The Role of Ex Aequo Et Bono in International Border Settlement: A Critique of the Sudanese Abyei Arbitration
Josephine Mason Ellis
United States Court of Appeals for the Fifth Circuit
February 15, 2010
The American Review of International Arbitration
The Sudanese civil war has been called one of the most devastating conflicts of all time. Just last year, the North and the South of Sudan agreed to arbitrate their differences over where the border should lie between the two regions. The ensuing arbitration process raised sensitive issues regarding race, heritage, religion, and oil. This article addresses the Sudanese border arbitration, Government of Sudan v. Sudan People’s Liberation Movement/Army, that was meant to be part of the peace process between Northern and Southern Sudan. The international community has watched the case with great interest, as the success of the Sudanese arbitration will likely determine whether peace in the Sudan will be realized in the near future. The arbitrators took pains to decide the case according to “the rule of law,” rejecting the Government of Sudan’s contention that the arbitrators were engaging in ex aequo et bono adjudication – that is to say, extra-legal adjudication made on the basis of fairness rather than positive law.
With so much at stake in the Sudanese border arbitration, the methods employed by the arbitrators were crucial, and in this case, they may have failed: violence has re-emerged in the Sudan despite the border arbitration. I will argue that parts of the Sudanese border were in fact determined on an ex aequo et bono basis, but that other parts were not; and that it was the Tribunal’s haphazard, ad hoc approach that risks undermining the success of peace in the Sudan. I also argue that in some cases, it will be preferable for international border arbitrations to be decided on an openly ex aequo et bono basis rather than merely by black-letter law because of the special need for fairness and equitability in conflict resolution, but that parties to the arbitration as well as tribunals need to be open about their approach.
Number of Pages in PDF File: 22
Keywords: law, international law, international border arbitration, sudan, abyei, ex aequo et bono, alternative dispute resolution, international border settlement, peace arbitrationAccepted Paper Series
Date posted: February 16, 2010 ; Last revised: January 16, 2011
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