On Saturday 18 April, oral proceedings opened in the Abyei Arbitration between the Government of Sudan and the Sudan People’s Liberation Movement/Army. The case is taking place at the Permanent Court of Arbitration in The Hague. The legal issues raised in the proceedings are relatively familiar to many international lawyers, involving the delimitation and demarcation of land territory. However, this arbitration has a number of unusual features.
First, the subject matter of the arbitration concerns a peace settlement which ended a long-running civil war between the north and the south of Sudan. The arbitration sees the two partners in the national government of unity pitted against each other before an international tribunal. The five member tribunal is asked to resolve a dispute over the implementation of the peace settlement . The Comprehensive Peace Agreement (CPA) was agreed in January 2005 and it was subsequently incorporated into the Interim National Constitution of the Republic of Sudan. However, disagreements continued between the two parties over the implementation of the settlement, in particular over the demarcation of the Abyei area in the centre of the country. This was perhaps one of the most contentious issues in the peace negotiations leading up to the CPA. The Protocol on the Resolution of the Abyei Conflict created a special legal regime for the Abyei area, the territory of which was to be subsequently defined and demarcated by the Abyei Boundaries Commission (ABC). However, the parties differ over whether or not the ABC exceeded its mandate. It is this issue which has been submitted to the tribunal.
A second unusual feature is the applicable law in the arbitration. The tribunal is asked to resolve the dispute “in accordance with the provisions of the CPA, particularly the Abyei Protocol and the Abyei Appendix, the Interim National Constitution of the Republic of Sudan, 2005, and general principles of law and practices as the Tribunal may determine to be relevant.” On this basis, it could be said that the tribunal is performing a quasi-constitutional function as it is interpreting and applying the constitutional settlement agreed at the end of the civil war. Such constitutional issues would ordinarily be submitted to a country’s constitutional court and recourse to extra-state institutions for constitutional disputes is highly unusual.
A third point of note is that the arbitration is being broadcast live on the web. Of course, this is not the first international tribunal to have done so. The international criminal tribunals, including the International Criminal Court and the International Criminal Tribunal for the Former Yugoslavia, already broadcast trials in progress. However, in criminal cases, public transparency is a fundamental requirement for a fair trial. In contrast, arbitration is often chosen by litigants in order to guarantee the privacy of the proceedings. The decision to broadcast the proceedings of this arbitration gives us a rare and interesting glimpse into the way in which international arbitral tribunals operate.