Eritrea: Border Ruling Lacks Specific Enforcement Mechanism

Commentary

24 June 2007

The horrible border war between Eritrea and Ethiopia ended 7 years ago. And it has been over 5 years since an independent international court of law in The Hague resolved the border dispute ultimately by a final and binding legal ruling. But the border ruling has not yet been implemented and there still persists a very dangerous military stand off between the two nations because Ethiopia continues to defy the border ruling blatantly and with apparent impunity for lack of specific enforcement mechanism.

Shocked and dreaded by the senseless carnage (1998-2000) that claimed some 100,000 lives over a petty border dispute between two poor nations, Eritrea and Ethiopia, the international community spearheaded by the USA rightly interfered and pressured both countries in no uncertain terms to end it all and to resolve their dispute by peaceful means as it should have been in the first place.

Subsequently, Eritrea and Ethiopia bowed to the pressure of the international community and signed three binding international agreements committing to end the carnage first and foremost, and to resolve their dispute via legal arbitration of their own pick and choice.

The first agreement, identified by the title ‘Framework Agreement and the Modalities for its Implementation’, laid the groundwork for the subsequent second agreement identified by the title ‘Agreement on Cessation of Hostilities’ that brought the border war to a halt and was signed on June 18, 2000.

Then, a final and 3^rd agreement, identified as ‘The Algiers Peace Agreement’, that included the prior two agreements and brought about the ultimate legal resolution of the dispute and contemplated eventual restoration of normal relation between the two nations was signed ceremonially on 12 December 2000 in the presence of highest-level witnesses from the UN, US, EU, OAU, Algeria, and the presence including handshake of the head of states of the two disputants.

Under ‘The Algiers Peace Agreement’, from top to bottom, the two nations

1. Solemnly reaffirmed their acceptance of the Organization of African Unity ("OAU") Framework Agreement and the Modalities for its Implementation,

2. Solemnly recommitted themselves to their treaty obligations under the Agreement on Cessation of Hostilities, and

3. Solemnly agreed to and accepted to abide by the 6 Articles of the Algiers Peace Agreement unconditionally.

That is what makes up the Algiers Peace Agreement. It is comprehensive for it has all that is needed to end the war and to preclude another one, bring about peaceful and ultimate resolution of the border dispute, and eventually restore normal relations between the two nations. It is kind of 3-in-1 agreement, so to speak.

Compliance with the Algiers Agreement mandates compliance with all the three agreements. Non-compliance with any or all of the 3 agreements or partial compliance constitutes violation of the Algiers Peace Agreement.

Even though it is kind of 3-in-1 agreement, each of the 3 listed agreements entered into by the two nations has its own peculiarities, purpose and intent, with built-in specific enforcement mechanism and UN/OAU guarantee where necessary.

Moreover, where one such specific enforcement mechanism or UN guarantee is incorporated into any of those international agreements, it is clearly stated that it is limited and pertains to commitments made under that particular agreement.

One and only one of the three agreements signed between Eritrea and Ethiopia, ‘Agreement on Cessation of Hostilities’, comes with a specific enforcement mechanism unambiguously limited to transgression of this particular agreement and clearly secured by UN/OAU guarantee that is articulated in plain and simple English in Article14 of same agreement as follows:

14 - Ethiopia commits itself not to move its troops beyond the positions it administered before 6 May 1998. Eritrea commits itself not to move its troops beyond the positions defined in paragraph 12 above. The OAU and the United Nations commit themselves to guarantee the respect for this commitment of the two Parties until the determination of the common border on the basis of pertinent colonial treaties and applicable international law, through delimitation/demarcation and in case of controversy, through the appropriate mechanism of arbitration. This guarantee shall be comprised of:

a) measures to be taken by the international community should one or both of the Parties violate this commitment, including appropriate measures to be taken under Chapter VII of the United Nations Charter by the UN Security Council; (Emphasis is mine)

Article14 makes it also clear that the possibility of invoking Chapter VII of UN Charter is limited only to violations of commitments made under the Agreement on Cessation of Hostilities.

By contrast, the agreement that brought about ultimate legal resolution of the border dispute, Articles 1-6 of the ‘The Algiers Peace Agreement’ is devoid of explicit UN guarantee, and the final and binding ruling of the Boundary Commission, established under this agreement, lacks specific enforcement mechanism.

The Algiers Peace Agreement is remarkably silent in terms of applying concrete and consequential punitive measures should either party renege on its clearly stated treaty obligations and simply refuses/fails to comply with the ruling of the boundary commission unconditionally, as is the case with Ethiopia.

With that in mind, Eritrea’s sophomoric and intellectually pretentious argument on the border issue, contained in a letter delivered to the UNSC on 15 June 2007, is embarrassing and falters miserably because it was developed on bases that bear no validity beyond wishful thinking.

The bases and the opening argument of Eritrea’s 14-page letter to the UNSC read as follows:

“As you may recall, Eritrea has incessantly urged the UN Security Council to invoke Chapter VII of the UN Charter to compel Ethiopia to comply with its treaty obligations that are clearly stipulated in the Algiers Agreement as well as the in the provisions of international law on the respect of the sovereignty and territorial integrity of a fellow UN member state. Eritrea’s appeals to the UN Security Council are based on two legal provisions: i) Article 14 of the Cessation of Hostilities Agreement that explicitly empowers the Security Council, as a guarantor of the Algiers Peace Agreement, to take punitive measures against the transgressing party in accordance with Chapter VII of the UN Charter; and, ii) Article 39 of the UN Charter that empowers the Security Council to decide on appropriate measures in the event of “the existence of any threat to the peace, breach of the peace, or act of aggression”. Unfortunately and for reasons that we do not wish to describe here, the Security Council has to-date failed to shoulder its legal obligations. This has encouraged Ethiopia to flout the rule of law and to occupy sovereign territories of a UN member for five years with impunity.” (Emphasis is mine).

Just for the record, the international community including UNSC go about international agreements by the words, letters, and text contained therein in black and white, not by what others read into such agreements, want them to mean, would like to construe them to mean, fantasies or wishful thinking after the fact.

It would have been certainly nice and we wouldn’t have been where we are, if the UNSC had the expressed authority and power to invoke Chapter VII of UN Charter to compel Ethiopia to abide by its treaty obligation to accept the border ruling unequivocally and without delay. But there is no such provision in the Algiers Peace Agreement. Hence, even though the call for Chapter VII makes perfect sense and is absolutely plausible, it has no validity beyond wishful thinking.

The provisions under Article 14 (see above) are clearly limited to remedying violations/transgressions of commitments/obligations under the Agreement on Cessation of Hostilities only. There is no provision in any of the 3 agreements that would authorize and empower the UNSC to apply Article 14 to any and all agreements signed between the two nations. Hence, while the invocation of article 14 to remedy treaty violations makes perfect sense and is absolutely plausible, it has again no validity beyond wishful thinking because Article 14 is not automatically transferable or applicable to remedy Ethiopia’s blatant defiance of the border ruling for lack of such provision in the Algiers peace Agreement.

Article 39 of the UN Charter pertains to violation of territories that are already part of the sovereignty and are under the sovereign administration of a member state; by contrast, Eritrea’s claim of territories occupied by Ethiopia stems from a court’s decision. But for lack of specific mechanism to enforce this court’s decision, territorial/sovereignty transfers have not yet taken place. That has rendered the court’s decision so far unconsummated. Therefore, technically, those territories that the court awarded to Eritrea remain still under Ethiopian possession and administration as they have been even years before the eruption of the border war, until the court’s decision is consummated.

Under such constellation of matters, the invocation of Article 39 of UN Charter is ridiculous, way far-fetched, not at all applicable in terms of ‘act of aggression’, and has no validity beyond yet another fanciful thinking.

And in terms of ‘any threat to peace, breach of the peace’, there are no grounds to invoke Article 39 for by his own admission, the head of state of Eritrea has ruled out war in a retort to a query by Al-Arabia TV “whether war is now inevitable between Eritrea and Ethiopia” when he responded as follows: “On the contrary, why should war break out between Eritrea and Ethiopia if the border issue has been legally resolved? There is a UN resolution and a court decision on this issue. Agreements were also signed. How can any side justify the war? We in Eritrea see no reason for the eruption of war between Eritrea and Ethiopia.” [10 May 2007].

Retrospectively, it would have made things surely much easier if the UNSC were guarantor of the Algiers Peace Agreement. But it is not. That is a loud wishful thinking and one of the many factual distortions contained in the baseless argument [like EEBC delimitation line not a newly-created boundary, rather the boundary that existed at point of Eritrean independence (last ¶ page 4)- which is factually simply wrong because line at independence and EEBC line are not congruent]. The one and only agreement among the three agreements the two nations signed that is explicitly secured by UN guarantee including OAU/AU is the Agreement on Cessation of Hostilities (see above).

It is an open secret that Ethiopia is certainly the worst violator of the Algiers Peace Agreement, international law, and UN Charter front and back. But that does not absolve Eritrea from its violation of the Algiers Peace Agreement brought about by violating the Agreement on Cessation of Hostilities front and back, nor is Ethiopia’s gross violations an excuse or justification for Eritrea’s equally wrong action. This sounds like going back to logical fallacy. Eritrea’s violation is bad and Ethiopia’s violation is even worst. Yet, two wrongs, regardless of severity, do not add up to one right.

Both countries are in violation of the Algiers peace Agreement. That needs to and must be remedied in order to restore the integrity of the Algiers Peace Agreement and for the shared border to be demarcated as decided and determined by the Boundary Commission on 13 April 2002.

That being said, lack of specific enforcement mechanism does not render the border ruling void or mean renegotiating the ruling. No. The first message is that the court has done its part in rendering the ultimate resolution of the border dispute. t is now long over due time for skillful diplomacy to do its part in bringing about physical realization of the court’s decision exactly as decided and determined by the court and in strict adherence to the Algiers Peace Agreement.

The second and more important message is that the 'my way or the highway' tyrannical modus operandi and utterly baseless and shameful legal wrangling of the interim governmental authorities in Eritrea don't work and will not work hence need to be buried and incinerated here and now.

Author can be contacted at bmtekeste@yahoo.com