من الثالث عشر وحتى الثالث والعشرون من ابريل الحالى موعد المرافعات الشفوية في قضية ابيي بلاهاي

Quote: 2.6 Under Article 2 of the Arbitration Agreement, the issues to be determined by the Tribunal are the following: “(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. PCA 14025 GOS-SPLM Terms of Appointment November 24, 2008 Page 4 of 12 (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.”

Quote: 3.3 On August 14, 2008, in accordance with Articles 5.2 and 5.4 of the Arbitration Agreement, the GoS appointed the following two arbitrators: H.E. Judge Awn Al-Khasawneh Vice-President, International Court of Justice Peace Palace, Carnegieplein 2 2517 KJ The Hague The Netherlands Tel: +31 70 302 23 23 Fax: +31 70 302 24 09 Email: [email protected] / [email protected] Professor Dr. Gerhard Hafner Department of European, International and Comparative Law Law Faculty, Vienna University Schottenbastei 10 - 16 A-1010 Vienna Austria Tel: +43 6 763 094 411 Fax: +43 1 4277 35321 / 4277 9353 Email: [email protected] PCA 14025 GOS-SPLM Terms of Appointment November 24, 2008 Page 5 of 12 3.4 On August 15, 2008, in accordance with Articles 5.2 and 5.4 of the Arbitration Agreement, the SPLM/A appointed the following two arbitrators: Professor W. Michael Reisman 127 Wall Street New Haven, Connecticut 06511 P.O. Box 208 215 New Haven, Connecticut 06520 USA Tel: +1 203 432 4962 Fax: +1 203 432 7247 Email: [email protected] Judge Stephen M. Schwebel 1501 K Street, NW Suite 410 Washington, DC 20005 USA Tel: +1 202 736 8328 Fax: +1 202 736 8709 Email: [email protected] 3.5 Before August 22, 2008, in accordance with Article 5.6 of the Arbitration Agreement, each of the four Party-appointed arbitrators signed declarations of independence, impartiality, and commitment, and such declarations were immediately communicated by the PCA to the Parties. 3.6 On October 27, 2008, in accordance with Article 5.12 of the Arbitration Agreement, the Secretary-General of the PCA appointed as the fifth and presiding arbitrator: Professor Pierre-Marie Dupuy The Graduate Institute of International and Development Studies Case Postale 136 CH-1211 Geneva 21 Switzerland Tel: +41 79 602 16 97 Fax: +41 22 733 29 04 Email: [email protected]

Quote: 1 The Parties to the Arbitration GOVERNMENT OF SUDAN SUDAN PEOPLE’S LIBERATION MOVEMENT/ARMY Represented by: Represented by: Agent Ambassador Dirdeiry Mohamed Ahmed Dirdeiry & Co. Flat 608, Sixth Floor Tadamon Tower, Baladia Street Khartoum, Sudan Tel: +249 183 741 779 Fax: +249 183 741 780 [email protected] Agent and Co-Counsel Mr. Gary Born Wilmer Cutler Pickering Hale and Dorr LLP 4 Carlton Gardens London SW1Y 5AA United Kingdom Tel: +44 20 7872 1020 Fax: +44 20 7839 3537 [email protected] Co-Agents Dr. Faisal Abdel Rahman Ali Taha Permanent Boundaries Committee Abu Dhabi, United Arab Emirates Tel: +971 2641 5224 Fax: +971 2642 8115 [email protected]; and Dr. Abdelrahman Ibrahim Elkhalifa 17, Block 11 A, Street No. 5, Al Amarat Khartoum, Sudan Tel: +249 91230 4624 [email protected] Co-Counsel Professor James Crawford SC Matrix Chambers, Griffin Building, Gray’s Inn London WC1R 5LN, UK Tel: +44 20 7404 3447 Fax: +44 20 7404 3448 [email protected]; and Dr. Nabil Elaraby Zaki Hashem & Partners 23, Kasr El-Nil Street Cairo, Egypt 1/2111 Tel: +202 3933 766 Fax: +202 3933 585 [email protected] Co-Agents Dr. Riek Machar Teny Tel: +249 122 939 997 Fax: +249 811 820 370 [email protected]; and Dr. Luka Biong Deng Tel: +249 122 635 821 Fax: +249 811 820 370 [email protected] Co-Counsel Ms. Wendy Miles Wilmer Cutler Pickering Hale and Dorr LLP 4 Carlton Gardens London SW1Y 5AA, UK Tel: +44 20 7872 1035 Fax: +44 20 7839 3537 [email protected]; and Ms. Vanessa Jiménez Mr. Paul R. Williams Public International Law & Policy Group 3600 North Vernon Street Arlington, VA 22207, USA Tel: +1 240 441 2133 Fax: +1 202 274 4132 [email protected] [email protected]

Quote: C. The ABC Experts Did Not Exceed Their Mandate 18. This Tribunal is presented, under Articles 2(a) and 2(b) of the Abyei Arbitration Agreement, with a straightforward issue. Article 2(a) of the Arbitration Agreement provides that the only ground for challenging the ABC Report is if “the ABC experts … 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.’” That is the sole basis for contesting the ABC Report: only if the GoS is able to demonstrate that the ABC Experts exceeded their mandate within the meaning of Article 2(a) may the ABC Report be set aside. - 4 - 19. The Abyei Arbitration Agreement provides no other ground for disregarding the Report. Rather, Article 2(b) of the Agreement provides that, “if the Tribunal determines … 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.” 20. Preliminarily, although neither the GoS nor its counsel has yet articulated its position, there appears to be no claim that the Abyei Protocol was invalid, null and void or ineffective, or that the parties did not validly submit their dispute regarding the Abyei Area to the ABC. The Abyei Protocol was an integral part of the Comprehensive Peace Agreement, obviously and indisputably binding on both parties. The same is true of the provisions of the parties’ agreements relating to the ABC. 21. The basis for disregarding the ABC Report specified in Articles 2(a) and 2(b) of the Arbitration Agreement is narrowly limited to an excess of the ABC Expert’s mandate. All other grounds for alleging nullity of, or refusing to comply with, the ABC Report are excluded by the Agreement – including, for example, alleged errors of law or fact by the ABC Experts, objections to the ABC Experts’ procedures or the composition of the ABC, and other grounds sometimes suggested historically as bases for findings of nullity of adjudicative decisions. 22. A claim that the ABC Experts’ decision was an “excess of mandate” requires the GoS to demonstrate that the decision was ultra petita – that it decided matters that were outside the scope of the disputes submitted to the ABC by the parties. Simply stated, an excess of mandate under Article 2(a) may only be claimed if the ABC Experts “decid[ed] upon that which was not in fact submitted to them” (Commentary on the Draft Convention on Arbitral Procedure Adopted by the International Law Commission at its Fifth Session) or “delimit[ed], in whole or in part, a boundary in areas not covered by the terms of reference and thus exceed[ed] the territorial scope of [their] jurisdictional powers” (K. Kaikobad, The Quality of Justice: ‘Excès de Pouvoir’ in the Adjudication and Arbitration or Territorial and Boundary Disputes). 23. Applying Article 2(a), there is no conceivable basis for suggesting that the ABC Experts exceeded their mandate. As outlined above, the ABC Report addressed – in exhaustive (251 pages in total) and meticulous detail – the definition of the geographic boundaries of the Abyei Area as that area was specified in Article 1.1.2 of the Abyei Protocol. This was exactly what the ABC Experts had been mandated to do by Article 5.1 of the Abyei Protocol. 24. In particular, the ABC Report specifically referred to Article 1.1.2 of the Abyei Protocol, as well as to the ABC’s mandate under Article 5.1 of the Protocol “to define and demarcate the Area of the nine Ngok Dinka Chiefdoms transferred to Kordofan in 1905.” The Report next observed that the ABC Experts defined the Abyei Area as constituting “the area of the nine Ngok Dinka chiefdoms as it was in 1905.” And the Report then explained, in comprehensive and impressively documented detail, what the historical and other evidence established concerning the 1905 territory of the Ngok Dinka. 25. Based on this analysis, the ABC Report concluded with the ABC Experts’ “Final and Binding Decision,” which set forth specific latitudinal and longitudinal lines defining the Abyei Area’s geographic boundaries. Attached to the ABC Report was a series of Maps and Appendices. Of most importance was “Map 1,” entitled “The Abyei Area Boundaries,” on - 5 - which the ABC Experts delimited their definition of the Abyei Area – the precise issue the ABC Experts were mandated to decide. 26. In the circumstances, any suggestion that the ABC Experts somehow exceeded their mandate is wholly specious. Instead, what the GoS and its counsel seek to do in this arbitration is to relitigate, in a new forum, the issues that the ABC Experts already considered and unanimously resolved. That is no doubt why the GoS did not raise (and instead disclaimed) any excess of mandate objection during the ABC’s proceedings and did not articulate any comprehensible basis for its purported excess of mandate claim in July 2005 or, so far as the SPLM/A is aware, at any time subsequent to that date.

Quote: D. Origins of the Dispute Submitted to the Tribunal 10. Since the Parties could not agree on the extent of the area defined in Article 5.1, an Abyei Boundaries Commission (“ABC” or “the Commission”) was provided for. The relevant article of the Abyei Protocol – the only article of the CPA pertaining to the work of the Commission – provided: “5 Determination of Geographic Boundaries 5.1 There shall be established by the Presidency, Abyei Boundaries Commission (ABC) to define and demarcate the Area of the nine Ngok Dinka Chiefdoms transferred to Kordofan in 1905, referred to herein as Abyei Area. 5.2 The composition and timeframe of the Abyei Boundaries Commission shall be determined by the Presidency. However, the Commission shall include, inter alia, experts, representatives of the local communities and the local administration. The Commission shall finish its work within the first two years of the Interim Period. 5.3 The Abyei Boundaries Commission (ABC) shall present its final report to the Presidency as soon as it is ready. Upon presentation of the final report, the Presidency shall take necessary action to put the special administrative status of Abyei Area into immediate effect.”6 11. The Understanding on the Abyei Boundaries Commission provided for it to be “composed as follows”: “2.1 One representative from each Party; 2.2 The Parties shall ask the US, UK and IGAD to nominate five impartial experts knowledgeable in history, geography and any other relevant expertise. The ABC shall be chaired by one of those experts; 2.3 Each Party shall nominate two from the present two administrations of Abyei Area; 2.4 The GOS shall nominate two from the Messiriya; 2.5 The SPLM/A shall nominate two from the neighbouring Dinka tribes to the South of Abyei Area.”7 12. The Understanding set out the basis on which the Commission was to make its decision: 6 Abyei Protocol, signed at Naivasha, Kenya, 26 May 2004, Chapter IV of the CPA (SM Annex 71). 7 Understanding on Abyei Boundaries Commission, 17 December 2004 (SM Annex 69). 6 “4. In determining their findings, the Experts in the Commission shall consult the British Archives and other relevant sources on Sudan wherever they may be available, with a view to arriving at a decision that shall be based on scientific analysis and research. The experts shall also determine the rules of procedure of the ABC.” 13. The Experts were Donald Petterson (Chair), Dr. Douglas Johnson, Professor Godfrey Muriuki, Professor Kassahun Berhanu and Professor Shadrack Gutto (hereafter “the ABC Experts”). They presented their Report on 14 July 2005. They concluded: “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 areas 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; ...”8 14. The ABC Experts stipulated that the Ngok and Misseriya should “retain their established secondary rights to the use of land north and south of this boundary.”9 15. The GoS immediately rejected the decision on the basis, inter alia, that the ABC had acted beyond its authority as it was only mandated to define and demarcate the area of the nine Ngok Dinka Chiefdoms transferred from Bahr el Ghazal to Kordofan Province in 1905.

Quote: 154. The current leadership of the nine Ngok Dinka Chiefdoms is as follows: CHIEFDOM CHIEF PARAMOUNT CHIEF (ABYIOR) Kuol Deng Kuol Arop ABYIOR Kuol Alor Makuac Biong ACHAAK Chol Pur Chol Executive Chief Ring Makuac Dhel Yak ACHUENG Ajak Malual Beliu ALEI Belbel Chol Akuei Deng ANYIEL Akonon Ajuong Deng Tiel BONGO Nyol Paguot Deng Ayei DIIL Arop Kuol Kwon MANYUAR Bagat Makuac MARENG Mijok Kuol Lual Deng 155. The nine Ngok Dinka Chiefdoms are further sub-divided into 23 “sections” in total (two or three per Chiefdom), each headed by a sectional chief. There may also be junior