EEBC's Statement in response to the Ethiopian Prime Minister's
letter
October 7, 2003
Dear Secretary General,
1. The Boundary Commission has received a copy of the letter of 19 September
2003 from the Prime Minister of Ethiopia to the Secretary-General of the United
Nations. It is a cause of considerable disquiet to the Commission which, in
consequence, deems it necessary to offer a number of observations upon some
of the statements made in it that directly related to the work of the Boundary
Commission and which, to our regret, are misconceived and misleading.
2. The commission wishes to recall that it has been engaged in demarcation activities
since 13 April 2002, the date of its Delimitation Decision. A summary of the
current status of these activities and of the actions by the Parties that are
now called for so that demarcation can proceed as required by the Security Council
in its recent Resolution demarcation 1507 of 12 September 2003 is set forth
in Annex 1.(Additionally, for your information, copies of the Commission’s current
Demarcation Directions and of its current Demarcation Instructions are attached
as annexes 2 and 3 respectively).
3. The commission on one previous occasion has thought it beneficial to offer
Observations on the Commission’s approach to the demarcation phase of its work
in the light in particular of certain considerations advanced by the parties:
see the Commission’s Observations of 21 March 2003, circulated on 31 March 2003
as UN Doc. S/2003/257/Add.1. In the light of the recent letter from the Prime
Minster of Ethiopia, the Commission considers that the following further comments
are called for.
4. The opening paragraph of the Prime Minister’s letter states that the peace
process between Ethiopia and Eritrea is facing a challenge Ethiopia characterizes
the situation as being one in which “the work of the Commission is in terminal
crisis”. The Commission does not accept that assessment: there is no “crisis”,
terminal or otherwise, which cannot be cured by Ethiopia’s compliance with its
obligation under the Algiers Agreement, in particular its obligations to treat
the Commission’s delimitation determination as “final and binding”(Article 4.15)
and “to cooperate with the Commission, its experts and other staff in all respects
during the process of ... demarcation” (Article 4.14).
5. The key to the “crisis” which Ethiopia discerns in the work of the Commission
lies, according to Ethiopia’s letter, in the Commission’s “totally illegal,
unjust and irresponsible decision on Badme and parts of the Central Sector”.
As that letter deals thereafter only with the situation regarding Badme, it
is therefore only to that aspect of the case that the Commission will here refer.
6. The letter states that the “Colonial treaties which are the basis of the
Algiers Agreement and which should have been the key basis for the delimitation
and demarcation of the boundary leave Badme well inside Ethiopia”. On the basis
of those colonial treaties as they were interpreted by the Commission in accordance
with applicable international law, that is not accurate. The Commission found
that on the correct interpretation of the relevant Treaty, the boundary, from
the point at which it leaves the Setit River (point 6) to where it joins the
Mareb River (point 9), ran in part across the Badme plain. If as a result Badme
village is found to be located in Eritrea, that is no more than the consequence
of the Commission’s application of the relevant colonial treaty. Ethiopia argued
in the proceedings before the Commission for an interpretation of the Treaty
which would have resulted in a much different boundary, far to the northwest,
which would have had the effect of placing Badme well within Ethiopia, but the
argument for Ethiopia’s line was considered carefully by the Commission and
rejected.
7. The Ethiopian letter goes on to say that “This [i.e. Badme being left well
inside of Ethiopia by the colonial treaties] was also the Commission’s own interpretation
of the relevant Treaty”. This is a misrepresentation of the Commission’s reasoning.
The only interpretation of the relevant treaty which can be regarded as the
Commission’s “own interpretation”, in accordance with applicable international
law, is that which is set out in its Delimitation Decision of April 2002.
8. The letter then states that “the Commission chose to base its decision on
state practice, and having done so, went on and awarded Badme to Eritrea ...”
. The state practice to which the Commission gave weight consisted primarily
of a Series of maps, including in particular maps published by Ethiopia. The
Commission was convinced that these showed the Parties’ agreement upon an interpretation
of the relevant Treaty which placed the boundary prescribed by that Treaty in
the location determined by the Commission. Ethiopia failed to show why official
Ethiopian maps that over the years depicted not the line for which it argued
in 2001, but the line adopted by the Commission, did not reflect the true line
of the boundary.
9. Ethiopia goes on to say that this finding, which resulted in Badme being
awarded to Eritrea, was made “despite the overwhelming evidence produced by
Ethiopia proving that Badme had always been administered by Ethiopia. Eritrea
could not produce even a single document to rebut Ethiopia’s submission”. The
Commission has already (in paragraphs 17 and 18 of its Observation of 21 March
2003) commented on the paucity of the evidence produced by the Parties in relation
specifically to Badme.
10. The Commission must further observe that its mandate, as agreed in Article
4.2 of the Algiers Agreement, was to base its decision “on pertinent colonial
treaties (1900, 1902, and 1908) and applicable international law”. The Parties
did not give the Commission the task of deciding which State administered Badme
in recent years and at the critical time, when the relevant Treaty of 1902 was
concluded, Badme and certain other villages and settlements which now exist
had not then come into existence. Where villages have sprung up or spread in
recent times, and in so doing transgress boundaries previously established by
older treaties, it is fully consistent with international law for the treaty-based
boundary to be maintained and for the resolution of any consequential human
problems to be left for the Parties to resolve by agreement. Far from being
a “blatant miscarriage of justice”(letter, para 3), that result is precisely
what the International Court of Justice decided, in comparable circumstances,
in its recent Judgment in the Cameroon v. Nigeria case. (ICJ Rep., 2002, paras
107, 128). The Parties have long been aware that the result of the Commission’s
delimitation and consequent demarcation could be that the boundary could run
through and divide some settlements (see paragraph 3 of the Commission’s Observations
of 21 March 2003).
11. In the fourth paragraph of the letter, Ethiopia contends that since Eritrea
totally rejects any dialogue on demarcation, the Commission’s indication of
the need for further agreement between the Parties to resolve anomalies shows
that “nothing worthwhile can therefore be expected fro the Commission to salvage
the peace process. Indeed, the Commission seems to be determined to continue
its disastrous stance whatever the consequences to the peace of the region”.
The Commission can only repeat what it has previously said, essentially that
its mandate is that given to it by the Parties when concluding the Algiers Agreement,
and that it that mandate is to be changed it can only be done by some further
agreement by the Parties: it is not for the Commission to speculate on whether
or not such a further agreement is likely to be negotiable. The Commission’s
position is clearly set out in paragraph 28 of its Observations of 21 March
2003.
12. Ethiopia maintains in the fifth paragraph of its letter that “only the Security
Council can salvage the peace process”, and that “the Boundary Commission has
itself acknowledged the responsibility of the United Nations, in accordance
with the Algiers Agreement, to assist the two parties to overcome challenges
they might face in the process of the delimitation and demarcation”. The Commission
recalls that article 4.16 of the Algiers Agreement is in the following specific
terms: “Recognizing that the results of the delimitation and demarcation process
are not yet known, the parties request the United Nations to facilitate resolution
of problems which may arise due to the transfer of territorial control, including
the consequences for individuals residing in previously disputed territory”.
It is accordingly clear that Ethiopia’s construction of the Algiers Agreement
and of what the Commission has stated in respect of it is misconceived.
13. Ethiopia then makes a number of specific proposals in order to bread what
it terms “the present deadlock”.
14. In Proposal 1, Ethiopia reaffirms “its commitment under the Algiers agreement”:
the Commission observes that that Agreement committed both Parties inter alia
to accept the Commission’s determination of the boundary as final and binding,
and to cooperate with the Commission during the process of demarcation, and
Ethiopia, like Eritrea, accepted the Delimitation Decision when it was rendered.
Ethiopia’s reference in the third and sixth paragraphs of its letter to some
further demarcation being “just and legal” imports that Ethiopia now considers
that the Commission’s delimitation and demarcation are neither. Ethiopia’s statement
is a repudiation of its repeated acceptance of the Commission’s Decision since
it was rendered.
15. In Proposal 3, Ethiopia proposes that “an alternative mechanism to demarcate
the contested parts of the boundary” be set up. Such an alternative mechanism
would involve a departure from, and thus an amendment to , the terms of Article
4.2 of the Algiers Agreement, which gives the Commission the mandate to demarcate
the boundary. Moreover, Ethiopia’s reference to “the contested boundary” can
only be understood as a reference to those parts of the boundary to which it
alone and unilaterally takes exception: no part of the boundary is “contested”
by both Parties.
16. Proposal 5 says that Ethiopia “will recognize ... the southern boundary
of the Temporary Security Zone as the boundary between the two countries”. The
Parties have agreed however, in Article 4.15 of the Algiers Agreement, that
the boundary between the two countries is the boundary as delimited by the Commission.
17. The Commission has recently sent a letter to the Parties directing that
they immediately take the necessary steps (as envisaged inter alia in Annex
1 to this letter) to allow demarcation to proceed according to the Schedule
of the Order of Activities Ahead. Only by thus enabling demarcation to proceed
unhindered can the mandate given the Commission by the Parties in the Algiers
Agreement- namely expeditiously to demarcate the boundary-be fulfilled.
18. The Commission would be grateful if you would be good enough to share this
letter with the members of the Security Council.
Yours sincerely,
Sir Elihu Lauterpacht