"The delimitation (ድንበር መተለም) and demarcation (ድንበር መትከል) of the Borders of Ethiopia : The subtlety or illusions of international law and international relations, with focus on the Western Borders of Ethiopia with the Sudan , and the question of Badme and Port Assab."

By Tecola Worq Hagos [September 26, 2010 

I. Introduction

I thank you all sincerely for giving me this opportunity to address fellow Ethiopians in the Diaspora, on matters that are very dear to all of Us�the territorial integrity and Sovereignty of Ethiopia. Many thanks to the Organizers of this Conference and the many individuals involved in the process, especially so considering the economic crunch at this time. It is a great honor also to be among two distinguished Ethiopians whose devotion to the protection of Ethiopia �s vital interests is exemplary. I would not have asked for a better company than them during a great and perilous journey to affirm and safeguard our great heritage of freedom and independence. I am always amazed how much Ethiopians love to congregate. How I wish that we like each other as much as we seek each others accolade. I might sound very blunt with my views for there are very many reasons why I do not like how Fellow Ethiopians play political games. I can be very light and humorous and make you all feel very good about yourselves. After this conference, we will all go back to the routine of our daily lives.  But tomorrow when we get up for work, we will still have this lingering painful question about the survival of our Motherland.

We have done Ethiopia a disservice, and we have hurt each other for far too long. I often recall the parable told to me by a keen observer of our Ethiopian lives, when I was quite young several decades ago, as a piece of advice for my jaded perception of life. I must have irritated him often with my romanticized vision of Ethiopia . The parable was about a poor Ethiopian who prayed day and night to God for some reward. Because of the persistent often loud begging, God appeared in all his Glory and asked the poor man what he would like to be done for him. God said, �If you ask me to build you a house, I will build a palace, and I will also double my gift to two palaces for your friend.� The poor man lookup at God and said, �You would double what ever I asked you to do to me to my friend?� God answered, �I certainly would do that.� The poor man then pointing to one of his eyes whispered to God, �Please, take out this one eye of mine.�

The moral of the story for our time is that are we engaged in a process of blinding our one eye in the hope of blinding both eyes of our neighbor? Even as we speak there are very many heroic Ethiopians who have tremendous hope and faith in Ethiopia trying to get us all back together in order to fight for a united, wealthy, and powerful Ethiopia . I hope I am helping in that process by my controversial ideas on nationalism and the self-interest of Ethiopians as citizens of an Ethiopia first and foremost foregoing any other allegiance divided by ethnicity, religion, or ideology.

II. What is Law? What is International Law?

The meaning of Law in general and that of International Law in particular is very complex. What I hear often in our Diaspora community is either na�ve realism or total skepticism bordering nihilism. The true state of affairs may be some where in between or in a totally different plane altogether. It seems that to think of international law as definitive is not only wrong but reckless. The dichotomy of international law from national law is proper in the sense that international law is all about politics where the decisions of international forums (courts, commissions, and tribunals) are highly colored by political considerations and power politics. For example, if we look into the decisions and advisory opinions of the International Court of Justice (ICJ), numbering less than 200 cases including those decided by the Permanent Court of International Justice, the overwhelming majority of the decisions are highly influenced by the politics of the time and the political out look of the individual Judges. Arbitration decisions are even more contaminated by such subjectivity than ICJ decisions.

All such international cases are decided in a highly subjective choices made by individual judges and arbitrators whether they are considering a case in full forum or chambers or even by single arbitrators. It is delusional to think of the decisions of international forums in cases between states to be objective and strictly reflecting the norms and principles of international law. This is just a myth for our benefit, mere mortals feared to fall apart if we know the reality at those highly elevated stratospheric international forums.

Defining those who claim to have knowledge of the law may shade light also on what might be �the Law.� The Student, the advocate, the Jurist and the Statesman may each have some claim of �knowing the Law.� What is interesting is to consider their different relationship with the Law as they understood it. For the Student it is the written text that need have and be cited. It puts the dynamic life of nations and people in a form of straightjacket.  For the Advocate the law is what he can win with for his client, if it takes to chew up evidence he would do so in the best interest of his client.  In the hand of an able advocate, the law becomes a formidable weapon to role over adversaries.  For the jurist and the statesman, the law is an art form of gentle strokes and rationality. 

The controversy of the Platonist versus the Positivist approach to international law and norms remains unresolved coloring the process and the decisions of all international and national courts, arbitration commissions, or tribunals. Although the problem of the establishment of such forums is serious, the identification of international law (principles and norms) is even more daunting. Some indication from The Statute of the ICJ, namely from Article 38, may be helpful as to the possible sources to look into to fret out the principles and norms of international law. However, such sources are not solid sources, for the possibilities of non liquet (it is not clear) non-decision are far more possible in cases to be decided by international forums. 

III. International Peace Treaties

I hear often people asserting that �peace treaties� and �boundary treaties� are sacrosanct and that it is not possible to reverse such situations. Is it possible to abrogate or invalidate the signing of the Algiers Agreement back to de novo negotiations. To consider �peace treaties� irreversible or immune from changes is total misrepresentation of the reality and conditions of relationships of the nations (states) of the World, for peace treaties are abrogated or changed often, and as a genre they are the most breached and abused by all nations throughout human history. One may even narrow down such reality as the reality of the display of power by a handful of nations and their Government leaders. This should be obvious to all of us, after all did not we all witnessed the game played out at the United Nations General Assembly and in the Security Council dealing with the case of the United States and Iraq. This means it all depends on our resolute and firm stand against such bullies to preserve our national integrity.

The Algiers Agreement of 2000 created the Boundary Commission (Article 4) and the Claims Commission (Article 5). The mandate for each Commission is described with some precision but not exhaustively. For example, the Agreement allows the Commissions to adopt their own procedural provisions, for the Boundary Commission by Article 4 (11) and for the Claims Commission by Article 5 (7) such provisions based upon the 1992 Permanent Court of Arbitration Optional Rules for Arbitrating Disputes Between Two States. The challenge is to show that the Algiers Agreement is not a Peace Treaty between Ethiopia and Eritrea , but a dictated cessation of hostilities in order to sort out in the future the controversy and disputes between Ethiopia and Eritrea .

The Algiers Agreement did not settle anything as would peace treaties, it merely revived long defunct or abrogated or invalidated �colonial treaties� to benefit Eritrea to the disadvantage of Ethiopia . On that ground alone, the Algiers Agreement should be thrown to the dust bin of history. It is provided in the Algiers Agreement the shameful revival of �colonial treaties� of a century ago:

�Article 4: 2. 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 Italian Government by signing the 1947 Treaty of Peace (Paris) had declared and accepted the provisions of Article 23 stating that it had renounced �all right and title to the Italian territorial possessions in Africa, i.e. Libya, Eritrea and Italian Somaliland.� Furthermore, Emperor Haile Selassie by Order No. 6 of 1952 (Official Gazette), on 11 September 1952 declared the 1900 Convention, 1902 Treaty, and 1908 Conventions between Ethiopia and Italy to be null and void. Such declaration completed the task of terminating the so-called colonial treaties, conventions or international instruments. Although there was no legal necessity, it was a prudent step by Haile Selassie in formally declaring all Treaties entered with Italy prior to 1947 null and void. 

IV. The Boundary Commission

When I read the delimitation decision of the Boundary Commission, of 13 April 2002, I wondered whether the Commissioners had an iota of decency in reaching such horrible conclusions and insisting on implementing their corrupted decision. I do not believe it has to do with lack of knowledge of the applicable principles and norms of international law dealing with border disputes, but overwhelming greed for money. I have never read a worse decision than the one entered by the Boundary Commission. Yes the decision reads well, has Latin legal jargons strewn all over, but when you read it closely and take into account the leading cases on issues of the application of treaties, the interpretation of customary international law, and the consideration of Jus Cogens principles et cetera, the Boundary Commission�s decision is full of errors and is highly subjective and politicized. All one needs to do is read the Island of Palmas Case (Netherlands/United States) of 1928 to see how an objective highly learned arbitrator labored in interpreting the significant treaties and maps in order to distinguish between the opposing claims of Sovereignty by the Parties. The Arbitrator in the Island of Palmas case laid out also the principles and norms of international law relevant in disposing contentious claims of Sovereign rights. He devoted a considerable degree of attention on the issue of using treaties and maps to establish the rights of the Parties. He investigated the situation both before and after the crucial treaty date.

In the Ethiopia-Eritrea case the Boundary Commission was called upon to delimit first and then demark second the border between Ethiopia and Eritrea according to treaties/conventions from a hundred years ago revived by an Agreement entered in 2000 in Algiers . All the manipulative process that was common knowledge, for the controversy of the war between Eritrea and Ethiopia was headline news for almost a year since 1998, should have alarmed anyone on the Commission that the case was highly political, and needed caution and restraint. In order to avoid unacceptable form of delimitation on an area that had seen demographic movements due to war, famine, et cetera for over a hundred years, and yet the Commissioners approached their task by relying on maps drawn by self-serving Italian cartographers and the agreement of a an Emperor who had limited knowledge of the area to be delimited. Such was the 1900 treaty and the Annexed Map thereof.

It is telling to read the convoluted reasoning of the Commission in a statement that has no precedent in its lay language and in its purely subjective assertions as stated in its 13 April 2002 decision, Chapter 4 paragraph 4.8:

�The 1900 Treaty described the boundary in economical language, referring only to three river names, �Mareb-Belesa-Muna.� As a delimitation which could form the basis for a demarcation of the boundary on the ground, it fell short of a desirably detailed description, particularly in the light of the uncertain knowledge at the time concerning the topography of the area and the names to be given to geographical features. Rivers, in particular, were frequently given different names along different stretches of their courses. The Parties, however, clarified their agreement by adding to the brief verbal description of the boundary the words �as traced on the map annexed.� � It cannot be regarded as just offering a general indication of the course to be followed by the boundary. By virtue of the words the �line� traced on the annexed map,� the map contained the Parties� agreed delineation of the boundary that they intended to adopt. Although the Treaty map consists primarily of the depiction of a line, with a very few names identifying some locations near that line, the Commission considers that the same rules and principles of interpretation must be applied to the map as apply to the words used in the Treaty.�

It is unfathomable how the Commission proceeded to enter a decision in the case, after making such critical statement on the uncertain situation of using Maps. The Commission did not conduct any investigation to ascertain whether local conditions at Bademe, Irob, Zala Ambesa et cetera reflect what is being submitted as evidence by a single Map that has lines drawn on it which was admitted into evidence and statements by the Eritrean Government obtained from the Italian Government archives. Had the Commission used the guidance provided by the Island of Palmas case and other similar leading cases on the use of maps, it would have saved itself from making such monumental errors. The authoritative works on reading maps and in the delimitation and demarcation of borders of cartographers such as Jones et cetera would have illuminated the problems for a clear resolution. [See Jones S.B. (1945) Boundary Making A Handbook For Statesmen, Treaty Editors and Boundary Commissioners, Washington D.C. Carnegie Endowment For International Peace.] There are at list fifteen important cases highly relevant that would have provided the fundamentals for the disposition of the question of unreliability of maps in deciding on contentious claims of sovereignty by parties to a border dispute.  No rigorous examination of such cases was attempted by the Boundary Commission. The Boundary Commission cited one minor case on the issue of using maps for delimitation. The Commission simply rushed to decide the controversy and as a result ended up making ridicules mistakes of legal principles (law) and mistakes of facts. 

There never was any legitimate delimitation or demarcation of any sort where Ethiopia and Italy were represented on a team to delimit the border between the Italian colony of Eritrean and Ethiopia �none took place during the colonial period or later. The delimitation attempted in 2002 by the Commission seems to be de novo. Even more astounding is the fact that the Commission seems to have no clear idea about the difference between �delimitation� and �demarcation.� For example, in its decision of 2002 instead of explaining how the actual demarcation following delimitation will be accommodating of the reality on the ground that towns and villages will not be divide by necessity of legal interpretation of treaty based provisions through equitable interpretation of the treaty enforce infra legem, the Commission declined that process opting for the literal reading of the provision and the narrow view of respecting the limit on any use of �ex aequo et bono� norm. The use of equitable interpretation of treaties infra legem is not a violation of the �ex aequo et bono� safeguard in Article 4(2).

The Commission, no matter how it perceived itself, was just an �arbitration tribunal� serving at the pleasure of its two Clients, Ethiopia and Eritrea . The fact that the United Nations Security Council was in some way involved, and the fact that there was special Fund established to pay the Commissioners, the source of corruption and conflict of interest, does not alter that fact. The Boundary Commission was not an international court�period. Thus, there was no need for the Commission to enter a decision if the Parties to the dispute were not cooperative.  Its �virtual demarcation� on areal map is ultra virus act and illegal that could be even prosecuted in the local Courts of Ethiopia as a crime against the economic and national security of Ethiopia . Here is a clear case of overreaching and abuse of mandate by the Commission. The Commission should have refused to implement unjust treaties exercising its right to invoke the interpretation of treaties in preato legem. Even the immunity and privilege provisions of the Algiers Agreement, Article 4 (14) for the Boundary Commission and Article 5 (18) for the Claims Commission, will not protect such blatant abuse of mandate by any commissioner affecting the economic and political life of a Sovereign Nation.

The Press Release of 12 September 2007 by the Secretariat of the Commission stated, �The Commission also reminded the Parties that the determination of the boundary points listed in its 27 November 2006 Statement followed consideration of the views of the Parties and was in accordance with the Delimitation Decision of 13 April 2002.� This is one of several examples of abuse of mandate and the Commission acting as a Court forcing its decision on the Parties that constituted it�a clear situation for a non liquet withdrawal of the Commission from deciding the case. Moreover, note the fact that the Commission is quoting its own decision to establish a procedure that was never mandated by the Algiers Agreement. Even the single case cited  by it was not dispositive or even relevant to the controversy for it dealt with a situation where both Parties had agreed to the identification of demarcation of on an areal Map to re establish boundary points on prior demarked border, and not in a situation of uncooperative parties as was the situation in the Ethiopia-Eritrea case. The virtual demarcation by the Boundary Commission when the Clients themselves refused to cooperate or participate simply is an abuse of mandate and invalid.

Moreover, there was also gross conflict of interest during the arbitration process, for the Chairman of the Commission, Sir Elihu Lauterpacht, was retained as a lawyer by the United States in its case against Mexico . [See ICJ case Avena and Other Mexican Nationals ( Mexico v. United States of America ) I. C. J. Reports 2004] and had also longstanding fiduciary relationship with the Government of the United States. In addition, the United States has repeatedly expressed its support of � Eritrea � at the same time Lauterpacht was working as Chairman of the Commission. Lauterpacht was a paid attorney of the United States Government. To remind you all, Article 23 of the 1899 basic document that created the Permanent Court of Arbitration [Convention for the Pacific Settlement of International Dispute] holds that �each Signatory Power shall select four persons...of known competency in questions of international law, of the highest moral reputation, and disposed to accept the duties of Arbitrators.� The Boundary Commission fails that standard of conduct and should have been disqualified from entering any decision as a Commission.

I believe the invalidation and nullification of the Algiers Agreement is the first step in protecting the territorial integrity of Ethiopia and would insure Ethiopia �s continued existence. We hear and read also the words of legal and political �experts� admonishing Ethiopia for not accepting fully the decision of the Boundary Commission. This is all part of the same corrupted process of power game; it has nothing to do with justice or equitable and fully and properly negotiated settlement of disputes between Ethiopia and Eritrea . It is in fact quite shameful for anyone to try to impose such underhanded and totally corrupt process and decision on Ethiopia .

One must head the outstanding commentary by Kaikobad, an outstanding international law scholar in his recently published unique book on the subject of border dispute cases. [See K. H. Kaikobad, Interpretation and Revision of International Boundary Decisions. New York :Cambridge University Press , 2007] His reviewer Professor Enrico Milano, succinctly put the problem we are all faced with due to the pronouncements of overzealous and unscrupulous, maybe even corrupt individuals. He stated, �Despite the many arbitral decisions and judgments delivered in the last 30 years by international judicial bodies, the analysis of that case law has remained within the narrow ambit of a few legal experts. This has conveyed the impression that the law of territory constitutes a settled and uncontroversial body of international law.�

V. Land Locking of Ethiopia and Alienation of Ethiopian Citizens

1. Afar Coastal Territories:

When I state in writing and in oral discourse that the entire Afar coastal territory, which includes the port of Aseb , and the Afar people are part of Ethiopia , it is not for the sake of having access to the Red Sea . The issue of ownership is often confused with the idea of rights of access to the Red Sea . The issue should always be on Sovereignty and ownership, for access is dependant on the moment to moment whims of the granting state. My assertion is based on several international law principles and norms, such as solid historically based superior right of Ethiopia, the right of contiguity, the effective continuous display of state authority, the national security interest of a sovereign state, and above all the rights of Ethiopian citizens to live in their primordial homes without any foreign interference against their rights as citizens of a sovereign Ethiopia. There can be no valid treaty that would allow the strangulation of a Sovereign nation by its hostile and extortionist neighbors. Even more insidious is the alienation of Afar Ethiopian citizens, and the denial of their historic unity with the motherland.  The Sovereignty of Ethiopia on the entire Afar coastal territories and on the territorial waters and economic zone on the Red Sea must be restored to Ethiopia by all means.

2. Badema and Irob Area:

Here is the most heart wrenching effect of the border conflict that was started by the Eritrean Government, and the decision of the Boundary Commission would only exasperate an already inhumane situation. Forcing the Kunama, the Bilen,  the Irob people or the town and village people of Bademe, or that of Zala Ambesa et cetera against their wishes, into losing their historic land and citizenship goes against the principles enshrined in the Charter of the United Nations, numerous Resolutions by the General Assembly of the United Nations, and Resolutions of regional organizations such as the AU. There is no way one can abrogate such Jus Cogens rights of fundamental norms and principles of international law by a bilateral treaty or by a decision of an arbitration Commission, or arbitration tribunals or the ICJ.

3. The Border with Sudan :

To date there had not been any publication by the current Ethiopian Government of Meles Zenawi of the substance of the negotiation or draft agreement with Sudan on the Western Border of Ethiopia. We hear Meles Zenawi stating that his Government is not giving away any Ethiopian Territory to Sudan , but at the same time he is deciding what constituted Ethiopian territory. This is a circular and devious argument meant to undermine the historic fact of Ethiopian controlled border lands he had decided to cede to Sudan by labeling over sixty thousand square kilometers of Ethiopian territory with thousands of towns and villages and homes of millions of Ethiopian citizens not Ethiopian territory. It is not up to Meles Zenawi to decide what Ethiopia �s territory is. Meles Zenawi is a traitor who had acted against the national security interest and the political and economic interest of Ethiopia . There is no question as to his criminal activities.

VI. The Role of The United States and Arab Nations

The re are many who believe the Government of the United States was at best indifferent toward Ethiopia before the September 11, 2001 terrorist attacks on the United States . The Government of the United States is now actively supporting Meles Zenawi with money, military hardware, military intelligence because Meles serves the security interest of the United States against Al-Qaida. But in the early period of the 1990s to the end of the Clinton Government, the United States was a formidable adversary to Ethiopia . Even now its friendship with Ethiopia is tenuous, if it were the case that Issayas Afeworki turns his face toward the United States , the United States will drop Ethiopia without even a single thank you for all the services Ethiopia has rendered in the security interest of the United States . It was all the work of President Clinton and his Administration that facilitated the ashatir against the beleaguered Ethiopian State . Clinton found a willing participant in that formulation in Meles Zenawi.

I assert that the expensive war fought by Ethiopia to repel Eritrean aggression was instigated by Eritrea and the United States to frighten off Ethiopia for the purpose of settling the border question that was unresolved; it just simply got out of control and escalated to such destructive end. Clinton �s man on the filed was Anthony Lake who helped design the one-sided Algiers Agreement of 2000 that totally undermined the legitimate right of Ethiopia to its Afar territories and territorial waters on the Red Sea . Now, we have the ill advised support by a number of Ethiopian politicians in the Diaspora of a Bill titled �Support for Democracy and Human Rights in Ethiopia Act of 2010,�  S. 3757 sponsored by Sen. Russell Feingold (D-WI) with Sen. Patrick Leahy (D-VT) as a co-sponsor (August 5, 2010) is to benefit Eritrea by forcing Ethiopia to accept the corrupt decision of the Boundary Commission, and give up its people and land and territorial water on the Red Sea, with the same scheme that was the brain child of the Clinton Administration�s fraudulent involvement as a broker of �Peace� while promoting the single interest of Eritrea and its own.

Arabs are our historic enemies not just because most Ethiopians are Christians; the enmity goes back hundreds of years when the Arabs of the present day Saudi Arabia and Yemen were subjugated for centuries by Ethiopians. They had to get the help of Persians to stand on their feet later. No matter what is claimed in the Haddith as the sayings of the Prophet Mohammed, Arabs will at all time seek the destruction of Ethiopia . Behind every obstacle for development loans, military assistance from the West, one can easily find Arab influence pulling the strings against the developmental interest of Ethiopia . The same historic enemies of Ethiopia , which are the residue of the Ottoman Empire, such as Saudi Arabia , Egypt , Iraq , Syria , and a number of tiny Gulf States no bigger than �oil wells with flags� are all engaged in financing the current Jihadist insurgence movement that is aimed at the very heart of Ethiopia .

VII. Conclusion

The case or situation of the border dispute between Ethiopia and Eritrea should have been left to mature and for the fog of confusion of legal principles and factual matters to clear up. The main reason for all the controversy surrounding the decisions of the two Commissions has to do with immature and rushed process for adjudication a controversy that had its source in hundreds of years of history and rivalry. Temporary peace would have been maintained without the rush to settle the controversy in a legal forum. The Framework Agreement of 1999 and Agreement on Cessation of Hostilities of 2000, even with their limitations did provide such breathing space. The creation of the Boundary Commission was a serious failure of statesmanship of Former Presidents Jimmy Carter and Bill Clinton.

Because Ethiopia is much more than its constitutive parts, it is also never equivalent or interchangeable with its political or religious leaders. One must not confuse Meles Zenawi and his Government with the State of Ethiopia. Our dislike, in my case utter contempt, for Meles Zenawi and his sycophantic supporters, should not blind us from seeing the danger our Ethiopia is facing at this point of our history. There is always enough time to throw out an errant leader and start a new leadership; however, there is no sufficient time to reconstitute a nation once lost.

God Bless You All!

God Bless Ethiopia !

Tecola Worq Hagos

Washington DC

September 25, 2010