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EEBC letter
in response to Ethiopia’s letter of 19 September 2003
1.
The Boundary Commission has received a copy of the letter of 19 September
2003 from the Prime Minister of Ethiopia to the Secretary-General of the
United Nations. It is a cause of considerable disquiet to the Commission
which, in consequence, deems it necessary to offer a number of observations
upon some of the statements made in it that directly related to the work of
the Boundary Commission and which, to our regret, are misconceived and
misleading. 2.
The commission wishes to recall that it has been engaged in demarcation
activities since 13 April 2002, the date of its Delimitation Decision. A
summary of the current status of these activities and of the actions by the
Parties that are now called for so that demarcation can proceed as required
by the Security Council in its recent Resolution demarcation 1507 of 12
September 2003 is set forth in Annex 1.(Additionally, for your information,
copies of the Commission's current Demarcation Directions and of its current
Demarcation Instructions are attached as annexes 2 and 3 respectively). 3.
The commission on one previous occasion has thought it beneficial to offer
Observations on the Commission's approach to the demarcation phase of its
work in the light in particular of certain considerations advanced by the
parties: see the Commission's Observations of 21 March 2003, circulated on 31
March 2003 as UN Doc. S/2003/257/Add.1. In the light of the recent letter
from the Prime Minster of Ethiopia, the Commission considers that the
following further comments are called for. 4.
The opening paragraph of the Prime Minister's letter states that the peace
process between Ethiopia and Eritrea is facing a challenge Ethiopia
characterizes the situation as being one in which "the work of the
Commission is in terminal crisis". The Commission does not accept that
assessment: there is no "crisis", terminal or otherwise, which
cannot be cured by Ethiopia's compliance with its obligation under the
Algiers Agreement, in particular its obligations to treat the Commission's
delimitation determination as "final and binding"(Article 4.15) and
"to cooperate with the Commission, its experts and other staff in all respects
during the process of ... demarcation" (Article 4.14). 5.
The key to the "crisis" which Ethiopia discerns in the work of the
Commission lies, according to Ethiopia's letter, in the Commission's
"totally illegal, unjust and irresponsible decision on Badme and parts
of the Central Sector". As that letter deals thereafter only with the
situation regarding Badme, it is therefore only to that aspect of the case
that the Commission will here refer. 6.
The letter states that the "Colonial treaties which are the basis of the
Algiers Agreement and which should have been the key basis for the
delimitation and demarcation of the boundary leave Badme well inside
Ethiopia". On the basis of those colonial treaties as they were
interpreted by the Commission in accordance with applicable international
law, that is not accurate. The Commission found that on the correct
interpretation of the relevant Treaty, the boundary, from the point at which
it leaves the Setit River (point 6) to where it joins the Mareb River (point
9), ran in part across the Badme plain. If as a result Badme village is found
to be located in Eritrea, that is no more than the consequence of the
Commission's application of the relevant colonial treaty. Ethiopia argued in
the proceedings before the Commission for an interpretation of the Treaty
which would have resulted in a much different boundary, far to the northwest,
which would have had the effect of placing Badme well within Ethiopia, but
the argument for Ethiopia's line was considered carefully by the Commission
and rejected. 7.
The Ethiopian letter goes on to say that "This [i.e. Badme being left
well inside of Ethiopia by the colonial treaties] was also the Commission's
own interpretation of the relevant Treaty". This is a misrepresentation
of the Commission's reasoning. The only interpretation of the relevant treaty
which can be regarded as the Commission's "own interpretation", in
accordance with applicable international law, is that which is set out in its
Delimitation Decision of April 2002. 8.
The letter then states that "the Commission chose to base its decision
on state practice, and having done so, went on and awarded Badme to Eritrea
..." . The state practice to which the Commission gave weight consisted
primarily of a Series of maps, including in particular maps published by
Ethiopia. The Commission was convinced that these showed the Parties'
agreement upon an interpretation of the relevant Treaty which placed the
boundary prescribed by that Treaty in the location determined by the
Commission. Ethiopia failed to show why official Ethiopian maps that over the
years depicted not the line for which it argued in 2001, but the line adopted
by the Commission, did not reflect the true line of the boundary. 9.
Ethiopia goes on to say that this finding, which resulted in Badme being
awarded to Eritrea, was made "despite the overwhelming evidence produced
by Ethiopia proving that Badme had always been administered by Ethiopia.
Eritrea could not produce even a single document to rebut Ethiopia's submission".
The Commission has already (in paragraphs 17 and 18 of its Observation of 21
March 2003) commented on the paucity of the evidence produced by the Parties
in relation specifically to Badme. 10.
The Commission must further observe that its mandate, as agreed in Article
4.2 of the Algiers Agreement, was to base its decision "on pertinent
colonial treaties (1900, 1902, and 1908) and applicable international
law". The Parties did not give the Commission the task of deciding which
State administered Badme in recent years and at the critical time, when the
relevant Treaty of 1902 was concluded, Badme and certain other villages and
settlements which now exist had not then come into existence. Where villages
have sprung up or spread in recent times, and in so doing transgress
boundaries previously established by older treaties, it is fully consistent
with international law for the treaty-based boundary to be maintained and for
the resolution of any consequential human problems to be left for the Parties
to resolve by agreement. Far from being a "blatant miscarriage of
justice"(letter, para 3), that result is precisely what the
International Court of Justice decided, in comparable circumstances, in its
recent Judgment in the Cameroon v. Nigeria case. (ICJ Rep., 2002, paras 107,
128). The Parties have long been aware that the result of the Commission's
delimitation and consequent demarcation could be that the boundary could run
through and divide some settlements (see paragraph 3 of the Commission's
Observations of 21 March 2003). 11.
In the fourth paragraph of the letter, Ethiopia contends that since Eritrea
totally rejects any dialogue on demarcation, the Commission's indication of
the need for further agreement between the Parties to resolve anomalies shows
that "nothing worthwhile can therefore be expected fro the Commission to
salvage the peace process. Indeed, the Commission seems to be determined to
continue its disastrous stance whatever the consequences to the peace of the
region". The Commission can only repeat what it has previously said,
essentially that its mandate is that given to it by the Parties when
concluding the Algiers Agreement, and that it that mandate is to be changed
it can only be done by some further agreement by the Parties: it is not for
the Commission to speculate on whether or not such a further agreement is
likely to be negotiable. The Commission's position is clearly set out in
paragraph 28 of its Observations of 21 March 2003. 12.
Ethiopia maintains in the fifth paragraph of its letter that "only the
Security Council can salvage the peace process", and that "the
Boundary Commission has itself acknowledged the responsibility of the United
Nations, in accordance with the Algiers Agreement, to assist the two parties
to overcome challenges they might face in the process of the delimitation and
demarcation". The Commission recalls that article 4.16 of the Algiers
Agreement is in the following specific terms: "Recognizing that the
results of the delimitation and demarcation process are not yet known, the
parties request the United Nations to facilitate resolution of problems which
may arise due to the transfer of territorial control, including the
consequences for individuals residing in previously disputed territory".
It is accordingly clear that Ethiopia's construction of the Algiers Agreement
and of what the Commission has stated in respect of it is misconceived. 13.
Ethiopia then makes a number of specific proposals in order to bread what it
terms "the present deadlock". 14.
In Proposal 1, Ethiopia reaffirms "its commitment under the Algiers
agreement": the Commission observes that that Agreement committed both
Parties inter alia to accept the Commission's determination of the boundary
as final and binding, and to cooperate with the Commission during the process
of demarcation, and Ethiopia, like Eritrea, accepted the Delimitation
Decision when it was rendered. Ethiopia's reference in the third and sixth
paragraphs of its letter to some further demarcation being "just and
legal" imports that Ethiopia now considers that the Commission's
delimitation and demarcation are neither. Ethiopia's statement is a
repudiation of its repeated acceptance of the Commission's Decision since it
was rendered. 15.
In Proposal 3, Ethiopia proposes that "an alternative mechanism to
demarcate the contested parts of the boundary" be set up. Such an
alternative mechanism would involve a departure from, and thus an amendment
to , the terms of Article 4.2 of the Algiers Agreement, which gives the
Commission the mandate to demarcate the boundary. Moreover, Ethiopia's
reference to "the contested boundary" can only be understood as a
reference to those parts of the boundary to which it alone and unilaterally
takes exception: no part of the boundary is "contested" by both
Parties. 16.
Proposal 5 says that Ethiopia "will recognize ... the southern boundary
of the Temporary Security Zone as the boundary between the two
countries". The Parties have agreed however, in Article 4.15 of the
Algiers Agreement, that the boundary between the two countries is the
boundary as delimited by the Commission. 17.
The Commission has recently sent a letter to the Parties directing that they
immediately take the necessary steps (as envisaged inter alia in Annex 1 to
this letter) to allow demarcation to proceed according to the Schedule of the
Order of Activities Ahead. Only by thus enabling demarcation to proceed
unhindered can the mandate given the Commission by the Parties in the Algiers
Agreement- namely expeditiously to demarcate the boundary-be fulfilled. 18.
The Commission would be grateful if you would be good enough to share this
letter with the members of the Security Council. Yours sincerely, Sir Elihu Lauterpacht October 7, 2003. |
