Demarcation is Key: A Response to the Crisis Group Report
By: Abraham Tesfai
December 28, 2005

On 22 December 2005, the Brussels-based organization Crisis Group (formerly, "International Crisis Group") issued a new Report on the conflict brewing in the Horn of Africa.  Release of the Report, entitled Ethiopia and Eritrea: Preventing War, could hardly have been more timely.  The relationship between Ethiopia and Eritrea is at a new low, with the probability of renewed fighting higher than at any point since the 2000 ceasefire. 

Considering the stature of Crisis Group, and the increasing attention that the United Nations and important western powers are currently devoting to the situation in the Horn, the Report is likely to prove influential.  This paper analyzes the Report, in particular the recommendations it makes about how the international community should address and resolve the dispute.

Factual Accuracy

The Report is marred by occasional factual errors.  Some are relatively trivial, such as the description of Om Hajer as "on the Eritrean side of the Mereb River". The river in question is the Setit (or Tekezze) River and not the Mereb (or Gash) River, which is considerably to the north. 

Some of the errors, however, are considerably more significant.  One is the Report's assertion that the Boundary Commission's awarding of the town of Badme to Eritrea was "against the expectations of both sides".  What Ethiopia actually expected cannot be determined with certainty, since its early claims to have been awarded Badme by the EEBC probably contained substantial misinformation.  Eritrea, however, knew at all times that it was entitled to Badme town as a matter of international law, and it fully anticipated that its legal rights would be vindicated by the Commission.  After the announcement of the 13 April 2002 Award, moreover, Eritrea was completely confident that the boundary announced in the Award confirmed Eritrean title. 

Much has been made in the popular media about the fact that the Boundary Commission's opinion did not by name award the town of Badme to Eritrea, but only provided geographical coordinates, e.g., for turning points and river junctions. However, the EEBC's decision to identify the boundary by coordinates (rather than names of towns) is not unusual; indeed, it is probably more typical of boundary demarcation practice than using town names. The choice almost certainly reflected an EEBC desire to allow Ethiopia to save face, rather than any uncertainty about whether Ethiopia or Eritrea had been awarded the town.  The Commission, after all, had as its Secretary the head of the U.N. Cartographic Office, Dr. Hiroshi Murikami, so cartographic expertise was hardly wanting.

The boundary connecting the Mereb and the Setit rivers is defined in the Award as a straight line connecting two well-defined river junctures.  It is a simple matter, requiring only a straight edge and a map showing the location of Badme, to determine which side of the line the town falls on.  Numerous accurate maps were available to the parties, and every one that showed the location of Badme depicted it as being on the Eritrean side of the line that the EEBC prescribed.  Considering the importance of the issue to the parties, and the enormous amounts of research that the parties had already invested in preparation for presenting their cases to the Commission, the assertion that the parties either could not, or did not bother to, determine until months later where Badme fell in relation to the boundary is simply not credible.

Legal Analysis

The Report supports Eritrea's legal position in all significant respects, stating that Eritrea "has international law on its side" and that "Eritrea's demand for immediate demarcation is unassailable...".  Most significantly, the Report confirms that the "delimitation decision is final" and draws the obvious conclusion: "Legally speaking, this places Ethiopia in the position of occupying sovereign Eritrean territory, notably at Badme."

The Report is as forthright in dismissing Ethiopia's legal arguments as it is in accepting Eritrea's.  It recognizes unambiguously that the "root cause of the dispute" is Ethiopia's refusal to obey the Award and concludes that Ethiopia's recent diplomatic initiatives, in particular Prime Minister Meles' so-called "five point peace plan," fall far short of a legally sufficient solution.  It explicitly rejects Ethiopia's position that the Award must be altered to take "human geography" into account, noting that in the Algiers Agreements the parties had agreed that the boundary should be defined by reference to "colonial treaties and international law":

...had the parties sought a determination based primarily upon other considerations, such as military facts on the ground or the desires of local communities, those terms of reference should have been differently framed."

The Report also confirms that the Security Council has ample authority under the United Nations Charter to impose sanctions on Ethiopia for its refusal to accept the EEBC decision, regardless of whether or not such sanctions are explicitly authorized by the two Algiers Agreements.   

The Crisis Group's Recommendations

Emphasizing the precariousness of the current situation, the Crisis Group's Report offers three recommendations for defusing current tension and building lasting peace.  Calling its recommendations "the three Ds" - de-escalation, demarcation, and dialogue -  the Report appeals to key players (the so-called Algiers Group: the AU, the EU, the UN, and the US) for help effectuating its plan. While there is merit in some of the Crisis Group's recommendations, collectively they would continue the existing five-year practice of burdening Eritrea because of the failings of Ethiopia and the United Nations.  Ethiopia's five-year intrusion upon Eritrean sovereignty, together with the international community's toleration of Ethiopian obstructionism, have already burdened the Eritrean people more than enough. The burden of "de-escalation, demarcation, and dialogue" should be placed squarely on Ethiopia. 

Eritrea signed the two Algiers Agreements on the understanding that UNMEE would only remain in Eritrea for a relatively brief period of time.  Once the EEBC Award was announced, the physical demarcation of the boundary could and should have been expeditious, taking less than a year to complete.  However, UNMEE has now been in place for more than five years, with no end in sight.  It has been more than two and a half years since the Award was announced, and not a single boundary pillar has been erected.  The cause, obviously, is the Ethiopian Army's hostile presence on Eritrean land.  The cause is clearly not anything that Eritrea has done.

Yet the Crisis Group persists in treating the current situation as politically and morally symmetric. It recommends, for example, that the United Nations force both states to implement Security Council Resolution 1640, even though that Resolution threatened sanctions against Eritrea for alleged interference with UNMEE and none against Ethiopia for its patently illegal refusal to allow demarcation. 

Eritrea cannot be expected to bear the cost of diffusing a situation that Ethiopia and the United Nations created.  The United Nations should work energetically to obtain compliance from Ethiopia, rather than allowing another five years to go by without notable progress.

The Reportís authors seem to have appreciated the long term costs of tolerating defiance of arbitral awards.  The Report observes explicitly that allowing Ethiopia to alter the decision would create an unacceptable precedent, and "risk[s] binding arbitration everywhere":

Eritrea's position is reinforced by the inviolability of final and binding arbitration as a fundamental tenet of international law...allowing Ethiopia to challenge it would set a dangerous precedent."

Given this awareness, one might hope that the Report would come out clearly in opposition to allowing Ethiopia to place preconditions and other obstructions in the way of expeditious demarcation in accordance with the Award. 

However, the Report asserts (as did earlier Crisis Group reports) that Eritrea ought to be required to enter into "dialogue" with Ethiopia, in order to reward Ethiopia for allowing demarcation to get underway.  Regardless of how one tries to justify this proposal, it would permit Ethiopia to impose preconditions on demarcation, in defiance of the principle that arbitral awards must be respected, and is therefore unacceptable.

Ethiopia continues to demand "dialogue" of an unspecified sort as a precondition for demarcation.  The Report adopts this demand as one of its recommendations, although with important qualifications.  As the Report makes clear, Ethiopia's unwillingness to specify what it wants to include in this "dialogue" reinforces suspicions that Ethiopia is still searching for the chance to renegotiate the 13 April 2002 Award.  In endorsing Ethiopia's recommendation for "dialogue," the Report therefore adds the qualification that Ethiopian demands for reconfiguring the EEBC Award should be excluded from the agenda.   

But this qualification, while welcome, does not solve the problem, because Ethiopia undoubtedly also intends to use its physical control over the boundary demarcation to coerce Eritrea into the making of substantive concessions on other fronts.  The "dialogue" that Ethiopia seeks would provide an ideal venue for Ethiopia's extortionist demands, as Ethiopia itself no doubt appreciates.  The Report's suggestion that a third-state facilitator participate in the "dialogue" creates even greater possibilities for pressure on Eritrea to satisfy Ethiopia's demands.

The Report provides no good reason why Ethiopia should be allowed to force Eritrea to discuss substantive matters prior to the removal of Ethiopian troops from Eritrean soil, when its coercive power is greatest.  The Report characterizes "dialogue" as "mutually beneficial" but surely Eritrean national interests are for the Eritrean government to decide, not the Ethiopian government or an international think tank.  The rationale behind the Reportís endorsement of Ethiopia's demand for "dialogue" seems simply to be that Ethiopia must be placated, regardless of whether its demands are legitimate. It states that "[n]o initiative will make progress unless it addresses the principle demands of both parties: namely Eritrea's preoccupation with demarcation and Ethiopia's demand for dialogue".  This casual equation of Eritrea's legitimate interest in expeditious demarcation with Ethiopia's desire for a forum to extort additional concessions is unacceptable. 

The Report is particularly unsettling when it sketches out what it thinks might be a suitable result of the "dialogue" it proposes.  It lists three general categories as to which the Ethiopian demand for "dialogue" should, in its view, be accommodated: (1) cross-border trade and access to the port of Assab; (2) trade relations, in particular exchange rates, letters of credit and customs regulations; and (3) cessation of support for opposition and rebel groups. The problem is most acute with regard to the first of these topics for "dialogue": access to the port of Assab, a perennial Ethiopian obsession. The Report apparently contemplates rewarding Ethiopia with something considerably more intrusive than the bilateral ports agreement that was in place between Eritrean independence and the start of the war. At one point, for example, the Report alludes to a possible United Nations role in "ensur[ing] safe passage and delivery" of Ethiopian goods through the port.

The Report's suggestion of international supervision at Eritrean ports is entirely unprecedented and an unacceptable intrusion on Eritrean sovereignty. While claims about the supposed access rights of landlocked states have for decades figured prominently in Ethiopia's propaganda barrages, they have never been accepted legally.  Indeed, a 19 December 2005 decision of the Eritrea Ethiopia Claims Commission ("EECC", as opposed to EEBC, the Boundary Commission) has now roundly rejected Ethiopia's demand for special treatment as a landlocked state, along with Ethiopia's allegations that during the war Eritrea mishandled property that Ethiopia abandoned in Assab.  The claim in question, Ethiopia's Claim 6 (Ports), had accused Eritrea of "looting" hundreds of millions of dollars worth of Ethiopian property from Assab and Massawa during the war and having illegally denied Ethiopia access to the Red Sea.

Ethiopia devoted considerable attention to developing these allegations; they were central to its EECC Claim 6.   The Claims Commission nonetheless found Eritrea's treatment of Ethiopian cargo, considered as abandoned under Eritrean domestic law, to be reasonable and legal under international law.  It also summarily dismissed on the merits Ethiopia's arguments that as a landlocked state it had special rights to use Assab. The Conflict Group Report's highly unusual proposal of stationing U.N. personnel in Assab to "protect" Ethiopian cargo from Eritrea - a State only recently absolved of Ethiopian allegations of Eritrean misconduct by a full informed international tribunal - should be dropped.

The Crisis Group Report's need serious modification before they can serve as a foundation for resolving the boundary dispute between Eritrea and Ethiopia.  Commitments were made to Eritrea in the two Algiers Agreements, and five years later no progress of any kind has been made in fulfilling those commitments.  Moving the demarcation forward is the first and most central priority of the peace process, not arranging for Ethiopia to have rights to Eritrea's ports or making the UNMEE mission a success.  If the Crisis Group is to contribute positively to peace, its recommendations, need to take the following alternative formulations: