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

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.