By Dr Luka Biong Deng
(April 26, 2012)
(Gurtong posted 1, May 2012) —There have been a number of concerning statements in the press, in reports from NGOs and third parties, including from Member States of the United Nations and African Union, that Heglig (known as Panthou by most South Sudanese) is an area lying within the territory of the Republic of Sudan. The Republic of South Sudan (South Sudan) was also surprised to hear that so many members of the international community were unaware that South Sudan has claimed this area as its own and consistently included it as one of the disputed areas requiring peaceful settlement with Sudan.
This confusion over Panthou also prevails among the people of South Sudan and surprisingly among their leaders. I was particularly shocked by a statement made by a senior member of our government in a high level informal gathering that Heglig has been compromised by the final award of the Abyei Arbitration Tribunal. As I tried to clarify to him certain facts about the ruling of Abyei Arbitration, this senior official kept insisting on his conviction and the more he was arguing the more he was exposing his ignorance about the issue. I came to know that if it could take me such effort to convince a senior official about Heglig, there also must be a knowledge gap for others further away from the talks between the two States.
As the Co-agent of the Sudan People’s Liberation Movement together with the Vice President Dr. Riek Machar to the Abyei Boundaries Arbitration Tribunal and a member of the SPLM team for post-referendum negotiation and designated to oversee the work of the Technical Ad-hoc Border committee (often called the "North-South Border Committee"), I would like to clarify the confusion over Panthou (Heglig) and the final award of the Abyei Arbitration Tribunal and the claim of the South Sudan over Panthou.
Immediately after the announcement of the final award of the Abyei Arbitration Tribunal on 22nd July 2009, I made statement on the following day in Elsahafa newspaper that the award did not resolve the North-South border and based on the evidence available, I said that Heglig remains to be part of Unity State. When I tried to retrieve this statement from the electronic archive of Elshafa newspaper for this article, the access to this statement was specifically denied and restricted by the Sudan national security but I managed to get a hard copy of the newspaper. This tells more about how the regime in Khartoum would like to conceal facts from the public over Heglig.
Despite claims to the contrary, Heglig was absolutely not determined to be part of Sudan (the North) by the July 2009 ruling of the Abyei Arbitration Tribunal (referred by many in South Sudan as the Permanent Court of Arbitration decision (PCA decision). The parties signed an Abyei Arbitration Agreement in 2008 which clearly provided that the mandate of the arbitration tribunal was simply to determine if the Abyei Boundaries Commission (ABC) exceeded its mandate and if it did, to then "define (i.e. delimit) on map the boundaries of the area of the nine Ngok Dinka chiefdoms transferred to Kordofan in 1905." (see http://www.pca- cpa.org/upload/files/Abyei%20Arbitration %20Agreement.pdf). This is what the tribunal did. As a result, the PCA decision only defined the border limits of the Abyei Area.
The tribunal issued no opinion with respect to the political status or location of Heglig or any other area in Sudan or now South Sudan. Indeed, in the entire 286 pages of the PCA decision, the tribunal mentions Heglig only once and that was simply to describe the Ngok Dinka’s assertion that there were permanent settlements and agricultural areas in Heglig back in 1905. (see http://www.pca- cpa.org/upload/files/ Abyei%20Final%20Award.pdf).
In particular, the Tribunal rules that the ABC Experts were not in excess of mandate regarding their decision over the southern boundary of the Abyei Area. The final and binding decision of ABC states that the Southern Boundary shall be the Kordofan-Bahr el-Ghazal-Upper Nile boundary as it was defined on 1st January 1956. As a result, arguing that the PCA decision determined the status of Heglig has as much validity as arguing that it also determined the political status and location of Juba or El Obeid — simply because neither of those cities were found to be within the Abyei Area.
Regarding South Sudan’s claim on Heglig, this is not a new assertion of South Sudan. For years now South Sudan has consistently and openly claimed Heglig as part of its territory, including (i) in the context of the Technical Ad-hoc border Committee established by the Comprehensive Peace Agreement (CPA), (ii) after the issuance of the PCA decision, and (iii) within the context of the negotiations with the Government of Sudan as facilitated by the African Union High Level Implementation Panel (AUHIP).
During the deliberations of the Technical Ad-hoc border Committee the South Sudanese delegation consistently raised its claims to Heglig, albeit the Government of Sudan refused to acknowledge those claims.
The disputing claims over the area were well known and the difference of opinions on Heglig were evidenced, for example, in the October 24, 2010 joint letter of the Chairman and the Deputy Chairman of the technical committee outlining the "Views of the Parties on the Disputed Areas." This letter was written and presented to the Joint Political Committee (of the National Congress Party and Sudan People’s Liberation Movement). In the document, the NCP’s Chairman, Professor Adallah Sadiq, listed four disputed areas and the Deputy Chair, Riek De Gaol Juer, then presented (8) disputed areas which included what was referred to as the ’South Kordofan/Unity state sector (Heglig).
Furthermore, immediately after the PCA decision was released Vice President Riak stated that Heglig’s final status would need to be determined by the Technical Ad-hoc Border Committee established by the CPA. For instance, as reported by the Sudan Tribune on July 27, 2009, the Vice President stated that Heglig was not part of the ruling in the Hague, but "It will be resolved in the North-South border demarcation process." (see http://www.sudantribune.com/There-a...).
Additionally, the Government of Southern Sudan prior to secession and the Government of South Sudan post-secession, repeatedly asserted in the context of the AUHIP-facilitated negotiations with the Government of Sudan claiming Heglig as belonging to South Sudan and therefore placing it on the list of "disputed areas" requiring further settlement. For instance, on June 28, 2011 and in November 2011, SPLM/GoSS and South Sudan respectively submitted a clear written proposal stating "The six (6) disputed areas are: (i) Wanthou (Joda); (ii) Maganis; (iii) Kaka; (iv) Northern Bahr el Ghazal; (v) Kaffia Kanje and Hofrat el Nahas; and (vi) Panthou (Heglig)". South Sudan tabled similar language during the February 2012 round of negotiations, and reaffirmed this position in its oral and written submissions made during the March 2012 negotiations.
Indeed, the failure of the parties to agree on the list of disputed areas (including Heglig) and to agree on the mechanism for settlement —with the South proposing international arbitration, is the primary reason an agreement addressing the disputed border areas was never even initialed in March 2012.
What is indisputable is that South Sudan claims Heglig as theirs and Sudan claims it as theirs. The fact that Sudan has refused to "agree" that it is disputed ---both in the context of the Technical Ad-hoc Border Committee and in the Addis negotiations— does not make it any less a disputed area. Those who would refuse to support the submission of Heglig to a peaceful dispute resolution mechanisms because it is not an "agreed disputed area" are playing a dangerous game by leaving a critical matter unresolved between the parties which can result in continued hostilities. The purpose of the negotiations is to address such matters, not leave them to foment distrust and violence in the future.
In closing, as shown from the above, the PCA decision did not decide the final status of the Heglig area and South Sudan’s claim over the area and its status therefore as a disputed area as between the two States is not a new claim, but rather one that has been consistently made for several years and witnessed by the AUHIP and other observers to the Addis negotiations.
Dr Luka Biong Deng is a senior member of South Sudan’s ruling SPLM.