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Cablegate: Abyei: Cpa Parties Agree to the Hague Permanent Court Of

VZCZCXRO0873
OO RUEHROV
DE RUEHKH #0928/01 1751015
ZNR UUUUU ZZH
O 231015Z JUN 08
FM AMEMBASSY KHARTOUM
TO RUEHC/SECSTATE WASHDC IMMEDIATE 1125
INFO RUCNIAD/IGAD COLLECTIVE
RHMFISS/CJTF HOA

UNCLAS SECTION 01 OF 02 KHARTOUM 000928

DEPT FOR AF/SPG, A/S FRAZER, SE WILLIAMSON, NSC FOR BPITTMAN AND
CHUDSON
L FOR CHRISTINA SANFORD
DEPT PLS PASS USAID FOR AFR/SUDAN
ADDIS ABABA FOR USAU

SENSITIVE
SIPDIS

E.O. 12958: N/A
TAGS: PGOV PREL KPKO SOCI AU UNSC SU
SUBJECT: ABYEI: CPA PARTIES AGREE TO THE HAGUE PERMANENT COURT OF
ARBITRATION TO RESOLVE ABYEI'S PERMANENT BORDERS

REF: KHARTOUM 925

1. (SBU) As announced widely in the press, the SPLM and the NCP
agreed in Juba June 21 that the Permanent Court of Arbitration in
the Hague will serve as the arbitration mechanism to resolve the
permanent borders of the Abyei region. GNU Second Vice President
Taha traveled to Juba June 19 and 20 for the negotiations and met
with GOSS President and GNU First Vice President Kiir, although
negotiations were primarily between Taha and GOSS Vice President
Riek Machar, according to representatives on both sides. A copy of
the agreement is included at the bottom of this cable for reference.


2. (SBU) SPLM Minister of the Presidency Luka Biong Deng told CG
June 22 that according to the agreement, the court will determine
whether or not the Abyei Boundaries Commission panel exceeded its
mandate. NCP negotiator Dirdeiry Ahmed Mohammed told polchief June
22 that if the court determines that the ABC panel did exceed its
mandate, the court itself will determine Abyei's boundaries
according to submissions by the parties. Dirdeiry said that NCP and
SPLM had consulted the court before making this decision and that
the court is willing to play this role. A Dutch lawyer provided by
the Dutch embassy assisted the parties during their negotiations in
Juba. Post has provided the contact details for the lawyer -
Professor Lammers - to L and SPG. Per the Dutch Embassy, Professor
Lammers is willing to brief incoming L visitor Christina Sanford on
the agreement, next steps in the process, and likely sticking
points.

----------------------
INTERIM ADMINISTRATION
----------------------

3. (SBU) Biong Deng told CG that the parties were close to an
agreement on the naming of interim administrators for Abyei and he
expected that the issue would be resolved in the coming days.
Dirdeiry provided more or less the same read-out, but added some
nuance. He said there was a "gentleman's agreement" that neither
party would nominate "controversial" candidates; therefore current
SPLM representative in Abyei Edward Lino would not be named, nor
would Misseriya provocateur Ansari. However, he said the NCP was
not yet willing to concede that the Misseriya would not be allowed
to have the Administrator nor the Deputy Administrator positions.
Dirdeiry said the administration would be named "within a week."
Asked if this would affect the date when oil revenues from Abyei
would begin to be shared, Dirdeiry pointed out that per the June 8
Abyei agreement, Abyei revenues would be shared effective the date
of the agreement. He noted that Higleig oil revenues would also be
shared from that date forward, but based on the national formula
rather than the Abyei protocol formula.

--------------
ELECTORAL LAW
--------------

4. (SBU) Biong Deng told CG that the CPA parties were also close to
an agreement on the electoral law, which would likely be announced
by the end of next week, and that the final agreement would likely
parallel what the SPLM had discussed with northern "opposition"
political parties in recent weeks. This would result in a 55-45
percent mixed electoral system with candidate constituencies pegged
to state-level lists. Dirdeiry provided a slightly different
read-out, claiming that in this area there was another "gentleman's
agreement" in which the NCP had conceded on the point of state-level
candidate lists in exchange for the SPLM conceding on a 60-40 split.
He said the CPA parties now needed time to explain this to other
political parties so that they would not be accused of excluding
other political parties from the process. Dirdeiry warned that
elections should be approached carefully, since "we don't want Sudan
becoming a failed state."

----
JIUs
----

5. (SBU) Biong Deng told CG that the JIUs were well on their way to
being formed, but that there has been no progress on the withdrawal
of the SAF 31st brigade. Dirdeiry echoed this and said there will
be a CJMC meeting on Abyei June 25 to assess the JIU deployment plan
and determine a date for the withdrawal of the SAF that would be
"consistent with the terms of the May 8 Abyei agreement."

-------
COMMENT

KHARTOUM 00000928 002 OF 002


-------

6. (SBU) Although the two parties had already identified the court
in the Hague as a possible arbitration mechanism, it is nonetheless
an additional sign of progress and a positive confidence-building
measure that they finalized another agreement on Abyei. Although
the parties could have gone further and named an administration,
their mutual assurances that candidates would be named in the coming
days should keep the momentum going, but such unwritten agreements
have a way of unraveling in Sudan (so do written ones). Progress on
the elections law is somewhat more dubious, as neither party is
particularly eager to move forward with elections planning now.
They will need a nudge in that direction and the international
community needs to think seriously about what it expects from
elections, and how it should interact with the parties to ensure
that this CPA milestone can be met without destabilizing both the
North and the South.


JOINT NCP - SPLM UNDERSTANDING ON MAIN ISSUES OF THE ABYEI
ARBITRATION AGREEMENT

21 June 2008


1. The Parties agree to refer their dispute to final and binding
arbitration under the Permanent Court of Arbitration Optional Rules
for Arbitrating Disputes between Two Parties of Which only One is a
State, subject to such modifications as the Parties may agree in
writing.

2. The venue for arbitration shall be in The Hague, The
Netherlands.

3. The number of arbitrators shall be five. Each party shall
appoint two from the list of the PCA. The four arbitrators shall
appoint a fifth member to chair the tribunal.

4. The Parties to the arbitration shall be designated as per the
CPA.

5. The Parties shall be availed equal and simultaneous opportunities
to fully present their cases covering all issues of form and
substance.

6. The issues to be determined by the arbitral tribunal are as
follows:

(a) To decide whether or not the Abyei Boundaries Commission Experts
exceeded their mandate "to define and demarcate the area of the Nine
Ngok Dinka Chiefdoms transferred from Bahr Ghazal to Kordofan in
1905, as per the Abyei Protocol, the Appendix, ABC Terms of
Reference and Rules of Procedure.

(b) If the arbitral tribunal determines that the ABC did not exceed
its mandate, it shall make a declaration to that effect, and order
for the full implementation of the ABC Report.

(c) If the arbitral tribunal determines that the ABC Experts
exceeded their mandate, it shall make a declaration to that effect,
and shall proceed "to define and demarcate on map the boundaries of
the Nine Ngok Dinka Chiefdoms transferred from Bahr Ghazal to
Kordofan in 1905," based on the submissions of the parties.

7. The Parties agree that upon signing of the Arbitration Agreement,
the Permanent Court of Arbitration (PCA) shall provide full registry
services and administrative support to the Abyei Arbitration
Tribunal and the Parties.

8. The Tribunal shall apply the CPA, the Abyei Protocol, Abyei
Appendix, and applicable principles of law.

FERNANDEZ

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