Time to Act is now-Ethiopia's breach of International Law should be dealt with immediately
By: Ghidewon Abay Asmerom
March 3, 2005

A statement issued by ERINA (Tuesday 23, February 2005) stated that Ethiopia has once more declined to attend a meeting called by the Eritrea-Ethiopia Boundary Commission (EEBC). Ambassador Ghirma Asmerom also had more to say on it during his town-hall meeting with almost a thousand Eritreans in Washington, DC on Sunday, 27 February. The meeting Eritrea and Ethiopia were asked to attend was aimed at hammering out a new schedule for going forward with an unconditional demarcation of the common border that was delimited on April 13, 2002. The EEBC called the meeting in light of Prime Minister's statement that he had accepted the ruling in principle and his willingness to cooperate with the EEBC.

By refusing to show up for the February 22 meeting, Ethiopia, once again, has made it clear that it stands by its rejection of the Decision of the EEBC and that it has no interest in seeing an expeditious demarcation of its common border with Eritrea. What Ethiopia's rulers are plainly saying is that they will not let demarcation go forward unless they are allowed to renegotiate, through the backdoor, the Algiers Agreement of December 12, 2000. In other words, what they want to do is to go back in history and rewrite the very same Agreement they signed in front of witnesses and guarantors vowing to implement without ifs and buts. In what they have been saying, writing and doing the past three years, if not explicitly, implicitly there are three specific Articles from the December 12, 2000 treaty they want to do away with. These are: Articles 4:2, 4.15 and 4.16.

First, Article 4.2 of the Algiers Agreement makes it clear, the mandate of the neutral Boundary Commission established by that treaty was "to delimit and demarcate the colonial treaty border based on pertinent colonial treaties (1900, 1902, and 1908) and applicable international law."  By insisting that the Commission take into consideration Ethiopia's November 25, 2004 five-point proposal in the demarcation process, the regime in Addis Ababa is demanding a change of the mandate of the demarcation which was to be based on "pertinent colonial treaties (1900, 1902, and 1908) and applicable international law," not on Ethiopia's five-point proposal. The precondition Ethiopia is putting forward to the Commission can only be allowed if the above quoted clause of Article 4.2 is changed.

Furthermore, Article 4.2 explicitly states that "The Commission shall not have the power to make decisions ex aequo et bono," the notion that a decision should not be based on what one party thinks is fair. By maintaining that demarcation based on "give-and-take" will serve the cause of justice Ethiopian rulers are asking the Commission to demarcate the border not based on its final and binding delimitation Decision and applicable international law, but based on what would be acceptable and right for Prime Minister Meles and his ruling clique. Demarcation of the border is the sole mandate of the Boundary Commission. As the Commission put it well in its 7 October 2003 letter this demand by Ethiopia, and the UN Secretary General's attempt to accommodate Ethiopia by deploying Lloyd Axworthy is "a departure from, and thus and amendment to, the terms of article 4.2 of the Algiers Agreement, which gives the Commission the mandate to demarcate the boundary." Ethiopia's insistence on an alternative mechanism to demarcate the border, be it through dialogue facilitated by the office of the UN Secretary General or through "good-faith", "give-and-take", dialogue with Eritrea, is therefore a repudiation of Article 4.2.

Second, Article 4.15 that states that "The parties agree that the delimitation and demarcation determinations : of the Commission shall be final and binding," renders Ethiopia's effort to seek demarcation not based on the April 13, 2002 decision null and void.  By holding demarcation hostage for the past three years, the Ethiopian regime has made it clear that it wants to appeal, amend and reverse the final and binding Decision of the Commission. The EEBC, since its 24 June 2002 Decision regarding Ethiopia's "REQUEST FOR INTERPRETATION, CORRECTION AND CONSULTATION", had consistently and repeatedly stated that any attempt to renegotiate the April 13, 2002 Decision is out of the question. The Commission's words from June 2002 were:

 "The Commission concludes that the Ethiopian request is inadmissible. Re-argument of the case is not permitted. The concept of interpretation does not open up the possibility of appeal against a decision or the reopening of matters clearly settled by a decision. The provisions of Articles 28 and 29 of the Rules of Procedure neither allow substantive amendment nor affect the binding quality of the Decision as rendered on 13 April 2002."

The EEBC's March 2003 Observations and October 7, 2003 letter also clearly spell why it has rejected Ethiopia's request to change the Decision. Thus, the latest publicity stunt of "accepting in principle" is another stab to change the final and binding Decision. The Commission through its latest communication with the Parties has once again exposed Ethiopia's gimmick. Ethiopia's continued refusal to recognize and respect the border as determined on 13 April 2002, continued occupation of sovereign Eritrean territory, and continuing to ignore the Commission's order of July 2002 not to settle Ethiopians on these occupied Eritrean territories is in defiance to international law and a breach of UN Security Council Resolutions.

Third, according to the Algiers Agreement, the request of the Parties is for "the United Nations to facilitate resolution of problems which may arise due to the transfer of territorial control, including the consequences for individuals residing in previously disputed territory." This request for UN's facilitation is for after demarcation, not before and for "problems that may arise due to the transfer of territorial control", not during or before demarcation. Ethiopia’s attempt to bring in the UN to help in demarcation and to state that it is doing so through the mandate of Article 4.16 is, as the Commission called it, a "misconceived" construction of Article 4.16. In fact, what Ethiopia is attempting to do is attempting to change the meaning of a clearly spelled Article 4.16. Unfortunately, the UN Secretary General, by trying to push for Lloyd Axworthy's role has also been a culprit in this violation of the Algiers Agreement as well as UN Security Council Resolutions.

It should be noted that Ethiopia’s refusal to cooperate with the EEBC in itself is a violation of Article 4.14. That article explicitly obligates the parties "to cooperate with the Commission, its experts and other staff in all respects during the process of delimitation and demarcation, including the facilitation of access to territory they control."

It is also worthwhile to comment on one of Ethiopia's favorite catchphrase. This phrase first surfaced when Ethiopia threatened rejection of the "final and binding" delimitation Decision, as early as May 13, 2002, when it submitted its "Request for Interpretation, Correction and Consultation." This catchphrase is: "demarcation should be consistent with the object and purpose of the Algiers Agreement." Even though the Algiers Agreement does not spell its "object and purpose" explicitly, it is implicitly clear that it is "to help bring lasting peace" between Eritrea and Ethiopia. This can be found in the first paragraph of the OAU Framework Agreement, a Framework which was reaffirmed in the Algiers Agreement. But neither the Framework Agreement nor the Algiers Agreement say the border should be delimited and demarcated so as to bring lasting peace. What the Agreements say, however, is that the Parties should use the delimitation and demarcation of their common border as a basis, the first step, to achieve a lasting peace. The way the framers of the peace agreements saw peace coming was not by hoping for a malleable delimitation and demarcation decisions that can prevent future conflicts but by expecting Eritrea and Ethiopia to unconditionally implement the decisions so as to use them as a catalyst for building a lasting peace. It is obvious that if this initial and vital step, unconditional implementation of demarcation, is not taken there cannot be a temporary peace let alone a lasting one. It is not up to the Commission to demarcate the border on "ex aquo et bono".

However, the Parties do have an obligation, under their signed agreements, to accept the final and binding decision and "to cooperate with the Commission ...in all respects during the process of ... demarcation." The Commission came up with a "final and binding" Decision so as to help Eritrea and Ethiopia to never look back but move forward. Ethiopia by not implementing, unconditionally, the final and binding Decision of the Commission is thus working to subvert the very peace the Algiers Agreement sought to usher and is indicating it is interested in war than peace. So Ethiopian authorities’ repeated talk of working for a "lasting and stable peace" with Eritrea is not only hollow, but also a self-serving deception; a hogwash. Ethiopia should first implement the Decision, unconditionally, and then other confidence building measures that can serve as a foundation for a lasting peace can follow. As things are going it is clear that Ethiopia is not working for a lasting peace but for a perpetual conflict. No matter what scare tactics Ethiopian rulers use or how often they repeat phrases like "demarcation by the EEBC will not bring lasting peace," "a demarcation not based on 'give-and-take' is a recipe for future conflicts," the fact of the matter is that the "final and binding" Decision is "final and binding." If Ethiopia's rulers are thinking their defiance and lawlessness will be rewarded, they can only be hallucinating. Unconditional demarcation is the only way forward; it is a prerequisite for dialogue that could lead to a lasting peace.

It is equally absurd for Ethiopia to call for normalization of relations with Eritrea before it unconditionally allows demarcation to take place on the basis of the EEBC delimitation Decision. No self-respecting party or rational government that has observed Ethiopia's consistent rejection of an internationally guaranteed/witnessed and UN Security Council endorsed agreement would want to enter into another third party guaranteed/witnessed agreement let alone a "good-faith" bilateral dialogue. How can one have a good-faith on a government that has been consistently defiant and unfaithful to its treaty obligation?

As it stands, unless the minority regime in Ethiopia respects the rule of law, normalization between Ethiopia and Eritrea is unthinkable. Eritrea cannot afford normalization with a regime that lacks credibility and defies international law. The thirty-year history of the current Ethiopian rulers (since they founded the Tigray People's Liberation Front, TPLF, on February 1975) is also replete with such unreliability and reneged promises.

The way forward with normalization is simple and straight. First and foremost, Ethiopia should accept and implement the EEBC ruling of the Commission without preconditions and unconditionally. Second, Ethiopia should immediately withdraw from sovereign Eritrean territory that it is occupying by force. After these normalization of relations can take its natural course. It should also be remembered that while implementation of the EEBC Decision is obligatory normalization is voluntary. This being the way forward those who want to help the course of lasting peace and normalization between the two nations and people should make this clear to the Ethiopian leaders. They should also do whatever they can to bring Ethiopia into compliance. This includes the UN Security Council.

In few days the UN Security Council is going to sit down, once more for another two-minute session, to consider extending, for another six months, the mandate of the United Nations' Mission to Eritrea and Ethiopia (UNMEE). This semiannual ritual has been going on since March 2001. Ever since the UN Security Council established UNMEE through Resolution 1560 on 14 September 2004 for the first six months, UNMEE's mandate has been extended eight times. Like all the previous mandate-extending Resolutions, we are certain this coming one is also going to be another copy-cut-and-paste Resolution. As they say, "talk is cheap" and all what the UN Security Council has been doing the past three years is cheap talk. Unless the Council begins to deal decisively with Ethiopia, a country that had ignored a dozen of its resolutions, and holds it accountable, it wouldn't be hard to imagine that the Council has to live with these six-month extensions for the foreseeable future. This of course is precisely what the minority regime in Ethiopia desires to happen. This is also the desire of those UN bureaucrats who are handsomely being rewarded financially for a job not so well done. This is not the desire of Eritrea and definitely should not be of all those who want this border demarcation to be settled peacefully.

It is time the UN Security Council acts not talk. It is pointless to keep extending UNMEE's mandate every six months and in the process squander resources that are much needed for combating poverty and disease. Time is running out; it is about time the UN Security Council exercise its right of invoking Chapter VII of its Charter against Ethiopia as it promised it would do in the Algiers Agreement thus preventing another disastrous war between Eritrea and Ethiopia.