ABYEI ROADMAP IMPLENTATION: DUTCH LEGAL ADVISOR BRIEFS AEC

UNCLAS KHARTOUM 000938 SENSITIVE SIPDIS DEPT FOR AF A/S FRAZER, SE WILLIAMSON, AF/SPG L/AN FOR CHRISTINA SANFORD NSC FOR HUDSON AND PITTMAN DEPT PLS PASS USAID FOR AFR/SUDAN ADDIS ABABA ALSO FOR USAU E.O. 12958: N/A TAGS: PGOV PREL KPKO UNSC SU SUBJECT: ABYEI ROADMAP IMPLENTATION: DUTCH LEGAL ADVISOR BRIEFS AEC REF: KHARTOUM 928 ¶1. (SBU) On June 23, Dutch arbitration advisor J.G. Lammers briefed international partners of the Assessment and Evaluation Commission (AEC) on the Terms of Reference (TOR) on arbitration of the Abyei boundaries dispute, agreed to by the NCP and the SPLM. Prof. Lammers said that the two sides have agreed on all of the main issues involved in the arbitration. ¶2. (SBU) Under the TOR, the two parties to the arbitration will be the Government of Sudan and the Sudan Peoples Liberation Movement (SPLM),the two parties to the 2005 Comprehensive Peace Agreement (CPA). The venue will be the Permanent Court of Arbitration in the Hague. The arbitration panel will be made up of five members, two selected by the GoS, two selected by the SPLM, the fifth member to be chosen by the first four. The GoS and the SPLM will make their choices from the members of the Court of Arbitration. Lammers commented that he believed that the two parties had limited their choices in this way to avoid politicizing the membership of the panel. Dutch Ambassador Wolfe remarked that the Court of Arbitration has over 100 years of experience in resolving boundary disputes, including the dispute between Ethiopia and Eritrea. Thus the Permanent Court has a long list of precedents on which to draw, covering any legal eventuality that might come up in the current dispute. (Comment: Of course, this doesn't mean that the parties will have the political will to implement the court's ruling, it just means the court has a long history ruling on such cases. End comment.) ¶3. (SBU) The issue for the panel to decide will be whether the Abyei Boundaries Commission (ABC) exceeded its mandate under the Abyei Protocol of the CPA when it issued its report on the borders of the Abyei region. If the panel determines that the ABC acted within its mandate, then its report will stand as the final borders of Abyei. If the panel determines that the Commission exceeded its mandate, then the arbitration panel will determine those boundaries based on "the area of the nine Ngok Dinka Chiefdoms transferred to Kordofan in 1905," per the CPA. Lammers said that the TOR dos not include an enforcement provision, but that such a provision would be unusual in a case such as this. ¶4. (SBU) Separately, Norwegian Oil envoy Anders Hannevik told CDA that he believes it is a mistake for the parties to resort to arbitration on the Abyei border. Hannevik believes this "removes chips from the table" in the negotiation on future oil revenue sharing arrangements assuming that the South secedes. He also feared the parties would view the ruling as producing a "winner" and a "loser." However, Hannevik was pleased that the June 8 Abyei agreement set a precedent for separating land from oil in future discussions, since although Heglig is not part of the interim border, its oil revenues will be shared. Hannevik believes the international community should begin advising the CPA parties now on possible scenarios for oil revenue sharing - and other issues that must be negotiated such as debt, border security, taxes and customs, etc - to prevent conflict as 2011 approaches. Even if the South does not secede, Hannevik believes the parties need advice on the security of the oil fields. Hannevik reported that when he last traveled to the oil fields in Unity State, he noticed that many of the "soldiers" in the area actually appeared to be militia or other armed groups very loosely tied to the SPLA. CDA and poloffs observed that the presence of armed ethnic militias in oil areas is a recipe for instability in the long run. CDA noted that one could eventually see a "Nigerian" scenario, where these ethnic militias disrupt supplies in order to get more attention or acquire more funds for local needs. ¶5. (SBU) Comment: While we agree with Hannevik that an early discussion of oil revenue sharing scenarios is much needed, we disagree that it was a mistake to remove the discussion of Abyei's borders from political negotiations. The parties have been unable to reach a compromise on Abyei's borders for almost three years and have often pointed to arbitration as a solution. Hannevik's observations on ethnic militias in the oil areas are sobering, and point to the desperate need to encourage real development in marginalized areas including those where oil is produced. FERNANDEZ