When a territory of a state breaks away and becomes an independent entity, the new land boundaries that emerge are often violently contested. Political tensions can run so high that the parties are unable to resolve the dispute themselves. In these situations, parties increasingly turn to arbitration as the last remaining option to resolve their conflict.
One recent example is Abyei, an oil-rich pocket of land nestled between the two Sudans. In this case, high-profile proceedings at the Permanent Court of Arbitration in The Hague have been considered a great success in legal terms. Yet the conflict has actually intensified since the arbitration, culminating in intense border battles in the spring of 2012. This is not only a tragedy for the local population, but it threatens the entire Sudanese peace process.
Why is there a gulf between legal success in arbitration and conflict resolution outcomes on the ground? This is the question at the heart of our paper. In our view, one of the most salient issues of arbitration in peace processes is the disputants' political commitment--or consent--to third-party involvement. Third parties play a key role in arbitral dispute settlement: as part of the arbitration process, a third-party tribunal issues a final and binding award; then, in the implementation phase, parties often turn to international peacekeeping. Yet different stages of a peace process require different levels of consent. It is not always clear who should consent and to what. Once granted, consent can wax and wane, it can be delivered under duress, and it can be withdrawn as quickly as it is given.
Our paper offers a novel way to think about arbitration in the face of these consent challenges. We have visualized the dilemma of who should consent to what in a model, which we apply to a number of case studies. These cases studies include the district of Brcko, an autonomous territorial unit in Bosnia and Herzegovina; the Eritrea-Ethiopia boundary conflict; and the Abyei situation, to which these remarks will return. Through these case studies, we hope to develop a better understanding of the role that arbitration can play in a successful peace process.
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First, we examine whose consent is required. UN peacekeeping employs a useful distinction between so-called strategic and tactical players. (1) Here, strategic players are those who have the most significant control over land, resources, and people; for example...