At the
invitation of the Boundary Commission extended during the 8-9 November
meeting in London, Ethiopia and Eritrea submitted comments on 24 January
2003 regarding various aspects of the demarcation process (“24 January
Comments”). Thereafter, the
Parties met with the Commission in London on 8-9 February. Subsequent to the meeting the
President issued an Eighth Report of the Eritrea-Ethiopia Boundary
Commission (“President’s Report”) made public on 10 March and the
Commission’s Observations were issued to the Parties on 24 March 2003
(“Observations”). In its cover
letter to the Observations and its Demarcation Instructions of 21 March, the
Commission invited the Parties to respond to each other’s 24 January
Comments and to each other’s proposals for the delimitation and demarcation
of Tserona and Zalambessa respectively. Having carefully reviewed all of the
various documents, the Government of Ethiopia provides herein its
comments.
Since the 13
April 2002 Decision Regarding the Delimitation of the Border Between Eritrea
and Ethiopia (“April 2002 Decision”), Ethiopia has been working diligently
with the Boundary Commission to ensure that the April 2002 Decision is
implemented during the demarcation phase in accordance with applicable legal
principles. Ethiopia’s position
regarding demarcation has been consistently conveyed to the Commission at
its meetings with the Parties beginning in May 2002 and most recently in its
comments filed on 24 January and at the meeting of 8-9 February. Ethiopia provides these comments as part of Ethiopia’s continuing effort to assist the Commission by providing information relevant to the demarcation process.
Ethiopia’s comments are set forth in the following
Sections III- IX, a summary of which is hereby provided.
Section III of these comments reviews the authority and obligation of the Commission based on the Agreements between the Parties, the April 2002 Decision and other applicable legal standards.
The Commission’s Observations suggested that Ethiopia’s 24
January Comments were more extensive than appropriate and would undermine
the April 2002 Decision. However, Ethiopia’s Comments have only dealt with issues the Decision
had, itself, opened for study by the Commission’s field staff to be
supplemented by the Parties’ comments as required by the Commission’s
Demarcation Directions and Rules of Procedures. The Decision clearly provided for
“adjustments and variations” to the provisional boundary coordinates set out
in the Decision’s Dispositif. This aspect of the Decision is
described in detail in Section III and in attached pages of the transcript
of the Commission’s February 8, 2003 meeting.
To Ethiopia’s surprise, the Commission was critical of
Ethiopia’s 24 January Comments in the President’s Report and its
Observations. Even more
surprising, the Commission chose to make its criticism public, even though
the Commission’s rules provide for confidentiality in its proceedings. Thus, it is particularly important
to correct, in these comments, a number of serious misstatements relating to
the record now before the Commission, and this is done in Section IV.
For example, the Observations stated that Eritrea had
provided evidence of Eritrean acts of governmental administration for the
town of Badme. In fact, Eritrea
did not provide even a single document showing Eritrean administration of
Badme. Instead, Eritrea
acknowledged Ethiopia’s administration. In contrast, the record contains a
large number of documents provided by Ethiopia showing its governmental
administration of the town. The
Commission stated that Ethiopia had submitted maps showing Badme as being on
the Eritrean side of a “distinctive straight line,” but Ethiopia has never
submitted any such map. Eritrea, however, did submit maps to the Commission showing Badme in
Ethiopian territory. Serious
factual mistakes are also pointed out in Sections IV and V with reference to
Fort Cadorna, Acran, the controlling nature of the Dispositif, the
division of border communities, and the “northern and western fringes of the
Endeli projection.” Review of
the record and field work should provide a basis for adjustment of
coordinates in the Dispositif to accord with the record before the Commission.
Applicable legal standards require and permit appropriate
revisions to the Dispositif coordinates as explained in Section
IV. Refusal to make such
adjustments would undermine the legitimacy of the April 2002 Decision which
Ethiopia has accepted on the reasonable understanding that the Commission
will carry out the tasks it has set for itself in that Decision and that
applicable legal standards would apply.
In Section V, these comments provide assistance as to
on-the-ground study and subsequent revisions to the Dispositif coordinates needed to demarcate a boundary which is not manifestly
impracticable or inconsistent with new information derived from more
accurate maps now available and work of the field staff carried out or to be
carried out per the Commission’s instructions after the April 2002
Decision.
These comments in Section VI also note the Commission’s
acknowledgement that the United Nations has an important role, under
paragraph 4(16) of the December 2000 Algiers Agreement, in addressing
problems and anomalies identified by the Commission itself, but which the
Commission does not intend to correct. No demarcation can be final until such problems are resolved so that
the fundamental object and purpose of the Algiers Agreements which
established the peace process can be achieved.
.
As observed in
Ethiopia’s 24 January Comments, Ethiopia is firmly committed to the peace
process established by the Algiers Agreements and accepts the April
2002 Decision. The 24 January
Comments noted, however, that in order for the final demarcation to be
accepted by the Parties and their citizens, demarcation must be conducted in
a manner consistent with the April 2002 Decision itself; the constitutional
agreements signed and reaffirmed in Algiers (“Algiers Agreements”); and
conventional international demarcation practice. Certainly, the fundamental object and purpose of the Algiers Agreements, achievement of a sustainable peace and prevention of further suffering of the Parties’ people, must inform the Commission’s demarcation of the boundary.
The Algiers Agreements were not imposed upon the Parties
by measures of the Security Council under Article VII of the Charter, but
were freely negotiated through the facilitation of the United Nations
Secretary General under Article VI of the Charter, the Organization of
African Unity and friendly states. The Government of Ethiopia bears a solemn responsibility to its
citizens, as a party to the Algiers Agreements, to ensure that the
obligations and commitments undertaken by Ethiopia and Eritrea to secure a
lasting peace and prevent further suffering of their people, will be
honored. Given the role of a correctly demarcated border in securing these objectives, it is the duty of the Government to see that demarcation is carried out in a manner consistent with applicable legal standards.
In this regard, Ethiopia notes the conclusion of the
Commission in Paragraph 4 of the President’s Report that there would be
“certain likely problems” resulting from the demarcation envisaged by the
Commission. Similarly, the
Commission notes in its Observations at Paragraph 28 that it anticipates
“anomalies on the ground.” These problems and anomalies pose very serious
threats to the fundamental objectives of the Algiers Agreements and include
those identified in the President’s Report that result from ignoring the
human and physical geography in the border region, and others resulting
from, inter alia, misidentification of locations and geographical
features. Such grave problems
could not be ignored without undermining the Algiers Agreements, destroying
the integrity of the April 2002 Decision itself, and threatening the peace
process. The Commission’s Observations have clarified some aspects of the
upcoming demarcation work in this regard. Ethiopia welcomes the Commission’s
intention to address locations where the delimitation line of the April 2002
Decision might result in a manifestly impracticable boundary and the
Commission’s intention to have its staff examine certain other locations in
order to revise the coordinates in the Dispositif on the basis of
information now available from more accurate maps and the staff’s
on-the-ground inspection. Such activities will build confidence in the demarcation process.
For the Commission to address during demarcation the
problems and anomalies identified by Ethiopia and the Commission would be
fully consistent with conventional international demarcation practice and
the April 2002 Decision. Far from reopening fundamental matters already settled, the Commission’s attention to these issues is required to resolve fundamental matters set out in the April 2002 Decision as remaining to be resolved during the demarcation process.
In its April 2002 Decision the Commission determined to
adjust the treaty boundary lines the Commission established in its Decision.
The Commission concluded such adjustments to the treaty boundaries would be
necessary as a matter of applicable international law. At the same time, the April 2002
Decision noted: 1) that the
Commission lacked reliable information about the facts on the ground, for
example, specifically stating that it was “hampered by the inability of the
Parties to identify with sufficient particularity the location of the places
to which they refer;” 2) that there
was “no generally agreed map of the area depicting place names with any
degree of reliability;” and, 3) that “[m]ap
evidence [was] not uniform and consistent…. [and] on so small a scale, or so
devoid of detail, that it can only be treated as ambiguous in this
respect.” The Commission had not been able to
conduct any ground examination prior to the issuance of the April
2002 Decision. In consequence, the April 2002 Decision stated that the
coordinates set forth in the Decision were “not necessarily final and the
Commission may have to adjust or vary them in the course of demarcation” and
that the maps were for illustrative purposes only. Based on such findings and comments,
Ethiopia expected that the Commission’s demarcation work would include
remedying the deficiencies in the factual information acknowledged by the
Commission; that the demarcation would reflect a standard of manageability
and rationality in relation to the local circumstances; and that adjustments
and variations by the Commission to the line set out in its Dispositif would be made to deal with such matters.
It was thus Ethiopia’s reasonable expectation, based on
the Algiers Agreements, the April 2002 Decision and general international
law, that the Commission would take into account local conditions through
careful fieldwork during demarcation. Ethiopia could never have contemplated
that the Commission would adopt a line of demarcation which would divide
communities, separate villagers from their croplands and pastures, or water
sources, or from their schools and clinics, or from their centuries-old
churches and cemeteries.
As Mr. Ian Brownlie, QC, CBE, explained during the Commission’s February 8, 2003 meeting:
. . . the Commission, in drafting the Award, on a whole
number of occasions in the Award, has validated – and I use the locutions of
the Commission – what the Commission called “adjustments and variations of
the Treaty line.” Ethiopia is
more than a little uncomfortable at this stage to be told that such
adjustments and variations are out of the question.
Certain of the applicable legal principles and the
statements in the April 2002 Decision which formed the basis for Ethiopia’s
reasonable expectation that “adjustments and variations of the treaty line”
would be made were detailed by Mr. Brownlie during the February
meeting. The relevant section of the transcript is at Attachment 1 for the Commission’s convenience.
The problems and anomalies remaining to be addressed
during demarcation, while of extreme importance, are relatively few in
number and relatively small in geographical scope. While Ethiopia considers that such
attention to such problems and anomalies is fully within the power of this
tribunal, the President’s Report and the Observations suggest there may be
serious problems which the Commission will not address. Because no final demarcation can be consistent with the constitutional agreements until such problems are resolved, the Commission has properly commented upon the availability of paragraph 4(16) of the December Agreement as discussed further in Section VI below.
Unfortunately, the Observations include a series of
significant misstatements relevant to Ethiopia’s 24 January Comments and the
demarcation. As the Commission
decided to make its Observations public, Ethiopia feels it necessary to set
forth here the relevant facts. These relate primarily to Badme and the Western Sector, Fort Cadorna,
Acran, the controlling nature of the Dispositif, the division of
border communities, and the Endeli projection (Irob). It is the obligation of the
Commission to correct these misstatements to ensure that they do not
adversely affect the demarcation. Each of these will be dealt with in turn.
Several misstatements regarding Ethiopia’s evidence of its administration of Badme are included in the Observations.
Quantity
and Quality of Evidence Submitted By Ethiopia
Regarding
Badme and the Western Sector, the Observations claim that “although
[Ethiopia] produced some evidence [of governmental activities west of the
line of the traditional signature] in its Counter Memorial, it did not add
to or develop this in its Reply.” The Observations continue:
Overall, the
evidence was nothing like what might have been expected had Ethiopia’s
presence there in the period before the case been as significant as Ethiopia
now alleges. The Commission
would note that what is relevant here is governmental and not private
activity. The references to
Ethiopian governmental control of Badme and its environs were insufficient
to persuade the Commission that an Ethiopian presence west of the line from
Points 6 to 9 would support a departure from the line that had crystallized
by 1935.
18. This
conclusion followed from the inadequacy of Ethiopia’s evidence.
This statement
is surprising in light of the Commission’s willingness to make large
adjustments on behalf of Eritrea on the basis of far less evidence, and even
for a location that Eritrea falsely labeled “Fort Cadorna.” As explained in Section IV(B) below, the Commission made an adjustment to the 1900 Treaty line in Eritrea’s favor based on a location for Fort Cadorna that was supported by not a single piece of evidence and that the Commission in its Observations acknowledged was false.
Ethiopia
provided the Commission with 50 documents demonstrating Ethiopia’s
administration of areas west of the Eritrean claim line in the Western
Sector. Forty of these
documents demonstrated Ethiopia’s administration of Badme. The Commission’s emphasis that “what
is relevant here is governmental and not private activity,” seems misplaced,
because 41 of the 50 annexes, and all but four of the 40 documents
concerning Badme were unambiguously governmental documents (such as
intra-governmental correspondence, police reports, licenses, etc.). The few annexes that did not concern unambiguously governmental acts were of comparable relevance because, as explained in Ethiopia’s Counter-Memorial, the administrative divisions of the Ethiopian Orthodox Church mimicked governmental subdivisions.
During oral
argument Eritrea was so concerned about Ethiopia’s evidence regarding Badme
that Eritrea strongly suggested that Badme’s true location was on the Ethiopian side of the Eritrean claim line (i.e., in undisputed
Ethiopian territory). Eritrea criticized Ethiopia for relying heavily on evidence of administrative activity in Badme:
Probably the
single most important small village in this proceeding is the village of
Badme. This demonstrates the
extent to which the village of Badme has been relied upon in the Mareb-Setit
region as the location of alleged Ethiopian or Tigrayan administrative
activities. In the Mareb-Setit
region there is almost no allegation of administrative effectivités
other than documents containing the village of Badme. The entire case for effectivités on the Eritrean side of the classic diagonal Mareb-Setit line centres on the village of Badme.
I bring this
to your attention because the reliability of this evidence with regard to
the village of Badme is of extreme importance. If Badme evidence concerns
activities on the Ethiopian side, it is lacking in any probative effect as
regards the correct location of the boundary.
In its Reply,
Eritrea also acknowledged Ethiopian administrative activity evidence in
Badme, saying, “Tigray’s contact since [1958] with the regions Ethiopia now
claims has been limited almost exclusively to Badme.” Eritrea tried to de-fang this
evidence by asserting that “Ethiopia cannot support its claim line by
reference to activities taking place in a village that (until September of
this year) it believed to be located to the east of the [“classical
depiction of the boundary”], in Tigray.”
As Ethiopia
pointed out in its 24 January Comments and in its pleadings during the
delimitation phase, the OAU Committee of Ambassadors in August 1998 found
that Badme town and its environs were administered by Ethiopia before 12 May
1998. The Terms of Reference
adopted by the Committee provided that the Committee, among other things,
would collect information which would make it possible to determine the
authority which was administering Badme before 12 May 1998. To that end, the Committee undertook
a mission to Eritrea and Ethiopia from 30 June to 9 July 1998. The Committee had substantive talks
with the governments’ leaders and both parties were able to present their
positions at length. The
Committee concluded in its report, “we have reached the conclusion that
Badme Town and its environs were administered by the Ethiopian authorities
before 12 May, 1998.”
Regarding the findings of the Committee, the Observations state:
[T]he
Ethiopian invocation of the findings of the OAU in respect of Badme in 1998
(Comment, para. 1.4, footnote 4) failed to mention the OAU’s express
statement that those findings did not “prejudge the final status of that
area which will be determined at the end of the delimitation and demarcation
process and, if necessary, through arbitration.
This criticism
misconstrues the mission of the committee. The committee’s mandate was not to
determine a boundary, but to ascertain a critical factual matter at the
height of the conflict. The OAU
had the moral and political authority to do so and, after careful
consideration of the facts and full opportunity of the Parties to present
their evidence, unequivocally held that Badme was administered by Ethiopia
and that Eritrea should withdraw. Thus, the disclaimer pointed to in the Observations was far from a
signal of doubt as to the committee’s finding of fact, but was simply a
recognition that the Commission’s role was to find facts, and not to
determine the final status of Badme.
The Observations make reference to a
paragraph in the April 2002 Decision in which the Commission states that
“the area of claimed Ethiopian administrative activity comprises, at the
most, one-fifth of the disputed area.” The fact that Ethiopia’s evidence of administrative activity in the
Western Sector was predominantly from Badme is hardly justification for a
failure to award Badme to Ethiopia. This is inconsistent with the other adjustments made by the
Commission. The Commission made
adjustments for Tserona and Acran despite determining that Eritrea had not
provided evidence sufficient to warrant adjustments as far as Eritrea’s
claim line in the area. Eritrea claimed all of the area between the Belesa A and Belesa B rivers, yet the Decision made adjustments in this area only for Tserona and Acran, awarding the rest of the region between the Belesa A and Belesa B to Ethiopia.
Alleged
Evidence of Eritrean Governmental Activity
The Commission
stated that “there was no need for the Commission to consider any evidence
of Eritrean governmental presence [in Badme village], although Eritrea did
in fact submit such evidence.” However, Eritrea presented no such evidence.
While two
British documents presented by Eritrea make reference to “the Baduma Plain
area,” this is a geographic, not a political, designation. As several maps on the record show,
the Baduma Plain is a large area encompassing thousands of square
kilometers, extending far beyond Badme town in all directions. By contrast, Ethiopia’s many annexes demonstrating its administration of Badme refer to it not as a geographic expression, but as a town, village, or other political entity.
Between 1974
and 1991, insurgent groups carried on a rebellion against the military
dictatorship in Addis Ababa. Evidence of an insurgent group’s occupation of Badme during this
period is irrelevant, as Eritrea admitted in her pleadings.
Eritrea’s
evidence from the period since the military dictatorship’s 1991 overthrow
only serves to confirm Ethiopia’s administration of Badme. For example, in its discussion of the 1993 referendum by which Eritrea officially gained its independence, Eritrea admits:
. . . in
Tigray [there] were three Ethiopian-administered polling places:
Sheraro, Sembel, and Badme. . . . The placement of polling stations by both
countries uniformly respected the classic depiction of the boundary. The ones on the west of the boundary
were administered by Eritrea; the ones on the east in cooperation with
Ethiopia.
In contrast,
Eritrea alleges that it operated polling places for nearby villages such as
May Koka, Dieda, Tseaga, Sheshebit, Germe, and Shilalo, but not,
conspicuously, for Badme, which is
far-and-away the principal town in the area. As explained above, the Badme
polling station was administered by Ethiopia. Eritrea provided other evidence of
an Eritrean presence since 1991 in many places near Badme, such as Shilalo,
but, again conspicuously, no evidence at all for an Eritrean presence in
Badme itself.
Similarly,
Eritrea provided evidence of an Eritrean governmental presence in places
such as Shilalo dating from before the EPLF occupation of the area, but no
such evidence of an Eritrean governmental presence in Badme. These documents also indicate that
the effective administration of Eritrea at most extended eastward to
Shilalo.
As explained
above, the evidence relating to Badme produced by Eritrea only serves to
confirm Ethiopia’s administration of the town. The Commission in issuing its April 2002 Decision was mistaken in its belief that Eritrea provided evidence of Eritrean governmental presence in Badme village, and thus the relevant provision of the Decision must be adjusted.
Maps Depicting Badme’s Location
The
Commission’s Observations state that “maps submitted by Ethiopia were
inconsistent as to the location of Badme village.” Ethiopia made clear in its pleadings
that the accurate representation of Badme was as lying west of Eritrea’s
claim line. It is useful to read Ethiopia’s explanation of these minor inconsistencies as found in its January 4, 2002 Response to Newly Introduced Evidence, which is excerpted below:
Badme is an
Ethiopian village located near Eritrea’s claim line in the vicinity of the
Mareb-Mai Ambessa junction. Badme village is depicted in different places on different maps. It is not listed in the United
States Gazetteer of Ethiopia. During oral argument, Eritrea complained of what she admitted was a
small difference in the location of Badme between the maps Ethiopia filed
with the Claims Commission and Map No. 3.2 of Ethiopia’s
Counter-Memorial. Eritrea
alleged that Ethiopia’s Claims Commission maps had shifted Badme to a point
east of Eritrea’s claim line. There was no such shift. Despite counsel for Eritrea’s representations at oral argument,
Ethiopia’s depiction of Badme on the Claims Commission map, like the
depiction on Map No. 3.2 of her Counter-Memorial, is on the west side, not
the east side, of Eritrea’s claim line. Thus, the slight difference in these depictions is of little importance.
Eritrea also
complained at oral argument and in her Reply that the illustration at Map
No. 3.2 of Ethiopia’s Counter-Memorial depicts Badme in a slightly different
location than it is depicted on the illustration at Map No. 4.2 of
Ethiopia’s Memorial. This
strained criticism merely highlights the dearth of accurate cartography of
the Ethiopia-Eritrea border region. In fact, there is no significant difference between the two depictions of Badme village – each is accurate within the level of accuracy of the source map from which it was derived.
In preparing
Map No. 4.2, the source of geographic data Ethiopia used was the 1:1 million
scale Vector Map (or VMAP) produced by the U.S. National Mapping and Imagery
Agency. The VMAP is a mercator
projection. Map No. 4.2 thus
contains only a rough depiction of the location of Badme because of the very
small scale. In particular, the absence of any detailed drainage features or other geographic features on this map highlights the relatively low accuracy of this illustrative map.
When Ethiopia
prepared Map No. 3.2 of her Counter-Memorial, which includes much more
detailed depictions of drainage features and shows many other villages in
the vicinity of Badme, she used much larger scale maps as a base. Map No. 3.2 used, as a base, the
1:200,000 scale maps produced by the Soviet Union during the 1970s – a scale
five times larger than that of the VMAP used to create Map No. 4.2 of
Ethiopia’s Memorial. The large
scale of these Soviet maps allows for greater accuracy and detail,
particularly in their depiction of watercourses. In addition, these Soviet maps are
transverse mercator projections, a different type of projection than the
base map used for Map No. 4.2 of Ethiopia’s Memorial. The location of Badme on Ethiopia’s
map 3.2, west of Eritrea’s claim line, is consistent with the depiction of
Badme on the detailed, small-scale map submitted by Eritrea as Map 10 of her
Reply Atlas.
Eritrea has
also contrasted the depiction of Badme village on Map No. 3.2 of Ethiopia’s
Counter-Memorial, showing Badme west of Eritrea’s claim line, with
depictions on some earlier maps produced by Ethiopia. None of these earlier illustrations
was provided on a detailed or large-scale map of the area. Eritrea has pointed to two maps that
Ethiopia produced in 1998 and 1999, which were reproduced as Figures 2.07
and 3.07 of Eritrea’s Reply. As
Ethiopia explained in her Reply, both of these maps were prepared only to
illustrate Ethiopian territory occupied by Eritrean troops. Both of these maps, then, correctly
identify Badme as a place in Ethiopia occupied by Eritrea.
The
Observations state that “even some maps submitted by Ethiopia not only
showed the distinctive straight line between the Setit and Mareb Rivers, but
also marked Badme village as being on the Eritrean side of that line.” Ethiopia never submitted a
historical map meeting this description and would appreciate the
Commission’s identification of the maps to which it is referring. The only map submitted by Ethiopia
that depicted Badme as west of any straight line was Map 3.2 of Ethiopia’s
Counter-Memorial, an illustrative map depicting Badme and other sites of
Ethiopian administrative acts west of a dashed diagonal line clearly labeled
as Eritrea’s claim line. This map was created by Ethiopia specifically for the proceedings to demonstrate the fallacy of Eritrea’s claim line because of the places west of that line, including Badme, that were effectively administered by Ethiopia.
The record
does, however, contain historical maps submitted by Eritrea depicting Badme
in a location east of the Eritrean claim line. Because the Commission was apparently influenced by its mistaken impression of the maps on the record depicting Badme, the position expressed in the Observations regarding Badme must be corrected.
In this
regard, Ethiopia had the reasonable expectation that the issue of
sovereignty over Badme, based on the subsequent conduct of the Parties,
would be further addressed during demarcation based, among other reasons, on
the Commission’s conspicuous decision not to depict Badme on the maps of the
April 2002 Decision. The
Decision’s illustrative maps depicted all of the other significant towns
along the border area, such as Tserona, Zalambessa, Alitena, and Bure. Map 10 of the Decision, which
illustrated the Western Zone, even depicted such tiny settlements as
Mochiti, Gogula, Bao, Odas, Gongoma, and Biaghela. The Commission will have been aware
of the significance of Badme, given that Eritrea’s invasion of Badme was the causus belli of the conflict. If the Commission had made a final determination on Badme in favor of
Eritrea at the time of its April 2002 Decision, the reasonable expectation
is that it would have depicted Badme on the map. Thus, it was Ethiopia’s understanding that the Commission would conduct during demarcation careful on-the-ground analysis to ensure that Badme would remain with the Party that had effectively administered it, given the Commission’s decision to adjust the treaty line--which it located as being between the Sitonna/Setit confluence and the Mareb/Mai Ambessa confluence, far west of the straight line depicted between Points 6 and 9 of the Decision--based on the subsequent conduct of the Parties.
The Commission
notes in its Observations that the location of Fort Cadorna as set forth in
the April 2002 Decision was incorrect, saying “it now appears that the
Commission may have been provided with insufficient information concerning
the precise location of Fort Cadorna.” During the delimitation phase,
Ethiopia provided the Commission with the location of Fort Cadorna on a
detailed, large-scale historical map and, in its January 4, 2002 Response
brought to the Commission’s attention the gross inaccuracy of, and lack of
support for, the location claimed by Eritrea. The Commission adopted in the April 2002 Decision the unsupported location found on Eritrea’s illustrative maps.
Despite Fort Cadorna being misidentified, the Observations state:
[T]his does
not affect the delimitation of the boundary in the region that the
Commission has identified as “Acran”, that is, the area in the southern part
of the Belesa Projection defined by the Commission as extending over the
relevant part of the boundary line joining Points 14-18. The Commission
found that the evidence of Eritrean activity was “sufficient . . . to
justify treating the Acran region as part of Eritrea.” That conclusion is not brought into
question by the possible misplacement of Fort Cadorna, and accordingly there
is no reason for the Commission to vary the boundary in the southern section
of the Belesa Projection as delimited by it.
The
Commission’s Observations portray its adjustment from the 1900 Treaty
boundary for Fort Cadorna as irrelevant and redundant to its
adjustment for Acran. However,
the April 2002 Decision makes clear that Acran and Fort Cadorna are separate
places. In explaining the places for which it deviated from the 1900 Treaty boundary, the Decision said:
The
qualification as to the southern section relates to the Acran region and to
Fort Cadorna. The Commission is
satisfied that the evidence of Eritrean activity is sufficient, in terms
of administrative range,
quantity, area and period, to justify treating the Acran region as part of
Eritrea. As regards Fort
Cardorna [sic], the Commission is bound to apply to that place, in the same
way as it does to Tserona, the Ethiopian admission.
Ethiopia notes
that the Decision did not refer to an adjustment relating “to the Acran
region, including Fort Cadorna.” It referred to an adjustment relating “to the Acran region, and to Fort Cadorna.”
Later, the
Decision reiterated, “The Commission has already decided that the boundary
line resulting from the 1900 Treaty must be adjusted so as to ensure that
Tserona, the Acran region and Fort Cadorna are placed in Eritrean
territory.” Tserona, Acran, and Fort Cadorna were treated again as separate places requiring adjustments to the treaty boundary.
In the Dispositif, the delimitation line was specifically described as
deviating in order to keep Fort Cadorna and its environs in Eritrea. The line “continues up the Belesa A
to follow the Eritrean claim line to Point 18 so as to leave Fort Cadorna
and its environs within Eritrea.” It is difficult to comprehend why the Boundary Commission described the delimitation line this way if Fort Cadorna were, as the Commission now contends, irrelevant to the delimitation line.
Because the Commission adjusted the 1900 Treaty line based on its mistaken identification of the location of Fort Cadorna, it must now adjust the delimitation line to correct this manifest error.
The
Observations refer to Acran as “the area in the southern part of the Belesa
Projection defined by the Commission as extending over the relevant part of
the boundary line joining Points 14-18.” The Commission has never before defined Acran in this way.
The
description of the line in the Dispositif between Points 17 and 18
makes no reference to Acran. Rather, with respect to the line between these two points, Paragraph
8.1 (B)(VI) provides:
[From Point 17] [i]t then continues up
the Belesa A to follow the Eritrean claim line to Point 18 so as to leave
Fort Cadorna and its environs within Eritrea. The Eritrean claim line is more
precisely depicted on the 1:100,000 Soviet map referred to by Eritrea in its
final submission on 20 December 2001. Point 18 lies 100 metres west of the center of the road running from
Adigrat to Zalambessa.
Indeed,
nowhere in the Dispositif is Acran ever mentioned.
Moreover, the Commission explicitly refused to rely on map evidence to depart from the 1900 Treaty line in this section of the boundary because of its unreliability.
The Decision stated:
The map
evidence is not uniform and consistent. Much of it supports the existence of
a Belesa projection and attributes the territory within it to Eritrea. There are, however, significant maps
which do not do so, or do so only in part. Moreover, much of the map evidence
is on so small a scale, or so devoid of detail, that it can only be treated
as ambiguous in this respect.
Further, the
Russian map referred to in the Dispositif cannot be considered the
source for defining Acran because it was never relied upon by Eritrea (or
Ethiopia) to define this region. In fact, the Acran region is not identified at all on this map.
In contrast,
according to the Commission’s careful legal analysis and conclusions set
forth in the April 2002 Decision’s subsection entitled “The western part of
the Belesa projection” (paragraphs 4.64 to 4.72), the Acran region is
located within the southern section of the western part of the Belesa
projection. Thus, as
illustrated on Figure 2.6 of Ethiopia’s 24 January Comments, the Commission
identified the Acran region as the area within the line that runs along
Points 14, 15, 16 and 17, and then up to the Belesa B, then down the Belesa
B in a northwestern direction until it returns to Point 14. There is no place in the Decision’s
subsection entitled “(d) Conclusion regarding the eastern part of the Belesa
projection” or anywhere in the entire Decision, in which the Acran region is
referred to as being within the eastern part of the Belesa projection. Thus, the Commission considered the Acran region to be entirely west of the Belesa B and, thus, no closer than about 8 km west of Point 18.
As discussed
in detail in Ethiopia’s 24 January Comments at Paragraphs 1.83 – 1.88, this
identification of the Acran region’s location is entirely consistent with
Eritrea’s only depiction of Acran’s location, numerous historical
maps on the record, and Eritrea’s
statements and presentations made in its oral argument during the
delimitation hearing. There is nothing in the record of
the delimitation proceedings or in the April 2002 Decision itself that
supports the comments in the Observations that the Acran region is defined
“by the boundary line joining Points 14-18.” The undeniable conclusion from all the evidence in the record and the April 2002 Decision itself is that Acran is at the far southern tip of the western part of the Belesa projection.
In its
Observations, the Commission notes that Ethiopia is correct in noting that
there is a discrepancy between, “on the one hand, the Commission’s reasoning
(at para. 4.42) and, on the other hand, its summary of the Treaty boundary
(para. 4.59(6) and (7)) and the operative part of the Commission’s Dispositif . . .” Nonetheless, the Commission has
so far declined to make the correction necessary to give full effect to the
award, stating, “It is accepted as a matter of international law that it is
the Dispositif which is operative and binding, and which prevails if
there is any discrepancy between it and the body of a tribunal’s award.”
Ethiopia would
observe, to the contrary, other cases and extensive commentary support
revising the Dispositif to reflect the true intent of the tribunal as
informed by its reasoning. Moreover, paragraph 4.2 of the
December 2000 Agreement require the Commission to render an award based on
“pertinent colonial treaties and applicable international law.” The Commission’s Rules of Procedure
and the general practice of international tribunals require a reasoned
award. This criterion is met by the legal
analysis in the Commission’s April 2002 Decision. To rely only on the Dispositif, if there is a discrepancy between it and the reasoning of
the award, would depart from this obligation and deprive the Parties of a
procedural right.
As is clear
from paragraphs 4.42 and 4.43 of the April 2002 Decision, the Commission
concluded that from Point 19, the 1900 Treaty boundary extends overland to
Point 20, proceeds from Point 20 eastward along the divide that separates
the headwaters of the Enda Dashim from the headwaters of the streams flowing
southward and then east to join the Muna/Berbero Gado at Point 21. The Commission further clarifies its reference to the Mai Muna of the Treaty, in paragraph 4.43, as being below or downstream Point 21, as further evidenced by examination of the location of the “Maj Men” of the de Chaurand map, with which the Commission expressly identifies the Mai Muna of the Treaty Map.
Notwithstanding the Commission’s unambiguous conclusion set forth in
paragraphs 4.42 and 4.43 and based on the Commission’s legal analysis, the
Commission cryptically described the Treaty line between Points 20 and 21 in
the Dispositif as follows:
From Point 20 the Boundary passed down the Muna until it
meets the Enda Dashim at Point 21;
This simple
description directly contradicts the conclusion that the Commission
articulated after careful and comprehensive legal analysis by seemingly
referring to the 1900 Treaty line as following the Muna from Points 20 to
21, rather than following the divide. In its Observations, the Commission accepts the clear discrepancy.
As discussed
in detail in Ethiopia’s 24 January Comments at paragraphs 1.48 - 1.57, to
interpret the Decision in accordance with the Dispositif’s
single-line summation would quite simply turn the Commission’s analysis on
its head. There is no
explanation whatsoever anywhere in the Decision for this departure from the
Commission’s conclusion set forth so clearly in its analysis. Thus, it is Ethiopia’s
understanding of the language of the Decision that the 1900 Treaty boundary
runs along the “divide between, to the north, the headwaters of the Enda
Dashim and, to the south, the headwaters of the streams flowing southward
and then eastward to join the Muna/Berbero Gado at the Point where it is
also joined by the Enda Dashim (Point 21).”
The Commission
could not have intended the 1900 Treaty boundary line to follow what the Dispositif incorrectly refers to from Points 20 to 21 as the “Muna”
as evident, not only by the plain language of its analysis but also because
of the physical geography. With respect to the physical geography and the subsequent conduct of
the Parties, as explained in Ethiopia’s 24 January Comments at paragraphs
1.54 and 1.114 – 1.168, the line between Points 20 and 21, identified in the Dispositif as the “Muna,” actually consists of a narrow band of
fertile agricultural land and is not in fact a river. Moreover, straddling these fields
are several villages that form a community belt running from Zalambessa
eastward.
To resolve the
discrepancy in favor of the Dispositif would frustrate the obvious intention of the Commission, as clearly expressed in its legal analysis in the April 2002 Decision and frustrate the requirement to render a reasoned award contained in the Commission’s own Rules of Procedure.
Ethiopia must also address the Commission’s position that
it is incapable of averting the division of villages and towns by a literal
application of the line depicted on the small scale maps of the April 2002
Decision. Although the
Commission failed to express this view in the Decision itself, in its
Demarcation Directions of 8 July 2002, the Commission took the position that
“[i]f [the line] runs through and divides a town or village, the line may be
varied only on the basis of an express request agreed between and made by
both Parties.” The Commission upheld this view more recently in its Observations.
Ethiopia finds this position to be inconsistent with the
intent and logic of the April 2002 Decision, in which the Commission
determined to depart from the treaty boundaries in the Western and Central
Sectors based on the subsequent practice of the Parties. Communities along the boundary were
effectively administered by either one Party or the other. Consequently, the boundary line
cannot simply divide these communities and at the same time be consistent
with the fundamental decision of the Commission to vary the treaty
boundaries based on the Parties’ subsequent conduct. Small adjustments must be made in order for the demarcation to result in a boundary that is not at odds with the reasoning and intention of the Commission set forth in the Decision.
Ethiopia understands that the Commission could not have
known at the time of the April 2002 Decision that the line depicted on the
small-scale maps would cut through settlements, and thus, it is not
surprising that the Decision was silent with respect to this matter. The Commission repeatedly criticized
the reliability of maps throughout the Decision. For example, with respect to
locations, the Commission held that there was “no generally agreed map of
the area depicting place names with any degree of reliability.” Further, no fieldwork was conducted
to examine the situation on the ground prior to the issuance of the
Decision. It is thus not
unexpected that the small-scale maps used for illustrative purposes, when
simply super-imposed onto the ground, divide some small communities.
The fact that
the information before the Commission at the time of rendering its April
2002 Decision was deficient and unreliable is no justification for the
Commission not to take proper account of the facts on the ground during
demarcation when remedying the deficiencies in the factual information could
easily be accomplished. In this
regard, the April 2002 Decision wisely provided that the coordinates set
forth in the Decision were “not necessarily final and the Commission may
have to adjust or vary them in the course of demarcation” and that the maps
were for illustrative purposes only. Certain of the applicable
legal principles and other statements in the April 2002 Decision which form
the basis for Ethiopia’s reasonable expectation that “adjustments and
variations” would be made during demarcation were detailed by Mr. Ian
Brownlie, QC, CBE, during the Commission’s February 8, 2003 meeting with the
Parties. The relevant section
of the transcript is at Attachment 1 hereto.
Based on such
findings and comments, the Parties have every right to expect demarcation to
be conducted in a manner that avoids the division of communities during the
demarcation phase. Otherwise,
the resulting demarcation would be contrary to the intent and reasoning of
the Decision. Moreover, a
demarcation that divided settlements would be in direct conflict with the
object and purpose of the Algiers Agreements because the resulting boundary
would be the source of instability and human suffering. It is incumbent upon the Commission, as a matter of producing a demarcation consistent with applicable legal standards, the constitutional agreements and the Decision, to conclude a demarcation that averts the division of communities.
In its 24 January Comments, Ethiopia explained the need
for the Commission to conduct field work in order to implement the
Commission’s finding that Ethiopia had established its effective sovereignty
to the required degree over all but the “northern and western fringes” of
the Endeli projection. The
Commission in its Observations stated that the delimitation line in the
Endeli Projection was not “subject to further consideration by the
Commission of new evidence of State practice in those areas.” The Observations indicate that the
Commission has misunderstood the nature of Ethiopia’s request. Ethiopia did not in its 24 January
Comments and does not now request the Commission to take new evidence as to
State practice in the Endeli projection. As described in Section V(C)(3)(b) below, Ethiopia is simply requesting that the Commission ensure that the coordinates for the “northern and western fringes” of the Endeli projection listed in the Decision are accurate.
In the Observations, the Commission set forth its views
regarding its “flexibility” in applying the April 2002 Decision line to
situations on the ground during demarcation. The Commission stated:
In the Commission’s view a demarcator must demarcate
the boundary as it has been laid down in the delimitation instrument, but
with a limited margin of appreciation enabling it to take account of any
flexibility in the terms of the delimitation itself or of the scale and
accuracy of maps used in the delimitation process, and to avoid establishing
a boundary which is manifestly impracticable.
Ethiopia feels confident that any standard adopted by the
Commission will be applied consistently in conducting the demarcation. With respect to the application of
this standard, therefore the following further comments should be
helpful.
Without careful fieldwork, it will be impossible to apply
the Commission’s standard accurately and consistently. In this regard, Ethiopia notes that
it was “in light of further work done in the exercise of its demarcation
function, the Commission has identified two areas in the Central Sector
where a strict application of the line as delimited in its Delimitation
Decision would be manifestly impracticable…”
The Commission has indicated a number of specific places
it plans to study through fieldwork as demarcation moves forward. Ethiopia identifies below certain
additional places that require careful field study in light of the
Commission’s standard. The amount of fieldwork needed to address these additional locations is relatively minor.
According to the Observations, the Commission will “avoid
establishing a boundary which is manifestly impracticable.” In applying this standard, the
Commission has so far “identified two areas in the Central Sector where a
strict application of the line as delimited in its April 2002 Decision would
be manifestly impracticable, namely, certain plateau lands in the vicinity
of Point 18 on the boundary, and the area of the delta-like formation where
the Ragali River flows into the Salt Lake.”
The two
examples provided by the Commission illuminate the meaning of this element
of the standard. In the case of
the area near Point 18, Ethiopia in its 24 January Comments alerted the
Commission to the fact that a mechanical application of the delimitation
line would cut through the community of Addis Tesfa, separating such
settlements as Ura, Kershebti, and Mikuyam from their water sources, fields,
schools, medical clinics and other necessities of life. This division, Ethiopia explained,
was exacerbated by the physical setting of these settlements, which made
alternative sources of sustenance inaccessible. In the case of the Ragali Delta
area, Ethiopia’s 24 January Comments showed that Point 30 lies in the middle
of fields in a settlement on the north side of the Ragali. Because of this, Ethiopia pointed out, the delimitation line would divide part of this settlement from the rest of its community on the north side of the Ragali.
Based on the
Commission’s analysis and conclusion that these places are examples of a
manifestly impracticable boundary, “manifestly impracticable” will include
situations in which local residents are cut off from the necessities of
social and economic life in their communities and isolated from alternative
sources of support. This
definition of “manifestly impracticable” is also consistent with the object
and purpose of the Algiers agreements: to bring about a sustainable peace
between the Parties, and to prevent further suffering of the people of
Ethiopia and Eritrea. Also, these examples may be indicative of the scale of
the adjustments that the Commission considers itself empowered to make “in
order to avoid establishing a boundary which is manifestly
impracticable.” In the case of the Point 18 area, the “plateau lands” identified by the Commission extend roughly 3 km in a northwesterly direction from the delimitation line; thus the scale indicated is modest but allows efficacious adjustment as part of demarcation.
There are a
few other areas along the boundary region that appear to meet the
“manifestly impracticable” standard. These include, in the Central Sector, the area between Points 20 and
21, including the Zalambessa-Alitena Road and in the Western Sector, Badme,
Sembel, and Adi Tsetser. These
areas are described in turn below.
The line
depicted in the Dispositif of the April 2002 Decision from Point 20
to Point 21 (“Dispositif Line Between Points 20 and 21”) would result
in a manifestly impracticable boundary for two reasons, each of which is
more than sufficient to meet the standard. First, such a demarcation would, as
described in Ethiopia’s 24 January Comments, effectively ruin the
Zalambessa-Alitena Road, which is a crucial lifeline for the communities it
serves. A mechanical demarcation would sever
the road four times, making it virtually useless to residents on both sides
of the line. The construction of redundant sections of road through the rugged terrain on each side of the line would be infeasible.
Second, such a
demarcation would be manifestly impracticable because of its impact on the
villages that sit astride the narrow band of fertile agricultural land
comprising the Dispositif Line Between Points 20 and 21. As explained in Ethiopia’s 24
January Comments, several Ethiopian villages straddle the fields of the Dispositif Line Between Points 20 and 21, forming a belt running from
Zalambessa eastward to Point 21. Among these villages are, from west to east, Semaz, Debre Genet,
Mestehi, Buhalo, and Agere Lekuma. Because these villages straddle the fertile agricultural land, a
mechanical application of the Dispositif Line Between Points 20 and
21 would cut each of them in half, with dire consequences for their
residents. For example, the
many residents of these villages, who rely on agricultural lands on the
opposite side of the Dispositif Line Between Points 20 and 21, would
be cut off from these lands. Everyone in these villages would be cut off from vital services such
as health care and education with no alternative services within a
reasonable distance. Many
inhabitants of the villages would lose access to their churches, which
simply cannot be replicated. Many of the churches are hundreds of years old, and each of their
churchyards contains the remains of deceased relatives of local
residents. A boundary cutting through these series of villages will leave their residents isolated from their land, vital services, and churches.
Clearly the
consequence of a strict application of the Dispositif Line Between Points 20 to 21, considering the effects to the Zalambessa-Alitena Road and the villages along the line, would be to cut off local residents from the necessities of social and economic life and isolate them from alternative sources of support, rendering the boundary manifestly impracticable.
By comparison,
the impact of a strict demarcation on the Ragali Delta area, which the
Commission determined to be manifestly impracticable, is extremely
mild. While needing adjustment,
the presence of the delimitation line on the north bank of the Ragali is
relatively minor, affecting only some .15 sq km of farmland. In contrast, the severing of the
Zalambessa-Alitena road into five useless pieces and the splitting of each
of the villages along the Dispositif Line Between Points 20 and 21 would have a devastating effect on this populous area, including the exacerbation of the area’s food insecurity.
Ethiopia makes
these comments regarding demarcation of the Dispositif Line Between
Points 20 to 21 noting, however, that it does not share the Commission’s
view regarding the controlling nature of the Dispositif over the
clear legal reasoning of the April 2002 Decision concerning this portion of
the boundary, as discussed in Section IV(D) above. Ethiopia observes that
the line between Points 20 and 21, as set forth in the Decision’s legal
analysis, follows the land divide and avoids many of the circumstances that
would render a strict application of the Dispositif Line Between
Points 20 to 21 manifestly impracticable. Ethiopia further observes the
Commission’s conclusion set forth in the Observations that Point 20 was
incorrectly identified and that its proper location will be determined
through subsequent fieldwork. Ethiopia notes that this determination and subsequent demarcation must be consistent with the manifestly impracticable standard established by the Commission.
A strict
application of the portion of the delimitation line that cuts through the
Badme community would most certainly establish a boundary that is manifestly
impracticable. Badme was the
site of Eritrea’s initial invasion of Ethiopia, and its people suffered
particularly extreme hardships during the ensuing conflict. A mechanical demarcation would cut
off the main urban area of Badme’s town from a large portion of the
croplands on which it relies for its livelihood. The climate, geography and land use
in this area, as well as in other areas in the Western Sector such as Sembel
and Adi Tsetser, discussed below, are not conducive to forced movements of
people to other areas or to utilization of alternative nearby land for
sustenance. The land that is
suitable for farming and grazing is already utilized. The climate is arid, and rainfall is sparse.
Badme town is
the indispensable hub of the many villages of the Badme community, most of
which would lie east of the line. As a result of a mechanical demarcation, the residents of these
villages would lose their access to Badme’s health clinic, its primary and
junior school, and other vital facilities. These residents would also be barred
from attending their church, which is not just the local residents’ place of
spiritual support but also the center of the social and economic life of the
community. Parishioners living
east of the line would lose access to the graves of their ancestors in the
churchyard. As in the Addis
Tesfa plateaus near Point 18, there are no reasonably accessible alternative
facilities for these inhabitants. A strict application of the delimitation line would also cut into many pieces the road that connects Badme with Sembel and other communities with which Badme is socially and economically interdependent.
The
impracticability of a boundary dividing Badme is much more extreme and
manifest than the impracticability of a boundary that crosses for a short
distance through farmland on the north side of the Ragali Delta. The problem in the Ragali Delta
would affect only small numbers of people. The community on the north side of
the Ragali would lose its access to only a small proportion of its
farmland. Badme, on the other
hand, would be blocked from a large proportion of its farmland and most of
the villages with which the town is interdependent. Ethiopia agrees with the Commission
that the boundary should be applied in a way that addresses the problem in
the Ragali Delta. Even more imperative is the need to apply the delimitation in a way that avoids a manifestly impracticable boundary that cuts through the community of Badme.
A strict
application of the delimitation line would also create a manifestly
impracticable boundary in the Ethiopian village of Sembel, which such a line
would divide almost exactly in half. It is difficult to conceive what could be more manifestly
impracticable than an international boundary’s division of homes from other
buildings related to communal life. Half of the village would lose its access to the village’s school,
its health clinic, and its church. As in Addis Tesfa (near Point 18), there are no alternative
facilities within a reasonable distance. In addition, residents in the
eastern half of Sembel would lose access to the village’s only water
pump. The impracticability of a
boundary slicing through the middle of the significant village of Sembel
would be far more glaring and would affect far more people than a strictly
applied boundary in the Ragali delta. Unlike Sembel, the affected area near the Ragali delta is only a small amount of land with no dwellings visible on the aerial photography.
A strict
application of the delimitation line through the Adi Tsetser community would
also create a manifestly impracticable boundary. Such a demarcation would divide the
Adi Tsetser community, cutting off many residents from their schools and
health care facilities, and the markets at which they buy supplies and sell
their produce. Because there is
almost no settlement to Adi Tsetser’s west, inhabitants west of the line who
lose their access to essential services and markets will not be able to find
alternatives within a reasonable distance. This dearth of alternative means of
support is similar to the situation in Addis Tesfa, which the Commission
found to be manifestly impracticable. The impracticability of a boundary cutting through Adi Tsetser is far more acute than the difficulty a strict application of the line would cause in the Ragali Delta, which would affect only about .15 sq km of land north of the river.
According to
the Observations, the Commission is also enabled “to take account of any
flexibility in the terms of the delimitation itself or of the scale and
accuracy of maps used in the delimitation process.” The Commission in its Observations
identified two places in which further fieldwork is required because of
inadequacies in the mapping available to the Commission at the time of the
April 2002 Decision. These are
Point 20 and the area of the Eritrean claim line between Points 17 and 18. Fieldwork and subsequent adjustment are required in these areas and in other places in which the coordinates or lines provided in the April 2002 Decision are in conflict with their actual locations or are otherwise inadequate for demarcation.
For guidance in the consistent application of this standard, one can look to the Commission’s comments on these issues and to the cases in which the Commission’s Observations indicated that further fieldwork and subsequent adjustment are required.
The Commission
in its April 2002 Decision indicated that not all of the maps it relied on
in the delimitation phase were of a sufficient scale or accuracy. For example, the Decision stated:
The
Commission is also aware 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 with older maps this may
have been inadequate.
The April 2002
Decision also noted that “[a]ll coordinates will be recalculated and made
more precise during the demarcation as the Commission acquires the
additional necessary information.” The Commission clarified this
statement in its Observations. Referring to the specification in the Decision of the coordinates of the points between which the boundary was to run, the Observations stated:
The
Commission explained that this particular specification was used because of
the limited availability at that stage of information on the maps before the
Commission. The Commission
therefore added that “[a]ll coordinates will be recalculated and made more
precise during the demarcation as the Commission acquires the additional
necessary information.” As is evident from the words used and from their
context the recalculation of the coordinates was to be solely for the
purpose of ensuring, on the basis of aerial photography, which the
Commission had previously been precluded from initiating, that the
coordinates of the locations listed in the Decision were accurate. Nothing in the language used
could reasonably be read as suggesting that the Commission intended that the
locations themselves would be varied during the demarcation.
The
Observations thus made clear that locations themselves are not to be varied
during demarcation. Instead, according to the Observations, demarcation is an opportunity to ensure that the coordinates for locations identified during the delimitation phase are accurate.
Ethiopia
welcomes the Commission’s clarification in this respect as it is practically
necessary for successful demarcation and wholly consistent with the practice
of International Tribunals and provides for the sort of adjustment clearly
intended by the April 2002 Decision. The fact that the April 2002 Decision is final and binding does not prevent the Commission from resolving internal inconsistencies among the operative parts of the Decision or from resolving issues arising from the inadequacy of the information available to it at the time of the Decision.
Such an
approach is logical, for the Commission must demarcate a boundary which
comports with its own findings and reasoning even when it is discovered,
during field examination, that the geographical facts are not as
hypothesized at the time the delimitation decision was prepared. Such adjustment during demarcation
is also consistent with the legal principles guiding international
tribunals.
1.
The
Observations also gave two examples of places in which further field work is
required because of inadequacies in the maps available to the Commission at
the time of the Decision. The Observations commented on the need for further work in correcting the location of Point 20 and addressing issues related to the segment between Points 17 and 18.
The Commission recognized in its Observations that the April 2002 Decision’s identification of the coordinates for Point 20 as the source of a headwater stream was incorrect:
[T]he
Commission, based upon map evidence submitted by both Parties, placed Point
20 at the source of a headwater stream of the Muna/Berbera Gado [sic]. From
the aerial photo survey that the Commission was only recently permitted to
conduct, it is apparent that that map evidence was inaccurate.
Ethiopia
agrees with the Commission that it is necessary to adjust the location of
Point 20 because the coordinates identified in the Dispositif are
inconsistent with the location described in the decision due to inaccurate
maps. This correction is also
wholly consistent with the Commission’s statement that the recalculation
allowed in the April 2002 Decision should result in the correction of
coordinates in the Dispositif,
not the changing of locations.
The
Observations indicate that “there may be technical demarcation issues in
part of the stretch between Points 17 and 18, where the boundary runs along
what it referred to in the April 2002 Decision simply as the ‘Eritrean claim
line.’” The Observations further note that
those issues will be addressed in future instructions to the demarcation
team. In this regard, the
combination of the large scale maps, the inaccuracies of maps submitted by
Eritrea, and the differences in projection make the demarcation of the
boundary in this area one of considerable technical discretion.
There is no
apparent connection between the Eritrean claim line between Points 17 and
18, as “depicted on the 1:100,000 Soviet map referred to by Eritrea in its
final submission,” and the actual
geography evident in the aerial photography. As discussed in Ethiopia’s 24 January Comments at paragraphs 1.98 - 1.100, if the Commission were to attempt simply to superimpose the Eritrean claim line on the land, the line would meander randomly in a series of short curves across the grain of the country.
In that light,
Ethiopia believes the Commission will wish to consider a technically appropriate and practical methodology for
resolving the “technical demarcation issues” in the area between Points 17
and 18. Such a methodology will
likely also result in a boundary that is not “manifestly
impracticable.” The Commission is urged to conduct fieldwork and consult with the Parties in addressing these issues.
In addition to the two places identified in the April 2002 Decision, Ethiopia has identified other areas in which maps available to the Commission at the time of the Decision were lacking and further fieldwork should be undertaken to determine appropriate recalculations of coordinates to take into account the accurate location information.
Ethiopia
believes the Commission will wish to define the location of Acran during
demarcation using the information now available. As set forth in detail in
Section IV(C) above, the Acran region was not specifically defined in the
April 2002 Decision, but the Decision clearly limited its location to the
southern part of the western section of the Belesa projection (which does
not extend all the way to Point 18 from Point 17). The Commission’s identification of
the area within which Acran is found is consistent with Eritrea’s
submissions during the delimitation proceedings. The precise limits of the Acran
region thus must be ascertained. Such analysis is all the more important in light of the recognition
that the location of Fort Cadorna was misidentified, as discussed in more
detail in Section IV(B) above, to ensure that the non-Acran areas ascribed
to be “Fort Cadorna and its environs” in the Dispositif are correctly identified and taken into consideration in the demarcation.
Moreover, the
boundary segment between Points 17 and 18, which the Commission has
determined to examine through further field study, is precisely the segment
within which the Acran region is located. Any examination of this segment
should include analysis of the Acran region because the 1900 Treaty boundary
in this part of the border was adjusted for, and only for, Acran. Thus, its precise definition is
paramount. This is particularly
true in light of the Commission’s expressed condemnation of the reliability
of the maps in this segment. With respect to this segment the Commission held that it was
“hampered by the inability of the Parties to identify with sufficient
particularity the location of the places to which they refer” and that there was
“no generally agreed map of the area depicting place names with any degree
of reliability.” Given that the maps for the segment
including Acran failed to “[depict] place names with any degree of
reliability,” fieldwork between Points 17 and 18 must include the study of
Acran’s location “for the purpose of ensuring,” as the Observations state,
“that the coordinates of the locations listed in the Decision were
accurate.”
This approach
will allow the Commission to consistently apply the standard set forth in
the Observations as it relates to the “flexibility in the terms of the
delimitation itself or of the scale and accuracy of maps used in the
delimitation process.” In doing
so, Ethiopia does not suggest varying locations themselves during
demarcation. The delimitation
should not be amended so as to award Acran to Ethiopia. Instead, as described in the
Commission’s Observations, the Commission should ensure that the coordinates
for Acran, for which the Commission lacked adequate mapping during the
delimitation phase, are made accurate based on the correct information
available to the Commission during the demarcation phase.
b)·
Ethiopia also
believes the Commission will find it necessary to ensure that the
coordinates for the “northern and western fringes” of the Endeli projection
listed in the April 2002 Decision are accurate. The Commission in its Decision
concluded that Ethiopia’s proof of its administrative activity in the Endeli
projection, along with other evidence, was so strong as to require an
adjustment to the line based on the 1900 Treaty. The Commission stated, however, that it did not award the entire Endeli projection to Ethiopia because of its view that:
in general,
the impact of Ethiopian administrative activity has been weaker, and the
impact of Eritrean activity stronger, in the northern and western
fringes of the Endeli projection, and that therefore Ethiopia has not
established its effective sovereignty to the required degree over those
areas.
Thus, the Commission found that Ethiopia had established
its effective sovereignty to the required degree over all but the “northern
and western fringes” of the Endeli projection.
As with Acran
above, Ethiopia is not asking the Commission to change the finding that
Ethiopia had established its effective sovereignty over all of the Endeli
projection except its “northern and western fringes.” Instead, Ethiopia requests that the
Commission, consistent with its Observations, ensure that the coordinates
for the “northern and western fringes” of the Endeli projection listed in
the Decision accurately reflect the precise areas, including villages, over
which the Commission considers Ethiopia to have “established its effective
sovereignty,” based, inter alia, on effective
administration. During demarcation, the Commission will wish to identify the “northern and western fringes” of the Endeli projection, to which it refers, using the more accurate information now available to the Commission to ensure consistency and accuracy in the application of its standard.
In identifying
the location of the “northern and western fringes,” the Commission should
determine the locations of the places for which “the impact of Ethiopian
administrative activity has been weaker, and the impact of Eritrean activity
stronger.” These should, of
course, be limited to places for which Eritrea presented at least some
evidence. These places should not, of course, include places for which Ethiopia submitted evidence and Eritrea submitted none.
Eritrea
submitted evidence relevant to five places in or near this area: Zeban,
Laalai Agruf, Tahtai Agruf, Monoxeito, and Enda Dascim. Because these are the only places in
or near this part of the Endeli projection for which Eritrea submitted
evidence, these must be the places to which the Commission was referring
when it found that “[i]n general, the impact of Ethiopian administrative
activity has been weaker, and the impact of Eritrean activity
stronger, in the northern and western fringes of the Endeli projection.”
In the area of
the Endeli projection north of the line depicted in the April 2002 Decision,
Ethiopia provided evidence demonstrating its administration of nine places:
Endalgeda, Hayedle (Haydila), Enguraele, Wankabo, Kafna, Agere Lekhuma, Mai
Chea, Mekheta, and Awda. The evidence on the record of
Ethiopia’s administration of these places is compelling. For example, Ethiopia provided 34
annexes demonstrating its administration of Endalgeda, including such
evidence as intra-governmental correspondence and government documents
regarding taxation, schools, court hearings, elections, agricultural
programs, and food distribution. Eritrea provided no evidence at all relating to these places. Because Ethiopia provided evidence
regarding these places and Eritrea provided none, they could not have been
locations for which the Commission found that “the impact of Ethiopian
administrative activity [was] weaker [and] the impact of Eritrean activity
[was] stronger.”
The
Commission’s task during demarcation, then, is to refine its definition of
the “northern and western fringes” of the Endeli projection to correctly
describe the location of the places for which Eritrea presented evidence,
namely: Zeban, Laalai Agruf, Tahtai Agruf, Monoxeito, and Enda Dascim. Because the places for which Ethiopia provided evidence and Eritrea provided none could not be “the northern and western fringes” to which the April 2002 Decision was referring, the Commission’s staff can readily identify the precise locations of Endalgeda, Hayedle (Haydila), Enguraele, Wankabo, Kafna, Agere Lekhuma, Mekheta, and Awda to ensure that they are not identified as parts of the “northern and western fringes” of the Endeli projection.
Identifying the “northern and western fringes” of the
Endeli projection using more accurate information now available would also
ensure that a manifestly impracticable boundary would not result in
Irob. A strict application of
the line depicted in the April 2002 Decision between Points 21 and 26 would
result in a manifestly impracticable boundary. It would cut a tense international
border through the heart of the Irob community. It would also partition the Irob
people, a distinct ethnic group, into two states for the first time in the
people’s long history. The Irob
people have their own dialect and a unique culture. Throughout its centuries-old
history, Irob has been an integral part of Ethiopia. The Irob people’s predominant
religions, Roman Catholicism and Orthodox Christianity, differ from those of
their Eritrean neighbors, who are predominantly Muslim. The Irob are one of the most
homogeneous and harmonious groups in the entire region. They are known for their relatively
advanced social values, including relatively democratic relationships in
family life and an active and socially recognized role for women. While the Irob people have
maintained a unique identity, they have also steadfastly supported the unity
and sovereignty of Ethiopia.
An application
of the delimitation coordinates to the ground would cut the ancient trade
and cultural links between Irob villages such as Enguraele, Mai Chaa,
Haydila and Kafna and Irob’s historical capital, Alitena. The division of the Irob
community would result in separation of families. Thus, the result of a strict
application of the line in this area would be to isolate part of the Irob
community from its sources of support, cutting these people of from the
economic and social necessities of life, and to sow the seeds of future
suffering and conflict. The
Irob people suffered terribly during Eritrea’s invasion and occupation of
the northern part of the wereda. They are ardently hostile to the Eritrean government because of its actions during the war, and would be unlikely to submit to Eritrean authority.
Ethiopia
maintains that the Commission has the authority and obligation to make
adjustments and variations to the April 2002 Decision line and to address
the serious “problems” and “anomalies” identified by Ethiopia and the
Commission. In addition, the
Commission has pointed to paragraph 4(16) of the December 2000
Agreement. Resolving such
problems and anomalies is essential to finalizing a boundary capable of
supporting a sustainable peace. Thus, the United Nations’ work to address problems and anomalies that
the Commission will not resolve, must begin immediately. Ethiopia believes the Observations and the President’s Report have provided sufficient guidance as to what problems must be addressed under Paragraph 4(16) to allow this work to proceed simultaneously with the Commission’s work though, of course, separately.
The need for resolution of these problems is magnified as a result of Eritrea’s rigid approach to border management as reflected in its Comments.
Throughout its
24 January Comments, Eritrea makes various statements regarding its views on
boundary management subsequent to demarcation. These views heighten Ethiopia’s concern regarding the Commission’s position to leave unresolved the serious problems and anomalies identified by Ethiopia in its 24 January Comments, and in the President’s Report and the Observations.
It seems
apparent from Eritrea’s 24 January Comments that it does not intend to
restore the same open and flexible border management regime that
historically existed prior to the conflict. Rather, Eritrea seems to envisage a
very closed boundary even in its most remote regions. For example, in discussing
demarcation of the Eastern Sector, Eritrea seems intent on restricting even
nomadic movements that have taken place for centuries. In this regard,
Eritrea stated:
Finally, by
separating different drainage basins [in the Eastern Sector], such a
demarcation line decreases substantially the need for seasonal nomadic
movement back and for the between Ethiopian and Eritrean territory. Legitimate security concerns of
both parties make it imperative that the freedom of movement of local
populations be subject to usual immigration and travel
restrictions. In the
Danakil region, seasonal nomadic movements take place largely within a
single drainage basin, not from one drainage basin to another. A boundary line that separates
watersheds therefore accommodates the need for freedom of movement within a
particular drainage basin at the same time that it protects the legitimate
security interests of the two involved states.
With respect
to river boundaries, Eritrea also intends a closed border. In commenting on the demarcation of river boundaries, Eritrea stated:
While one may
consider that “the river is the boundary,” and therefore, no special
demarcation is required, it is also significant that poorly demarcated
boundaries lead to confusion among the local population which, in turn, may
lead to renewed conflict. It is, therefore, suggested that rivers be
demarcated…
Also with respect to river boundaries and river access, including customary rights related to such, Eritrea provides:
In theory the
Commission might construct a regime of guaranteed access to the river across
the territory of the other party; but such an approach, in Eritrea’s view
raises prohibitive practical difficulties. It would create a very high
probability of confrontation and conflict, would raise tensions generally in
the area, and would intrude on legitimate security considerations. Such an approach is also, in
Eritrea’s respectful view, beyond the jurisdictional mandate of the Boundary
Commission.
Eritrea’s
rigid approach is incompatible with a commitment to normalization of
relations between the Parties and their citizens. This approach to border management makes even more pressing the need to resolve the problems and anomalies identified by Ethiopia and the Commission before a boundary can be finalized.
In this
connection, Ethiopia notes the Commission’s comments regarding the role the
United Nations could play in resolving the problems and anomalies that the
Commission is unwilling to address.
Eritrea does not believe that legal
significance should attach to the distribution of fighting forces and relief
activities during the last decade of the struggle to unseat the Mengistu
government. The distribution of
fighting forces corresponded only roughly to the location of the provincial
boundary between Eritrea and Tigray; the Eritrean People’s Liberation Front
(EPLF) and the Tigrayan People’s Liberation Front (TPLF) chose areas to
occupy in accordance with the logic of military necessity.