The Declaration issued on behalf of the European Union, on the occasion of the 15th Anniversary of the final and binding delimitation (and demarcation) decisions of the Eritrea Ethiopia Boundary Commission of 13 April 2002, is conspicuous for the fundamental legal issues that it circumvents rather than a positive initiative it may have intended to spell out.
The Declaration by the High Representative and Vice-President of the European Commission, Ms. Federica Mogherini, issued on 13 April 2017, reads in part:
“…The EU remains deeply concerned that the present stalemate (sic) continues to put regional stability at risk… The EU remains convinced that the parties have all to gain from a full implementation of the Eritrea-Ethiopia Boundary Commission’s decision. In this regard, it encourages all concrete steps that could lead to finally demarcating the border in accordance with the EEBC decision and to move to a phase of building constructive and peaceful relations ……”
As intimated above, this position is legally untenable. In practice, it endorses, perhaps inadvertently, Ethiopia’s transparent gimmick of semantics and hollow posturing whereby it argues that it “has accepted the EEBC decision in principle… but requires dialogue with Eritrea for its implementation”. Furthermore, Eritrea finds EU characterization of Ethiopian occupation of sovereign Eritrean territories as a “stalemate” erroneous and unfortunate.
Occupation of Sovereign Eritrean Territories – the Central Issue
Ethiopia’s false misrepresentations of the Algiers Agreement and the ad hominem diatribes which permeate all its reports aside, the substance of the matter is unequivocal as the following sequence of facts and events illustrate.
- Article 4.2. 1. of the Algiers Agreement states: “The parties agree that a neutral Boundary Commission composed of five members shall be established with a mandate to delimit and demarcate the colonial treaty border based on pertinent colonial treaties (1900, 1902 and 1908) and applicable international law. The Commission shall not have the power to make decisions ex aequo et bono”.
- The EEBC announced 2. its border delimitation decisions on 13 April 2002 in accordance with its mandate and after an exhaustive litigation process that took almost two years.
- The EEBC further 3. instructed the parties, through a written addendum to the Award, to respect each other’s sovereignty and territorial integrity on the basis of the delimitation decision. (Early signs of Ethiopia’s willful desire to breach the agreement were manifested when it refused to comply with this decision and withdraw its troops from Badme and the 25-km wide Temporary Security Zone that was established for the interim period until the delimitation of the border).
- The EEBC then 4. proceeded to conduct its work for demarcating the delimited boundary. This process took four long years, simply because Ethiopia played an endless game of obstruction and prevarication. Ethiopia’s whimsical stance vacillated from tumultuous acceptance of the decision – when the Award was announced – through its Council of Ministers and urging the “international community to compel Eritrea to abide by the decision or face severe punishment” to the infamous letter by Ethiopia’s late Prime Minister to the UN Secretary General in September 2003 in which he dismissed the EEBC Award as “unjust, irresponsible and unfair”. Melles unabashedly requested the UN to launch “an alternative mechanism” to address the border conflict and called for “dialogue” in breach of the Award. These were transparent attempts to amend, revisit and revise the EEBC’s final and binding decision. In the meantime, Ethiopia resorted to endless dilatory tactics in the demarcation process presided by the EEBC.
In its Sixteenth report on the work of the Commission, the Eritrea-Ethiopia Boundary Commission wrote:
“… Ethiopia is not prepared to allow demarcation to continue in the manner laid down in the Demarcation Directions and in accordance with the timeline set by the Commission. It now insists on prior “dialogue” but has rejected the opportunity for such “dialogue” within the framework of the demarcation process provided by the Commission’s proposal to meet with the Parties on 22 February. This is the latest in a series of obstructive actions taken since the summer of 2002 and belies the frequently professed acceptance by Ethiopia of the Delimitation Decision…”
In the event, the EEBC has no alternative but to resort to demarcation through coordinates. In its Statement of 27 November 2006, the EEBC explained its methodology as follows:
“… Modern techniques of image processing and terrain modeling make it possible, in conjunction with the use of high resolution aerial photography, to demarcate the course of the boundary by identifying the location of turning points (hereinafter called “boundary points”) by both grid and geographical coordinates with a degree of accuracy that does not differ significantly from pillar site assessment and emplacement undertaken in the field. The Commission has therefore identified by these means the location of points for the emplacement of pillars as a physical manifestation of the boundary on the ground… Although these techniques have been available for some time, the Commission has not resorted to them because the actual fixing of boundary pillars, if at all possible, was the demarcation method of first choice. However, it is only possible to demarcate a boundary by the fixing of boundary pillars with the full cooperation of both the States concerned…”
In November 2007, the EEBC delivered to both parties the meticulously demarcated boundary with coordinates; duly deposited this document with the UN Cartographic Office; and, closed its legal mandate and operations. (For a wider perspective and context, we should bear in mind that Ethiopia’s boundaries with Kenya, South Sudan, and Djibouti are not marked with fixed pillars; the same applies to Eritrea’s boundaries with Djibouti and the Sudan).
The Eritrea-Ethiopia boundary has thus been fully delimited and demarcated by the independent juridical body established to perform the task on the basis of the Algiers Agreement. Ethiopia’s presence north of the delimited and demarcated boundary, including its presence in Badme, is thus a flagrant act of occupation that flouts the Algiers Agreement, the UN and OAU Charters and general principles of international law.
As the late Lord Avbury explained:
“… Demarcation] task was clearly accomplished by the EEBC. The reason why the dispute persists is that the international community has failed to pin responsibility on Ethiopia for its refusal to accept the EEBC’s decision on demarcation, to which they had committed themselves in advance the EEBC ruling that Eritrea and Ethiopia propose and before the end of November 2007 to reach agreement on the emplacement of the pillars and if this is not then done then that he boundary will automatically stand as demarcated by the boundary points as provided and that the mandate of the EEBC considered as fulfilled, that is the Delimitation Decision 13th April 2002 of coordinates. Ethiopia prevented the demarcation by pillars and therefore it fell to demarcation by coordinates…”
Failure of UNSC/EU to take appropriate action
The Algiers Agreement, guaranteed as it is by the UN Security Council, contains explicit provisions and spells out clearly what must be done by the UN Security Council if any of the two parties refuse to comply with their treaty obligations. Article 14 of the Cessation of Hostilities Agreement states:
“…the OAU and the UN commit themselves to guarantee the respect for this commitment of the parties. This guarantee shall be comprised of measures to be taken by the international community should one or both parties violate this commitment, including appropriate measures to be taken under Chapter 7 of the Charter of the United Nations by the Security Council…”
In this respect, we must also recall that the European Union was one of the principal brokers of the Algiers Peace Agreement. Indeed, the late Senator Renato Serri was one of the key facilitators during the tortuous peace negotiations conducted in Algiers for about 15 months and was also one of the five witnesses and guarantors of the Algiers Agreement; together with Abdelaziz Bouteflika, the President of Algeria, Madeline Albright, then US Secretary of State, Kofi Annan, then UN Secretary General, and Salim Ahmed Salim, the then Secretary General of the Organization of African Unity (OAU).
In brief, the provisions of the Algiers Agreement are clear and unequivocal. The EEBC had long accomplished its entrusted task with the delimitation and demarcation of the Eritrea Ethiopia in accordance with its mandate. Ethiopia has and continues to occupy sovereign Eritrean lands, including the town of Badme, in flagrant violation of its treaty obligations and fundamental tenets of the UN and AU Charters. At this late hour, what behooves the EU and the UNSC is to compel Ethiopia to respect international law.