Boundary Demarcation: Sudan Comprehensive Peace Agreement

ABYEI APPENDIX

UNDERSTANDING ON ABYEI BOUNDARIES COMMISSION

1. Upon signature, and notwithstanding Article 5.1 of the Protocol on Abyei, there shall be established by the Parties 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.

2. Pursuant to Article 5.2 of the Protocol on Abyei, the ABC shall be composed
as follows:-

2.1 One representative from each Party;

2.2 The Parties shall ask the US, UK and the 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.

3. The ABC shall listen to representatives of the people of Abyei Area and the neighbours, and shall also listen to presentations of the two Parties.

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.

5. The ABC shall present its final report to the Presidency before the end of the Pre-Interim Period. The report of the experts, arrived at as prescribed in the ABC rules of procedure, shall be final and binding on the Parties.

6. The Presidency shall establish the administration of Abyei Area simultaneously with the Government of South Sudan and the Governments of Southern Kordofan and Blue Nile States by the beginning of the Interim Period.

7. In case the ABC delays presentation of the final report beyond the time prescribed above, the Presidency shall take necessary action to put the Abyei Area special status into effect with Abyei town as its seat subject to any readjustment or confirmation by the ABC final report.

8. Meanwhile, the two Parties shall issue appropriate instructions to their respective administrations in Abyei Area to facilitate the return of the citizens of the Area. The JIUs and the UN monitors shall facilitate and provide necessary protection to the IDPs.

9. The Parties shall issue an appeal to the International Community to make funds available for the formation and proper functioning of the ABC.

Implementation History

2005

Minimum Implementation

According to the Abyei Protocol, which was part of the 2005 CPA, the Abyei Boundaries Commission (ABC) was to be composed of five members from the government, five from the SPLM/A, and five ‘international experts’ from the US, UK and the IGAD. The government was required to nominate two from the Messiriya and the SPLM/A from the neighbouring Dinka tribe in the Abyei area. The experts in the commission were to consult the British and other relevant archives. The ABC was instructed to determine the boundary to be included in the special administration. The commission was expected to deliver its final report by the end of pre-interim period or 9 July 2005.

According to the CPA mandate, the ABC started its work in April of 2005. The experts presented the rules of procedure for the ABC to the parties on 11 April 2005, which parties accepted. In rules of procedure, it was said that the “commission will endeavor to reach a decision by consensus. If, however, an agreed position by the two sides is not achieved, the experts will have the final say.”1 The government of Sudan and the SPLM/A members of the ABC submitted to the experts the two parties’ preliminary presentations. Then, the ABC flew to the town of Abyei. The ABC heard testimony from locals for six days. After the visit, the ABC flew to Nairobi, where they reviewed their notes and the testimony heard in southern Sudan and consulted with IGAD. The experts returned to Khartoum on 27 April and for the next two weeks examined historical documents and surveys. They also listened to the testimony of a group of Ngok Dinka and a group of Twich Dinka in Khartoum.2 According to the report, the experts also went to Oxford University where they examined documents and maps. Then, they travelled to the University of Durham. In England, the experts consulted experts and anthropologists. The government and the SPLM/A positions differed. The ABC submitted its report to the Presidency on 14 July 2005, five days past of the 9 July deadline. The presidency, however, failed to agree on the adoption of the report.3

2006

Minimum Implementation

The parties failed to approve and implement the ABC report. Nevertheless, in May 2006, the National Congress Party and the SPLM joint leadership meeting referred the deadlock over the report to its political sub-committee for consideration. The NCP-SPLM joint high political subcommittee considered four different options: a) reach a political agreement; b) call on the ABC experts to defend their recommendations; c) refer the matter to the Constitutional Court or d) seek arbitration by a third party. Nevertheless, the deadlock continued in 2006.4

  • 4. "The CPA Monitor-Monthly report on the Implementation of the CPA," UNMIS, February 2009.
2007

Minimum Implementation

The deadlock on the ABC report continued. Nevertheless, at the invitation of government of southern Sudan and following strong criticism from the National Congress Party, the ABC experts went to southern Sudan to defend the commission’s finding. They stressed that the findings were based on scientific facts and they did not overstep their mandate.5

2008

Minimum Implementation

Unable to resolve deadlock on the ABC report, the NCP and the SPLM joint political committee reached to a roadmap agreement that included four points dealing with security arrangements, the return of the displaced persons, the interim administration and the international arbitration tribunal. The agreement was signed by Sudanese president and the ceremony was attended by the First-Vice President on 10 July 2008.6 On 11 July 2008, the arbitration agreement was deposited with the Secretary-General of the Permanent Court of Arbitration (PCA).7 According to the Abyei Terms of Appointment, the GoS appointed two arbitrators on 14 August 2008 and the SPLM appointed two arbitrators on 15 August 2008. The presiding arbitrator (the fifth one) was appointed by PCA on 27 October 2008. The terms of appointment were signed by both sides and the five arbitrators on 24 November 2008. The SPLM and the GoS filed their memorials on 18 December 2008.8

2009

Minimum Implementation

International arbitration on Abyei continued its work. The GoS and SPLM submitted their counter memorials on 13 February 2009. The oral pleadings continued for six days from 18 April to 23 April 2009. The Tribunal rendered its final decision late in July 2009. “On 22 July 2009, the Abyei Arbitral Tribunal at the Permanent Court of Arbitration rendered its decision in the Abyei dispute, finding that the Abyei Boundaries Commission (ABC) had exceeded its mandate in some locations, but it also upheld ABC recommendations in others. The Tribunal determined that the Abyei Area's northern boundary lies along latitude 10°10' North, its western boundary along longitude 27°50' East, and its eastern boundary along longitude 29°00' East. The SPLM, NCP, and senior Misseriya and Ngok-Dinka tribal leaders all publicly reaffirmed their commitment to accept the PCA decision as final and binding.”9 The border technical team, which comprised three from ruling national congress party, three from SPLM, two from international communities and four invited independent journalists arrived in the area on 10 September 2009.10  Nonetheless, the demarcation of border stalled and was not completed in 2009.

  • 9. "The CPA Monitor-Monthly report on the Implementation of the CPA," UNMIS, December 2009.
  • 10. "Border technical demarcation team arrives in Sudan's oil-rich Abyei region," BBC Monitoring Middle East, September 11, 2009.
2010

Minimum Implementation

The demarcation of border stalled in 2010. The parties were said to have talks over the disputed territory of Abyei on the north-south border in the Ethiopian capital Addis Ababa in November 2010.11 This issue, however, was not resolved in 2010.

  • 11. "Sudan; SPLM - Abyei Talks Due to Resume Next Week in Ethiopia," Africa News, November 6, 2010.
2011

Minimum Implementation

The dispute continued over border demarcation as well as over who was eligible to vote in the Abyei referendum. As a result, a referendum planned in Abyei on its future status was never held.12 As a matter of fact, Sudan invaded and occupied Abyei in May 2011.13 Sudan and South Sudan had agreed to pull their troops out of the disputed territory by the end of September 2011. The UN peacekeepers were deployed in the region to maintain peace as the disputed territory became a flashpoint between the north and the south.