Independent Eritrea-Ethiopia Boundary Commission Decisions and
UN Security Council Resolutions
Basic Facts

Ghidewon Abay Asmerom
September 13, 2003

As the independent Eritrea-Ethiopia Boundary Commission forewarned the world in February, the cold and tentative peace that exists between Eritrea and Ethiopia is in serious jeopardy. Ethiopia’s actions are not only undermining the “final and binding” April 2002 Delimitation Decision, but also the December 2000 Algiers and the June 2000 Cessation of Hostilities Agreements. In short, if the international community doesn’t act better and faster than it did four years ago with the OAU-led peace process we might see Ethiopia yet start another round of war leading to another human tragedy. What Ethiopia is doing today is déjà vu of what it did with the “not open to amendment” Technical Arrangements in 1999-2000. Let the world make no mistake again. Ethiopia has long rejected the 2002 April 13, Decision and with that the Algiers Agreement. Anyone who thinks otherwise is either naive or an optimist from another planet. As those who know the mentality of the regime in Ethiopia will attest, the die is cast. Ethiopia is itching to start another war in hopes of achieving what it failed to do in its war of 1998-2000 and the Boundary Decision of April 2002.

Ethiopia is insisting that there is no such thing as disputed territory, regardless what the independent Eritrea-Ethiopia Boundary Commission rules. As far as Ethiopia is concerned, the principal objective of delimitation and demarcation is to legalize Ethiopia's claim to the disputed territory. It did not matter Ethiopia signed an Agreement that says the Decision of the Boundary Commission is “final and binding”, it did not matter Ethiopia gave the Boundary Commission no authority to decide on “ex aequo et bono”, it also did not matter the Commission has rendered its April 13, 2002 Delimitation Decision, June 24, 2002 Decision regarding Ethiopia’s questions for interpretation and clarifications, July 17, 2002 Order, November 7, 2002 Determinations and March 21, 2003 Observations unanimously, what Ethiopia wants is a Decision that gives it legitimacy to sovereign Eritrean territory that it is occupying illegally. In short Ethiopia is not and never was interested for the verdict of a court that rules based on pertinent colonial treaties and applicable international law. Its more than 30-page “Request for Interpretation, Correction and Consultation” from May 13, 2002, its more than 140-page “ Comments on the December 2000 Agreement, the Commission’s Rules of Procedure, the Commission’s Demarcation Directions ... ”from January 24, 2003 and its another lengthy “Comments on the Commission’s March 21st Observations ...”from May 2, 2003 are simply a ruse to frustrate and if possibly derail demarcation. Let the world know that it is dealing with a regime that is allergic to genuine dialogue, neutral mediation, and honest international arbitration. It is a regime that deeply believes peace is a zero-sum-game.

The demarcation of the border which was due for completion by the end of this year has yet to start. The latest schedule is for the process to end in June of 2004. With the factual survey of Tserona and Zalambessa not done, pillar sites in Sectors West and Centre still undetermined, with Ethiopia still to name its Liaison Officer, let alone the finishing date of June 2004 the starting of demarcation for Sector East in October is highly unlikely.  

This being the case: will the UN Security Council, and the guarantors of the Algiers Agreement (UN, EU, AU, and US) sit and watch as Ethiopia recklessly tries to provoke another unnecessary war? Will the international community look the other way as Ethiopia breaches international treaties setting a dangerous precedent? Will the peace-loving community, particularly those that have invested heavily to bring peace between the two nations, do nothing as Ethiopia refuses to abide by a final, binding and unanimous Decision of a neutral Commission whose Decision is backed by numerous Resolutions of the UN Security Council? Will the world take no action as Ethiopia willfully rejects a Decision based on pertinent colonial treaties and applicable international law? The world should act quickly before Ethiopia’s rejection brings a disastrous consequence not only for Africa but for the world in general.

If there is anyone who thinks Ethiopian prevarication is due to lack of clarity from the side of the Agreements, Rules of Procedure, Decisions, Orders, Determinations or Observations of the Boundary Commission here are the basic facts. Let’s let them speak for themselves. All emphases are mine.

June 18, 2000 : -- Agreement on Cessation of Hostilities

Article 14-a: “-measures to be taken by the international community should one or both of the Parties violate this commitment, including appropriate measures to be taken under Chapter VII of the United Nations Charter by the UN Security Council;”

December 12, 2000: -- The Algiers Agreement between Eritrea and Ethiopia

Article 4.2: “The parties agree that a neutral Boundary Commission composed of five members shall be established with a mandate to delimit and demarcate the colonial treaty border based on pertinent colonial treaties (1900, 1902 and 1908) and applicable international law. The Commission shall not have the power to make decisions ex aequo et bono.”

Article 4.15: “The parties agree that the delimitation and demarcation determinations of the Commission shall be final and binding. Each party shall respect the border so determined, as well as the territorial integrity and sovereignty of the other party.”

February 9, 2001 : -- Statement by the President of the Security Council

“The Security Council, reiterating its strong support for the Agreement of Cessation of Hostilities signed by the parties in Algiers on 18 June 2000 (S/2000/601), strongly welcomes and supports the subsequent Peace Agreement between the Government of the State of Eritrea and the Government of the Federal Democratic Republic of Ethiopia (S/2000/1183) signed in Algiers on 12 December 2000 (‘Algiers Agreement’).”

“The Security Council notes with satisfaction that the Algiers Agreement includes mechanisms for the delimitation and demarcation of the common border and for addressing claims and compensation, and that the parties are cooperating with the Secretary-General in these matters in accordance with agreed schedules.”

February 12, 2002: -- Statement by the President of the Security Council

The Security Council looks forward to the border delimitation determination by the Boundary Commission, which is final and binding. The Council stresses that in accordance with article 4.15 of the Comprehensive Peace Agreement (S/2000/1183), which has the full support of the international community, the Parties have committed themselves to accepting fully the determination of the Boundary Commission.”

March 15, 2002: -- Security Council Resolution 1398 (2002)

“2. Expresses its satisfaction and anticipation that a final legal settlement of the border issues is about to be reached in accordance with the Algiers Agreements, and welcomes in this regard recent statements by both parties reaffirming that the upcoming border delimitation determination (hereafter referred to as “the decision”) by the Boundary Commission is final and binding;”

April 13, 2002: -- Eritrea - Ethiopia Boundary Commission Decision Regarding Delimitation of the Border between Eritrea and Ethiopia

On the Decision that awarded Badme to Eritrea

Paragraph 5.84: “The Commission is satisfied that the negotiators did not have in mind as the boundary the Ethiopian claim line running from Point 3 to Point 9.

Paragraph 5.90: “In short, the Commission concludes that as at 1935 the boundary between the Setit and the Mareb had crystallized and was binding on the Parties along the line from Point 6 to Point 9 [Eritrean Claim line].

Paragraph 5.91:The Commission has examined the major elements in the course of events since 1935: the Italian invasion of Ethiopia; the outbreak of the Second World War; the British military occupation of Eritrea; the post-war developments including the treatment of the political future of Eritrea; the creation of the federation between Ethiopia and Eritrea; and the eventual termination of that federation. However, the Commission can perceive nothing in that chain of developments that has had the effect of altering the boundary between the Parties. The boundary of 1935 remains the boundary of today.

Paragraph 5.95: “The Commission does not find in them [the major events since 1935] evidence of administration of the area sufficiently clear in location, substantial in scope or extensive in time to displace the title of Eritrea that had crystallized as of 1935.”

On the Decision that awarded the Acran Region to Eritrea

Paragraph 4.71:as to the southern section relates to the Acran region... The Commission is satisfied that the evidence of Eritrean activity is sufficient, in terms of administrative range, quantity, area and period, to justify treating the Acran region as part of Eritrea .

Paragraph 8.1: “For the reasons set out above, the Commission unanimously decides that the line of the boundary between Eritrea and Ethiopia is as follows:”

Paragraph 8.1-B(V):It then continues up the Belesa A to follow the Eritrean claim line to Point 18 .... The Eritrean claim line is more precisely depicted on the 1:100,000 Soviet map referred to by Eritrea in its final submission on 20 December 2001 . Point 18 lies 100 metres west of the centre of the road running from Adigrat to Zalambessa.”

On the Decision that awarded the northern and western fringes of the Endeli Projection to Eritrea

Paragraph 4.85: “Even so, the Commission is unable to draw from this the conclusion that it should vary the 1900 Treaty line so as to include the whole of the Endeli projection within Ethiopia . The Commission has noted that, in general, the impact of Ethiopian administrative activity has been weaker, and the impact of Eritrean activity stronger, in the northern and western fringes of the Endeli projection, and that therefore Ethiopia has not established its effective sovereignty to the required degree over those areas. The Treaty line should therefore be varied so as to place only the more southerly and easterly parts of the Endeli projection in Ethiopia.”

June 24, 2002: -- Eritrea-Ethiopia Boundary Commission Decision Regarding the “Request for Interpretation, Correction and Consultation” Submitted by Ethiopia on 13 May 2002

Paragraph 16:The Ethiopian request appears to be founded on a misapprehension regarding the scope and effect of Articles 28 and 29 of the Commission’s Rules of Procedure. The facility accorded to the Parties in Article 28(1) to request the Commission to give an interpretation of the Decision may only be invoked where the meaning of some specific statement in the Decision is unclear and requires clarification in order that the Decision should be properly applied. The concept of interpretation does not open up the possibility of appeal against a decision or the reopening of matters clearly settled by a decision.”

Paragraph 17. “The Commission does not find, in any of the items that appear in Section II of the Ethiopian request, anything that identifies an uncertainty in the Decision that could be resolved by interpretation at this time. The same is true of Sections III and IV. Nor is any case made out for revision. ... Accordingly, the Commission concludes that the Ethiopian request is inadmissible and no further action will be taken upon it.”

July 8, 2002: -- Eritrea - Ethiopia Boundary Commission Demarcation Directions

Article 9-D: “Pillars shall be placed within 50 meters of the coordinates of the pillars marked on the 1:25,000 scale map. If any pillar cannot be so placed, the question of its location shall be referred back to the Commission.”

Article 14-A: “The Commission has no authority to vary the boundary line. If it runs through and divides a town or village, the line may be varied only on the basis of an express request agreed between and made by both Parties.”

July 15, 2002 : -- Eritrea - Ethiopia Boundary Commission Report of the Field Investigation Team

Paragraph 10: “The centre of the town of Badme is located at 1.8 km to the west of the delimitation line established by the Commission’s Decision of 13 April 2002 .”

Paragraph 16: “The checkpoint at Dembe Gedamu is located 2.7 km to the west of the delimitation line established by the Commission’s Decision of 13 April 2002 .”

Paragraph 29: “The civilian settlement at Dembe Mengul/Geza Gereb is located at 0.4 km to the west of the delimitation line established by the Commission’s Decision of 13 April 2002 .”

July 17, 2002: -- Order of the Eritrea - Ethiopia Boundary Commission

“Dembe Mengul is located 0.4 km to the west of the delimitation line established by the Commission’s Decision of 13 April 2002 . ... Aerial photography established that this location was settled after 13 April 2002 .

“B. Any Ethiopian government-sponsored resettlement of Ethiopian nationals in Dembe Mengul after 13 April 2002 should not have taken place;

“C. Ethiopia shall:

(i) forthwith arrange for the return to Ethiopian territory of those persons in Dembe Mengul who have gone there from Ethiopia pursuant to an Ethiopian resettlement program since 13 April 2002; and

(ii) report to the Commission on the implementation of sub-paragraph (i) above no later than 30 September 2002 .

“D. Each Party shall ensure that no further population resettlement takes place across the delimitation line established by the Decision of 13 April 2002 .”

August 14, 2002: -- Security Council Resolution 1430 (2002)

“Recalling the Delimitation Decision by the Boundary Commission of 13 April 2002 (S/2002/423), subsequently embraced by the parties as final and binding in accordance with the Comprehensive Peace Agreement signed in Algiers on 12 December 2000 (S/2000/1183),

“5. Calls on the parties to cooperate fully and promptly with the Boundary Commission, including by implementing without conditions its binding Demarcation Directions, by abiding promptly by all its Orders, including the two issued on 17 July 2002 (S/2002/853), and by taking all steps necessary to ensure the personal security of the staff of the Commission when operating in territories under their control;”

November 7, 2002: -- Eritrea - Ethiopia Boundary Commission Determinations

6. “The Delimitation Decision of 13 April 2002 is final and binding in respect of the whole of the boundary between the Parties with the exception of Tserona, Zalambessa, Bure, the Eastern Sector, and the rivers, to the limited extent therein stated,”

3. “Having regard to the Commission’s Order of 17 July 2002, Ethiopia, in failing to remove from Eritrean territory persons of Ethiopian origin who have moved into that territory subsequent to the date of the Delimitation Decision, has not complied with its obligations;”

February 21, 2003 : -- Eighth Report of the Eritrea-Ethiopia Boundary Commission to the UN Secretary General

Paragraph 3: “The Commission had indicated that these comments were to be of an essentially technical nature. Those filed by Eritrea , amounting to some 17 pages, were of this character. The comments filed by Ethiopia were mostly of a quite different character and size. Amounting to 141 pages and going far beyond the scope of comments on the map, they contained instead a detailed exposition of the views of Ethiopia regarding the steps that it deemed necessary for the satisfactory completion of the demarcation. In a number of significant respects the comments amounted to an attempt to reopen the substance of the April Decision, notwithstanding Ethiopia ’s repeated statements, made both before and since, of its acceptance of the Decision.”

Paragraph 5: “Notwithstanding the clarity with which the Commission has stated the limits upon its authority, Ethiopia has continued to seek variations to the boundary line delimited in the April Decision, and has done so in terms that appear, despite protestations to the contrary, to undermine not only the April Decision but also the peace process as a whole. Thus, Ethiopia ’s comments contained the following passage:

Ethiopia has understood that this line would be subject to refinement during the demarcation process when the effective administration of the Parties could be determined in the field. It was on this basis that the Government accepted the April Decision and it is on this basis only that the Government continues to do so.” [§ 1.5]

Paragraph 6. “The Commission sees in the words italicized above an intimation that Ethiopia will not adhere to the April Decision if its claim to “refinement” of the April Decision delimitation is not accepted. The Commission’s disquiet on this point has been increased by statements made on behalf of Ethiopia at the meeting on 9 February 2003 .”

March 6, 2003 : -- Secretary General Kofi Annan `Progress Report' to the United Nations Security Council, UN Doc. S/2003/257:

“12. In recent meetings with my Special Representative, Prime Minister Meles Zenawi of Ethiopia and Foreign Minister Seyoum Mesfin expressed their serious concerns regarding the Boundary Commission’s demarcation of the border. While emphasizing Ethiopia ’s commitment to peace and to the Algiers Agreements, the Prime Minister noted that if its concerns were not properly addressed, Ethiopia might eventually reject the demarcation-related decisions of the Commission.

March 14, 2003 : -- Security Council Resolution 1466 (2003)

“Welcoming the eighth report of the Boundary Commission, noting the concerns expressed therein with regard to full adherence by the parties to the Boundary Decision and demarcation-related decisions of the Commission, and expressing its full support for the work of the Commission and the legal framework within which the Commission is taking its decisions,

“Having considered the report of the Secretary-General (S/2003/257),

“2. Urges both Ethiopia and Eritrea to continue to assume their responsibilities and fulfill their commitments under the Algiers Agreements and calls upon them to cooperate fully and promptly with the Boundary Commission to enable it to fulfill the mandate conferred upon it by the parties of expeditiously delimiting and demarcating the boundary, to implement fully the Commission’s binding Demarcation Directions, to abide promptly by all its Orders, including those issued on 17 July 2002 (S/2002/853), and to take all steps necessary to provide the necessary security on the ground for the staff of the Commission when operating in territories under their control;

March 21, 2003 : -- Eritrea - Ethiopia Boundary Commission Observations

Paragraph 6. “The Commission is, as already noted, constrained by the terms of the December 2000 Agreement. The Commission is unable to read into that treaty language, either taken by itself or read in the light of the context provided by other associated agreements concluded between the Parties, any authority for it to add to or subtract from the terms of the colonial treaties or to include within the applicable international law elements of flexibility which it does not already contain.

Paragraph 9: “In the present case this conclusion is the more compelling in the light of three considerations in particular to which the Parties had agreed in advance:

“(a) first, they knew in advance, and agreed, that the result of the Commission’s delimitation of the boundary might not be identical with previous areas of territorial administration and might follow a course which resulted in populations ending up on the ‘wrong’ side of the boundary, and that where such a situation arose the ensuing problems were for resolution by the UN rather than by the Commission (Article 4.16 of the December 2000 Agreement);

“(b) second, the Parties knew in advance, and agreed, that it was not open to the Commission to make its decisions on the basis of ex aequo et bono considerations (Article 4.2);

“(c) third, the Parties knew in advance, and agreed, that the boundary as delimited by the Commission’s Delimitation Decision would be final (Article 4.15), i.e., not subject to amendment, including therefore amendment during the process devoted to and limited to demarcation of the boundary delimited.

Paragraph 12. “The Commission is therefore obliged to reject the assertion that it must adjust the coordinates to take into account the human and physical geography in the border region. Moreover, the Commission firmly rejects the contention that if such adjustments are not made the Commission’s work would be devoid of adequate legal basis.”

Paragraph 13. “It would also be inconsistent with the stipulation in the December 2000 Agreement that the Commission’s Delimitation Decision is "final." The boundary laid down in the Delimitation Decision reflects the Commission’s assessment of the evidence of conduct presented by the Parties. The boundary line drawn, for example, in the area of the so-called Belesa and Endeli Projections is not a provisional line subject to further consideration by the Commission of new evidence of State practice in those areas. There is, in short, no further room for the introduction by the Parties of additional new evidence of their conduct, or for the Commission to seek out such evidence.”

Paragraph 16: “The Commission concluded that the boundary in the uncompleted section had crystallized by 1935 so as to follow a straight line between Points 6 and 9 as depicted on the map accompanying its Delimitation Decision. That straight line had been represented on many maps, including maps published by Ethiopia as well as Eritrea .”

Paragraph 17: “The Commission also examined developments after 1935, and concluded that it could "perceive nothing in that chain of developments that has had the effect of altering the boundary between the Parties" (para 5.91). The Commission observes that its finding that the boundary under the 1902 Treaty had by 1935 crystallized along the line of the traditional signature means that the burden rested upon Ethiopia to substantiate any claimed departure from that line on the basis of conduct that would serve to show that Badme village (which lies close to the line) was subject to Ethiopian control. The Commission referred specifically in the Delimitation Decision (paras 5.92-5.95) to the evidence produced by Ethiopia . It noted in particular that Ethiopia had introduced no evidence in its opening pleading (its Memorial) of governmental activities west of that straight line; although it produced some evidence in its Counter Memorial, it did not add to or develop this in its Reply. Moreover, maps submitted by Ethiopia were inconsistent as to the location of Badme village. Overall, the evidence was nothing like what might have been expected had Ethiopia ’s presence there in the period before the case been as significant as Ethiopia now alleges. The Commission would note that what is relevant here is governmental and not private activity. The references to Ethiopian governmental control of Badme and its environs were insufficient to persuade the Commission that an Ethiopian presence west of the line from Points 6 to 9 would support a departure from the line that had crystallized by 1935.”

Paragraph 18:. “This conclusion followed from the inadequacy of Ethiopia ’s evidence. Since Badme village (as opposed to some other parts of the Badme region) lay on what was found to be the Eritrean side of the treaty line, there was no need for the Commission to consider any evidence of Eritrean governmental presence there, although Eritrea did in fact submit such evidence. Moreover, even some maps submitted by Ethiopia not only showed the distinctive straight line between the Setit and Mareb Rivers , but also marked Badme village as being on the Eritrean side of that line. The Commission must also observe that the Ethiopian invocation of the findings of the OAU in respect of Badme in 1998 (Comment, para. 1.4, footnote 4) failed to mention the OAU’s express statement that those findings did not "prejudge the final status of that area which will be determined at the end of the delimitation and demarcation process and, if necessary, through arbitration."

Paragraph 29:. “In its consideration of the comments of the Parties, the Commission must maintain its impartial approach to all matters with which it has to deal. It cannot allow one Party to claim for itself the right to insist on adjustment of parts of the boundary which that Party finds disadvantageous. The Commission continues to owe a duty to both Parties to perform the functions placed upon it by their agreement and it is its intention to perform these functions fully and faithfully.”

July 17, 2003: -- Statement by the President of the Security Council

“The Security Council reaffirms the commitment of all Member States to the sovereignty, independence and territorial integrity of Ethiopia and Eritrea , and its support for the 13 April 2002 delimitation decision of the Eritrea- Ethiopia Boundary Commission (EEBC).”

“The Security Council supports the Secretary-General’s observation in his progress report (S/2003/665) that expeditious demarcation of the border is crucial, and expresses concern at the delays so far, .... Delays would be contrary to the wish of both parties to achieve lasting peace and stability as manifested in the Algiers Agreement.

The Security Council urges the parties to provide their full and prompt cooperation to the Boundary Commission for the beginning of demarcation in Sector East and for the initiation of survey work in Sectors Centre and West. The Council calls upon the parties to pursue any matters that may arise in connection with the implementation of the Boundary Commission’s delimitation decision within the provisions of the Algiers Agreement.”

September 12, 2003: -- Security Council Resolution 1507 (2003)

reaffirming its unwavering support for the peace process and its commitment, including through the role played by the United Nations Mission in Ethiopia and Eritrea (UNMEE) in the implementation of its mandate, to the full and expeditious implementation of the Comprehensive Peace Agreement signed by the Governments of Ethiopia and Eritrea (hereinafter referred to as “the parties”) on 12 December 2000 and the preceding Agreement on the Cessation of Hostilities of 18 June 2000 (S/2000/1183 and S/2000/601, respectively, hereinafter referred to as the “Algiers Agreements”) and the Delimitation Decision by the Boundary Commission of 13 April 2002 (S/2002/423), embraced by the parties as final and binding in accordance with the Algiers Agreements,

“2.Calls for demarcation of the boundary to begin as scheduled by the Boundary Commission and further calls on the parties to create the necessary conditions for demarcation to proceed, including the appointment of field liaison officers;

“4.Calls on Ethiopia and Eritrea to cooperate fully and promptly with the Boundary Commission to enable it to fulfill the mandate conferred upon it by the parties of expeditiously demarcating the boundary and to implement fully the Commission’s Demarcation Directions and Orders,”

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