Jendayi Fraser's Illegal, Unjust and Unreasonable Call
By: Ghidewon Abay-Asmerom
February 11, 2006

With Kofi Annan's "meeting of the witness of Algiers Agreement" now becoming a reality, and the Americans finally showing an interest in solving the Ethiopian problem, we cannot help it but ask "what is up their sleeves" ? Also why now after four years of deafening silence? Could they be trusted to genuinely solve the problem? Many Eritreans have their doubts and this author is one of them. Moreover, if Assistant Secretary for African Affairs, Jendayi Fraser, is going to lead the American delegation in this meeting of witnesses, we are in for a huge surprise.

Why? The good Assistant Secretary is already on record contradicting the specifications of Algiers Agreement. She has also endorsed Ethiopia's precondition for demarcation. She is also in contradiction with repeated Security Council Resolutions. I don't believe, but one never knows, the Stanford educated political scientist is that ignorant not to have tried to poke her nose in the Eritrea-Ethiopia border issue without reading the Algiers Agreement. All indication is that she is telling us what she will be trying to push at the witnesses' meeting come next week. In other words, she is telling us what matters is not the letter and spirit of the Algiers Agreement, but what she thinks to be "just and reasonable." From what she told the Voice of America's "Straight Talk Africa" on February 1, 2006, she is interested in starting the demarcation of the border, not on the basis of the final and binding delimitation Decision of the neutral Eritrea-Ethiopia Boundary Commission, but on "adjustments" she thinks is "just and reasonable." To help her do that she has toured the border and she has now a good feeling of what must be done. Let's read her own words:

"I think in terms of the issues of Badme it is beyond Badme. It is that the Eritrea-Ethiopia Boundary Commission has made a decision on delimitation. It has to now do the demarcation. And the important point is to get that demarcation started. In order to demarcate you have to have dialogue between the two parties because the Algiers Agreement basically says that the demarcation has to be done according to what is just and reasonable. And I think that just and reasonable is how does it affect the communities that live on the border? For example, if the delimitation line separates a person's house from their farm, one has to adjust the line or compensate the farmer; and so that is the just and reasonable aspect. And so that requires some dialogue." (emphasis added)

Here is also how Article 4.2 of the Algiers Agreement reads:

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

The Latin phrase "ex aequo et bono" means "according to what is right and good" . This means Article 4.2, is stating: "The Commission shall not have the power to make [delimitation and demarcation] decisions 'according to what is right and good'." The mandate the Commission had was to delimit and demarcate the border on the basis of "pertinent colonial treaties (1900, 1902, and 1908) and applicable international law." This shows that Jendayi Frazer's statement is in direct contradiction with the Algiers Agreement. In other words, what she wants cannot be achieved without rewriting the Peace Agreement altogether. Is rewriting of the Algiers Agreement what she is looking for? And if so, could it be why she is now calling for the meeting of the witnesses? We will find out soon.

Another issue she raised is the issue of possible compensation, this issue might be raised, but according to the Algiers Peace Agreement, it is not to adjust the line of demarcation, or a precondition for demarcation, but to solve problems that might arise during the transfer of authority. Here is how Article 4.16 reads:

"Recognizing that the results of the delimitation and demarcation process are not yet known, the parties request the United Nations to facilitate resolution of problems which may arise due to the transfer of territorial control, including the consequences for individuals residing in previously disputed territory."

Thus Jendayi Frazer's talk on dialogue on compensation before demarcation is not only premature but also illegal. We are afraid this will derail the process of demarcation all together by rendering the Algiers Agreement null and void. It also seems that Frazer is trying to twist the arm of the Commission where Ethiopia's lawyers had failed to do. She is trying to push the dead issue of the 141-page Ethiopia presented to the Commission January 2003. It is this rejected Ethiopian demand what the US Assistant Secretary for African Affairs is trying to peddle to the witnesses meeting and possibly to the Commission. She is illegally asking for adjustments that take "into account the human and physical geography of certain areas." Fortunately, the Commission had unequivocally and publicly rejected this demand. Here is how it put it in the unanimous EEBC Observations of 21 March 2003.

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

In accordance to the Algiers Agreement and the standard rules of legal procedures neither Ethiopia nor Eritrea have the choice to cherry pick the Decision of the EEBC. Both parties had already deployed their legal experts and had argued their claims and counter-claims in submissions that amounted to tens of thousands of pages and the Commission has made a delimitation Decision based on the submissions of the parties and "pertinent colonial treaties and applicable international law."As the Commission repeatedly reminded Ethiopia, it had no mandate to delimit on "ex aequo et bono" and has now no mandate to adjust the delimitation line during demarcation on "ex aequo et bono." The Decision is "final and binding." The Parties have neither the right nor the legal room for appeal. Additionally, the parties have also agreed with the demarcation directives, particularly directive 14A of July 8, 2002 which stated:

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

In addition, the parties had agreed that maximum flexibility for a demarcation pillar is going to be 50 meters, or 164 feet. Unless Jendayi Frazer is trying to unilaterally rewrite the rule of demarcation her demand had already been ruled an illegal one.

Neither the witnesses nor the guarantors, no matter how powerful and important they feel, have the right to tamper with or to suggest of even an iota of change of the delimitation Decision. What the parties have is an obligation under Article 2.14 " to cooperate with the Commission, its experts and other staff in all respects during the process of demarcation." Also, under Article 2.15 they are required to "respect the border so determined, as well as the territorial integrity and sovereignty of the other party." As the Commission clearly put it in its 16th report of 24 February 2005,

"the line of the boundary was legally and finally determined by its Delimitation Decision of 13 April 2002. Though undemarcated, this line is binding upon both Parties. & Conduct inconsistent with this boundary line is unlawful."

The witnesses thus have their work cut out for them. Their only option is to stop appeasing Ethiopia and to make it abandon "its present insistence on preconditions for the implementation of the demarcation." Anything short of this is unacceptable to Eritrea and will be dead on arrival.

In addition, the Algiers Agreement is for the demarcation of a 100% of the border not a fraction of it. The lie out of Addis has been that it doesn't have problems with most of the border but with only 15% of it. This of course is a fraudulent statement. The 15% also happen to be a 100% of what was disputed and a 100% of what the Commission had decided on. Even the "certified wimp" , Kofi Annan admits to that. The 15% of the border is also the part that claimed over 100, 000 lives. Eritrea should not be expected to go with partial demarcation and it shouldn't. Not even a mere 0.01% of the ruling is subject to renegotiating. To suggest anything of that sort is to encourage the breach of international law and to encourage anarchy. In other words, the Commission's final and binding Decision is comprehensive and indivisible. There cannot be any exceptions.

If the witnesses and guarantors of the 2000 Algiers Agreement are interested in avoiding another disastrous war in the Horn of Africa, it is time for them to take appropriate action against the party that is defying the rule of law. In this case it is clearly Ethiopia. They should go after Ethiopia.

No part of this Decision is divisible and subject to any form of amendment or appeal, not before or during demarcation. The Commission's final and binding Decision is not for a 85% or 90% of the border but for a 100% of it.