Two questions have been raised on this issue.
A.1. The first concerns the omission of any reference to "colonial treaties and applicable international law" in paragraph 5 of the preamble to the Technical Arrangements, while the preamble to the Framework Agreement does so.
A.1.1. In this regard, it is useful to underline that the preamble to the Framework Agreement sets forth both a principle and an approach.
A.1.2. The principle set forth is that of the "respect for the boundaries existing at independence, as stated in Resolution AHG/Res 16(I) adopted by the OAU Summit in Cairo in 1964".
A.1.3. The approach set forth is that of the "determination of those borders on the basis of pertinent colonial treaties and applicable international law, making use, to that end, of technical means to demarcate the borders and, in the case of controversy, resort to the appropriate mechanism of arbitration".
A.1.4. The Technical Arrangements, which must be read as a whole, do not depart from the contents of the Framework Agreement on this issue.
A.1.5. The specific basis for delimitation and demarcation of the border, as contained also in the "Framework" and "Modalities", are set out in paragraphs 11,12 and 13 of the Technical Arrangements.
A.1.6. The third sub-paragraph of paragraph 11 clearly states that "the delimitation and demarcation process will be done on the basis of pertinent colonial treaties and applicable international law".
A.2. The second requested clarification on this issue goes to whether "this omission has any implications for delimitation and demarcation of the boundary".
B.1.The comments leading to the first question compare (a) the mission of the Committee of Ambassadors sent in 1998 by the OAU High Level Delegation to (b) the mission of the Neutral Commission provided for in paragraph 3 of the Technical Arrangements.
B.1.1. The missions of these two bodies are different in important respects. The Committee of Ambassadors conducted discussions with the political authorities of the two Parties in their respective capitals. On the other hand, the purpose of the Neutral Commission, as stated in paragraph 3 of the Technical Arrangements, is to facilitate the full implementation of paragraph 5 of the Modalities with a view to returning to positions held prior to 6 May 1998. To do so, the Neutral Commission is mandated to determine what those positions were. In conducting its work, the Commission will, necessarily, visit the field, while utilizing whatever information it deems relevant and while consulting with the Parties. It is essential that this determination be made as swiftly as possible in order to enable the rapid, subsequent redeployment of forces, in accordance with paragraph 8 of the Technical Arrangements. The Additional steps necessary to execute redeployment by the Parties, especially the redeployment of observers, must proceed concurrently with the work of the Neutral Commission in order to enable the swiftest possible redeployment and restoration of civilian administration.
B.1.2. As a practical matter, the safety of the members of the Commission as they visit an area currently a military frontline can only be assured in the context of the cessation of hostilities called for in paragraph 2 of the Technical Arrangements.
B.1.3. The establishment of the Neutral Commission and the execution of its mandate are an integral part of the implementation process as agreed and requested by the Parties.
B.1.4. In any event, the Framework Agreement, which remains the reference for the settlement process (supplemented by the Modalities), specifies under paragraph 1 that "the two Parties commit themselves to an immediate cessation of hostilities".
B.1.5. Similarly, the Modalities specify under paragraph 3 that "the two Parties agree to put an end to all military activities and to all forms of expression likely to sustain and exacerbate the climate of hostility and thus compromise the implementation of the Framework Agreement". On their acceptance of the Modalities, the two Parties thus committed themselves to this provision.
B.1.6. Thus, the cessation of hostilities committed to by both Parties on their respective acceptance of the Framework Agreement and the Modalities must come into force with the commencement of the implementation process.
B.2. The second question raised on this issue asks whether redeployment of the Eritrean troops 50 days after D-day is not contrary to paragraph 4 of the Modalities, which provides for immediate commencement of redeployment following cessation of hostilities.
B.2.1. The answer is a practical one. Paragraph 4 of the Framework Agreement specifies that "this redeployment be supervised by a group of military observers, which will be deployed by the OAU with the support of the United Nations?". A period of time between the cessation of hostilities and the actual start of redeployment will be required. Furthermore, time must be allowed for the work of the Neutral Commission.
B.2.2. Qualified experts from the OAU and the UN have determined that a period of 50 days following signing will be required for the work of the Neutral Commission and deployment of military observers. The evaluation of this period of time must remain the prerogative of the OAU and UN, which will be determined, in consultation, of course, with the Parties.
B.2.3. It is clearly understood that acceptance of the cessation of hostilities by the Parties is an indivisible part of their acceptance of the complete Technical Arrangements, including specifically paragraph 8.
B.3. The next question on this issue concerns the absence of reference in the Technical Arrangements to a formal cease-fire (as referred to in paragraph 7 of the Modalities).
B.3.1. This is also an issue of practicality. A formal cease-fire is not required for the successful implementation of the process laid out in the Technical Arrangements, since each Party will be bound by the conditions specified in paragraph 2 of the Arrangements.
B.3.2. The confidence of the Parties in this cessation of hostilities should be reinforced by the fact that the OAU and the UN are the guarantors of the scrupulous implementation of all the provisions of the OAU Framework Agreement, the Modalities for the implementation of the Framework Agreement and the Technical Arrangements.
B.4. The next questions on this issue are related to the scope of the cessation of hostilities and to any differences in the terms used to describe cessation of hostilities in the various OAU documents, some of which are more specific than others.
B.4.1. All of the terms used are consistent with common definitions of "cessation of hostilities" and with established practices in missions conducted by the OAU and under Chapter VI of the UN Charter.
B.4.2. As with other issues, the Technical Arrangements, in paragraph 2, provide the greatest detail on the scope of a cessation of hostilities. Of course, this provision of the Technical Arrangements does not negate the provisions of the Framework Agreement and the Modalities for its implementation. Taken together, all these provisions are consistent with the "normal cessation of hostilities" mentioned in the question, neither adding nor detracting from it.
C.1. The first aspect of the clarification requested under this chapter is related to the prohibition of deportations from areas where civilian administration is restored. The exact question is about the extent to which this corresponds with the sovereign right of a State to take measures to remove any national security threat to the Nation.
C.1.1. The answer to this question is clear : a reading of the Framework Agreement, the Modalities and the Technical Arrangements shows that the three documents as a whole (constituting the settlement plan) are not meant in any way to question the sovereignty and the authority of either of the two Parties over the whole of its territory, it being mutually understood that the redeployment shall not prejudice the final status of the territories concerned, which will be determined at the end of the border delimitation and demarcation process.
C.1.2. While not questioning the sovereign rights of either Party, it should be noted that, beyond the issue of defusing tension and building confidence addressed under paragraph 1 of the Framework Agreement, acceptance of the Framework Agreement ties the two Parties to humanitarian commitments specified under paragraph 8/a, which states that "the two Parties commit themselves to put an end to measures directed against civilian population and refrain from any action which can cause further hardship and suffering to each other's nationals".
C.1.3. The specific provision in paragraph 9 (a-2.1) of the Technical Arrangements, which is the subject of this question, is clearly limited in scope to areas where the civilian administration of each Party had been restored.
C.1.4. The ban on the displacement or deportation of the civilian population of one Party by the other Party in these areas is therefore meant as a general principle connected with the humanitarian commitments by each Party in accordance with the provisions of the Framework Agreement. It is a principle whose sovereign acceptance by each Party does not require the questioning of its national authority. Moreover, "prohibition on displacement and deportations of civilian populations" is not intended to preclude the expulsion, subject to due process, of individuals determined to pose a specific threat to national security. It is expected that such expulsion, if any, would be conducted in a transparent fashion.
C.2. The second aspect of the clarifications requested on this issue relates to the questions concerning militia.
C.2.1. The first question raised concerns the meaning of "prohibitions of display of weapons by the militia". In this connection, the clarifications are as follows:
C.2.1.1. The phrase "prohibitions of display of weapons" clearly allows that the militia will go back to the areas where the civil administration has been restored (and of which it is part) with its usual armament.
C.2.1.2. Prohibitions of the display of weapons are applicable to the militias of the two Parties in populated areas where civilian administration has been restored. This provision is therefore limited in space. This measure is set forth bearing in mind:
a-the commitment of the two Parties to defuse tension and to build confidence (paragraph 1 of the Framework Agreement); and
b-the fact that in accordance with paragraph 4 of the Framework Agreement (supplemented by paragraph 9-b1 of the Technical Arrangements) the peacekeeping mission may assist the police force, when it is requested and in the appropriate form, in the areas where civilian administration has been restored.
C.2.1.3. Without disregarding the specific mission assigned to the militia of the two countries of contributing to maintenance of law and order, it should be noted that in the climate of confidence necessary for the implementation of a specific agreement on the settlement of an armed conflict and with an international presence deployed to observe it with the mutual consent of the two parties, it is not accepted international practice in such circumstances that individuals may brandish weapons in a manner that could intimidate the population.
C.2.1.4.The spirit of this provision is to make clear that the respective governments are allowed to undertake normal, administrative functions, including law enforcement, but that - for the sake of smooth implementation of the Agreement - disruptive problems are to be prevented on both sides of the border. It represents a contribution to the peaceful implementation of the agreement, made by each of the two parties without prejudice to the attributes of each State concerned or to its own administration.
C.2.1.5. It is important to note that paragraph 9 of the Technical Arrangements provides clear assurances for the security of the local population.
C.3. A second question is about whether the militia will assume missions of law implementation in the rest of Ethiopia.
C.3.1. In response, it remains understood that the implementation of the settlement plan under international observers does not question the rules and principles applied by each of the two Parties in law enforcement. This therefore applies also to the traditional functions of the militia in the light of the provisions of article 4 of the Framework Agreement and of the provisions of paragraph 9 of the Technical Arrangements.
C.3.2. The Parties may wish to provide militia members performing police functions, under the control, authority and discipline of the police, with appropriate training on the sensitivity and importance of the situation and with instruction on their responsibilities.
C.4. A third question is about whether in this instance the militia could bear weapons.
C.4.1. The answers given immediately above address this question.
C.5. The following points respond to the questions about the peacekeeping mission and its relationship to the local liaison and grievance resolution mechanisms.
C.5.1. Regaring the local liaison and grievance resolution mechanisms, including ensuring the local population access to those mechanisms (paragraph 9 b-2), this arrangement reflects the letter and spirit of:
a-paragraph 8.a through 8.c of the Framework Agreement, which set forth the humanitarian commitments of the two parties; and
b-paragraph 6 of the Modalities, which states that "?the group of military observers will carry out any other duties that are entrusted to it, in conformity with the relevant provisions of the Framework Agreement".
C.5.2. Thus, the possible institution of these communication channels open to the local populations in the Technical Arrangements is based on the contents of paragraph 6 of the Modalities. Its objectives are pursuant to paragraph 8.a of the Framework Agreement which states: "At the humanitarian level, the two Parties commit themselves to put an end to measures directed against the civilian population and refrain from any actions which can cause further suffering to each other's nationals".
C.5.3. A decision to establish such mechanisms could be made, as necessary, by the peacekeeping mission only in a consultation with the Parties as is normally the case.
C.5.4. To the specific question on the mandate for these mechanisms, the answer is clear. Their mandate will be to observe and verify the implementation of the agreements and report their findings to the competent bodies, as well as to the peacekeeping mission. They will not have a mandate to take decisions or enforce them. It is equally clear that the local administration of each of the two Parties will keep full responsibility for maintaining order and implementing law.
D.1.Regarding the question of knowing whether individuals can have a direct access to the mechanism of arbitration or whether it is up to their respective Governments to plead their case, the necessary clarifications are as follows:
D.1.1. As specified under paragraph 8-b of the Framework Agreement and 14 of the Technical Arrangements, the resolution of the humanitarian issues and of the socio-economic consequences of the conflict is first of all the direct responsibility of the two Parties (and therefore of the two governments which commit themselves to address it).
D.1.2. In case of a failed negotiation or mediation in that respect, the two Parties commit themselves to agreeing to an appropriate mechanism of arbitration (paragraph 14 of the Technical Arrangements).
D.1.3. The same paragraph 14 allows that, in case the two Parties are unable to agree on a mechanism or arbitration, the Secretary General of the UN, in consultation with the Secretary General of the OAU, (and both Parties as appropriate), will institute an appropriate arbitration mechanism. The method of work of this body will be determined in the course of this process and in accordance with customary international practice.
D.2. Regarding the issues that may be referred to the arbitration mechanism, and without prejudice at this stage to the issues that can be raised by any Party, it is important to specify that:
D.2.1. The scope for this is set out in most general terms under paragaph 8-b of the Framework Agreement and under paragraph 14 of the Technical Arrangements.
D.2.2. The process of negotiation or mediation allowed for under paragraph 14 of the Technical Arrangements does not put any additional limitation to what has been stated above.
E.1. The following clarifications address questions about the term "Peacekeeping mission".
E.1.1. The participation of the UN, in addition to the OAU, in observing and verifying the implementation of the settlement plan is provided for in the Framework Agreement, especially in paragraph 4.
E.1.2. The preparation for such cooperation with the UN was evident in a visit by the OAU General Secretariat, from 12 to 14 April 1999, on the invitation of the UN Peacekeeping Department (as referred to in paragraphs 70 and 71 of report of the Secretary General on the efforts of the OAU High Level Delegation (CM/2100/LXX).
E.1.3. This collaboration is also indicated under paragraph 6 of the Modalities.
E.1.4. The OAU remains at the centre of the process. The OAU holds the main political responsibility of implementing the settlement plan. But in practical terms, the OAU is constrained in its logistic and financial means. These are, thus, the reasons that led to the stating in paragraph 4 of the Technical Arrangements of the establishment of a UN peacekeeping mission. In doing so, the aim is to ensure the best conditions for the efficient and assured implementation of a settlement plan accepted by the two Parties. It is important that, as specified in paragraph 4 of the Technical Arrangements, the OAU will also deploy its personnel and designate its own Secretary General's representative, who will work in close cooperation with the UN peacekeeping mission.
E.1.5. The term "peacekeeping mission" is consistent with the terms used by the UN when this Organization acts under Chapter VI of its Charter. In this case, the peacekeeping mission is to observe and verify the implementation of the settlement plan in accordance with the terms of the Framework Agreement, the Modalities and the Technical Arrangements. It is not the peacekeeping force one would find in a Chapter VII operation.
E.1.6. The scope of this peacekeeping mission will be determined by the United Nations in cooperation with the OAU, and in consultation with the Parties. It will be shaped to meet the tasks defined in the Framework Agreement and the Modalities, and specified in the Technical Arrangements.
E.1.7. Regarding the duration of the peacekeeping mission and its supplies, which will be guaranteed by each Party through its territory, it remains understood that this will be done in cooperation with the government concerned, in accordance with an arrangement which will be concluded by the Parties with the UN, and with respect for the sovereignty of the country concerned.
E.3. As regards the assistance to be rendered by the peacekeeping mission in accordance with paragraphs 8.b and 8.d of the Technical Arrangements, it is clear that, as is the case for any assistance, a prior request by the Party (administration) concerned would be required.
F.1.The first question on this issue is whether any disputes requiring arbitration would be submitted segment by segment. The following clarification is provided.
F.1.1. The Parties accept that the delimitation and demarcation process will be done on the basis of pertinent colonial treaties and applicable international law. This may not be in dispute.
F.1.2. Under paragraph 11 of the Technical Arrangements, it is stated that "Upon acceptance by the Parties of the delimitation of each segment, the binding demarcation of that segment will be carried out. Such signed acceptance shall be given to the UN Cartographic Unit within one week, unless arbitration is requested by either Party".
F.1.3. Under paragraph 13 (subparagraph 3) it is specified that the Boundary Commission shall decide "such issues" (plural), which implies that claims can involve each disputed segment. Furthermore, paragraph 15 of the Technical Arrangements specifies also that the demarcation process, too, is to be completed segment by segment.
F.1.4. Thus, it should be assumed that any requests for arbitration on any segment will be submitted in the context of that segment, so that work on other segments may proceed while that issue is being arbitrated.
F.1.5. As for the question of whether each Party will have the right to submit its case and evidence to the UN Cartographic Unit and the Boundary Commission, the answer is clearly positive. In any case, the UN Cartographic Unit in charge of delimitation and demarcation will make available any further clarification requested by either Party.
G.1. With regard to questions on the provisions of Annex III on demilitarization procedures, the following clarification is made:
G.1.1. As set out under paragraph 12 of the Technical Arrangements, a possible demilitarization of some areas may prove to be necessary in order to defuse tension and facilitate the delimitation and demarcation process. This is the sole understanding of the concept of demilitarization set out in paragraph 12 and Annex III.
G.1.2. A local demilitarization may be required by the peacekeeping mission, as stated in paragraph 12 of the Technical Arrangements.
G.1.3. A local demilitarization plan would be submitted by the appropriate Party or Parties to the peacekeeping mission, which would first approve it for the technical merit and then observe and verify necessary troop movements.
G.1.4. This process will be conducted in a spirit of cooperation and will enable the peacekeeping mission to observe such movements effectively.
G.1.5. The term "original positions" in subparagraph 3 of Annex III refers to the positions occupied at the time of the commencement of the local demilitarization. Return back to such positions, at the end of the local demilitarization, will be at the determination of the peacekeeping mission.
H.1.1. A series of questions have been raised concerning the establishment and operation of a set of bodies provided for in the Technical Arrangements. These are:
H.1. All the bodies and mechanisms required are to be established in consultation with the Parties involved, who are expected to cooperate with such bodies and mechanisms, and, in some areas, to participate in them.
H.1.2. As they pursue their respective missions, these bodies and mechanisms are expected, as possible, to act in consultation with the Parties.
I.1. With regard to the scope of the determination by the mechanism on investigation provided for in paragraph 10 of the Technical Arrangements and the mandate of this mechanism, it should be noted that:
I.1.1. The scope of this independent investigation is set forth in paragraph 7 of the Framework Agreement and faithfully reproduced in the first subparagraph of paragraph 10 of the Technical Arrangements.
I.1.2. This investigation shall be conducted by an independent, impartial body as provided in subparagraph 2 of same.
I.1.3. Each Party should not at this stage anticipate elements it can submit to this body, but present those elements directly to it.
I.1.4. Finally, the mandate of this independent and impartial body is investigatory, as provided for in paragraph 7 of the Framework Agreement and paragraph 10 of the Technical Arrangements.