the federal democratic republic of ethiopia
2 May 2003
At the invitation of the Boundary Commission extended during the 8-9 November meeting in London, Ethiopia and Eritrea submitted comments on 24 January 2003 regarding various aspects of the demarcation process (“24 January Comments”). Thereafter, the Parties met with the Commission in London on 8-9 February. Subsequent to the meeting the President issued an Eighth Report of the Eritrea-Ethiopia Boundary Commission (“President’s Report”) made public on 10 March and the Commission’s Observations were issued to the Parties on 24 March 2003 (“Observations”). In its cover letter to the Observations and its Demarcation Instructions of 21 March, the Commission invited the Parties to respond to each other’s 24 January Comments and to each other’s proposals for the delimitation and demarcation of Tserona and Zalambessa respectively. Having carefully reviewed all of the various documents, the Government of Ethiopia provides herein its comments.
Since the 13 April 2002 Decision Regarding the Delimitation of the Border Between Eritrea and Ethiopia (“April 2002 Decision”), Ethiopia has been working diligently with the Boundary Commission to ensure that the April 2002 Decision is implemented during the demarcation phase in accordance with applicable legal principles. Ethiopia’s position regarding demarcation has been consistently conveyed to the Commission at its meetings with the Parties beginning in May 2002 and most recently in its comments filed on 24 January and at the meeting of 8-9 February. Ethiopia provides these comments as part of Ethiopias continuing effort to assist the Commission by providing information relevant to the demarcation process.
Ethiopia’s comments are set forth in the following Sections III- IX, a summary of which is hereby provided.
Section III of these comments reviews the authority and obligation of the Commission based on the Agreements between the Parties, the April 2002 Decision and other applicable legal standards.
The Commission’s Observations suggested that Ethiopia’s 24 January Comments were more extensive than appropriate and would undermine the April 2002 Decision. However, Ethiopia’s Comments have only dealt with issues the Decision had, itself, opened for study by the Commission’s field staff to be supplemented by the Parties’ comments as required by the Commission’s Demarcation Directions and Rules of Procedures. The Decision clearly provided for “adjustments and variations” to the provisional boundary coordinates set out in the Decision’s Dispositif. This aspect of the Decision is described in detail in Section III and in attached pages of the transcript of the Commission’s February 8, 2003 meeting.
To Ethiopia’s surprise, the Commission was critical of Ethiopia’s 24 January Comments in the President’s Report and its Observations. Even more surprising, the Commission chose to make its criticism public, even though the Commission’s rules provide for confidentiality in its proceedings. Thus, it is particularly important to correct, in these comments, a number of serious misstatements relating to the record now before the Commission, and this is done in Section IV.
For example, the Observations stated that Eritrea had provided evidence of Eritrean acts of governmental administration for the town of Badme. In fact, Eritrea did not provide even a single document showing Eritrean administration of Badme. Instead, Eritrea acknowledged Ethiopia’s administration. In contrast, the record contains a large number of documents provided by Ethiopia showing its governmental administration of the town. The Commission stated that Ethiopia had submitted maps showing Badme as being on the Eritrean side of a “distinctive straight line,” but Ethiopia has never submitted any such map. Eritrea, however, did submit maps to the Commission showing Badme in Ethiopian territory. Serious factual mistakes are also pointed out in Sections IV and V with reference to Fort Cadorna, Acran, the controlling nature of the Dispositif, the division of border communities, and the “northern and western fringes of the Endeli projection.” Review of the record and field work should provide a basis for adjustment of coordinates in the Dispositif to accord with the record before the Commission.
Applicable legal standards require and permit appropriate revisions to the Dispositif coordinates as explained in Section IV. Refusal to make such adjustments would undermine the legitimacy of the April 2002 Decision which Ethiopia has accepted on the reasonable understanding that the Commission will carry out the tasks it has set for itself in that Decision and that applicable legal standards would apply.
In Section V, these comments provide assistance as to on-the-ground study and subsequent revisions to the Dispositif coordinates needed to demarcate a boundary which is not manifestly impracticable or inconsistent with new information derived from more accurate maps now available and work of the field staff carried out or to be carried out per the Commission’s instructions after the April 2002 Decision.
These comments in Section VI also note the Commission’s acknowledgement that the United Nations has an important role, under paragraph 4(16) of the December 2000 Algiers Agreement, in addressing problems and anomalies identified by the Commission itself, but which the Commission does not intend to correct. No demarcation can be final until such problems are resolved so that the fundamental object and purpose of the Algiers Agreements which established the peace process can be achieved.
As observed in Ethiopia’s 24 January Comments, Ethiopia is firmly committed to the peace process established by the Algiers Agreements and accepts the April 2002 Decision. The 24 January Comments noted, however, that in order for the final demarcation to be accepted by the Parties and their citizens, demarcation must be conducted in a manner consistent with the April 2002 Decision itself; the constitutional agreements signed and reaffirmed in Algiers (“Algiers Agreements”); and conventional international demarcation practice. Certainly, the fundamental object and purpose of the Algiers Agreements, achievement of a sustainable peace and prevention of further suffering of the Parties people, must inform the Commissions demarcation of the boundary.
The Algiers Agreements were not imposed upon the Parties by measures of the Security Council under Article VII of the Charter, but were freely negotiated through the facilitation of the United Nations Secretary General under Article VI of the Charter, the Organization of African Unity and friendly states. The Government of Ethiopia bears a solemn responsibility to its citizens, as a party to the Algiers Agreements, to ensure that the obligations and commitments undertaken by Ethiopia and Eritrea to secure a lasting peace and prevent further suffering of their people, will be honored. Given the role of a correctly demarcated border in securing these objectives, it is the duty of the Government to see that demarcation is carried out in a manner consistent with applicable legal standards.
In this regard, Ethiopia notes the conclusion of the Commission in Paragraph 4 of the President’s Report that there would be “certain likely problems” resulting from the demarcation envisaged by the Commission. Similarly, the Commission notes in its Observations at Paragraph 28 that it anticipates “anomalies on the ground.” These problems and anomalies pose very serious threats to the fundamental objectives of the Algiers Agreements and include those identified in the President’s Report that result from ignoring the human and physical geography in the border region, and others resulting from, inter alia, misidentification of locations and geographical features. Such grave problems could not be ignored without undermining the Algiers Agreements, destroying the integrity of the April 2002 Decision itself, and threatening the peace process. The Commission’s Observations have clarified some aspects of the upcoming demarcation work in this regard. Ethiopia welcomes the Commission’s intention to address locations where the delimitation line of the April 2002 Decision might result in a manifestly impracticable boundary and the Commission’s intention to have its staff examine certain other locations in order to revise the coordinates in the Dispositif on the basis of information now available from more accurate maps and the staff’s on-the-ground inspection. Such activities will build confidence in the demarcation process.
For the Commission to address during demarcation the problems and anomalies identified by Ethiopia and the Commission would be fully consistent with conventional international demarcation practice and the April 2002 Decision. Far from reopening fundamental matters already settled, the Commissions attention to these issues is required to resolve fundamental matters set out in the April 2002 Decision as remaining to be resolved during the demarcation process.
In its April 2002 Decision the Commission determined to adjust the treaty boundary lines the Commission established in its Decision. The Commission concluded such adjustments to the treaty boundaries would be necessary as a matter of applicable international law. At the same time, the April 2002 Decision noted: 1) that the Commission lacked reliable information about the facts on the ground, for example, specifically stating that it was “hampered by the inability of the Parties to identify with sufficient particularity the location of the places to which they refer;”  2) that there was “no generally agreed map of the area depicting place names with any degree of reliability;” and, 3) that “[m]ap evidence [was] not uniform and consistent…. [and] on so small a scale, or so devoid of detail, that it can only be treated as ambiguous in this respect.” The Commission had not been able to conduct any ground examination prior to the issuance of the April 2002 Decision. In consequence, the April 2002 Decision stated that the coordinates set forth in the Decision were “not necessarily final and the Commission may have to adjust or vary them in the course of demarcation” and that the maps were for illustrative purposes only. Based on such findings and comments, Ethiopia expected that the Commission’s demarcation work would include remedying the deficiencies in the factual information acknowledged by the Commission; that the demarcation would reflect a standard of manageability and rationality in relation to the local circumstances; and that adjustments and variations by the Commission to the line set out in its Dispositif would be made to deal with such matters.
It was thus Ethiopia’s reasonable expectation, based on the Algiers Agreements, the April 2002 Decision and general international law, that the Commission would take into account local conditions through careful fieldwork during demarcation. Ethiopia could never have contemplated that the Commission would adopt a line of demarcation which would divide communities, separate villagers from their croplands and pastures, or water sources, or from their schools and clinics, or from their centuries-old churches and cemeteries.
As Mr. Ian Brownlie, QC, CBE, explained during the Commissions February 8, 2003 meeting:
. . . the Commission, in drafting the Award, on a whole number of occasions in the Award, has validated – and I use the locutions of the Commission – what the Commission called “adjustments and variations of the Treaty line.” Ethiopia is more than a little uncomfortable at this stage to be told that such adjustments and variations are out of the question.
Certain of the applicable legal principles and the statements in the April 2002 Decision which formed the basis for Ethiopia’s reasonable expectation that “adjustments and variations of the treaty line” would be made were detailed by Mr. Brownlie during the February meeting. The relevant section of the transcript is at Attachment 1 for the Commissions convenience.
The problems and anomalies remaining to be addressed during demarcation, while of extreme importance, are relatively few in number and relatively small in geographical scope. While Ethiopia considers that such attention to such problems and anomalies is fully within the power of this tribunal, the President’s Report and the Observations suggest there may be serious problems which the Commission will not address. Because no final demarcation can be consistent with the constitutional agreements until such problems are resolved, the Commission has properly commented upon the availability of paragraph 4(16) of the December Agreement as discussed further in Section VI below.
Unfortunately, the Observations include a series of significant misstatements relevant to Ethiopia’s 24 January Comments and the demarcation. As the Commission decided to make its Observations public, Ethiopia feels it necessary to set forth here the relevant facts. These relate primarily to Badme and the Western Sector, Fort Cadorna, Acran, the controlling nature of the Dispositif, the division of border communities, and the Endeli projection (Irob). It is the obligation of the Commission to correct these misstatements to ensure that they do not adversely affect the demarcation. Each of these will be dealt with in turn.
Several misstatements regarding Ethiopias evidence of its administration of Badme are included in the Observations.
Quantity and Quality of Evidence Submitted By Ethiopia
Regarding Badme and the Western Sector, the Observations claim that “although [Ethiopia] produced some evidence [of governmental activities west of the line of the traditional signature] in its Counter Memorial, it did not add to or develop this in its Reply.” The Observations continue:
Overall, the evidence was nothing like what might have been expected had Ethiopia’s presence there in the period before the case been as significant as Ethiopia now alleges. The Commission would note that what is relevant here is governmental and not private activity. The references to Ethiopian governmental control of Badme and its environs were insufficient to persuade the Commission that an Ethiopian presence west of the line from Points 6 to 9 would support a departure from the line that had crystallized by 1935.
18. This conclusion followed from the inadequacy of Ethiopia’s evidence.
This statement is surprising in light of the Commission’s willingness to make large adjustments on behalf of Eritrea on the basis of far less evidence, and even for a location that Eritrea falsely labeled “Fort Cadorna.” As explained in Section IV(B) below, the Commission made an adjustment to the 1900 Treaty line in Eritreas favor based on a location for Fort Cadorna that was supported by not a single piece of evidence and that the Commission in its Observations acknowledged was false.
Ethiopia provided the Commission with 50 documents demonstrating Ethiopia’s administration of areas west of the Eritrean claim line in the Western Sector. Forty of these documents demonstrated Ethiopia’s administration of Badme. The Commission’s emphasis that “what is relevant here is governmental and not private activity,” seems misplaced, because 41 of the 50 annexes, and all but four of the 40 documents concerning Badme were unambiguously governmental documents (such as intra-governmental correspondence, police reports, licenses, etc.). The few annexes that did not concern unambiguously governmental acts were of comparable relevance because, as explained in Ethiopias Counter-Memorial, the administrative divisions of the Ethiopian Orthodox Church mimicked governmental subdivisions.
During oral argument Eritrea was so concerned about Ethiopia’s evidence regarding Badme that Eritrea strongly suggested that Badme’s true location was on the Ethiopian side of the Eritrean claim line (i.e., in undisputed Ethiopian territory). Eritrea criticized Ethiopia for relying heavily on evidence of administrative activity in Badme:
Probably the single most important small village in this proceeding is the village of Badme. This demonstrates the extent to which the village of Badme has been relied upon in the Mareb-Setit region as the location of alleged Ethiopian or Tigrayan administrative activities. In the Mareb-Setit region there is almost no allegation of administrative effectivités other than documents containing the village of Badme. The entire case for effectivités on the Eritrean side of the classic diagonal Mareb-Setit line centres on the village of Badme.
I bring this to your attention because the reliability of this evidence with regard to the village of Badme is of extreme importance. If Badme evidence concerns activities on the Ethiopian side, it is lacking in any probative effect as regards the correct location of the boundary.
In its Reply, Eritrea also acknowledged Ethiopian administrative activity evidence in Badme, saying, “Tigray’s contact since  with the regions Ethiopia now claims has been limited almost exclusively to Badme.” Eritrea tried to de-fang this evidence by asserting that “Ethiopia cannot support its claim line by reference to activities taking place in a village that (until September of this year) it believed to be located to the east of the [“classical depiction of the boundary”], in Tigray.”
As Ethiopia pointed out in its 24 January Comments and in its pleadings during the delimitation phase, the OAU Committee of Ambassadors in August 1998 found that Badme town and its environs were administered by Ethiopia before 12 May 1998. The Terms of Reference adopted by the Committee provided that the Committee, among other things, would collect information which would make it possible to determine the authority which was administering Badme before 12 May 1998. To that end, the Committee undertook a mission to Eritrea and Ethiopia from 30 June to 9 July 1998. The Committee had substantive talks with the governments’ leaders and both parties were able to present their positions at length. The Committee concluded in its report, “we have reached the conclusion that Badme Town and its environs were administered by the Ethiopian authorities before 12 May, 1998.”
Regarding the findings of the Committee, the Observations state:
[T]he Ethiopian invocation of the findings of the OAU in respect of Badme in 1998 (Comment, para. 1.4, footnote 4) failed to mention the OAU’s express statement that those findings did not “prejudge the final status of that area which will be determined at the end of the delimitation and demarcation process and, if necessary, through arbitration.
This criticism misconstrues the mission of the committee. The committee’s mandate was not to determine a boundary, but to ascertain a critical factual matter at the height of the conflict. The OAU had the moral and political authority to do so and, after careful consideration of the facts and full opportunity of the Parties to present their evidence, unequivocally held that Badme was administered by Ethiopia and that Eritrea should withdraw. Thus, the disclaimer pointed to in the Observations was far from a signal of doubt as to the committee’s finding of fact, but was simply a recognition that the Commission’s role was to find facts, and not to determine the final status of Badme.
The Observations make reference to a paragraph in the April 2002 Decision in which the Commission states that “the area of claimed Ethiopian administrative activity comprises, at the most, one-fifth of the disputed area.” The fact that Ethiopia’s evidence of administrative activity in the Western Sector was predominantly from Badme is hardly justification for a failure to award Badme to Ethiopia. This is inconsistent with the other adjustments made by the Commission. The Commission made adjustments for Tserona and Acran despite determining that Eritrea had not provided evidence sufficient to warrant adjustments as far as Eritrea’s claim line in the area. Eritrea claimed all of the area between the Belesa A and Belesa B rivers, yet the Decision made adjustments in this area only for Tserona and Acran, awarding the rest of the region between the Belesa A and Belesa B to Ethiopia.
Alleged Evidence of Eritrean Governmental Activity
The Commission stated that “there was no need for the Commission to consider any evidence of Eritrean governmental presence [in Badme village], although Eritrea did in fact submit such evidence.” However, Eritrea presented no such evidence.
While two British documents presented by Eritrea make reference to “the Baduma Plain area,” this is a geographic, not a political, designation. As several maps on the record show, the Baduma Plain is a large area encompassing thousands of square kilometers, extending far beyond Badme town in all directions. By contrast, Ethiopias many annexes demonstrating its administration of Badme refer to it not as a geographic expression, but as a town, village, or other political entity.
Between 1974 and 1991, insurgent groups carried on a rebellion against the military dictatorship in Addis Ababa. Evidence of an insurgent group’s occupation of Badme during this period is irrelevant, as Eritrea admitted in her pleadings.
Eritrea’s evidence from the period since the military dictatorship’s 1991 overthrow only serves to confirm Ethiopia’s administration of Badme. For example, in its discussion of the 1993 referendum by which Eritrea officially gained its independence, Eritrea admits:
. . . in Tigray [there] were three Ethiopian-administered polling places: Sheraro, Sembel, and Badme. . . . The placement of polling stations by both countries uniformly respected the classic depiction of the boundary. The ones on the west of the boundary were administered by Eritrea; the ones on the east in cooperation with Ethiopia.
In contrast, Eritrea alleges that it operated polling places for nearby villages such as May Koka, Dieda, Tseaga, Sheshebit, Germe, and Shilalo, but not, conspicuously, for Badme, which is far-and-away the principal town in the area. As explained above, the Badme polling station was administered by Ethiopia. Eritrea provided other evidence of an Eritrean presence since 1991 in many places near Badme, such as Shilalo, but, again conspicuously, no evidence at all for an Eritrean presence in Badme itself.
Similarly, Eritrea provided evidence of an Eritrean governmental presence in places such as Shilalo dating from before the EPLF occupation of the area, but no such evidence of an Eritrean governmental presence in Badme. These documents also indicate that the effective administration of Eritrea at most extended eastward to Shilalo.
As explained above, the evidence relating to Badme produced by Eritrea only serves to confirm Ethiopia’s administration of the town. The Commission in issuing its April 2002 Decision was mistaken in its belief that Eritrea provided evidence of Eritrean governmental presence in Badme village, and thus the relevant provision of the Decision must be adjusted.
Maps Depicting Badme’s Location
The Commission’s Observations state that “maps submitted by Ethiopia were inconsistent as to the location of Badme village.” Ethiopia made clear in its pleadings that the accurate representation of Badme was as lying west of Eritrea’s claim line. It is useful to read Ethiopias explanation of these minor inconsistencies as found in its January 4, 2002 Response to Newly Introduced Evidence, which is excerpted below:
Badme is an Ethiopian village located near Eritrea’s claim line in the vicinity of the Mareb-Mai Ambessa junction. Badme village is depicted in different places on different maps. It is not listed in the United States Gazetteer of Ethiopia. During oral argument, Eritrea complained of what she admitted was a small difference in the location of Badme between the maps Ethiopia filed with the Claims Commission and Map No. 3.2 of Ethiopia’s Counter-Memorial. Eritrea alleged that Ethiopia’s Claims Commission maps had shifted Badme to a point east of Eritrea’s claim line. There was no such shift. Despite counsel for Eritrea’s representations at oral argument, Ethiopia’s depiction of Badme on the Claims Commission map, like the depiction on Map No. 3.2 of her Counter-Memorial, is on the west side, not the east side, of Eritrea’s claim line. Thus, the slight difference in these depictions is of little importance.
Eritrea also complained at oral argument and in her Reply that the illustration at Map No. 3.2 of Ethiopia’s Counter-Memorial depicts Badme in a slightly different location than it is depicted on the illustration at Map No. 4.2 of Ethiopia’s Memorial. This strained criticism merely highlights the dearth of accurate cartography of the Ethiopia-Eritrea border region. In fact, there is no significant difference between the two depictions of Badme village each is accurate within the level of accuracy of the source map from which it was derived.
In preparing Map No. 4.2, the source of geographic data Ethiopia used was the 1:1 million scale Vector Map (or VMAP) produced by the U.S. National Mapping and Imagery Agency. The VMAP is a mercator projection. Map No. 4.2 thus contains only a rough depiction of the location of Badme because of the very small scale. In particular, the absence of any detailed drainage features or other geographic features on this map highlights the relatively low accuracy of this illustrative map.
When Ethiopia prepared Map No. 3.2 of her Counter-Memorial, which includes much more detailed depictions of drainage features and shows many other villages in the vicinity of Badme, she used much larger scale maps as a base. Map No. 3.2 used, as a base, the 1:200,000 scale maps produced by the Soviet Union during the 1970s – a scale five times larger than that of the VMAP used to create Map No. 4.2 of Ethiopia’s Memorial. The large scale of these Soviet maps allows for greater accuracy and detail, particularly in their depiction of watercourses. In addition, these Soviet maps are transverse mercator projections, a different type of projection than the base map used for Map No. 4.2 of Ethiopia’s Memorial. The location of Badme on Ethiopia’s map 3.2, west of Eritrea’s claim line, is consistent with the depiction of Badme on the detailed, small-scale map submitted by Eritrea as Map 10 of her Reply Atlas.
Eritrea has also contrasted the depiction of Badme village on Map No. 3.2 of Ethiopia’s Counter-Memorial, showing Badme west of Eritrea’s claim line, with depictions on some earlier maps produced by Ethiopia. None of these earlier illustrations was provided on a detailed or large-scale map of the area. Eritrea has pointed to two maps that Ethiopia produced in 1998 and 1999, which were reproduced as Figures 2.07 and 3.07 of Eritrea’s Reply. As Ethiopia explained in her Reply, both of these maps were prepared only to illustrate Ethiopian territory occupied by Eritrean troops. Both of these maps, then, correctly identify Badme as a place in Ethiopia occupied by Eritrea.
The Observations state that “even some maps submitted by Ethiopia not only showed the distinctive straight line between the Setit and Mareb Rivers, but also marked Badme village as being on the Eritrean side of that line.” Ethiopia never submitted a historical map meeting this description and would appreciate the Commission’s identification of the maps to which it is referring. The only map submitted by Ethiopia that depicted Badme as west of any straight line was Map 3.2 of Ethiopia’s Counter-Memorial, an illustrative map depicting Badme and other sites of Ethiopian administrative acts west of a dashed diagonal line clearly labeled as Eritrea’s claim line. This map was created by Ethiopia specifically for the proceedings to demonstrate the fallacy of Eritreas claim line because of the places west of that line, including Badme, that were effectively administered by Ethiopia.
The record does, however, contain historical maps submitted by Eritrea depicting Badme in a location east of the Eritrean claim line. Because the Commission was apparently influenced by its mistaken impression of the maps on the record depicting Badme, the position expressed in the Observations regarding Badme must be corrected.
In this regard, Ethiopia had the reasonable expectation that the issue of sovereignty over Badme, based on the subsequent conduct of the Parties, would be further addressed during demarcation based, among other reasons, on the Commission’s conspicuous decision not to depict Badme on the maps of the April 2002 Decision. The Decision’s illustrative maps depicted all of the other significant towns along the border area, such as Tserona, Zalambessa, Alitena, and Bure. Map 10 of the Decision, which illustrated the Western Zone, even depicted such tiny settlements as Mochiti, Gogula, Bao, Odas, Gongoma, and Biaghela. The Commission will have been aware of the significance of Badme, given that Eritrea’s invasion of Badme was the causus belli of the conflict. If the Commission had made a final determination on Badme in favor of Eritrea at the time of its April 2002 Decision, the reasonable expectation is that it would have depicted Badme on the map. Thus, it was Ethiopias understanding that the Commission would conduct during demarcation careful on-the-ground analysis to ensure that Badme would remain with the Party that had effectively administered it, given the Commissions decision to adjust the treaty line--which it located as being between the Sitonna/Setit confluence and the Mareb/Mai Ambessa confluence, far west of the straight line depicted between Points 6 and 9 of the Decision--based on the subsequent conduct of the Parties.
B. Fort Cadorna
The Commission notes in its Observations that the location of Fort Cadorna as set forth in the April 2002 Decision was incorrect, saying “it now appears that the Commission may have been provided with insufficient information concerning the precise location of Fort Cadorna.” During the delimitation phase, Ethiopia provided the Commission with the location of Fort Cadorna on a detailed, large-scale historical map and, in its January 4, 2002 Response brought to the Commission’s attention the gross inaccuracy of, and lack of support for, the location claimed by Eritrea. The Commission adopted in the April 2002 Decision the unsupported location found on Eritreas illustrative maps.
Despite Fort Cadorna being misidentified, the Observations state:
[T]his does not affect the delimitation of the boundary in the region that the Commission has identified as “Acran”, that is, the area in the southern part of the Belesa Projection defined by the Commission as extending over the relevant part of the boundary line joining Points 14-18. The Commission found that the evidence of Eritrean activity was “sufficient . . . to justify treating the Acran region as part of Eritrea.” That conclusion is not brought into question by the possible misplacement of Fort Cadorna, and accordingly there is no reason for the Commission to vary the boundary in the southern section of the Belesa Projection as delimited by it.
The Commission’s Observations portray its adjustment from the 1900 Treaty boundary for Fort Cadorna as irrelevant and redundant to its adjustment for Acran. However, the April 2002 Decision makes clear that Acran and Fort Cadorna are separate places. In explaining the places for which it deviated from the 1900 Treaty boundary, the Decision said:
The qualification as to the southern section relates to the Acran region and to Fort Cadorna. The Commission is satisfied that the evidence of Eritrean activity is sufficient, in terms of administrative range, quantity, area and period, to justify treating the Acran region as part of Eritrea. As regards Fort Cardorna [sic], the Commission is bound to apply to that place, in the same way as it does to Tserona, the Ethiopian admission.
Ethiopia notes that the Decision did not refer to an adjustment relating “to the Acran region, including Fort Cadorna.” It referred to an adjustment relating to the Acran region, and to Fort Cadorna.
Later, the Decision reiterated, “The Commission has already decided that the boundary line resulting from the 1900 Treaty must be adjusted so as to ensure that Tserona, the Acran region and Fort Cadorna are placed in Eritrean territory.” Tserona, Acran, and Fort Cadorna were treated again as separate places requiring adjustments to the treaty boundary.
In the Dispositif, the delimitation line was specifically described as deviating in order to keep Fort Cadorna and its environs in Eritrea. The line “continues up the Belesa A to follow the Eritrean claim line to Point 18 so as to leave Fort Cadorna and its environs within Eritrea.” It is difficult to comprehend why the Boundary Commission described the delimitation line this way if Fort Cadorna were, as the Commission now contends, irrelevant to the delimitation line.
Because the Commission adjusted the 1900 Treaty line based on its mistaken identification of the location of Fort Cadorna, it must now adjust the delimitation line to correct this manifest error.
The Observations refer to Acran as “the area in the southern part of the Belesa Projection defined by the Commission as extending over the relevant part of the boundary line joining Points 14-18.” The Commission has never before defined Acran in this way.
The description of the line in the Dispositif between Points 17 and 18 makes no reference to Acran. Rather, with respect to the line between these two points, Paragraph 8.1 (B)(VI) provides:
[From Point 17] [i]t then continues up the Belesa A to follow the Eritrean claim line to Point 18 so as to leave Fort Cadorna and its environs within Eritrea. The Eritrean claim line is more precisely depicted on the 1:100,000 Soviet map referred to by Eritrea in its final submission on 20 December 2001. Point 18 lies 100 metres west of the center of the road running from Adigrat to Zalambessa.
Indeed, nowhere in the Dispositif is Acran ever mentioned.
Moreover, the Commission explicitly refused to rely on map evidence to depart from the 1900 Treaty line in this section of the boundary because of its unreliability.
The Decision stated:
The map evidence is not uniform and consistent. Much of it supports the existence of a Belesa projection and attributes the territory within it to Eritrea. There are, however, significant maps which do not do so, or do so only in part. Moreover, much of the map evidence is on so small a scale, or so devoid of detail, that it can only be treated as ambiguous in this respect.
Further, the Russian map referred to in the Dispositif cannot be considered the source for defining Acran because it was never relied upon by Eritrea (or Ethiopia) to define this region. In fact, the Acran region is not identified at all on this map.
In contrast, according to the Commission’s careful legal analysis and conclusions set forth in the April 2002 Decision’s subsection entitled “The western part of the Belesa projection” (paragraphs 4.64 to 4.72), the Acran region is located within the southern section of the western part of the Belesa projection. Thus, as illustrated on Figure 2.6 of Ethiopia’s 24 January Comments, the Commission identified the Acran region as the area within the line that runs along Points 14, 15, 16 and 17, and then up to the Belesa B, then down the Belesa B in a northwestern direction until it returns to Point 14. There is no place in the Decision’s subsection entitled “(d) Conclusion regarding the eastern part of the Belesa projection” or anywhere in the entire Decision, in which the Acran region is referred to as being within the eastern part of the Belesa projection. Thus, the Commission considered the Acran region to be entirely west of the Belesa B and, thus, no closer than about 8 km west of Point 18.
As discussed in detail in Ethiopia’s 24 January Comments at Paragraphs 1.83 – 1.88, this identification of the Acran region’s location is entirely consistent with Eritrea’s only depiction of Acran’s location, numerous historical maps on the record, and Eritrea’s statements and presentations made in its oral argument during the delimitation hearing. There is nothing in the record of the delimitation proceedings or in the April 2002 Decision itself that supports the comments in the Observations that the Acran region is defined “by the boundary line joining Points 14-18.” The undeniable conclusion from all the evidence in the record and the April 2002 Decision itself is that Acran is at the far southern tip of the western part of the Belesa projection.
In its Observations, the Commission notes that Ethiopia is correct in noting that there is a discrepancy between, “on the one hand, the Commission’s reasoning (at para. 4.42) and, on the other hand, its summary of the Treaty boundary (para. 4.59(6) and (7)) and the operative part of the Commission’s Dispositif . . .” Nonetheless, the Commission has so far declined to make the correction necessary to give full effect to the award, stating, “It is accepted as a matter of international law that it is the Dispositif which is operative and binding, and which prevails if there is any discrepancy between it and the body of a tribunal’s award.”
Ethiopia would observe, to the contrary, other cases and extensive commentary support revising the Dispositif to reflect the true intent of the tribunal as informed by its reasoning. Moreover, paragraph 4.2 of the December 2000 Agreement require the Commission to render an award based on “pertinent colonial treaties and applicable international law.” The Commission’s Rules of Procedure and the general practice of international tribunals require a reasoned award. This criterion is met by the legal analysis in the Commission’s April 2002 Decision. To rely only on the Dispositif, if there is a discrepancy between it and the reasoning of the award, would depart from this obligation and deprive the Parties of a procedural right.
As is clear from paragraphs 4.42 and 4.43 of the April 2002 Decision, the Commission concluded that from Point 19, the 1900 Treaty boundary extends overland to Point 20, proceeds from Point 20 eastward along the divide that separates the headwaters of the Enda Dashim from the headwaters of the streams flowing southward and then east to join the Muna/Berbero Gado at Point 21. The Commission further clarifies its reference to the Mai Muna of the Treaty, in paragraph 4.43, as being below or downstream Point 21, as further evidenced by examination of the location of the Maj Men of the de Chaurand map, with which the Commission expressly identifies the Mai Muna of the Treaty Map.
Notwithstanding the Commission’s unambiguous conclusion set forth in paragraphs 4.42 and 4.43 and based on the Commission’s legal analysis, the Commission cryptically described the Treaty line between Points 20 and 21 in the Dispositif as follows:
From Point 20 the Boundary passed down the Muna until it meets the Enda Dashim at Point 21;
This simple description directly contradicts the conclusion that the Commission articulated after careful and comprehensive legal analysis by seemingly referring to the 1900 Treaty line as following the Muna from Points 20 to 21, rather than following the divide. In its Observations, the Commission accepts the clear discrepancy.
As discussed in detail in Ethiopia’s 24 January Comments at paragraphs 1.48 - 1.57, to interpret the Decision in accordance with the Dispositif’s single-line summation would quite simply turn the Commission’s analysis on its head. There is no explanation whatsoever anywhere in the Decision for this departure from the Commission’s conclusion set forth so clearly in its analysis. Thus, it is Ethiopia’s understanding of the language of the Decision that the 1900 Treaty boundary runs along the “divide between, to the north, the headwaters of the Enda Dashim and, to the south, the headwaters of the streams flowing southward and then eastward to join the Muna/Berbero Gado at the Point where it is also joined by the Enda Dashim (Point 21).”
The Commission could not have intended the 1900 Treaty boundary line to follow what the Dispositif incorrectly refers to from Points 20 to 21 as the “Muna” as evident, not only by the plain language of its analysis but also because of the physical geography. With respect to the physical geography and the subsequent conduct of the Parties, as explained in Ethiopia’s 24 January Comments at paragraphs 1.54 and 1.114 – 1.168, the line between Points 20 and 21, identified in the Dispositif as the “Muna,” actually consists of a narrow band of fertile agricultural land and is not in fact a river. Moreover, straddling these fields are several villages that form a community belt running from Zalambessa eastward.
To resolve the discrepancy in favor of the Dispositif would frustrate the obvious intention of the Commission, as clearly expressed in its legal analysis in the April 2002 Decision and frustrate the requirement to render a reasoned award contained in the Commissions own Rules of Procedure.
Ethiopia must also address the Commission’s position that it is incapable of averting the division of villages and towns by a literal application of the line depicted on the small scale maps of the April 2002 Decision. Although the Commission failed to express this view in the Decision itself, in its Demarcation Directions of 8 July 2002, the Commission took the position that “[i]f [the line] 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.” The Commission upheld this view more recently in its Observations.
Ethiopia finds this position to be inconsistent with the intent and logic of the April 2002 Decision, in which the Commission determined to depart from the treaty boundaries in the Western and Central Sectors based on the subsequent practice of the Parties. Communities along the boundary were effectively administered by either one Party or the other. Consequently, the boundary line cannot simply divide these communities and at the same time be consistent with the fundamental decision of the Commission to vary the treaty boundaries based on the Parties’ subsequent conduct. Small adjustments must be made in order for the demarcation to result in a boundary that is not at odds with the reasoning and intention of the Commission set forth in the Decision.
Ethiopia understands that the Commission could not have known at the time of the April 2002 Decision that the line depicted on the small-scale maps would cut through settlements, and thus, it is not surprising that the Decision was silent with respect to this matter. The Commission repeatedly criticized the reliability of maps throughout the Decision. For example, with respect to locations, the Commission held that there was “no generally agreed map of the area depicting place names with any degree of reliability.” Further, no fieldwork was conducted to examine the situation on the ground prior to the issuance of the Decision. It is thus not unexpected that the small-scale maps used for illustrative purposes, when simply super-imposed onto the ground, divide some small communities.
The fact that the information before the Commission at the time of rendering its April 2002 Decision was deficient and unreliable is no justification for the Commission not to take proper account of the facts on the ground during demarcation when remedying the deficiencies in the factual information could easily be accomplished. In this regard, the April 2002 Decision wisely provided that the coordinates set forth in the Decision were “not necessarily final and the Commission may have to adjust or vary them in the course of demarcation” and that the maps were for illustrative purposes only. Certain of the applicable legal principles and other statements in the April 2002 Decision which form the basis for Ethiopia’s reasonable expectation that “adjustments and variations” would be made during demarcation were detailed by Mr. Ian Brownlie, QC, CBE, during the Commission’s February 8, 2003 meeting with the Parties. The relevant section of the transcript is at Attachment 1 hereto.
Based on such findings and comments, the Parties have every right to expect demarcation to be conducted in a manner that avoids the division of communities during the demarcation phase. Otherwise, the resulting demarcation would be contrary to the intent and reasoning of the Decision. Moreover, a demarcation that divided settlements would be in direct conflict with the object and purpose of the Algiers Agreements because the resulting boundary would be the source of instability and human suffering. It is incumbent upon the Commission, as a matter of producing a demarcation consistent with applicable legal standards, the constitutional agreements and the Decision, to conclude a demarcation that averts the division of communities.
In its 24 January Comments, Ethiopia explained the need for the Commission to conduct field work in order to implement the Commission’s finding that Ethiopia had established its effective sovereignty to the required degree over all but the “northern and western fringes” of the Endeli projection. The Commission in its Observations stated that the delimitation line in the Endeli Projection was not “subject to further consideration by the Commission of new evidence of State practice in those areas.” The Observations indicate that the Commission has misunderstood the nature of Ethiopia’s request. Ethiopia did not in its 24 January Comments and does not now request the Commission to take new evidence as to State practice in the Endeli projection. As described in Section V(C)(3)(b) below, Ethiopia is simply requesting that the Commission ensure that the coordinates for the northern and western fringes of the Endeli projection listed in the Decision are accurate.
In the Observations, the Commission set forth its views regarding its “flexibility” in applying the April 2002 Decision line to situations on the ground during demarcation. The Commission stated:
In the Commission’s view a demarcator must demarcate the boundary as it has been laid down in the delimitation instrument, but with a limited margin of appreciation enabling it to take account of any flexibility in the terms of the delimitation itself or of the scale and accuracy of maps used in the delimitation process, and to avoid establishing a boundary which is manifestly impracticable.
Ethiopia feels confident that any standard adopted by the Commission will be applied consistently in conducting the demarcation. With respect to the application of this standard, therefore the following further comments should be helpful.
Without careful fieldwork, it will be impossible to apply the Commission’s standard accurately and consistently. In this regard, Ethiopia notes that it was “in light of further work done in the exercise of its demarcation function, the Commission has identified two areas in the Central Sector where a strict application of the line as delimited in its Delimitation Decision would be manifestly impracticable…”
The Commission has indicated a number of specific places it plans to study through fieldwork as demarcation moves forward. Ethiopia identifies below certain additional places that require careful field study in light of the Commission’s standard. The amount of fieldwork needed to address these additional locations is relatively minor.
B. The Standard Enables the Commission to avoid establishing a boundary which is manifestly impracticable
According to the Observations, the Commission will “avoid establishing a boundary which is manifestly impracticable.” In applying this standard, the Commission has so far “identified two areas in the Central Sector where a strict application of the line as delimited in its April 2002 Decision would be manifestly impracticable, namely, certain plateau lands in the vicinity of Point 18 on the boundary, and the area of the delta-like formation where the Ragali River flows into the Salt Lake.”
The two examples provided by the Commission illuminate the meaning of this element of the standard. In the case of the area near Point 18, Ethiopia in its 24 January Comments alerted the Commission to the fact that a mechanical application of the delimitation line would cut through the community of Addis Tesfa, separating such settlements as Ura, Kershebti, and Mikuyam from their water sources, fields, schools, medical clinics and other necessities of life. This division, Ethiopia explained, was exacerbated by the physical setting of these settlements, which made alternative sources of sustenance inaccessible. In the case of the Ragali Delta area, Ethiopia’s 24 January Comments showed that Point 30 lies in the middle of fields in a settlement on the north side of the Ragali. Because of this, Ethiopia pointed out, the delimitation line would divide part of this settlement from the rest of its community on the north side of the Ragali.
Based on the Commission’s analysis and conclusion that these places are examples of a manifestly impracticable boundary, “manifestly impracticable” will include situations in which local residents are cut off from the necessities of social and economic life in their communities and isolated from alternative sources of support. This definition of “manifestly impracticable” is also consistent with the object and purpose of the Algiers agreements: to bring about a sustainable peace between the Parties, and to prevent further suffering of the people of Ethiopia and Eritrea. Also, these examples may be indicative of the scale of the adjustments that the Commission considers itself empowered to make “in order to avoid establishing a boundary which is manifestly impracticable.” In the case of the Point 18 area, the plateau lands identified by the Commission extend roughly 3 km in a northwesterly direction from the delimitation line; thus the scale indicated is modest but allows efficacious adjustment as part of demarcation.
There are a few other areas along the boundary region that appear to meet the “manifestly impracticable” standard. These include, in the Central Sector, the area between Points 20 and 21, including the Zalambessa-Alitena Road and in the Western Sector, Badme, Sembel, and Adi Tsetser. These areas are described in turn below.
The line depicted in the Dispositif of the April 2002 Decision from Point 20 to Point 21 (“Dispositif Line Between Points 20 and 21”) would result in a manifestly impracticable boundary for two reasons, each of which is more than sufficient to meet the standard. First, such a demarcation would, as described in Ethiopia’s 24 January Comments, effectively ruin the Zalambessa-Alitena Road, which is a crucial lifeline for the communities it serves. A mechanical demarcation would sever the road four times, making it virtually useless to residents on both sides of the line. The construction of redundant sections of road through the rugged terrain on each side of the line would be infeasible.
Second, such a demarcation would be manifestly impracticable because of its impact on the villages that sit astride the narrow band of fertile agricultural land comprising the Dispositif Line Between Points 20 and 21. As explained in Ethiopia’s 24 January Comments, several Ethiopian villages straddle the fields of the Dispositif Line Between Points 20 and 21, forming a belt running from Zalambessa eastward to Point 21. Among these villages are, from west to east, Semaz, Debre Genet, Mestehi, Buhalo, and Agere Lekuma. Because these villages straddle the fertile agricultural land, a mechanical application of the Dispositif Line Between Points 20 and 21 would cut each of them in half, with dire consequences for their residents. For example, the many residents of these villages, who rely on agricultural lands on the opposite side of the Dispositif Line Between Points 20 and 21, would be cut off from these lands. Everyone in these villages would be cut off from vital services such as health care and education with no alternative services within a reasonable distance. Many inhabitants of the villages would lose access to their churches, which simply cannot be replicated. Many of the churches are hundreds of years old, and each of their churchyards contains the remains of deceased relatives of local residents. A boundary cutting through these series of villages will leave their residents isolated from their land, vital services, and churches.
Clearly the consequence of a strict application of the Dispositif Line Between Points 20 to 21, considering the effects to the Zalambessa-Alitena Road and the villages along the line, would be to cut off local residents from the necessities of social and economic life and isolate them from alternative sources of support, rendering the boundary manifestly impracticable.
By comparison, the impact of a strict demarcation on the Ragali Delta area, which the Commission determined to be manifestly impracticable, is extremely mild. While needing adjustment, the presence of the delimitation line on the north bank of the Ragali is relatively minor, affecting only some .15 sq km of farmland. In contrast, the severing of the Zalambessa-Alitena road into five useless pieces and the splitting of each of the villages along the Dispositif Line Between Points 20 and 21 would have a devastating effect on this populous area, including the exacerbation of the areas food insecurity.
Ethiopia makes these comments regarding demarcation of the Dispositif Line Between Points 20 to 21 noting, however, that it does not share the Commission’s view regarding the controlling nature of the Dispositif over the clear legal reasoning of the April 2002 Decision concerning this portion of the boundary, as discussed in Section IV(D) above. Ethiopia observes that the line between Points 20 and 21, as set forth in the Decision’s legal analysis, follows the land divide and avoids many of the circumstances that would render a strict application of the Dispositif Line Between Points 20 to 21 manifestly impracticable. Ethiopia further observes the Commission’s conclusion set forth in the Observations that Point 20 was incorrectly identified and that its proper location will be determined through subsequent fieldwork. Ethiopia notes that this determination and subsequent demarcation must be consistent with the manifestly impracticable standard established by the Commission.
A strict application of the portion of the delimitation line that cuts through the Badme community would most certainly establish a boundary that is manifestly impracticable. Badme was the site of Eritrea’s initial invasion of Ethiopia, and its people suffered particularly extreme hardships during the ensuing conflict. A mechanical demarcation would cut off the main urban area of Badme’s town from a large portion of the croplands on which it relies for its livelihood. The climate, geography and land use in this area, as well as in other areas in the Western Sector such as Sembel and Adi Tsetser, discussed below, are not conducive to forced movements of people to other areas or to utilization of alternative nearby land for sustenance. The land that is suitable for farming and grazing is already utilized. The climate is arid, and rainfall is sparse.
Badme town is the indispensable hub of the many villages of the Badme community, most of which would lie east of the line. As a result of a mechanical demarcation, the residents of these villages would lose their access to Badme’s health clinic, its primary and junior school, and other vital facilities. These residents would also be barred from attending their church, which is not just the local residents’ place of spiritual support but also the center of the social and economic life of the community. Parishioners living east of the line would lose access to the graves of their ancestors in the churchyard. As in the Addis Tesfa plateaus near Point 18, there are no reasonably accessible alternative facilities for these inhabitants. A strict application of the delimitation line would also cut into many pieces the road that connects Badme with Sembel and other communities with which Badme is socially and economically interdependent.
The impracticability of a boundary dividing Badme is much more extreme and manifest than the impracticability of a boundary that crosses for a short distance through farmland on the north side of the Ragali Delta. The problem in the Ragali Delta would affect only small numbers of people. The community on the north side of the Ragali would lose its access to only a small proportion of its farmland. Badme, on the other hand, would be blocked from a large proportion of its farmland and most of the villages with which the town is interdependent. Ethiopia agrees with the Commission that the boundary should be applied in a way that addresses the problem in the Ragali Delta. Even more imperative is the need to apply the delimitation in a way that avoids a manifestly impracticable boundary that cuts through the community of Badme.
A strict application of the delimitation line would also create a manifestly impracticable boundary in the Ethiopian village of Sembel, which such a line would divide almost exactly in half. It is difficult to conceive what could be more manifestly impracticable than an international boundary’s division of homes from other buildings related to communal life. Half of the village would lose its access to the village’s school, its health clinic, and its church. As in Addis Tesfa (near Point 18), there are no alternative facilities within a reasonable distance. In addition, residents in the eastern half of Sembel would lose access to the village’s only water pump. The impracticability of a boundary slicing through the middle of the significant village of Sembel would be far more glaring and would affect far more people than a strictly applied boundary in the Ragali delta. Unlike Sembel, the affected area near the Ragali delta is only a small amount of land with no dwellings visible on the aerial photography.
A strict application of the delimitation line through the Adi Tsetser community would also create a manifestly impracticable boundary. Such a demarcation would divide the Adi Tsetser community, cutting off many residents from their schools and health care facilities, and the markets at which they buy supplies and sell their produce. Because there is almost no settlement to Adi Tsetser’s west, inhabitants west of the line who lose their access to essential services and markets will not be able to find alternatives within a reasonable distance. This dearth of alternative means of support is similar to the situation in Addis Tesfa, which the Commission found to be manifestly impracticable. The impracticability of a boundary cutting through Adi Tsetser is far more acute than the difficulty a strict application of the line would cause in the Ragali Delta, which would affect only about .15 sq km of land north of the river.
C. The standard enables the Commission to take account of any flexibility in the terms of the delimitation itself or of the scale and accuracy of maps used in the delimitation process
According to the Observations, the Commission is also enabled “to take account of any flexibility in the terms of the delimitation itself or of the scale and accuracy of maps used in the delimitation process.” The Commission in its Observations identified two places in which further fieldwork is required because of inadequacies in the mapping available to the Commission at the time of the April 2002 Decision. These are Point 20 and the area of the Eritrean claim line between Points 17 and 18. Fieldwork and subsequent adjustment are required in these areas and in other places in which the coordinates or lines provided in the April 2002 Decision are in conflict with their actual locations or are otherwise inadequate for demarcation.
For guidance in the consistent application of this standard, one can look to the Commissions comments on these issues and to the cases in which the Commissions Observations indicated that further fieldwork and subsequent adjustment are required.
The Commission in its April 2002 Decision indicated that not all of the maps it relied on in the delimitation phase were of a sufficient scale or accuracy. For example, the Decision stated:
The Commission is also aware that maps, however informative they may appear to be, are not necessarily accurate or objective representations of the realities on the ground. Topography is dependent upon the state of knowledge at the time the maps were made, and particularly with older maps this may have been inadequate.
The April 2002 Decision also noted that “[a]ll coordinates will be recalculated and made more precise during the demarcation as the Commission acquires the additional necessary information.” The Commission clarified this statement in its Observations. Referring to the specification in the Decision of the coordinates of the points between which the boundary was to run, the Observations stated:
The Commission explained that this particular specification was used because of the limited availability at that stage of information on the maps before the Commission. The Commission therefore added that “[a]ll coordinates will be recalculated and made more precise during the demarcation as the Commission acquires the additional necessary information.” As is evident from the words used and from their context the recalculation of the coordinates was to be solely for the purpose of ensuring, on the basis of aerial photography, which the Commission had previously been precluded from initiating, that the coordinates of the locations listed in the Decision were accurate. Nothing in the language used could reasonably be read as suggesting that the Commission intended that the locations themselves would be varied during the demarcation.
The Observations thus made clear that locations themselves are not to be varied during demarcation. Instead, according to the Observations, demarcation is an opportunity to ensure that the coordinates for locations identified during the delimitation phase are accurate.
Ethiopia welcomes the Commission’s clarification in this respect as it is practically necessary for successful demarcation and wholly consistent with the practice of International Tribunals and provides for the sort of adjustment clearly intended by the April 2002 Decision. The fact that the April 2002 Decision is final and binding does not prevent the Commission from resolving internal inconsistencies among the operative parts of the Decision or from resolving issues arising from the inadequacy of the information available to it at the time of the Decision.
Such an approach is logical, for the Commission must demarcate a boundary which comports with its own findings and reasoning even when it is discovered, during field examination, that the geographical facts are not as hypothesized at the time the delimitation decision was prepared. Such adjustment during demarcation is also consistent with the legal principles guiding international tribunals.
The Observations also gave two examples of places in which further field work is required because of inadequacies in the maps available to the Commission at the time of the Decision. The Observations commented on the need for further work in correcting the location of Point 20 and addressing issues related to the segment between Points 17 and 18.
The Commission recognized in its Observations that the April 2002 Decisions identification of the coordinates for Point 20 as the source of a headwater stream was incorrect:
[T]he Commission, based upon map evidence submitted by both Parties, placed Point 20 at the source of a headwater stream of the Muna/Berbera Gado [sic]. From the aerial photo survey that the Commission was only recently permitted to conduct, it is apparent that that map evidence was inaccurate.
Ethiopia agrees with the Commission that it is necessary to adjust the location of Point 20 because the coordinates identified in the Dispositif are inconsistent with the location described in the decision due to inaccurate maps. This correction is also wholly consistent with the Commission’s statement that the recalculation allowed in the April 2002 Decision should result in the correction of coordinates in the Dispositif, not the changing of locations.
The Observations indicate that “there may be technical demarcation issues in part of the stretch between Points 17 and 18, where the boundary runs along what it referred to in the April 2002 Decision simply as the ‘Eritrean claim line.’” The Observations further note that those issues will be addressed in future instructions to the demarcation team. In this regard, the combination of the large scale maps, the inaccuracies of maps submitted by Eritrea, and the differences in projection make the demarcation of the boundary in this area one of considerable technical discretion.
There is no apparent connection between the Eritrean claim line between Points 17 and 18, as “depicted on the 1:100,000 Soviet map referred to by Eritrea in its final submission,” and the actual geography evident in the aerial photography. As discussed in Ethiopias 24 January Comments at paragraphs 1.98 - 1.100, if the Commission were to attempt simply to superimpose the Eritrean claim line on the land, the line would meander randomly in a series of short curves across the grain of the country.
In that light, Ethiopia believes the Commission will wish to consider a technically appropriate and practical methodology for resolving the “technical demarcation issues” in the area between Points 17 and 18. Such a methodology will likely also result in a boundary that is not “manifestly impracticable.” The Commission is urged to conduct fieldwork and consult with the Parties in addressing these issues.
In addition to the two places identified in the April 2002 Decision, Ethiopia has identified other areas in which maps available to the Commission at the time of the Decision were lacking and further fieldwork should be undertaken to determine appropriate recalculations of coordinates to take into account the accurate location information.
Ethiopia believes the Commission will wish to define the location of Acran during demarcation using the information now available. As set forth in detail in Section IV(C) above, the Acran region was not specifically defined in the April 2002 Decision, but the Decision clearly limited its location to the southern part of the western section of the Belesa projection (which does not extend all the way to Point 18 from Point 17). The Commission’s identification of the area within which Acran is found is consistent with Eritrea’s submissions during the delimitation proceedings. The precise limits of the Acran region thus must be ascertained. Such analysis is all the more important in light of the recognition that the location of Fort Cadorna was misidentified, as discussed in more detail in Section IV(B) above, to ensure that the non-Acran areas ascribed to be “Fort Cadorna and its environs” in the Dispositif are correctly identified and taken into consideration in the demarcation.
Moreover, the boundary segment between Points 17 and 18, which the Commission has determined to examine through further field study, is precisely the segment within which the Acran region is located. Any examination of this segment should include analysis of the Acran region because the 1900 Treaty boundary in this part of the border was adjusted for, and only for, Acran. Thus, its precise definition is paramount. This is particularly true in light of the Commission’s expressed condemnation of the reliability of the maps in this segment. With respect to this segment the Commission held that it was “hampered by the inability of the Parties to identify with sufficient particularity the location of the places to which they refer” and that there was “no generally agreed map of the area depicting place names with any degree of reliability.” Given that the maps for the segment including Acran failed to “[depict] place names with any degree of reliability,” fieldwork between Points 17 and 18 must include the study of Acran’s location “for the purpose of ensuring,” as the Observations state, “that the coordinates of the locations listed in the Decision were accurate.”
This approach will allow the Commission to consistently apply the standard set forth in the Observations as it relates to the “flexibility in the terms of the delimitation itself or of the scale and accuracy of maps used in the delimitation process.” In doing so, Ethiopia does not suggest varying locations themselves during demarcation. The delimitation should not be amended so as to award Acran to Ethiopia. Instead, as described in the Commission’s Observations, the Commission should ensure that the coordinates for Acran, for which the Commission lacked adequate mapping during the delimitation phase, are made accurate based on the correct information available to the Commission during the demarcation phase.
Ethiopia also believes the Commission will find it necessary to ensure that the coordinates for the “northern and western fringes” of the Endeli projection listed in the April 2002 Decision are accurate. The Commission in its Decision concluded that Ethiopia’s proof of its administrative activity in the Endeli projection, along with other evidence, was so strong as to require an adjustment to the line based on the 1900 Treaty. The Commission stated, however, that it did not award the entire Endeli projection to Ethiopia because of its view that:
in general, the impact of Ethiopian administrative activity has been weaker, and the impact of Eritrean activity stronger, in the northern and western fringes of the Endeli projection, and that therefore Ethiopia has not established its effective sovereignty to the required degree over those areas.
Thus, the Commission found that Ethiopia had established its effective sovereignty to the required degree over all but the “northern and western fringes” of the Endeli projection.
As with Acran above, Ethiopia is not asking the Commission to change the finding that Ethiopia had established its effective sovereignty over all of the Endeli projection except its “northern and western fringes.” Instead, Ethiopia requests that the Commission, consistent with its Observations, ensure that the coordinates for the “northern and western fringes” of the Endeli projection listed in the Decision accurately reflect the precise areas, including villages, over which the Commission considers Ethiopia to have “established its effective sovereignty,” based, inter alia, on effective administration. During demarcation, the Commission will wish to identify the northern and western fringes of the Endeli projection, to which it refers, using the more accurate information now available to the Commission to ensure consistency and accuracy in the application of its standard.
In identifying the location of the “northern and western fringes,” the Commission should determine the locations of the places for which “the impact of Ethiopian administrative activity has been weaker, and the impact of Eritrean activity stronger.” These should, of course, be limited to places for which Eritrea presented at least some evidence. These places should not, of course, include places for which Ethiopia submitted evidence and Eritrea submitted none.
Eritrea submitted evidence relevant to five places in or near this area: Zeban, Laalai Agruf, Tahtai Agruf, Monoxeito, and Enda Dascim. Because these are the only places in or near this part of the Endeli projection for which Eritrea submitted evidence, these must be the places to which the Commission was referring when it found that “[i]n general, the impact of Ethiopian administrative activity has been weaker, and the impact of Eritrean activity stronger, in the northern and western fringes of the Endeli projection.
In the area of the Endeli projection north of the line depicted in the April 2002 Decision, Ethiopia provided evidence demonstrating its administration of nine places: Endalgeda, Hayedle (Haydila), Enguraele, Wankabo, Kafna, Agere Lekhuma, Mai Chea, Mekheta, and Awda. The evidence on the record of Ethiopia’s administration of these places is compelling. For example, Ethiopia provided 34 annexes demonstrating its administration of Endalgeda, including such evidence as intra-governmental correspondence and government documents regarding taxation, schools, court hearings, elections, agricultural programs, and food distribution. Eritrea provided no evidence at all relating to these places. Because Ethiopia provided evidence regarding these places and Eritrea provided none, they could not have been locations for which the Commission found that “the impact of Ethiopian administrative activity [was] weaker [and] the impact of Eritrean activity [was] stronger.”
The Commission’s task during demarcation, then, is to refine its definition of the “northern and western fringes” of the Endeli projection to correctly describe the location of the places for which Eritrea presented evidence, namely: Zeban, Laalai Agruf, Tahtai Agruf, Monoxeito, and Enda Dascim. Because the places for which Ethiopia provided evidence and Eritrea provided none could not be the northern and western fringes to which the April 2002 Decision was referring, the Commissions staff can readily identify the precise locations of Endalgeda, Hayedle (Haydila), Enguraele, Wankabo, Kafna, Agere Lekhuma, Mekheta, and Awda to ensure that they are not identified as parts of the northern and western fringes of the Endeli projection.
Identifying the “northern and western fringes” of the Endeli projection using more accurate information now available would also ensure that a manifestly impracticable boundary would not result in Irob. A strict application of the line depicted in the April 2002 Decision between Points 21 and 26 would result in a manifestly impracticable boundary. It would cut a tense international border through the heart of the Irob community. It would also partition the Irob people, a distinct ethnic group, into two states for the first time in the people’s long history. The Irob people have their own dialect and a unique culture. Throughout its centuries-old history, Irob has been an integral part of Ethiopia. The Irob people’s predominant religions, Roman Catholicism and Orthodox Christianity, differ from those of their Eritrean neighbors, who are predominantly Muslim. The Irob are one of the most homogeneous and harmonious groups in the entire region. They are known for their relatively advanced social values, including relatively democratic relationships in family life and an active and socially recognized role for women. While the Irob people have maintained a unique identity, they have also steadfastly supported the unity and sovereignty of Ethiopia.
An application of the delimitation coordinates to the ground would cut the ancient trade and cultural links between Irob villages such as Enguraele, Mai Chaa, Haydila and Kafna and Irob’s historical capital, Alitena. The division of the Irob community would result in separation of families. Thus, the result of a strict application of the line in this area would be to isolate part of the Irob community from its sources of support, cutting these people of from the economic and social necessities of life, and to sow the seeds of future suffering and conflict. The Irob people suffered terribly during Eritrea’s invasion and occupation of the northern part of the wereda. They are ardently hostile to the Eritrean government because of its actions during the war, and would be unlikely to submit to Eritrean authority.
Ethiopia maintains that the Commission has the authority and obligation to make adjustments and variations to the April 2002 Decision line and to address the serious “problems” and “anomalies” identified by Ethiopia and the Commission. In addition, the Commission has pointed to paragraph 4(16) of the December 2000 Agreement. Resolving such problems and anomalies is essential to finalizing a boundary capable of supporting a sustainable peace. Thus, the United Nations’ work to address problems and anomalies that the Commission will not resolve, must begin immediately. Ethiopia believes the Observations and the Presidents Report have provided sufficient guidance as to what problems must be addressed under Paragraph 4(16) to allow this work to proceed simultaneously with the Commissions work though, of course, separately.
The need for resolution of these problems is magnified as a result of Eritreas rigid approach to border management as reflected in its Comments.
Throughout its 24 January Comments, Eritrea makes various statements regarding its views on boundary management subsequent to demarcation. These views heighten Ethiopias concern regarding the Commissions position to leave unresolved the serious problems and anomalies identified by Ethiopia in its 24 January Comments, and in the Presidents Report and the Observations.
It seems apparent from Eritrea’s 24 January Comments that it does not intend to restore the same open and flexible border management regime that historically existed prior to the conflict. Rather, Eritrea seems to envisage a very closed boundary even in its most remote regions. For example, in discussing demarcation of the Eastern Sector, Eritrea seems intent on restricting even nomadic movements that have taken place for centuries. In this regard, Eritrea stated:
Finally, by separating different drainage basins [in the Eastern Sector], such a demarcation line decreases substantially the need for seasonal nomadic movement back and for the between Ethiopian and Eritrean territory. Legitimate security concerns of both parties make it imperative that the freedom of movement of local populations be subject to usual immigration and travel restrictions. In the Danakil region, seasonal nomadic movements take place largely within a single drainage basin, not from one drainage basin to another. A boundary line that separates watersheds therefore accommodates the need for freedom of movement within a particular drainage basin at the same time that it protects the legitimate security interests of the two involved states.
With respect to river boundaries, Eritrea also intends a closed border. In commenting on the demarcation of river boundaries, Eritrea stated:
While one may consider that “the river is the boundary,” and therefore, no special demarcation is required, it is also significant that poorly demarcated boundaries lead to confusion among the local population which, in turn, may lead to renewed conflict. It is, therefore, suggested that rivers be demarcated…
Also with respect to river boundaries and river access, including customary rights related to such, Eritrea provides:
In theory the Commission might construct a regime of guaranteed access to the river across the territory of the other party; but such an approach, in Eritrea’s view raises prohibitive practical difficulties. It would create a very high probability of confrontation and conflict, would raise tensions generally in the area, and would intrude on legitimate security considerations. Such an approach is also, in Eritrea’s respectful view, beyond the jurisdictional mandate of the Boundary Commission.
Eritrea’s rigid approach is incompatible with a commitment to normalization of relations between the Parties and their citizens. This approach to border management makes even more pressing the need to resolve the problems and anomalies identified by Ethiopia and the Commission before a boundary can be finalized.
In this connection, Ethiopia notes the Commission’s comments regarding the role the United Nations could play in resolving the problems and anomalies that the Commission is unwilling to address.
 The Observations have been placed on the website of the Permanent Court of Arbitration.
 The Commission was established by the two state Parties pursuant to the Agreement Between the Government of Federal Democratic of Ethiopia and the State of Eritrea on 12 December 2000. Six months prior, on 18 June 2002, the Parties had entered into the Agreement on the Cessation of Hostilities, in which the Parties requested the United Nations to establish a peace keeping mission in accordance with the mandate set forth by the Parties. Both Agreements reaffirmed the Framework Agreement first accepted by Ethiopia in 1998.
 Decision Regarding Delimitation of the Border between The State of Eritrea and The Federal Democratic Republic of Ethiopia, 13 April 2002 (April 2002 Decision) at ¶ 4.63.
 April 2002 Decision at ¶ 4.67.
 April 2002 Decision at ¶¶ 2.16 and C1.
 Transcript of Meeting of 8 February 2003 at 39.
 Observations at ¶ 17.
 Observations at ¶¶ 17-18.
 See Transcript of Oral Argument at 42 (10 December 2001); Transcript of Oral Argument at 54-56 (17 December 2001).
 Transcript or Oral Argument at 54 (17 December 2001).
 Eritreas Reply at 91.
 Eritreas Reply at 92.
 Report on the efforts made by the OAU High-Level Delegation on the Dispute between Ethiopia and Eritrea, 1998 at ¶ 21, Ethiopias Memorial Annex 78.
 Observations at ¶ 18.
 April 2002 Decision at ¶ 5.93.
 Observations at ¶ 18.
 See, e.g., Eritreas Memorial Atlas Maps 21, 27, 35 and Ethiopias Counter-Memorial Atlas Maps 18, 20, 31, and 37.
 In her Reply, Eritrea stated:
Eritrea does not believe that legal significance should attach to the distribution of fighting forces and relief activities during the last decade of the struggle to unseat the Mengistu government. The distribution of fighting forces corresponded only roughly to the location of the provincial boundary between Eritrea and Tigray; the Eritrean People’s Liberation Front (EPLF) and the Tigrayan People’s Liberation Front (TPLF) chose areas to occupy in accordance with the logic of military necessity.
 Eritreas Counter-Memorial at 268.
 Eritreas Counter-Memorial at 267.
 See, e.g., Eritreas Counter-Memorial at 153.
 See, e.g., Eritreas Counter-Memorial at 153, n. 516.
 Observations at ¶ 17.
 Ethiopias Comment on New Evidence Submitted by Eritrea During Oral Argument (4 January 2002) at ¶¶ 5.24 5.28 (citations omitted).
 Observations at ¶ 18.
 See Eritreas Memorial Figures 9.04, 9.05.
 Observations at ¶ 23.
 Observations at ¶ 23.
 April 2002 Decision at ¶ 4.71.
 April 2002 Decision at ¶ 4.78.
 April 2002 Decision at ¶ 8.1 (emphasis added).
 Observations at ¶ 23.
 April 2002 Decision at ¶ 4.67
 See Eritreas Counter-Memorial Figure 2.05.
 See, e.g., Eritrea’s Memorial Atlas Map 28, 29, 31, 32; Eritrea’s Reply Atlas Map 3; Ethiopia’s Memorial Atlas Map No. 10, 20, 22; Ethiopia’s Counter-Memorial Atlas Map No 37, 47; Eritrea’s Memorial Figure 6.01, Eritrea’s Reply Figure 4.01.
 For example, Counsel for Eritrea described Acran as “the region at the tip of the inter-river portion of the boundary.” Transcript of Oral Argument at 107 (10 December 2001). Similarly, Counsel for Eritrea referred the area as “Acran, the region down in the tip where it hangs down.” Transcript of Oral Argument at 54 (11 December 2001).
 Observations at ¶ 24.
 Observations at ¶ 24.
 Some cases find the reasoning and the Dispositif equally binding, both making up operative parts of the award or decision. See, e.g., Delimitation of the Continental Shelf (U.K. v. France), Decision Concerning Interpretation of the award of 14 March 1978, 18 ILM 462 (1979). (the Court of Arbitration rectified a discrepancy between the reasoning of the decision on the one hand, and the Dispositif and the Boundary-Line Chart, on the other hand. The Court rejected assertion that only the Dispositif was binding and therefore controlled); see also, Interpretation of Judgments Nos 7 and 8 (The Chorzow Factory Factory Case), P.C.I.J., Series A, No. 13 at 14. Even cases which find only the Dispositif binding state that the Dispositif should be informed by the reasoning. See e.g. Judge Anzilotti’s Dissent in the Interpretation of the Chorzow Factory Case, “When I say that only the terms of a judgment are binding, I do not mean that only what is actually written in the operative part constitutes the Court’s decision. To the contrary, it is certain that it is almost always necessary to refer to the statement of reasons to understand clearly the operative part . . .” Interpretation of Judgments Nos 7 and 8 (The Chorzow Factory Factory Case) at 24. see also, the many examples in Reisman 185-192 (1971).
 Rules of Procedure, art. 27.3.
 See, e.g., Delimitation of the Continental Shelf at 464-476 (The Court concluded: [the reasoned award requirement] scarcely seems consistent with an intention to detach the decision completely from its reasoning.).
 April Decision at ¶ 8.1 (B)(vii).
 April 2002 Decision at ¶ 4.42.
 Demarcation Directions at ¶ II 14 (8 July 2002).
 April 2002 Decision at ¶ 4. 63. See also, April 2002 Decision at ¶ 4.67.
 Id. at ¶¶ 2.16 and C1.
 Transcript of Meeting of 8 February 2003 at 9.
 Observations at ¶ 13.
 Observations at ¶ 8.
 For the reasons set out above, in Ethiopia’s 24 January Comments, and in previous expositions, Ethiopia maintains that this standard set forth by the Commission is far too narrow. See Attachment 1.
 Observations at ¶ 20 (emphasis added).
 Observations at ¶ 20.
 See 24 January Comments of Ethiopia at ¶¶ 1.104 1.111 and fig. 2.16.
 See 24 January Comments of Ethiopia at ¶¶ 1.165 and fig. 2.38.
 See 24 January Comments of Ethiopia at ¶¶ 1.143 1.148 and fig. 2.37.
 Observations at ¶¶ 21, 25.
 Observations at ¶ 25.
 Decision at ¶ 3.19.
 Decision at ¶ 8.3.
 Observations at ¶¶ 10-11 (emphasis added).
 See, e.g. W. Michael Reisman, Nullity and Revision: The Review and Enforcement of International Judgments and Awards, at 185-187 (1959).
 Observations at ¶ 21.
 Observations at ¶ 11.
 Observations at ¶ 8.
 April 2002 Decision at ¶ 8.1 (B) (VI).
 See 24 January Comments of Ethiopia at ¶¶ 1.99 1.101.
 April 2002 Decision at ¶ 4.63.
 Observations at ¶ 11.
 April 2002 Decision at ¶ 4.85 (emphasis added).
 See Eritrea’s Counter-Memorial Figure 2.05. Please note, however, that Ethiopia demonstrated during oral argument that Eritrea’s depictions of these places, supposedly based on Map 10 of Ethiopia’s Memorial Atlas, a historical Map, were incorrect. Eritrea’s depictions of all four of these places were inconsistent with the places in which they appear on Map 10. Eritrea depicted Tahtai Agruf to the south and to the east of the two places in which it was depicted on Map 10. Similarly, Eritrea depicted Laalai Agruf well to the south and the east of its depiction on Map 10. Eritrea depicted Zeban to the east of where it lies on Map 10 and omitted Zeban I. Eritrea also depicted Enda Dascim to the south of its location on Map 10.
 See Ethiopias Counter-Memorial Annexes 132, 133, 136, 138 - 141, 146 152, 163, 169, 170, 173, 175, 177 180, 182 184, 188 190, 195, 196, 198 and Ethiopias Reply Annexes 33, 37, 38, 40 44, 46, 47, 51, 53, 107, 129, 137, 143, 144.
 Souba Hais, Some Facts About Irob (25 October 1998), available at http://www.geocities.com/~dagmawi/NewsJan99/Background_Irob.html#Culture.
 24 January Comments of Eritrea at 16 (emphasis added).
 24 January Comments of Eritrea at 13.
 24 January Comments of Eritrea at fn. 6 (emphasis added).
 Observations at ¶¶ 3, 28.