The Eritrea-Ethiopia Boundary Decision: Ethiopian Supporter's
Attempt to Deflect Mounting Pressure
By: Gebre Hiwet Tesfagiorgis
March 27, 2004
An article entitled, Notes on the Ethio-Eritrean Boundary Demarcation, written by Professor Christopher Clapham, has been circulating among several Ethiopian Websites. The article initially appeared in October 2003. The essence of the message in Clapham's article is that the delimitation decision of the Eritrea-Ethiopia Boundary Commission (EEBC) on the Eritrea-Ethiopia boundary should be quashed, reasoning that it does not reflect the post-war balance of power. Clapham in a sense advocates extra-legal considerations based on the doctrine of 'might is right,' instead of adjudication, as a basis for settling the border dispute.
Clapham is a long time supporter of Ethiopia. The extent of his support and the length to which he would go to advance Ethiopia's cause is only matched by the extent of his hostility towards Eritrea's cause. That he would side with Ethiopia in any controversy between the two countries cannot be a surprise. What is surprising is that he would go to the extreme--misrepresent facts and employ reasoning that defy decency and normal standards of scholarship--to attempt to discredit a border decision duly arrived at by outstanding international jurists in order to support a government (Ethiopian) that rejects a binding legal decision defying global opinion and international law.
The purpose of this essay is to suggest that a legal approach, as represented by the EEBC boundary delimitation decision and its prospective implementation, rather than the doctrine of "might is right," holds the best hope for bringing peace between Eritrea and Ethiopia and stability in the Horn region of Africa. I attempt to do this by showing that: (1) Clapham's history of unqualified support for Ethiopia and hostility towards Eritrea colors his views, (2) Clapham employs selected facts and/or misrepresents facts to support the oft-repeated Ethiopian allegation of "invasion by Eritrea," (3) the EEBC's Delimitation Decision is sound both in procedure and in substance, (4) International opinion supports implementation of the EEBC decision, and the intent of Ethiopia's supporters like Clapham is to deflect such opinion. I intend to conclude by summarizing the main points and argue that implementation of the Delimitation Decision is essential to bring a lasting peace between Eritrea and Ethiopia and stability in the Horn region of Africa.
History of Unqualified Support of Ethiopia, Hostility towards Eritrean
Clapham is affiliated with the African Studies program at the University of Cambridge and has an extensive publication record on Ethiopia. He is one of those scholars who describe themselves, or are referred to by others, as 'greater Ethiopianists,' Their scholarship is based on 'the greater tradition,' a paradigm that looks at the history and politics of the Horn region of Africa from the vantage point of the legacies of the Amhara-based imperial rule centered in the highland region of Ethiopia. They place emphasis on the Amhara, and to a lesser extent Tigrayan, groups and their central highland territories all the time while excluding or marginalizing the rest of the people in the region. These scholars legitimize and glorify the mystic claim that Ethiopia's imperial rulers were descendants of the biblical Solomon dynasty and place more emphasis on Ethiopia's connection with the West and the Middle East than its linkage with the rest of Africa. A common theme of their academic discourse is how different Ethiopia is from the rest of Africa.
Clapham and his cohorts are hostile to any analytic framework on the region other than the paradigm of 'the great tradition.' They are quick to dismiss alternative approaches as 'attacks on the great tradition approach to Ethiopian history' or 'a counter-history of Ethiopia.' For example, when the Somali Studies, Eritrean Studies, or Oromo Studies were established, Clapham was quick to describe them as pale images of the long-established Ethiopian Studies and serving no purpose other than to promote 'narrow nationalism.' 1
There has been a growing body of literature in the last couple of decades on the erstwhile neglected groups within Ethiopia, particularly the Oromos, the largest ethnic group in the country. Clapham's reaction to this growing body of literature has been to dismiss it as 'counter-history of Ethiopia' or as merely furthering 'ethno-nationalism,' and to forward criticisms bordering on ridicule.2
When it comes to Eritrea, Clapham picks and chooses facts that support his hostile position towards Eritrean causes. For example, on the events following the ill-fated federation (1952-1962), while the body of literature points to a systematic erosion of Eritrean rights and eventual forcible annexation of Eritrea by Ethiopia, Clapham uses selective facts to claim that Eritrea's incorporation into Ethiopia was "made possible by the emergence of a significant body of opinion within Eritrea that favoured 'reunification' with the 'motherland.'"3
To Eritreans, the protracted armed struggle in which they paid dearly in human lives and resources was a process of de-colonization denied to them in the 1940s and 1950s and a struggle to determine the Eritrean self. To Clapham and his cohorts, it was a war of session from greater Ethiopia in pursuit of "narrow nationalism," echoing Ethiopia's propaganda, first under the old imperial regime and later under the Derg's military regime. To Eritreans themselves, and to the international community, the establishment of the state of Eritrea, with its colonially defined territory, is consistent with the doctrine of the inviolability of colonially established boundaries that has now become Africa's international law. To Clapham, because of his loyalty to 'greater Ethiopia,' Eritrea is an "exceptional case." In his thinking, independent Eritrea represents the "redrawing of boundaries."4
Not only has Clapham been hostile to Eritrea's legitimate cause, he was also always in a state of denial of Eritrean military successes during the armed struggle for independence. For example, after the 1982 disastrous Derg's "Red Star' project, touted as the 'final' military push, involving forces wishfully dubbed as Nadow (Amharic word for "destroy") and Mebreq (Amharic word for "thunder")5, which resulted in Eritrean EPLF's major victory, Clapham's assessment and prediction was that EPLF "will unlikely succeed."6 And towards the conclusions of the 1990s, when independent eye-witnesses were reporting on EPLF's military successes against the Derg's military campaigns, Clapham was minimizing those successes and describing them as the Derg's "failures to subdue Eritrea."
When the inevitable happened in 1991, Clapham had no choice but to accept the fact that Eritreans under the EPLF were victorious. Even then, his statements are very telling, "[Ethiopia] fought bitterly for years against Eritrean session, and accepted it only once it could no longer be resisted."7 It is as if he could not bring himself to state the obvious fact that the Eritreans won.
Given this history of unqualified support of Ethiopia contrasted with hostility towards Eritrea, it is not surprising that Clapham would come to the aid of Ethiopia when controversy arises between the two countries. What is surprising is that he would go to the extent of misrepresenting facts and engage in faulty reasoning to support the position of a government that refuses to honor a legally binding decision. Equally surprising is his engagement in a diatribe to discredit the decision of a commission of fivem internationally known and highly respected jurists.
Asserting "Eritrean Invasion" for Convenience
Clapham's tendency to use selective facts to support his biased opinion is evident when he takes as a given fact the oft-repeated Ethiopian claim that "Eritrea invaded Ethiopia" when it established a military presence in the now famous town of Badme. He thus likens the situation to the cases of Argentina's seizure of the Falklands/Malvinas islands in 1982 and the Iraqi invasion of Kuwait in 1990, situations in which international law would have required the restoration of the status quo ante. Nice try! This would have been true had Eritrea seized Ethiopia's territory. But, as was eventually borne out by the EEBC decision, Eritrea was not invading another country's territory; it was merely asserting its own territory, Badme.
Clapham's assertion of Eritrean invasion rests on the claim that Ethiopia was administering Badme prior to the outbreak of hostilities in May 1998. However, mere administration of a territory cannot constitute ownership of that territory, especially in the context of the Eritrea-Ethiopia boundary when the whole of Eritrean territory was under the administration of Ethiopia for over thirty years during which time the Eritreans were conducting a war of independence. The independent and sovereign Eritrean state that emerged from that war had a territory delineated by colonially-defined borders, as was true of all post-colonial African countries. So, the probative fact for determining whether Badme is an Eritrean or Ethiopian territory should be its status during the periods of Italian colonial rule (before1941), the British Military Administration (1941-1952), the federation with Ethiopia (1952-1962), and even the post annexation (1962 and after). As was eventually borne out by the EEBC decision, Badme turned out to be an Eritrean and not, as Clapham and the government of Ethiopia assert, an Ethiopian territory
It is a well-known fact that Eritrea's EPLF (Eritrean Peoples Liberation Front) and Tigray's TPLF (Tigray Peoples Liberation Front) were in a military alliance against the central government of the Derg regime prior to Eritrea's independence. They conducted joint military operations around the Badme and other areas. So any semblance of administration of Badme by Ethiopia (or Tigray) immediately prior to or after Eritrea's independence can only be incidental to that alliance. The claim to Badme is actually a reflection of Tigray's territorial ambitions that manifested itself when the TPLF-dominated government published a map of Ethiopia in 1997 that incorporated large sections of Eritrea including Badme. Earlier, when establishing the ethnic-based federal structure, the TPLF-dominated government also incorporated swaths of land in northern Gondar and northern Wello into Tigray, claiming that they were part of the old Tigray-based empire and were administered as part of Tigray province in the 1940s, an assertion Clapham himself once described as "entirely fictitious"8.
Leaving aside for the moment the question of where Badme lies, the events that led to the war are more complex than Clapham's and Ethiopia's simplified assertion of "Eritrean invasion." The dispute started with a series of armed incidents in which Ethiopian army encroached on Eritrean territories, including Badme where Eritrean officials were killed. The Eritrean army, in self-defense, moved into Badme and established its presence in a territory it has always considered an Eritrean territory. Ethiopia declared "total war' on Eritrea and mobilized its armed forces, claiming it had been invaded. Clapham's unequivocal assertion of "Eritrean invasion" in the article under review contradicts even his own account in an earlier article where he stated: "The most plausible account of its [the border war] origins suggest that it was caused by an ill-considered Eritrean reaction to provocation by local officials on the Ethiopian side of the border, and then escalated beyond the capacity of either government to control."9 Why elevate it to 'Eritrean invasion' now? Asserting invasion is a convenient ploy to invoke the principle of restoration of the status quo ante where otherwise it would not be applicable.
At any rate, the Algiers Agreement (Article 3) does provide for an investigation by an independent, impartial body on the incidents of May 1998 and other prior incidents that might have contributed to the war. Thus, the jury is still out as to uncovering the exact events that led to the full-scale war.
Political Expedience Based on 'Might is Right' versus Adjudication?
Clapham describes the boundary line drawn by the EEBC as "disastrous." He posits that "the key weakness of the BCEE10 allocation is that it runs counter to the basic principles of conflict management" as it does not "reflect the distribution of power." He explains, that in the case of major wars, such as the Eritrean-Ethiopian conflict, "The winner ...gains what it fought for, while the loser correspondingly loses." This is premised on his conclusion that militarily Ethiopia was the victor and Eritrea was the loser. Then he rather arrogantly suggests, "[T]he allocation devised by the BCEE must be quashed, and an alternative devised that is both implementable, and that can provide the basis for eventual restoration of relations between the two countries."
There are several problems and fallacies in Clapham's line of reasoning. First, his assumption of Ethiopian victory and Eritrean loss is quite misleading. I'm not a military expert to be able make an informed judgment on the outcome of a complicated war that had many fronts and types of engagements, but I do know from the history of the war between the two countries that the outcome of a single engagement in and of itself does not constitute victory. For example, in the late 1970s when massive infusion of armaments from the then Soviet Union, coupled with involvement of Cuban military personnel, enabled the Derg regime to gain a military edge and caused Eritrean freedom fighters to make strategic withdrawal to the country, Clapham and other Ethiopian supporters at the time wrote the death certificate of EPLF and the Eritrean independence struggle, only to witness a much bigger and powerful EPLF emerging in the 1980s to achieve military victory at the conclusion of that decade. Even the recent border war itself (1998-2000) was marked by experiences of military pushes and reverses on both sides. Had the outcome in May 2000 been an Ethiopian victory and Eritrean loss, Ethiopia would have advanced to the much-coveted port of Assab.
An objective assessment of the 1998-2000 conflict, by people who are not in the business of cheer leading for either party is likely to conclude that no one could be a winner in this tragic war. The facts that people in the tens of thousands lost their lives and millions of dollars worth of resources were spent on military hardware instead of alleviating the persistent poverty, make both countries losers. These facts are not lost on the peoples of both Eritrea and Ethiopia. The reality of the situation at the time was that both parties were exhausted from the senseless war, and the Algiers peace agreement, entered into either due to a belated realization of the futility of continuing a senseless war or due to pressure from third
parties, was a welcome development, paving the way for a better alternative--a peaceful, legal resolution of the border dispute.
Even if one accepts the claim of 'Ethiopian victory,' Clapham's grounds for faulting the EEBC decision and allocation of territories and his suggested 'remedies' are rather strange. His main reason for faulting the EEBC decision is that its allocation does not "reflect the balance of power." According to Clapham, Ethiopia had achieved 'military victory' in May 2000 and that 'victory' had created a stable situation. He goes into a long diatribe and states, "Given that Ethiopia has a population about fifteen times greater than that of Eritrea, with other resources to match, the outcome reached in May 2000 was one that Eritrea was extremely unlikely to be able to challenge, and would have had to accept." In other words, what he seems to be saying to the EEBC is, "Forget about facts, forget about fairness, forget about justice, if you had allocated Badme and Irob to the 'victor' Ethiopia, instead of to the 'loser' Eritrea, the stable situation would have been maintained; 'helpless' Eritrea would have simply accepted such an allocation. Instead, you came up with an allocation that is 'disastrous' because it is not acceptable to victor Ethiopia."
In the first place, the difference in size between the two countries, in terms of population and resources, has always been there; it was true during the armed liberation struggle as it is true now, and everyone know what the outcome of the struggle was. But to Clapham, underestimation and denial of Eritrean ability is his legacy. Second, to suggest that the goal of an impartial, independent commission playing in the role of a magistrate should be to reward the military victor is tantamount to advocating 'might is right' or 'law of the jungle.'
An independent body assuming the role of a magistrate, such as the EEBC, is supposed to objectively weigh the facts presented to it in the light of the governing laws, and reach a decision. Stated differently, adjudicating objectively based on the facts presented is what judging is all about. And as will be discussed in the next section, that is exactly what the EEBC did. To do what Clapham thinks it should have done would defy the basic principles of justice and would go contrary to the specific mandate assigned by the Algiers Agreement.
Fairness and Soundness of the Boundary Commission's Delimitation Decision
Clapham contends that the EEBC, "by basing its findings almost entirely on the 'colonial treaties' provisions, ... and scarcely at all on the 'international law' provisions, it largely disregarded Ethiopian claims based on ... administration of the disputed areas, and upheld Eritrean ones based on the interpretation ... of the various treaties." Implied in this contention is that the Commission's allocation is biased in favor of Eritrea.
Any analysis to determine whether or not the EEBC delimitation of the Eritrea-Ethiopia boundary was fair and sound, should start with the December 12, 2000 Agreement between the State of Eritrea and the Government of the Federal Democratic Republic of Ethiopia, signed in Algiers under the auspices of the then Organization of African Unity (OAU, now African Union) (hereinafter the "Algiers Agreement" or "Agreement").
Article 4(2) of the Algiers Agreement states 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"
The key phrases in the mandate are: (a) pertinent colonial treaties, and (b) applicable international law. The pertinent colonial treaties were specified in the Agreement itself, and refer to the three treaties signed between the Empire of Ethiopia, then under Emperor Menelik, and the Colony of Eritrea, then under Italian colonial rule. Use of colonial treaties as the basis of determining border is consistent with "the principle of respect of the orders existing at independence as stated in resolution AHG/Res.16(1) adopted by the OAU in Cairo in 1964," which has by now acquired the force of
nternational law in the African context.
In interpreting the meanings of the three colonial treaties, the Commission followed principles of international law as practiced by the International Court of Justice (ICJ). The Commission stated that it will "apply the general rule that a treaty is to be interpreted in good faith in accordance with the ordinary meaning to be given in the terms of the treaty in their context and in the light of its object and purpose."11 It also applied the closely related doctrine of "contemporaneity." That is to say, the treaty should be interpreted by reference to the circumstances prevailing when the treaty was concluded.
With regard to the stipulation of "applicable international law," the Commission also found support in "rules of customary international law" that had relevance to the case, especially in border dispute cases adjudicated by ICJ. (For example, the 1969 border dispute between Argentina and Chile, the 1999 dispute over an island between Botswana and Namibia.) In particular, the Commission also found as 'applicable international law' the role of subsequent practice or conduct. This asks the question: Has the conduct of the parties, subsequent to the treaties been such that it has rendered some provisions of the treaty to become not relevant? A closely related application of 'applicable international law' used by the Commission is, where one party admits or accepts the right of the other party. Thus, contrary to Clapham's claim, the Commission did consider 'applicable international laws' in its decision.
Another very important provision of the Algiers Agreement was that "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."(Art.4 (15) (emphasis added).
The Commission was established in accordance with Article 4 (4) and (5) of the Agreement, when Eritrea appointed as Commissioners Mr. Jan Paulsson and Judge Stephen M. Schwebel, and Ethiopia appointed Prince Bola Adesumbo Ajibola and Sir Arthur Watts. The party-appointed Commissioners in turn selected Professor Sir Elihu Lauterpacht as President of the Commission. Ethiopia filed a challenge to the appointment of Mr. Paulsson for no apparent convincing reason. While a decision on the challenge was pending, Mr. Paulsson graciously submitted his resignation and Eritrea appointed Professor W. Michael Reisman as a replacement. Nothing in the appointment process suggests that the Commission would be in favor of Eritrea. If any thing, Ethiopia's challenge to Eritrea's first pick, resulting in a replacement, is more likely to have made the Commission slanted in Ethiopia's than Eritrea's favor. But the fact remains that these five commissioners are distinguished, honorable jurists with impeccable records. Nothing in their background or in the way they approached their mandate indicates they would do anything other than render a verdict based on facts.
And render they did their delimitation decision on the Eritean-Ethiopian border by carefully weighing all the evidence presented to them by the parties. The delimitation process was an adversary proceeding, implied in
article 4 (8) of the Algiers Agreement: "[E]ach party shall provide ...its claims and evidence relevant to the mandate of the Commission." By "adversary" is meant that the opposing parties, in this case the governments of Eritrea and Ethiopia, contend against each other for results favorable to their respective claims. And the Commission acted as an independent magistrate. Stated differently, both Eritrea and Ethiopia were given the opportunity to lay out their claims with supporting evidence, engage in written as well as oral arguments and counter-arguments, trying to convince members of the Commission of their respective claims.
In establishing its own rules of procedures based on the 1992 Permanent Court of Arbitration Option Rules for Arbitrating between Two States, the Commission stipulated that "All decisions of the Commission shall be made by a majority of the commissioners."12 This is yet another example of an application of pertinent international laws,
Following these procedures, the Commission proceeded to render its decisions by segmenting the border into three convenient sections: West Sector, governed by Treaty of 1902, Central Sector, governed by Treaty of 1900 and Eastern Sector, governed by Treaty of 1908. Although both parties were in agreement that the three treaties are the pertinent ones, there were wide variations in their interpretations. The Commission's challenge was to narrow the gaps in interpretation. There were confusions of nomenclature, and there were hundreds of maps and other documents to sift through.
As the allocation of the Badme area is the main basis for Clapham'sallegation of a "disastrous decision" that denies "Ethiopia's right to a territory it administered in modern times," it will be instructive to examine what the Commission did with regard to that area. The Badme area is covered in the West Sector, governed by the Treaty of 1902. First, the Commission established the intent of the Treaty of 1902 and drew the boundary line in that area as crystallized by 1935. Then the Commission examined all major elements of events occurring since 1935, including the Italian invasion of Ethiopia, World War II, the British military administration of Eritrea, the period of determining the political future of Eritrea, the federation of Eritrea with Ethiopia, and the post federation period. The Commission concluded, "[N]othing in the chain of developments has had the effect of altering the boundary between the parties. The boundary of 1935 remains the boundary of today."13 The said line places Badme within Eritrea. The Commission did consider all the evidence presented by Ethiopia in support of its claim to have exercised administrative authority over Badme. But the Commission concluded, "[It] does not find in them 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."14
Thus, it is crystal clear that the allocation of Badme to Eritrea is not due to the Commission's reliance "entirely on the colonial treaties" and "scarcely at all on the international law," as Clapham contends. The commission did apply 'pertinent international law' by looking into 'developments subsequent to' the applicable treaty, and considered Ethiopia's claim of administrative authority, but found the evidence presented by Ethiopia not probative. So Clapham's reason for labeling the EEBC decision 'disastrous' is simply because he finds it not acceptable to Ethiopia.
Given the mandate assigned by the Algiers Agreement, the procedure adopted from rules of customary international law, the volume of evidence to sift through within the given time frame, and the sheer complexity of issues involved, one cannot help but conclude from reading the meticulously written
Delimitation Decision (April 13, 2002) that the Commission did a commendable job. The Commission, acting as an independent magistrate, carefully weighed all evidence presented to it by both parties, Eritrea and Ethiopia, and rendered a fair and sound decision. That is what an impartial and independent judicial commission is supposed to do, and that is what the Algiers Agreement intended it to do, and not as Clapham suggests, reward the 'military victor' by resorting to extra-legal considerations. It should also be pointed out that nothing in the composition of the Commission itself, in the procedure it followed, and in the substantive logic and reasoning that led to its decision indicates any bias favor of Eritrea. This conclusion, as will be discussed in the next section, is also supported by international opinion.
International Support for EEBC Decision and Attempts to Deflect Opinion
When the Algiers Agreement was signed to peacefully settle the border, both Eritreans and Ethiopians rejoiced, as did all peace-loving individuals and groups. The peace process was greeted not only as an obviously better alternative to the devastating war, but also as the best way to secure a lasting peace between the brotherly peoples of the two countries and to ensure stability of the Horn region as a whole. And when the Commission announced its Delimitation Decision on April 13, 2002, reiterating that both parties had agreed that the decision would be "final and binding," again, the decision was hailed as a fair and sound application of the terms and conditions outlined in the Algiers Agreement. The Decision was immediately endorsed by the UN Security Council, the African Union and the European Union.
The two parties themselves, Eritrea and Ethiopia, announced their acceptance of the Delimitation Decision and expressed their readiness to cooperate with the Commission to demarcate the border. The peace process had all the signs of becoming an exemplary process for settling future border disputes in Africa and elsewhere. Ethiopia's later repudiation of its initial repeated acceptance of the Commission's decision is as puzzling as it is dangerous. Ethiopia's Prime Minister, in a letter to the Security Council dated September 19, 2003, described as key to the crisis "[The Commission's] totally illegal, unjust and irresponsible decisions on Badme and parts of the Central Sector." He added, "It is unimaginable for the Ethiopian people to accept such a blatant miscarriage of justice." The Prime Minister proposed "that the Security Council set up an alternative mechanism to demarcate the contested parts of the boundary in a just and legal manner so as to ensure lasting peace in the region." He added, "The alternative mechanisms mandate can be limited to the contested parts of the boundary."
We have seen in the preceding section that the Commission's decision was fair and sound by any standard. To the Ethiopian Prime Minister, the decision is 'illegal, unjust and irresponsible' simply because some parts of the decision are not acceptable to Ethiopia. And that is exactly the line of reasoning presented by Clapham in his article. It is rather an elementary principle that once one has had his day in court, one cannot refuse a verdict simply because one finds it 'unacceptable.' Further, as a party in a case one is not allowed to cherry-pick aspects of a judicial verdict. The Ethiopian Prime Minister is cherry-picking when he rejects the allocation of Badme to Eritrea but is willing to accept the other aspects of the Commission's decision. It does not mean that Eritrea found the Commission's decision fully acceptable either; it could have cherry-picked Zalanbesa and the Beleza-Tserona area as 'unacceptable,' but did not. It fulfilled its obligation under the Algiers Agreement instead. Logic, normal international relations and international law requires acceptance of the Commission's decision as stipulated in the terms and conditions of the Algiers Agreement, including the pledge that the decision will be final and binding, to which the parties entered willingly and in good faith.
International opinion definitely supports this conclusion. The UN Security Council in Resolution 1430 of August 14, 2002, called upon 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." This was reiterated in the Council's Resolution 1507 (2003) reaffirming "its unwavering support for the peace process and its commitment to ...the Delimitation Decision, ...embraced by the parties as final and binding in accordance with the Algiers Agreement." The same resolution called on Ethiopia and Eritrea "to cooperate fully and promptly with the Boundary Commission to enable it to fulfil the mandate ... of expeditiously demarcating the boundary and to implement fully the Commission's Demarcation Decisions and Orders." The Security Council, in a response (written on October 3, 2003) to the Ethiopian Prime Minister's letter categorically stated, "The Security Council is clear that the framework for establishing a lasting peace between Ethiopia and Eritrea was agreed by both parties in Algiers in 2000. Only the full implementation of the Algiers Agreements will lead to sustainable peace." The response continued, "The members of the Security Council therefore wish to convey to you their deep regret at the intention of the Government of Ethiopia not to accept the entirety of the delimitation and demarcation decision as decided by the Boundary Commission. They note, in particular, that Ethiopia has committed itself under the Algiers Agreement to accept the Boundary decision as final and binding." The Security Council "call[s] upon the Government of Ethiopia to provide its full and prompt cooperation to the Boundary Commission and its field officers in order that demarcation can proceed in all sectors as directed by the Boundary Commission." A subsequent Security Council press release (January 7, 2004), expressing concern about the lack of progress in the demarcation process noted, "[Members of the Council] reaffirmed the final and binding nature of the Boundary Commission's decision and underlined the importance of an expeditious implementation of the decision within the framework of the Algiers agreement." The press release added, "Council members expressed their disappointment about Ethiopia's rejection of parts of the decision and its refusal to fully cooperate with the Commission, ... while acknowledging the cooperative attitude of the Eritrean government towards the Commission."
The European Union (EU), in a Declaration dated September 26, 2003, "reaffirms its support for the peace process between Ethiopia and Eritrea," and "emphasises the importance of the boundary commission's decision." In the same declaration, "The European Union calls upon the parties to abide by the peace requirements as well as the rulings of the boundary commission and to fully comply with the UN Security Council 1507 (2003) so to ensure that the border demarcation begins as scheduled."
Reiterating the European Union's position, Germany's Chancellor Gerhard Schroeder expressed his country's position during his visit to Ethiopia: "As far as we are concerned the Commission's decision is final and binding."15 He added, "[T]he beginning of the demarcation process cannot be put off until Kingdom come." Similarly, United Kingdom's foreign minister for Africa, Chris Mullins, expressed his country's position at a press conference during his visit to the Horn region, when he stated, "Ethiopia must 'accept in principle' the boundary commission's decision, and then engage in dialogue
ith Eritrea." He continued, "[O]nce Ethiopia had accepted the ruling, it would share the 'moral high ground' that Eritrea had gained by having already done so. Only then could a move towards talks be made."16
In Canada, the Standing Committee on Foreign Affairs and International Trade submitted to the House of Commons a resolution stating, "Mindful that ...the recommendations of the Eritrea-Ethiopia Boundary Commission are binding on
both parties of the conflict are final; Accepting the April 13, 2002 decision of the Eritrea-Ethiopia boundary Commission to grant the disputed town of Badme to Eritrea; ... Alarmed over Ethiopian failure to fully comply with, and accept, the Eritrea-Ethiopia Boundary Commission's recommendations, especially with regard to the town of Badme; ...Calls on the Government of Canada to increase the pressure on the Government of Ethiopia to accept, in full, the recommendations of the Eritrea-Ethiopia Boundary Commission, including the decision on the town of Badme." (37th Parliament, 2nd Session)
In the United States, the State Department has maintained the final and binding nature of the Commission's decision, as typified by a January 21, 2004 Press Statement: "The Algiers Peace Accord, ending the Ethiopian Eritrean conflict, must be respected without qualification. Both Ethiopia and Eritrea agreed to accept unequivocally the Eritrea Ethiopia Boundary Commission's decision as final and binding." The statement continues, "The United States urges both parties to implement the Eritrea Ethiopia Boundary Commission's decision peacefully, fully and without delay." There is an Act (H.R. 2760) pending in Congress, the 'Resolution of the Ethiopia-Eritrea Border Dispute Act' that reiterates the legally obligatory nature of the Commission's decision, and proposes a policy declaration (Section 5),"[I]t shall be the policy of the United States to limit United States assistance for Ethiopia or Eritrea if either such country is not in compliance with, or is not taking significant steps to comply with, the terms of the Algiers Agreements." The declaration continues, "Congress strongly condemns recent statements by senior Ethiopian officials criticizing the Boundary Commission's decision and calls on the Government of Ethiopia to immediately end its intransigence and fully cooperate with the Commission."
When seen in the context of the above-described wide support for the Commission's Delimitation Decision and the growing tide of urgings by governments and organizations for its immediate full implementation, the intent of Ethiopian supporters like Clapham in blindly supporting Ethiopian position, as typified by the views expressed in the article under review, becomes quite clear. It is to attempt to deflect international opinion and distract from the mounting pressure on Ethiopia! And Clapham throws in every thing he thinks might work. I have already discussed his advocacy for extra-legal considerations to reward Badme to Ethiopia as the 'victor of the war.' He also attempts to generate sympathy for the current Ethiopia regime when he states, "[T]he most evident reason for the Ethiopian government's refusal to withdraw from the present line of control is the very plausible conviction that, were it to do so, it would rapidly be overthrown and replaced by a successor regime that was committed to re-establishing control over the national territory." He seems to imply the international community is helpless in the face of Ethiopia's refusal to honor the EEBC decision when he states, "[T]he 'peace enforcement' capabilities of the international system are already stretched close to breaking. Nowhere is there any force with the capability and the willingness required to implement the BCEE line, which must therefore remain a dead letter."
Clapham is not alone in attempting to divert attention from the international pressure on Ethiopia. On the other side of the Atlantic, Paul Henze, a rabid supporter of Ethiopia, packaging himself as "a long-standing specialist on the Horn of Africa," is now circulating an essay entitled, "Human Rights and the Ethio-Eritrean Border" (January, 13, 2004). In it, Henze predictably presumes 'Eritrean invasion,' as Clapham did, and asks a rhetorical question: "A mystery persists--why did the border commission reach judgments which favored Eritrea," thus accusing the EEBC of bias, as Clapham did. What is amusing is his farfetched theory that President Isaias Afwerki of Eritrea used border claim as "a pretext for an undertaking
designed to divert attention from his own failures ... aimed to destabilize the Addis Ababa government, which was creating a more open society and generating greater economic momentum."
Henze engages in polemics that reflect a transparently brazen political opportunism of the highest order, making baseless accusations at the government of Eritrea, hurling personal attacks on its Head of State, and making laughable comparisons, a discourse hardly reflective of even the bare minimum standard of scholarly discourse. Nevertheless his intent, like Clapham's, is to divert attention from "the international community which keeps calling on Ethiopia to accept the commission's judgments" And it is obvious that the prime targets of the campaign are legislators, as can be inferred from Henze's statement: "And ignorant legislators in America and Europe heed Eritrea's propaganda and call for sanctions against Ethiopia for not acceding to the border commission's recommendations. To do so would be a miscarriage of human rights as well as abandonment of governmental responsibilities." As previously mentioned, there are pending bills in the legislative bodies of the United States and Canada; and the British foreign minister for Africa is reported to have stated that sanctions on Ethiopia "could not be ruled out if the condition continues like this."17 Thus, it is understandable that the main targets of the current campaign by Ethiopia's supporters are legislators.
What is interesting is that Clapham and Henze adorn themselves with the cloak of human rights when forwarding their factually distorted views and to make saleable their otherwise untenable position of defending Ethiopian position. It is also ironic that these individuals who have a long record of hostility towards anything Ertrean and are doing their utmost to rob Eritrea of a verdict fairly and objectively arrived at by an independent judicial commission, all of a sudden become pontificators of Eritrean human rights.
This is not to say there are no human rights issues in Eritrea or to imply that human rights issues are not important. It is not to defend the human rights record of the government of Eritrea either. My objection is, Ethiopian supporters' disingenuous use of human rights issues to further their agenda of supporting Ethiopia on an issue that has very little to do with human rights. The issue at hand is the EEBC Delimitation Decision on the Eritrea-Ethiopia border, which legally binds the two countries and has the force of international law, as the Decision is final and binding according to the Algiers Agreement.
Summary and Conclusion
We have seen that Professor Christopher Clapham, a lifetime strong supporter of Ethiopia, and an equally strong opponent of Eritrea, accuses the Boundary Commission, as Ethiopia herself does, of bias in favor of Eritrea. However, I have shown that nothing in the composition of the Boundary Commission, the procedure it adopted or the proceedings it followed points to any indication that the Commission would be anything other than fair and objective. The claim of bias in favor of Eritrea has no basis whatsoever.
Clapham faults the Boundary Commission on its Delimitation Decision, again as Ethiopia does, simply because Ethiopia finds some aspects of that decision 'unacceptable.' The aspect Ethiopia cherry-picks, and Clapham makes the centerpiece of his objection to the Delimitation Decision, is the allocation of Badme to Eritrea. I have shown that the Commission, by examining the Treaty of 1902, which covers the area, and considering all the facts it was presented with, concluded that Badme falls within Eritrean territory. The Commission looked into 'developments subsequent to' the signing of the Treaty of 1902, as an 'applicable international law' by considering all evidence presented by Ethiopia in support of its claim of having exercised administrative authority, but found them not sufficiently probative enough to overcome the allocation to Eritrea based on the letters of the Treaty.
Reading the meticulously written Delimitation Decision (April 13, 2002), one can only conclude that the Commission of five internationally known and highly regarded jurists did a commendable job. The Commission, acting as an independent magistrate, carefully weighed all evidence presented to it by both parties, Eritrea and Ethiopia, and rendered a fair and sound decision. That is what an impartial and independent judicial commission is supposed to do, and that is what the Algiers Agreement intended it to do. And this conclusion is supported by international opinion. The United Nations Security Council, the African Union, the European Union, and the governments of the United States, Canada, Great Britain and Germany, all endorsed the Boundary Commission's Delimitation Decision and affirmed its binding and final nature and are urging Ethiopia to accept and abide by the Decision.
Ethiopia breaches international law and defies international public opinion when it continues to reject the Commission's Delimitation Decision. And its supporters like Christopher Clapham and Paul Henze, come to her aid by attempting to deflect the growing international pressure using anything that they think might work. Clapham advocates extra-legal considerations for an outcome that supports 'might is right,' which defies basic principles of justice and international relations, and goes contrary to the Algiers Agreement which has the force of international law.
Repeating Ethiopia's position, Clapham emphatically suggests as the long-term solution: "The only ground on which reconciliation would be possible is the confirmation of Ethiopian possession of Badme and Irob, and this is precisely what BCEE has prevented." I humbly suggest that the only ground on which reconciliation and peace between Eritrea and Ethiopia can be advanced is the full implementation of the Boundary Commission's Delimitation Decision on the contested border to which both parties pledged to be final and binding in the Algiers Agreement and are thus obligated by law to accept. And that is what the international community is supporting!
Unfortunately, verbal support in the forms of resolutions, press release declarations and statements of condemnation are not sufficient to enforce legal decisions in the international arena. Ethiopia realizes this and its supporters, like Clapham and Henze, also realize this and are targeting their campaign of deflection at legislators to prevent any actions beyond the verbal support.
The peoples of Eritrea and Ethiopia have had enough wars and suffering over the years. They are yearning for peace. Also at stake is stability of the whole Horn region of Africa. That the Commission's Delimitation Decision must be accepted in its entirety has been well expressed by all concerned except defiant Ethiopia. What is left for the international community, especially the guarantors of the Algiers Peace Agreement, namely, the United Nations, the African Union, the European Union, and the United States of America, to exert the full pressure on Ethiopia, including sanctions, to accept the decision and proceed with demarcation. The OAU Proposal for an Agreement on Cessation of Hostilities between Ethiopia and Eritrea (June 2000), the precursor to the Algiers Agreement, also signed by both parties, in Article 14 (a), provides for "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 Security Council." According to Article 41 of the Charter, the Security Council can first employ economic and diplomatic measures to give effect to its decisions. Ethiopia is obligated to accept the Delimitation Decision as called for in the Algiers Agreement it
willingly signed as final and binding. Refusal to accept the decision is a violation of international law. Ethiopia's continued defiance warrants such measures.
[Dr. Gebre Hiwet Tesfagiorgis is Director of Institutional Research at Iowa State University, Ames, Iowa. He is Executive Editor of the Eritrean Studies Review. He was member of the Constitutional Commission of Eritrea.]