The Eritrea-Ethiopia Boundary Decision: Ethiopian Supporter's
Attempt to Deflect Mounting Pressure
By: Gebre Hiwet Tesfagiorgis
March 27, 2004
Introduction
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
Causes
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.]
Footnotes