuli
35. Azhari Mohamed Summo Shaaeldin
36. Sami Eldai Bushara Goda
Interested Persons And Non-Testifying Witnesses
37. Herika Iz-Aldin Humeda Khamis, Former Governor
38. Ahmed Assalih Sallouha, Former Governor
39. Rahma Abdel Rahman El-Nour, Abyei D/Chief Administrator
40. Yahia Hussain Babiker, Director, Unity Fund
41. Salman Suliman El-Safi, State Minister
42. Prof Abdalla El Sadig, Director Survey
43. Kabbashi Eltom Kabbashi
44. Ashahab Elsadig Daif Allah
45. Mohammed Mahmoud Rajab Elradi
46. Deng Balaiel Bahar Hamadean
47. Mohamed Basheir Adam Elmoalim
48. Saeed Mohammed Bakkar Degais
49. Khalid Ibrahim Ali Ibrahim
50. Maria Mayut Ayoak Gweing
51. Ahmed Abdalla Adam
52. Abdelrahman Mukhtar Hassab Alla
53. Hamadi Ad'dood Ismael Hammad
54. Abd Elgaleel Bakkar Ismail Elsakin
55. Shummo Hurgas Marida
56. Ali Hmdan Kir
57. Alsadig Ibrahim Ahmed Ibrahim
58. Hamid Bushra Godat Mohamed
59. Mohamed Elnil Mohamed
60. Hassan Mohamed Ibrahim
61. Daoud Mohamed Abdalla
62. Bashtana Mohammed Salem Suliman
63. Yagoub Abuelgasim Touri Yagoub
64. Adil Hassan Abdelrahman Mohamed
65. Abdelmonm Musa Elshiwen Aldaif
66. Ismail Hamdean Humaidan
67. Elnazir Gebreil Elgouni Abdelaziz
68. Ogeil Godtalla Abdelhamid Khamis
69. Gadim Mohamed Azaz Gamaella
70. Abdelrahman Hasan Omer
71. Abdulrahman Salih El Tahir
72. Dr. Hassan Abdin
73. Prof. Yousuf Fadl
74. Mr. Abdel Rasoul Elnour
75. Mr. Mahdi Babo Nimir
76. Dr. Suliman Eldabalo
Members of the Media
77. Hassan Makki Mohamed Ahmed, Political Analyst
78. Elhindi Omer, Columnist
79. Ishag Ahmed Fadl Allah Elfahal, Columnist
80. Sarra Taha Mohi Aldin Mohamed, TV Crew
81. Mahgoub Mohamed Salah, Editor in Chief
82. Awad Elkarim Ahmed Mustafa, TV Crew
83. Tarig Eltegany Ballal, Journalist
84. Asma El-Suhaili, Political Analyst
85. El Tayeb Zainalabdin, Editor-in-Chief
86. Khalid El Tigani, Editor-in-Chief
87. Adil El Baz, Journalist
88. El Sir Sidahmed, Journalist
89. Adil El Biali, Journalist
90. El Sadig El Rizaigi, Journalist
91. Khalid El Mubarak, Journalist
Staff from the Embassy of the Sudan
92. H.E. Ambassador A.A. Shikh Idris
93. Minister plenipotentiary Sayed. A. Ahmed
94. Mr Chol Ajongo, Counselor
95. Mr Baha Aldien Mohamed Khamis, Agricultural Counselor
96. Mr. Abbas Mohamed Alhaj, Counselor
97. Mr Abd Alrahman Abdalla Abd Alrahman, Second Secretary
98. Miss Nada Awad Omer, Administrative Attaché
99. Mrs Awatif Osman, Financial Attaché
For the SPLM/A:
1. Dr. Riek Machar Teny
2. Dr. Luka Biong Deng
Counsel and Advocates
3. Mr. Gary Born
4. Ms. Wendy Miles
5. Dr. Paul Williams
6. Ms. Vanessa Jiménez
7. Hon. Deng Arop Kuol
8. Maj. Gen. Kuol Deim Koul
9. Hon. Arop Madut Arop
10. Ms. Bridget Rutherford
11. Mr. Anand Shah
12. Ms. Courtney Nicolaisen
13. Mr. Charlie Caher
14. Ms. Kate Davies
15. Ms. Anna Holloway
16. Ms. Daisy Joye
17. Ms. Inken Knief
18. Mr. Timothy Lindsay
19. Mr. Oliver Spackman
20. Ms. Anna-Maria Tamminen
21. Ms. Lisa Tomas
22. Mr. Kevin Mottram
23. Mr. Daniel Harris
Technical Advisors and Assistants
24. Mr. Alex Tait
25. Mr. Scott Edmonds
26. Ms. Joanne Gilpin
27. Ms. Kathleen Kundt
28. Mr. Shakeel Sameja
Witnesses & Experts :
29. Mr. Deng Chier Agoth
30. Mr. Ring Makuac Dhel Yak
31. Professor J. A. Allan
32. Dr. Peter Poole
33. Professor Martin Daly
34. Mr. Richard Schofield
35. Mr. Paul Mayom Akec, Observer
36. Mr. Deng Alor Kuol
37. Mr. Michael Makuei Lueth
38. Mr. Ambrose Riny Thiik
39. Mr. Kuol Deng Mijok Kuol
40. Mr. Nyol Pagout Deng
41. Mr. Kuol Alor Makuac
42. Mr. Ajak Malual Beliu
43. Mr. Akonon Ajuong Deng
44. Mr. Arop Kuol Kon
45. Mr. Bagat Makuac Abiem
46. Mr. Mijok Kuol Lual
47. Mr. Belbel Chol Akuei
48. Mr. Chol Por Chol
49. Mr. Jacob Madhol Lang
50. Hon. Benjamin Majak Dau
51. Hon. Peter Beshir Gbandi
52. Hon. James Lual Deng Kuel
53. Hon. Zakaria Bol Deng
54. Hon. Mary Nyaulang
55. Hon. Kom Kom
56. Mr. Victor Akok Anei Magar
57. Mr. Juac Agok Anyaar
58. Mr. Edward Abyei Lino
59. Mr. Chol Changath Chol
60. Hon. Charles Abyei Jok
61. Hon. Nyankuac Ngor
62. Hon. Nyianawut Miyan
63. Ms. Asha Abbas Akwai
64. Dr. Zakaria Bol Deng
65. Hon. Bol Gatkuoth
66. Hon. Charles Abyei Kon
67. Mr. Michael Majak Abiem
68. Mr. Mathew Oturomoi Martinson
69. Mr. Biong Deng Kuol
70. Mr. Mangok Atem Piyin
71. Mr. Luka Chen Chen Atem
72. Mr. Ezekiel Lol
73. Ms. Apuk Ayuel
74. Mr. Daniel Jok
75. Mr. Victor Bullen Baba
76. Mr. Gordon Morris
77. Mr. Alfred Taban
78. Dr. Francis G. Nazario
79. Mr. Wilson Deng Peter
80. Mr. Akoc Wol Akoc
81. Mrs. Florence A. Andrew
82. Mr. Arkanjelo Ngoth
83. Mr. William Vito Akwar
84. Mr. Thomas Wako
85. Mr. Christopher Brale
86. Mr. Salvatore Ali
87. Mr. Majok Mading
88. Mr. Deng Biong Mijak
89. Mr. Stephen Kang Elario
90. Mr. Jeremiah Swaka Moses
91. Mr. Bella Kodi
92. Mr. Peter Makoi
93. Mr. Ali Alfred
94. Mr. Ater Andrew
95. Mr. Robert Lenny
96. Ms. Pani Lado
97. Mr. Nicknora Gongich
98. Nyanyol Mathiang
99. Mr. Miyong G. Kuon
100. Ms. Elizabeth Carlo
Mr. Alastair MacDonald
Mr. Zakaria Atem Diyin Thibek Deng Klir
Mr. Mukhtar Babu Nimir
Having considered the SPLM/A's letter of June 30, 2009, the Government of Sudan's ("GoS") comments of July 7, 2009, and the SPLM/A's reply of July 9, 2009, the Presiding Arbitrator has instructed the PCA to inform the Parties of the following:
• Pursuant to Article 9(1) of the Arbitration Agreement, the final award "shall be rendered within a maximum of ninety days from the closure of submissions," i.e., no later than July 22, 2009. While Article 8(7) of the Arbitration Agreement empowers the Tribunal to extend this period for good cause, the Tribunal has not done so at present.
• The Arbitration Agreement does not explicitly provide for any ceremony or meeting at the rendering of the final award. Nevertheless, after receiving comments from the Agents of both Parties, the Tribunal finds it appropriate to conduct a formal event at the Peace Palace in The Hague on the day the award is rendered.
• Consistent with Paragraph 10.3 of the Terms of Appointment, the Tribunal invites the Parties to confer and jointly propose a date for the ceremony, together with any other particulars they may deem appropriate. The Parties are requested to report to the Tribunal on the outcome of their discussions no later than 8:00 PM (CET) on Monday, July 13, 2009. In the absence of an agreement, the Tribunal will decide the matter in due course.
Having considered the Parties' positions, the Presiding Arbitrator has instructed the PCA to inform the Parties of the following on behalf of the Tribunal:
• Due to the inability of the Parties to agree on a new date for the rendering of the award, the Tribunal considers that it must adhere to the 90-day period provided under Article 9(1) of the Arbitration Agreement. The Tribunal will therefore render its Award in a short ceremony on July 22, 2009, 10:00a.m., at the Great Hall of Justice, The Peace Palace, The Hague. The Tribunal has instructed the PCA to issue a press release today to inform members of the public accordingly.
• Consistent with Article 9(3) of the Arbitration Agreement, the Tribunal invites the Agents and counsel of the Parties to be present at the awardrendering ceremony, along with any number of party representatives they deem appropriate. While the Parties are free to compose their respective delegations as they see fit, the Tribunal extends a particular invitation to the chiefs of the Misseriya and Ngok Dinka communities to be present at the ceremony. The Parties are requested to inform the PCA of the composition of their respective delegations no later than 1:00PM (CET), Monday, July 20, 2009.
• Consistent with Article 9(4) of the Arbitration Agreement, the Tribunal has also instructed the PCA to invite representatives of the States and other entities who witnessed the signing of the Comprehensive Peace Agreement, and a representative of the Assessment and Evaluation Commission, to attend the ceremony.
• Consistent with Article 8(6) of the Arbitration Agreement and the practice followed in these proceedings, the award-rendering ceremony will be made open to the public and will be webstreamed live at the PCA website. The Tribunal authorizes the Parties to invite members of the Sudanese and international media to be present at the ceremony. The Tribunal has also instructed the PCA to prepare a press release, in both English and Arabic, designed to provide a short summary of the most critical aspects of the Tribunal's award. The Press Release will be issued immediately after the ceremony.
• The Tribunal will be represented at the ceremony by the Presiding Arbitrator, who will give a brief statement summarizing the Award.
In the matter of an arbitration pursuant to the Arbitration Agreement Between the Government of Sudan and the Sudan People's Liberation Movement/Army on Delimiting the Abyei Area, the arbitral Tribunal will render its final award ("Award") on July 22, 2009, 10:00a.m. (CET; GMT +2), at the Peace Palace, The Hague.
During this ceremony, the Presiding Arbitrator will personally deliver the Award to representatives from both Parties and deliver a brief statement summarizing the Award. The ceremony will be webstreamed live on the Permanent Court of Arbitration ("PCA") website beginning at approximately 10:00 am (CET; GMT +2) on July 22, 2009 (http://www.pca-cpa.org/showpage.asp?pag_id=1306). Representatives of the States and other entities who witnessed the signing of the Parties' Comprehensive Peace Agreement have been invited to attend the ceremony. Members of the Sudanese and international media are also invited to be present.
Immediately after the ceremony, the Award will be made public through the PCA website. The PCA will also issue a press release (in both English and Arabic), which will provide a short summary of the most critical aspects of the Award.
The PCA emphasizes that until the Award is rendered at the ceremony on July 22, 2009, its contents will continue to be absolutely confidential. No person or entity has or will be given advanced notice of the Tribunal's decision.
(a) one representative from each of the GoS and the SPLM/A;
(b) "five impartial experts knowledgeable in history, geography and any other relevant expertise" nominated by the United States, the United Kingdom and the Inter-Governmental Authority on Development ("IGAD");
(c) two nominees of the GoS and two nominees of the SPLM/A "from the present two administrations of the Abyei Area;"
(d) two nominees of the GoS from the Messiriya; and
(e) two nominees of the SPLM/A from the "neighboring Dinka tribes to the South of the Abyei Area."64
No map exists showing the area inhabited by the Ngok Dinka in 1905. Nor is there sufficient documentation produced in that year by the Anglo-Egyptian Condominium government authorities that adequately spell out the administrative situation that existed in that area at that time. Therefore, it was necessary for the [ABC Experts] to avail themselves of relevant historical material produced both before and after 1905, as well as during that year, to determine as accurately as possible the area of the nine Ngok Dinka chiefdoms as it was in 1905.79
The Government of Sudan's position is that the only area transferred from Bahr el-Ghazal to Kordofan in 1905 was a strip of land south of the Bahr el-Arab/Kir; that the Ngok Dinka lived south of the Bahr el-Arab/Kir prior to 1905, and migrated to the territory north of the river only after coming under the direct administration of Kordofan. Therefore the Abyei Area should be defined as lying south of the Bahr el-Arab/Kir, and excluding all territory to the north of the river, including Abyei Town itself. This is opposed by the SPLM/A position which is that the Ngok Dinka have established historical claims to an area extending from the existing Kordofan/Bahr el-Ghazal boundary to north of the Ragaba ez-Zarga/Ngol, and that the boundary should run in a straight line along latitude 10°35'N87
• In 1905 there was no clearly demarcated boundary of the area transferred from Bahr el-Ghazal to Kordofan;
• The GOS belief that the area of the nine Ngok Dinka chiefdoms placed under the authority of Kordofan in 1905 lay entirely south of the Bahr el-Arab is mistaken. It is based largely on a report by a British official who incorrectly concluded that he had reached the Bahr el-Arab when in fact he had only come to the Ragaba ez-Zarga/Ngol. For several years afterwards maps, some of which were cited by the GOS in its presentation to the ABC Experts, manifested this error;
• The Ngok claim that their boundary with the Misseriya should run from Lake Keilak to Muglad has no foundation;
• The historical record and environmental factors refute the Misseriya contention that their territory extended well to the south of the Bahr el-Arab, an area to which they never made a formal claim during the Condominium period;
• Although the Misseriya have clear "secondary" (seasonal) grazing rights to specific locations north and south of Abyei Town, their allegation that they have 'dominant' (permanent) rights to these places is not supported by documentary or material evidence;
• There is compelling evidence to support the Ngok claims to having dominant rights to areas along the Bahr el-Arab and Ragaba ez-Zarga and that these are long-standing claims that predated 1905;
• There is no substance to the Misseriya claim that because the Abyei Area was included in 'Dar Messeria' District, it belongs to the Misseriya people. The Ngok and the Humr were put under the authority of the same governor solely for reasons of administrative expediency in 1905. After that action, the Ngok retained their identity and control over their local affairs and maintained a separate court system and hierarchy of chiefs;
• The administrative record of the Condominium period and testimony of persons familiar with the area attest to the continuity of Ngok Dinka settlements in, and use of, places north of the Bahr el-Arab between 1905 and 1965, as claimed by the Ngok and the SPLM/A;
• The ABC Experts considered the presentation by the SPLM/A that their dominant claim lies at latitude 10°35' N, but found the evidence in support of this to be inconclusive; and
• The border zone between the Ngok and Misseriya falls in the middle of the Goz, roughly between latitudes 10°10' N and 10°35' N.89
1) The Ngok have a legitimate dominant claim to the territory from the Kordofan-Bahr el-Ghazal boundary north to latitude 10°10' N, stretching from the boundary with Darfur to the boundary with Upper Nile, as they were in 1956;
2) North of latitude 10°10' N, through the Goz up to and including Tebeldia (north of latitude 10°35'N) the Ngok and Misseriya share isolated occupation and use rights, dating from at least the Condominium period. This gave rise to the shared secondary rights for both the Ngok and Misseriya;
3) The two Parties lay equal claim to the shared area and accordingly it is reasonable and equitable to divide the Goz between them and locate the northern boundary in a straight line at approximately latitude 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 the Kordofan-Upper Nile boundary at approximately longitude 29°32'15" E northwards until it meets latitude 10°22'30" N;
4) The northern and eastern boundaries will be identified and demarcated by a survey team comprising three professional surveyors: one nominated by the National Government of the Sudan, one nominated by the Government of the Southern Sudan, and one international surveyor nominated by IGAD. The survey team will be assisted by one representative each from the Ngok and Misseriya, and two representatives of the Presidency. The Presidency shall send the nominations for this team to IGAD for final approval by the international ABC Experts;
5) The Ngok and Misseriya shall retain their established secondary rights to the use of land north and south of this boundary.90
[w]hether or not the ABC Experts had, on the basis of the agreement of the Parties as per the CPA, exceeded their mandate which is "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. (emphasis added)
It was clearly our view when we submitted our proposal [that] the area transferred in 1905 was roughly equivalent to the area of Abyei that was demarcated in later years.143
(a) The ABC Experts were not authorized to consult the US Government nor any other third party.144 Mr. Millington's e-mail allegedly had nothing to do with the "independent investigations and scientific research" that the ABC Experts were supposed to conduct.145
(b) The Parties were given no notice of the request or the response and thus had no opportunity to comment. This was, in the GoS's view, a clear failure of due process and a patent breach of Section 14 of the Rules of Procedure.146
(c) The ABC Experts failed to see that Mr. Millington's response raised more questions than it resolved. The GoS sees no relation between "the area of the nine Ngok Dinka Chiefdoms transferred to Kordofan in 1905" and "the area of Abyei that was demarcated in later years."147
The districts of Sultan Rob and Okwai, to the south of the Bahr el-Arab and formerly a portion of the Bahr el-Ghazal Province, have been incorporated into Kordofan.325
[…] the reasons for the transfer of the two areas and not the people are explicitly stated - the occasional raids by the Southern Kordofan Arabs.328
It has been decided that Sultan Rob, whose country is on the Kir river, and Sheikh Rihan of Toj... are to belong to Kordofan Province. These people have, on certain occasions, complained of raids made on them by southern Kordofan Arabs, and it has therefore been considered advisable to place them under the same Governor as the Arabs of whose conduct they complain."346
1. The Abyei Protocol constituted an exception to the territorial principle of the uti possidetis of 1956, repeatedly affirmed in the CPA.
2. The territorial integrity of Kordofan was upheld against a claim to an extensive tribal boundary of 1966.
3. But an exception was made for an area administratively added to Kordofan in 1905. That area, once identified, could in principle be returned to Bahr el-Ghazal if the inhabitants preferred that course of action.390