The Border Dispute Between Eritrea and Ethiopia - Legal Considerations

The Border Dispute Between Eritrea and Ehiopia: Legal Considerations

Roberto M. Rodriguez

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IBSN:  978-1-105-12411-2

Table of Contents

The Border Dispute Between Eritrea and Ehiopia: Legal Considerations

Abstract

Brief Introduction

Cultural Similarities and Differences

Relations of Eritrea and Ethiopia with the United States

The human and economic costs of the border dispute

Terms of the Peace Agreement between the Government of the State of Eritrea and the Government of the Federal Democratic Republic of Ethiopia of December 12, 2000

The Western Sector

The Central Sector

The Eastern Sector

Relevance of the Reference to the 1964 OAU Summit Declaration

The determination and legal reasoning of the Boundary Commission of the Permanent Court of Arbitration regarding delimitation of the border between the State of Eritrea and the Federal Democratic Republic of Ethiopia

The Western Sector Covered by the 1902 Treaty

The Western Terminus

The Sector Setit-Mareb

The Sector Covered by the 1908 Treaty (The Eastern Sector)

The Boundary Line within Rivers

The Decision

Implementation Difficulties

Concluding Comments

References

GLOSSARY OF GEOGRAPHIC PLACE NAMES

Appendix  A - The Subsequent Conduct of the Parties in the Sctor Covered by the 1900 Treaty

Appendix  B - The Location of the Cunama

Appendix  C - Technical Note Relating to Maps

Attachment D – Maps

ABOUT THE AUTHOR

Abstract

Eritrea obtained its independence in 1993, after winning a long war against an enemy twenty times its size, and since then it has occupied the attention of the world because of its conflicts with its neighbors, especially the war with Ethiopia in 1998, the subsequent establishment of the UN Mission in Ethiopia and Eritrea, and the present state of cold war between the two countries.

The armed struggle lasted 30-years, until May 1991, when the Eritrean People’s Liberation Front (EPLF) liberated Asmara, the nation’s capital, and established the Provisional Government of Eritrea (PGE) (Connell, 1997b, p. 31). In an internationally supervised referendum in April 1993, 99.8 percent of the Eritreans voted for independence, which was officially declared on May 24, 1993 (CIA, 2007a, p. 2).

A border clash in 1998 around the town of Badme escalated into a full war killing thousand of soldiers from both sides. Badme was the site of some of the most intensive fights in the Ethiopian-Eritrean war in the period 1998-2000, with each side claiming the area as its territory (Hammond, 2004, p. 227). The UN Security Council called for a cease-fire and imposed a one-year arms embargo on both countries, but sporadic fighting continued. In 2000, the two countries signed a peace agreement at the initiative of the Organization of African Unity, calling for both parties to withdraw to the positions held before the 1998 war and establishing a boundary commission (Global Policy Forum, 2007, p. 2). The UN Mission in Ethiopia and Eritrea (UNMEE) began patrolling along the security zone (Global Policy Forum, 2007, p. 3).

The Boundary Commission was formed and both parties submitted their claims and counterclaims, providing more than 250 different maps to prove their respective cases. The Commission on its own also did historical research. There were instances where the name of a geographical location or river in a treaty did not accord with the name given to the location now, and it also appeared that there was more than one river with the same name.

However, the Commission, taking as a base the treaties signed in 1900, 1902, and 1908 by Italy and Ethiopia, submitted each section of the border to a thoughtful analysis, ruling whether to accept the sometime ambiguous terms of the treaties of other type of historical evidence (reports, private correspondence, etc.), or geographical information.

In its conclusion on April 13, 2002, the Commission stated that the relevant principles of international law were not limited in their effect to the international law applicable to the interpretation of the treaties; they also required the court to take into consideration any rules of customary international law that might have a bearing on the case, for example, prescriptions and acquiescence even if such rules might involve a departure from the position prescribed by the relevant treaty provisions (Eritrea-Ethiopia Boundary Commission Decision, 2002, Article 3.14).

The Commission also took into consideration the behavior of the parties, and whether they had occupied the claimed territories over which they were claiming sovereignty. The Commission said that it had to consider activities such as the establishment of telephone and telegraph facilities, the holding of elections and the conduct of the independence referendum, the maintenance of local records of such matters as births and deaths, the payment of taxes and financial tribute, the structure of local administration, the regulation of religious and social institutions, the stationing of military and police patrols, the regulation of land use, provincial administration, the administration of educational facilities, public health administration, steps for the eradication of malaria, the grant of a mineral concession, and various local acts carried out by the British Military Administration during the period from 1941 to 1952 (Eritrea-Ethiopia Boundary Commission Decision, 2002, Article 4.65).

In sorting through the large number of maps, the Commission expressed its opinion that maps, however informative they may appear to be, are not necessarily accurate or objective representations of the realities on the ground. Topography is dependent upon the state of knowledge at the time the maps were made, and particularly older maps this may have been inadequate (Eritrea-Ethiopia Boundary Commission Decision, 2002, Article 3.19).

The 1900 Treaty was the only which contained a map as an attachment, and this map was given great weight by the Commission. The Treaty also specified that its purpose was to regulate the question of the frontier between the Colony of Eritrea and Ethiopia which has remained open since the conclusion of the Treaty of Peace of Addis Ababa of the 26th October 1896 (Eritrea-Ethiopia Boundary Commission Decision, 2002, Article 4.55).

The 1902 Treaty was described as an Annex to the 1900 Treaty. This was a trilateral agreement to which Britain was also a party because it also related to the frontier between Sudan (then under British administration) and Eritrea.

The 1908 Treaty, about the eastern sector, declared that in this section of the boundary continues south-east, parallel to and at a distance of 60 kilometers from the coast until it joins the frontier of the French possessions of Somalia (Eritrea-Ethiopia Boundary Commission Decision, 2002, Article 6.2). In determining this portion of boundary, the Commission decided to abandon the use of maps and use instead a satellite image of the coastline of Eritrea covered by the 1908 boundary, and to move it inland for a distance of 60 kilometers.

The Court concluded that a large part of the Western border should be awarded to Eritrea (near the Yirga Triangle). Areas in the central zone and Eastern Sector and the border town of Tserona were also awarded to Eritrea. The border towns Zalambessa and Alitena, in the Central sector, and the Bure Danakil Depression, were awarded to Ethiopia. The controversial Badme village, where the conflict started, was awarded to Eritrea.

Initially, the Ethiopian government claimed victory (even though it had lost the village of Badme), but later rejected it as unjust and illegal, and filed a 21-page memorandum demanding that the boundary commission rectify its boundary delimitation by redrawing the boundary to give Ethiopia sovereignty over towns on the Eritrean side of the line (Global Policy Forum, 2006, p. 8). However, on November 25, 2004, 957 days after the EEBC ruling, Ethiopia’s parliament voted to accept in principle the ruling of the independent boundary commission that ceded territory along the 600 mile border to Eritrea (Splinter, 2007, p. 12).

The implementation of the peace process has faced mounting resistance by both parties, displeasing the UN Security Council. On November 5, 2007, the United Nations established that these neighbors must resolve their border line tensions by the end of November 2007 (Reuters, 2007, p. 1). So far, this has not happened.

Brief Introduction

This paper discusses the border dispute between Eritrea and Ethiopia, the decision of the Eritrea-Ethiopia Boundary Commission of the Permanent Court of Arbitration, and the difficulties that both parties are having in implementing the decision. This study demonstrates Lord Curzon’s remark that frontiers are the razor’s edge on which hang suspended the issue of war or peace and the life of nations (Favali & Pateman, 1998, p. 151).

Eritrea is a state slightly larger than the state of Pennsylvania with a population of only 3.6 million people (in 2006), but has a strategic geopolitical position along one of the world’s busiest shipping lanes. Although quite small in size and population, it is necessary to keep in mind that there are 18 members of the Organization of African States with smaller populations than Eritrea (Pateman, 1998, p. 212). Eritrea’s population comprises nine ethnic groups. Most Christians (50% of the population) live in the highlands, and Sunni Muslims and adherents of traditional beliefs (the other half of the population) live in the lowland regions (US Department of State, 2007, p. 2).

After its independence from Ethiopia on May 24, 1993 (CIA, 2007, p. 3), Eritrea retained the entire coastline of Ethiopia along the Red Sea, about 1,000 km of coastline, which extends from Cape Kasar in the north to the Strait of Mandeb which separates the Red Sea from the Gulf of Aden (Eritrea: Foreign Policy & Government Guide, 2007, p. 18). It also has a 912 km border with Ethiopia, a 605 km border with Sudan, and a 109 km border with Djibouti (US Department of State, 2007, p. 2). In the recent past, Eritrea has had border disputes with Sudan, Yemen, and Ethiopia, although it normalized relations with Yemen in 1996 and with Sudan in 2006.

The head of the government is Isaias Afworki, the leader of the Eritrean People’s Liberation Front (EPLF), who has been in power for 15 years, since independence. Initially, he was elected for a four-year transition period in which the new government was supposed to prepare the necessary conditions for a pluralistic political system and the establishment of the basic infrastructure to govern the nation. However, things did not go smoothly, and very soon Eritrea was engaged in conflicts with both Yemen and Sudan, and later on, the friendly relations with Ethiopia turned sour, and in May 1998 fight broke out between the two countries. Afworki is the chief of state and head of government as well as the head of the State Council and the National Assembly (US Department of State, 2007, p. 2).

Afworki has been forced to rule Eritrea in an authoritarian manner because the small country since independence has been in a practical state of emergency for one reason or another. During the fight for independence, his Marxist movement was at odds first with the United States, which supported Ethiopia and its territorial ambitions over Eritrea, and later with the former Soviet Union, which preferred to give its support to the communist government of Mengistu Haile Mariam in Ethiopia. It is kind of ironic that the Eritrean movement, which initially was supported by the former Soviet Union and the communist nations of Eastern Europe, was later abandoned when these nations supported the Marxist regime of Ethiopia. On December 11, 1977, the Cuban head of state Fidel Castro declared that while the Eritrean liberation movement had once been progressive it was now controlled by reactionary states such as Sudan and Saudi Arabia, because only this could explain how Eritrea could continue to fight the socialist regime of Ethiopia (Pateman, 1998, p. 82). Since early 1978, a considerable number of Cuban, Soviet and Yemeni troops in support of socialist Ethiopia battled against the Eritrean liberation forces (Pateman, 1998, p. 82).

Soviet support for Mengistu weakened in the late 1980s, as the former Soviet Union initiated the economic and political reforms that would lead to its disintegration. Fighting in unusual conditions, at odds in different times with the two superpowers of the Cold War, the Eritrean leader mobilized great support from the Eritrean population and helped to forge and consolidate a national identity. Three decades of war produced among Eritreans a sense of unity and solidarity that they had not known before. Nagash (1997) mentions that the Eritreans passed through three main stages since colonization, where the changing state of the economy and of individual freedoms under the different regimes created strange combinations during the Italian period the rule was: eat but do not talk. The British changed the rule to: talk but do not eat. In the 1960s a third experience was added, namely the Ethiopian experience where the rule was: do not eat and do not talk (Nagash, 1997, p. 24).

Afworki has made attempts to make the country more democratic, but the unstable conditions in the country have not allowed –or have given him an excuse- not to do so. A new constitution was ratified in 1997 but has not been implemented yet, and general elections were suspended indefinitely, although the government claims that it is strengthening its bottom-up democracy (Eritrea: Foreign Policy & Government Guide, 2007, p. 89).

No criticism of the government is allowed. In 2001, the president of the High Court was detained after criticizing the government for judicial interference (US Department of State, 2007, p. 4). The state maintains control on the media, continues restrictions on independent political activity, arrests political dissidents and constraints the establishment of nongovernmental organizations (Connell, 1997a, p. 3). Strong government control has affected even the charitable organizations operating within Eritrea. The Catholic Relief Service decided to close programs rather than accept controls deemed necessary by Eritrea to protect its sovereignty (Connell, 2007b, p. 2). Recently, on July 17, 2007, in his testimony before the Senate Foreign Relations Subcommittee on African Affairs, Barry F. Lowenkron, Assistant Secretary of State for Democracy said that "Eritrea and Equatorial Guinea have enacted burdensome registration requirements and apply heavy-handed oversight that make it all but impossible for non government organizations to exist" (Democracy in Sub-Saharan Africa, 2007, p. 1).

In March 2002, the European Parliament issued a resolution accusing Eritrea of human rights violations (Eritrea: Foreign Policy, 2003, p. 1). In 2004, and then in 2005 and 2006, the US declared Eritrea a Country of Particular Concern for its alleged record of religious prosecution. The 2006 declaration designed Eritrea as one of the worst violators of religious freedom in the world (US Department of State, 2007, p. 2).

The modern history of Eritrea goes back to1890, when Italy formally established the Colony of Eritrea and ruled it as a colony until 1941, when the British defeated the Italians in Africa and took over the administration (Eritrea: Foreign Policy & Government Guide, 2007, p. 12). During the period of Italian control, Ethiopia and Italy concluded three boundary agreements that together, addressed the entire common boundary of the Colony of Eritrea and the Empire of Ethiopia. Following World War II, by Article 23 of the Treaty of Peace with the Allied Powers of 1947, Italy renounced all rights and title to the Italian possessions in Africa, and agreed that pending their final disposal, the said possessions shall continue under their present (British) administration (Treaty of Peace with the Allied Powers of 1947, February 10, p. 2-3).

The United Nations received competing information about what the Eritreans wanted and sent a commission of enquiry to Asmara to make an independent investigation. The commission could not agree on the issue and a divided commission presented two reports to the General Assembly. The majority report, presented by Burma, Norway and