There are no weaknesses in the Agreement that would not be cured by Ethiopia’s compliance By HT Tesfay* Chatham House
in London introduced a brief paper titled “Ethiopia and Eritrea; Allergic
to Persuasion” and it was written by Martin Plaut, from the BBC World
Service, and Sally Healy, an Associate Fellow of the Africa Programme at
Chatham House. Reading through
the brief, it gives the impression that it is a well researched paper
which is trying to give a broad insight into the conflict between Eritrea
and Ethiopia. I do not want
to dwell too much on the history of the conflict; historians have documented
it extensively. However, I would
like to highlight parts of the authors’ argument I found disturbing
and intellectually dishonest. The authors’
blunt challenge to the basic principles of international law and its
rule of law is shocking. They
criticised the Agreement for putting so much emphasis on the border
delimitation and disregarding the ‘reality of power’.
Further, they questioned whether there was a colonial boundary
upon which the EEBC could base its decision to begin with; whether both
countries understood the consequence of signing up to in advance to
a final and binding adjudication at the time; and, Eritrea’s rejection
of the EEBC proposal to appoint “a neutral facilitator to investigate
manifest impracticability cut across its consistently repeated view
that the Boundary Commission’s ruling had to be implemented in full, without amendment.
I will deal with these challenges in turn.
The authors
criticise that the Algiers Agreement for laying so much on the delimitation
of the border thereby disregarding the source of the conflict.
Although there may have been other issues contributed to the
conflict between Eritrea and Ethiopia, the sole cause (as both countries
and international community have acknowledged) was their un-demarcated
common boundary. Here, the
authors seem to have made a fundamental mistake. The Algiers Agreement is a comprehensive agreement which deals with
most of the secondary issues that might have contributed to and/or come
about as the result of the conflict.
Thus, the authors failed to appreciate that the decision of the
EEBC is one among other decisions that were (and one yet to be made)
by other bodies that were set up under the Agreement.
It is wrong to look at the decision of the EEBC in isolation
from other decisions. The decision
of the EEBC may indeed have gone against Ethiopia; yet, on the other
hand, Eritrea accepted the Claim Commission’s decision in its apportioning
responsibility for the escalation into armed conflict despite the fact
that Badme is in Eritrea and Eritrea regard the decision was wrong.
It is legally correct for Eritrea to insist on Ethiopia’s acceptance
of the EEBC as final and binding. The authors also questioned that whether there was a
colonial boundary the EEBC to base its decision upon and criticised
it for disregarding the ‘reality of power’.
They argued that the boundary was disputed in the last 100 years;
had never been formally demarcated; had twice been abolished; and, in
1962, had been abolished becoming merely an administrative division. Putting aside Ethiopia’s consent, the border
being delimited
and demarcated with reference to the 1900, 1902 and 1908 colonial treaties,
it is wrong to suggest that there was no colonial boundary upon which
the EEBC might have to base its decision because it was abolished twice.
Firstly,
when the Italians invaded Ethiopia in 1930’s and, secondly when Ethiopia
annexed Eritrea in 1962. But these acts were illegal
and could not alter the status or existence of these treaties. Thus,
it was legally wrong to argue that there was no colonial boundary to
begin with upon which to apply the principle. I found it very difficult to
comprehend their challenge to the application of the principle of uti possidetis juris (determining international boundary based
on colonial or colonial administrative boundary) because one
of the parties had already won the war.
They argue, with reference to Christopher Clapham, that the border
decision did not represent the ‘realities of power’.
Accordingly, the principle of uti
possidetis juris should have given way to negotiated delimitation
and demarcation dependant on ‘realities of power’, because they believe
that Ethiopia won the war. Thus,
any delimitation and demarcation should take into account Ethiopia’s
success on the ground. This is the
most outlandish and outrageous challenge to the principle of uti possidetis juris I ever heard. When the OAU (now
AU) was set up -with Ethiopia as major players in its establishment
- its members made a conscious decision, by their Resolution AHG/Res.
16(1), that their newly independent states should maintain their colonial
boundaries despite the fact that their boundaries would split communities
and ethnic groups asunder. The
conscious reasoning behind this decision was to avoid any redefinition
of colonial border and believing that any attempt to redefine would
create more chaos and threaten to regional peace.
However,
the ‘reality of power’ argument forwarded by the authors goes against
this cardinal principle that kept Africa boundaries peaceful. Their argument would not help in bringing about
a sustainable peace the authors allege the EEBC and its jurisdiction
have failed to provide. Indeed,
currently Eritrea and Yemen are enjoying an amicable relationship and
this came about as a result of both countries’ commitment to abide by
the decisions of the international arbitrators.
Had Eritrea argued the ‘reality of power’ after their decision
gave most of the islands to Yemen both countries would have been at
each other throats today. Thus the ‘reality of power’ has no application
in today’s world and it is a nineteen-century phenomenon that should
be consigned to the dustbin a very long time ago. The authors also believed that
both parties did not appreciate the consequences of signing up in advance
to a “final and binding adjudication” at the time. The authors present no evidence to back up this assertion. They merely stated that “the strong focus on
delimitation may have reduced the room for manoeuvre” and therefore
both parties did not appreciate the consequence of arbitration. Their argument is weak and intellectually dishonest.
Surely, Eritrea foresaw such consequences and that is why it
is honourably adhering to its outcome. And Ethiopia’s understanding, with the great
diplomatic skill it has, as the authors lead us to believe, must have
understood the possible outcomes of arbitration. Personally I found their argument to be, at very least, patronising. Furthermore,
the authors argued that Eritrea’s rejection of the proposal put forward
by the EEBC (following a request made by the Witnesses to consider the
need for technical discussions with the support of a neutral facilitator
to assist with the process of demarcation) “cut across [its] consistently
repeated view that the Boundary
Commission’s ruling had to be implemented in full, without amendment”. As I have
argued in my previous article: “Demarcation According To Delimitation
Decision: A Critical analysis of the current development”, Eritrea was
right to reject the proposal made by the EEBC to appoint a neutral facilitator
to investigate “manifest impracticability” and if it should not be able
to deal with the issue of “manifest impracticability” representation
could be made through the UN Secretary to another new mechanism.
The reason
being that the appointment of a neutral facilitator and reference through
the UNSG to another forum was illegal under the Agreement. The EEBC is only allowed, under Article 4 paragraph
7, to engage other expertise in relation to a cartographer and not a
go-between. Furthermore, the
Agreement has given the EEBC the mandate to determine the issue of “manifest
impracticability” and its decision should be final and binding. To abrogate the final decision to another body
is contrary to the Agreement. Thus,
the proposal of the EEBC flew in the face of the Agreement and Eritrea
was right to reject such proposal. Indeed, Eritrea
also had a good reason to reject the proposal even if the appointment
of a neutral facilitator had to come under Article 4 paragraph 7. The reason was that the person whose name was
floated around, General Fulford, was part of the Assistant Secretary
of State, Jendayi Frazer team that visited Ethiopia in January 2006. Ms Frazer said in an interview with VOA that
she believes “the Algiers Agreement basically says that the demarcation
has to be done according to what is just and reasonable…so that requires
some dialogue” (my emphasis). Although
this misguided policy might not
directly attributed to him, since he has not distanced himself from
the remarks that was made by Ms Frazer, one can only assume that he
too believes that the decision of the EEBC is open to negotiation and
alternation. For this reason, Eritrea objection was justified. The current state of affairs
of “no war no peace” exists, not as a result of weaknesses in the Agreement
as the authors would have us believe, but because of Ethiopia’s continued
refusal to abide by the Algiers Agreement.
What is at stake, as a result of Ethiopia’s persistent rejection,
is the integrity and existence of the international rule of law and
international arbitration as a means of resolving disputes.
Ethiopia’s continued refusal to abide by the decision of the
EEBC is an affront to the International Community; regardless whether
Ethiopia has far superior diplomatic skills than Eritrea.
A challenge to the methodology that was deployed by the EEBC
and it jurisdiction could only give Ethiopia a smoke screen that it
needs to continue to reject the full implementation of the decision
without conditions. Furthermore, the ‘realities of power’ argument
could only bring instability to Africa’s boundaries which thankfully
have been quite for a very long time.
Finally, I think that the authors
were trying, among other things, to find weaknesses in the Algiers Agreement.
Although I believe along with many leading commentator in the
subject, that the Algiers Agreement was and is the best agreement for
future dispute resolutions, if there were any weaknesses - which there
are not -, Ethiopia’s compliance with its obligation under the Agreement
and implementing it without any delay would cure any weakness that might
existed, as it was noted by Sir Elihu Lauterpachet letter to UN Secretary
General. *The author is a former junior
Associate of Chatham House HT Tesfay London © 2007 |
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