The Abyei Arbitration and the Rule of Law

Abstract

This article examines the widely publicized international arbitration that took place in 2008–2009 to determine the boundaries of the Abyei region of southern Sudan in the wake of decades of civil war. On the surface, the Abyei Arbitration is a striking example of how arbitration can resolve even the most intractable international disputes. But a closer examination suggests an award that invoked principles of judicial restraint and the rule of law, but compromised those principles by disregarding the terms of the tribunal’s mandate and the thoroughly reasoned determination by experts appointed by the parties. The Abyei Award instead fashioned a diplomatic solution intended to reduce the risks of renewed warfare between the parties. That solution produced neither peace nor a stable Sudan, which has been torn by violence in the years since the award, including in the Abyei region. But whatever future results it produces in Sudan, the Tribunal’s Award also raises important questions about the rule of law and international adjudication. By adopting a result based less on the law and the facts than on an apparent political compromise, the Abyei Award arguably undercut key principles of international law that have developed over the last century