Abstract
On 5 June 2018, the Ethiopian-Eritrean boundary dispute was officially brought to an end by the decision of the new Ethiopian Prime Minister Abiy Ahmed announcing ‘full compliance’ with the 2002 Decision of the Eritrea-Ethiopia Boundary Commission (EEBC). This concluded a 16-year period of disputation and stand-off in which little had happened, neither in terms of mutual agreement on the exact boundary line and its demarcation on the ground, nor in relaxing cross-border social and economic relations. The nature of the EEBC Decision, while a major new piece of international case law on boundary dispute arbitration, was chiefly responsible for the 16-year delay in its acceptance. This chapter examines some points of fact, interpretation and reasoning of the EEBC Decision (and the underlying 2000 Algiers Agreement’s mandate), contending that it detached its legal interpretation from relevant political and historical realities providing the context of production of the alleged legal facts in ‘colonial treaties’ and politically motivated map-making. The EEBC did neither use the leeway of judicial discretion available to it in the resort to and use of ‘applicable international law’. The acceptance in 2018 of the EEBC decision by the Ethiopian PM was not because of its legal persuasiveness but due to sound political expediency regarding the aim to restore relations with Eritrea and wider regional stability. Actual demarcation of the Ethio-Eritrean border in the light of normalised relations will facilitate the meeting of local practicalities and needs of human communities that the EEBC did not and could not take into account.
The author is Professor of Politics and Governance in Africa at the African Studies Centre, Leiden University.
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Notes
- 1.
See BBC (2018) Ethiopia’s Abiy and Eritrea’s Afwerki declare end of war https://www.bbc.com/news/world-africa-44764597 Accessed 15 July 2020. For the text of the Joint Declaration of Peace and Friendship between Eritrea and Ethiopia, signed on 9 July 2018 in Asmara, Eritrea, see Appendix A to this volume.
- 2.
See Twenty-seventh report of the Eritrea-Ethiopia Boundary Commission in UNSC, Letter dated 2 October 2008 from the Secretary-General addressed to the President of the Security Council, 3 October 2008, S/2008/630.
- 3.
See Kaldor 2007.
- 4.
In 1975 the International Court of Justice recognised that the Sahrawi-population after decolonisation in that year (from Spain), despite historical ties of both Morocco and Mauritania to the territory before colonisation, had the right to self-determination. See ICJ, Western Sahara, Advisory Opinion, 16 October 1975, ICJ Rep 1975, p. 12. Mauritania gave up its claims in 1979.
- 5.
EEBC, Decision Regarding Delimitation of the Border between the State of Eritrea and the Federal Democratic Republic of Ethiopia, 13 April 2002, PCA Case No. 2001-01.
- 6.
On 5 June 2018 the ruling EPRDF party’s 36-member Executive Committee, at the instigation of Ethiopia’s new Prime Minister Abiy Ahmed, had already issued a statement Ethiopia would accept the 12 December 2000 Algiers Agreement with Eritrea: a pragmatic and positive step forward and taking responsibility for mistakes made in the submission of the dossier to the PCA by Ethiopia’s then government.
- 7.
See EEBC, Press release, 30 November 2007, PCA 6307. See also de Guttry, Chap. 32.
- 8.
Or ‘Badimme’ in the local pronunciation.
- 9.
- 10.
See Clapham 2017, p. 126.
- 11.
Ibid.
- 12.
- 13.
The text is reproduced in Appendix A to this volume.
- 14.
Gray 2006, p. 721.
- 15.
These pages are only a brief reflection on an issue demanding a major, book-length study to do justice to the complexities of history and of political machinations that led to the impasse and the deep enmity produced and that lingered on for 17 years.
- 16.
- 17.
In Ethiopia the Ethiopian People’s Revolutionary Democratic Front or EPRDF (dominated by the Tigray People’s Liberation Front or TPLF) that assumed power in May 1991, and in Eritrea the former Eritrean People’s Liberation Front (EPLF), renamed in 1994 as the People’s Front for Democracy and Justice (PFDJ). They are vanguard parties, similar in étatist political outlook and autocratic methods of governance via central planning and programmes, party cadre dominance in the civil service and the national administration, overwhelming control of the mass media, a party economy, and full control of the military. Under the new reformist Prime Minister Abiy Ahmed, the EPRDF in Ethiopia in late 2019 was reorganised and renamed as the Ethiopian Prosperity Party.
- 18.
- 19.
- 20.
Guazzini, Chap. 7.
- 21.
The treaties of 1900, 1902 and 1908 used as a basis for the EEBC Decision had been declared null and void by Ethiopia on 11 September 1952.
- 22.
Notably, in an interview in 1996, Eritrean president Isaias Afwerki had said: ‘As the relations are further strengthened and developed, our common borders shall have no meaning and our common interests shall have an upper hand on our individual interests’. He also said: ‘To claim that Eritrea existed as a political and geographical entity before 100 years and there existed an Eritrean national feeling would be an utter fallacy’ (ibid.) See Assir Magazine 1996 (the interview is also referred to in Press Digest (Addis Ababa), no. 26, 27 June 1996).
- 23.
- 24.
Delimitation of the Border 2002 (above n 5) para 4.63.
- 25.
See Reid 2007.
- 26.
See Jembere 2000.
- 27.
See Clapham 2003.
- 28.
Delimitation of the Border 2002 (above n 5) para 3.2.
- 29.
As per the mandate mentioned in the Algiers Agreement, Article 4(2).
- 30.
Of course, the EEBC mandate was very narrow, but as even Pratt 2006 (p 334) suggested, there was indeed ‘… some ‘wiggle room’ in terms of applicable law’, and probably more than that.
- 31.
That Eritrea had started the war was at least what the Eritrea-Ethiopia Claims Commission (also installed under the Algiers Agreement) has stated in its Dispositif of 19 December 2005. See EECC, Partial Award: Jus Ad Bellum, Ethiopia’s Claims 1-8, 19 December 2005, PCA Case No. 2001-02. However, it rejected Ethiopia’s claim that Eritrea ‘…was responsible for the whole war’ (see Dekker and Werner, Chap. 13).
- 32.
Important to note: not the International Court of Justice, whose decision would have more authority in international law.
- 33.
See Ex-TPLF member Asegued Gäbre-Sellassie’s book Gahdi (Addis Ababa 2007, in Tigrinya), an important insider account of the subject, and also the amazing statements in 2007 by a TPLF veteran and important Ethiopian ruling party member at the time, Sebhat Nega, in a Dimtsi Woyane (TPLF radio station) interview of 28 May 2007, saying that: ‘On our part, we believe the people of Eritrea know very well – except a few members of the Shaebia leadership – that the EPRDF-led government of Ethiopia is the one and only force that would defend the independence of Eritrea. In short, the Eritrean people are very well aware of the fact that no force matches the power of the EPRDF-led government to defend and support the independence of Eritrea.’ He concluded: ‘Suppose let's say Eritrea comes under invasion by an outside force. I've no doubt the EPRDF government would, along with the Eritrean people, fight against the enemy of Eritrea’ (www.abbaymedia.com/TPLF_WakeUp_Call_to_Ethiopians.html (link no longer active)).
- 34.
Smit Duyzentkunst and Dawkins 2015, p. 152.
- 35.
See Guazzini, Chap. 1.
- 36.
- 37.
See Abbink 1998.
- 38.
See the comments made on this by the EEBC in Delimitation of the Border 2002 (above n 5) paras 4.69-4.70; 4.85, and 6.22 (on the village of Bure in the Eastern sector, which was agreed upon as the border, although it was located 12 km south of the Ethio-Eritrean borderline established in the Ethiopian-Italian treaty of 1908, i.e. Ethiopia giving in). See also Observations of the Eritrea-Ethiopia Boundary Commission, Addendum to UNSC, Progress Report of the Secretary-General on Ethiopia and Eritrea, 31 March 2003, S/2003/257/Add.1, notably para 18.
- 39.
E.g., from Ethiopian-American lawyer Tecola W. Hagos, a former TPLF member, in his strongly expressed comments on the EEBC (‘Dumping the Decision of the Boundary Arbitration Commission’, 2007) on www.tecolahagos.com/editorial_sebhat_nega.htm (link no longer active).
- 40.
See also Vascon 2003.
- 41.
The Irob case, rather underexposed in the debates about the EEBC Decision, is perhaps even more painful than the Badme issue, because this people were to be divided into two parts, and many locals would have to live under a regime that killed many of them and destroyed their houses, churches, fields and irrigation systems in the course of the 1998-2000 war (Waters-Beyer 1998; Waters-Beyer 1999; Irob Community of North America 2003; Anebo 2016, pp. 165, 323, 329, 369). In the Irob case the principle of self-determination was clearly flouted, apart from the questionable decision by the EEBC against applying the effectivités of Ethiopian authority mainly on the basis of Italian documents and information. Italian Eritrea-governor Corrado Zolli, writing about the controversial status of Irob country and of Italy’s claims on it (1931), would have been very happy with the EEBC Decision.
- 42.
Cited in Ciampi 2001, Fig. 12. It was made for their own purposes.
- 43.
See also Ciampi 2001, pp .176–177.
- 44.
Pratt 2006, p. 337, noted that presence of a geographer as a core member of the EEBC ‘… might have prevented a number of small errors’ in the Decision.
- 45.
Sir E. Lauterpacht, Letter of the Eritrea-Ethiopia Boundary Commission to His Excellency Kofi A. Annan, Secretary-General of the United Nations, 7 October 2003. See also M. Plaut, ‘New snag in Horn border dispute’, BBC news message, 11 October 2003 (https://news.bbc.co.uk/2/hi/africa/3183736.stm, accessed 5 May 2009).
- 46.
Section 8 of the letter (above n 45) says: ‘The Commission was convinced that these [maps] 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’.
- 47.
- 48.
Delimitation of the Border 2002 (above n 5), para 5.95. Compare also paras 5.90-5.91: a fictitious claim.
- 49.
Source: Zewde 2006, facing p 5. The map is reproduced in Appendix B to this volume.
- 50.
See EEBC Observations (above n 38).
- 51.
Delimitation of the Border 2002 (above n 5), para 4.69.
- 52.
Ibid., pp. 33, 35, and 39.
- 53.
Reproduced as Map 5, Delimitation of the Border 2002 (above n 5) p. 32.
- 54.
See also Zewde 2006, p. 5.
- 55.
See also the EEBC admission in its Observations (above n 38) para 25. Local people in the Irob area had no knowledge of a ‘Muna river’; see Anebo 2016, pp. 165, 168, 321.
- 56.
See Zewde 2006, p. 7.
- 57.
As mistakenly assumed by McHugh 2005, p. 215.
- 58.
Notably, in the Bure area in the Eastern sector, there was in 1994 one Eritrean checkpoint or customs facility in contested territory with Ethiopian permission. This was seen as sufficient evidence of Eritrean effectivité in the area because the Ethiopian and Eritrean governments of the day appeared to see it as their border. Purely to see it as such on the basis of this evidence is doubtful. But the chunk of territory was assigned to Eritrea. See Delimitation of the Border 2002 (above n 5) para 6.32.
- 59.
See PCA, Award of the Arbitral Tribunal in the First Stage of the Proceedings (Territorial Sovereignty and Scope of the Dispute), between the Government of the State of Eritrea and the Government of the Republic of Yemen, 3 October 1996, PCA Case No. 1996-04, paras 68, 269, 341, 361 and 507.
- 60.
Although the two insurgent movements EPLF and TPLF made some informal deals on the division of the area in the 1980s.
- 61.
Mentioned by former governor of Tigray ras Mängäsha Seyoum (son of Seyoum Mängäsha) in a Memo of December 2004 (in Amharic), www.ethiopiafirst.com/news2004/Jan/Letter_By_Ras_Mengesha.pdf (link no longer active). N.B.: Extant documents on this were not submitted by Ethiopia.
- 62.
See E. Lauterpacht’s Letter (above n 45).
- 63.
Delimitation of the Border 2002 (above n 5) para 3.15.
- 64.
Delimitation of the Border 2002 (above n 5) para 3.14. In the 1999 Kasikili/Sedudu Case the parties by agreement prescribed that the decision should be made ‘on the basis of the … Treaty … and the relevant principles of international law.’ (ICJ, Kasikili/Sedudu Island (Botswana/Namibia), Judgment, ICJ Rep 1999, p. 1045, para 2).
- 65.
Delimitation of the Border 2002 (above n 5) para 3.14.
- 66.
Pratt 2006, pp. 335–336, has raised the point that the EEBC may simply not have taken enough time to sort out all relevant aspects.
- 67.
The EEBC mandate having both delimitation and actual demarcation of the boundary placed in its hands (see Shaw 2007, p. 794) gave one of the parties (Ethiopia) the opportunity to continuously contest the final decision itself, but also, due to this rigidity, precluded the possibility to make realistic adjustments on the ground, e.g., after field visits.
- 68.
This case was also mentioned by his father, the former administrator of Tigray, Mängäsha Seyoum (above n 61).
- 69.
As was done in the EEBC Decision: Shilalo and Shäshäbit are seen as part of ‘undisputed Eritrean territory’.
- 70.
As the EEBC rightly says in its Eighth report (Annex I to UNSC, Progress Report of the Secretary-General on Ethiopia and Eritrea, 6 March 2003, S/2003/257): ‘… the December 2000 Agreement expressly precluded the Commission from deciding matters ex aequo et bono: it did not confer on the Commission, as it could have done and as has been done in the demarcation arrangements for many other boundaries, the power to vary the boundary in the process of demarcation for the purpose of meeting local human needs. Absent such authority, the hands of the Commission are in large measure tied. The Commission regrets that the boundary lines found by it to follow from the Treaty provisions and international law which it is bound to apply may at certain points result in physical divisions within communities that may adversely affect the interests of the local inhabitants. The Commission has not been insensitive to certain likely problems; it expressly contemplated the possibility of variations to the line, but only at the request of and with the agreement of both Parties. While the Parties have not reached such agreement, nothing would preclude their doing so in the course of the demarcation, even on a location-by-location basis.’ (emphasis added).
- 71.
Delimitation of the Border 2002 (above n 5) para 6.22; although it did not define ‘manageable’ and ‘rational’, e.g., not in regard to local human communities.
- 72.
And even less to finding whether and how uti possidetis juris and uti possidetis de facto might be congruent or clash in this particular case of Ethiopia (as the pre-existing country from which Eritrea was carved out in 1890).
- 73.
Cited in Shaw 1997.
- 74.
Shaw 1997, pp. 495–496.
- 75.
Perhaps because the Ethiopian leaders did not raise them; see the IRIN news message (11 February 1998) on a statement of the Ethiopian Ministry of Foreign Affairs: ‘Ethiopia dismisses calls for sea outlet’.
- 76.
Although, as we saw above, Emperor Menelik II had given grazing rights to Eritrean-administered people in Ethiopian-held territory.
- 77.
‘The Commission … interprets the name “Maiteb” in the 1902 Treaty as being the present day “Sittona”.’ Delimitation of the Border 2002 (above n 5) para 5.85.
- 78.
- 79.
This was Opinion no. 2 (1991); see Shaw 1997, p. 506 in his note 130.
- 80.
On the challenges in the Irob area, see Al Jazeera (2018) Ethiopia or Eritrea? Border community fears split https://www.aljazeera.com/news/2018/07/ethiopia-eritrea-border-community-fears-split-180720142112101.html. Accessed 9 July 2020.
- 81.
Interestingly, Kaikobad, Chap. 10, concluded: ‘… the fact that the Parties were unable to accept the delimitation carried out by the Commission shows that this dispute settlement procedure ought not to have been embarked upon in the first place. Attempts at political solutions and settlements are better in this sort of hostile environment wherever possible’.
- 82.
Jus Ad Bellum 2005 (above n 31). It also said: ‘…The Claimant’s [Ethiopia] contention that subsequent attacks by the Respondent along other parts of their common border were pre-planned and coordinated unlawful uses of force fails for lack of proof.’
- 83.
Jus Ad Bellum 2005 (above n 31).
- 84.
See this volume.
- 85.
- 86.
Compare also Greppi and Poli, Chap. 4, on the more ancient and established status of claims commissions after wars (developed well before dispute settlement commissions), and on the importance of the EECC innovation to allow individual (non-State actor) claims. This relates its work to the issue of who was to be considered responsible for the armed conflicts.
- 87.
Gray 2006, p. 721.
- 88.
See on this Murphy 2016, pp. 10–11.
- 89.
See e.g., Kaldor 2007, pp. 168–169.
- 90.
As argued by McHugh 2005, pp. 209–239.
- 91.
See Jacquin-Berdal and Plaut 2004.
- 92.
See Twenty-seventh report of the EEBC (above n 2) p 3.
- 93.
See UNSC, Special Report of the Secretary-General on the United Nations Mission in Ethiopia and Eritrea, 3 March 2008, S/2008/145. The Secretary-General described the steps taken in December 2007 through to February 2008 in trying to persuade the Eritrean authorities to lift their blockade of fuel supplies to UNMEE and their forcing the UNMEE troops out of the border zone, necessitating it to relocate its personnel. The UNSG had noted that the restrictions imposed by Eritrea on UNMEE were unacceptable and in breach of the fundamental principles of peacekeeping.
- 94.
The main village of Badme, a name also used to indicate the wider area around it, appears not to be the same as that of Yirga, despite news messages and the statements of several local people and other informants on which I based my observations in a previous article: see Abbink 2003, which hereby stands rectified. Although confusion persists: see Gedamu 2008 (pp. 85–86), citing local inhabitants stating that the two places are one and the same. The (Mai) Tomsa point (reference point 6 in the line on Map 10 (Western sector) of the EEBC Decision, p. 96) taken by the EEBC instead of the Mai Teb or the Sittona point appears to let Badme fall into Eritrea. As noted, it is an incorrect decision, unless one accords legitimacy to maps unilaterally drawn up by one interested party—which would be contrary to proper international law practice.
- 95.
His efforts to bring peace and normalisation with Eritrea (and the promise of his domestic reforms) earned him the 2019 Nobel Peace Prize.
- 96.
- 97.
See Pratt 2006.
- 98.
It had even been noted repeatedly that the new boundary lines might result in new ‘physical divisions’ and ‘may adversely affect the interests of the local inhabitants’ (Eighth report (above n 70) para 4), and then went on to say that such things as the division of communities in such a case ‘... are by no means unusual’ (ibid., para 7).
- 99.
See, for example, Eighth report (above n 70) para 4.
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Abbink, J. (2021). Law and Politics in the Ethiopian-Eritrean Border Dispute, 2002–2019. In: de Guttry, A., Post, H.H.G., Venturini, G. (eds) The 1998–2000 Eritrea-Ethiopia War and Its Aftermath in International Legal Perspective. T.M.C. Asser Press, The Hague. https://doi.org/10.1007/978-94-6265-439-6_8
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