- 3 -
If we examine the frontier delimitation between Ethiopia and Eritrea we see that not only the interests of the two countries are diametrically opposed as to override the future relationship of the two countries but also there are no legal issues on which they can agree. The problem is that relying always on the unswerving support of EPRDF, EPLF wants to rewrite history and international law to its advantage. The Algiers Agreement is the result of this anti Ethiopia collusion. All what I have been saying is summarised by article 4 of the Algiers Agreement. For the benefit of those who have not had the occasion to read it, here are the provisions of the article which has set the tongues wagging and caused much ink to flow.
Article 4 paragraph 1"Consistent with the provisions of the framework Agreement and the Agreement on Cessation of hostilities, the parties reaffirm the principle of respect for the border existing at independence as stated in resolution AHG/Res. 16(1) adopted by the OAU summit in Cairo in 1964, and, in this regard, they shall be determined on the basis of pertinent colonial treaties and applicable international law".
Article 4 paragraph 2
"The parties agree that a neutral Boundary Commission composed of five members shall be established with a mandate to delimit and demarcate the colonial treaty border based on pertinent colonial treaties(1900, 1902, and 1908) and applicable in international law. The Commission shall not have the power to make decisions ex aequo et bono".
The first comment that one can make is the contradiction between the two paragraphs. Namely paragraph one states that the parties' respect for the OAU Cairo resolution which expressly proclaims that the border which African countries inherited at the time of their decolonization shall not be called into question. This means that the critical date in the determination of the border is the declaration of independence. Why did African states decided this in 1964 not to question the legality of the frontiers which they inherited from their former colonial powers at the time they became independent?. One has to remember that before the Addis Ababa summit conference of 1963 which founded the Organisation of African Unity, African Countries were divided into the so-called Monrovia bloc which wanted the creation of the organisation of African unity composed of sovereign and independent states and the Casablanca bloc which wanted to create a united states of Africa. However the Addis spirit as it is usually called showed that the creation of United states of Africa as was advocated by Kwame Nhukrumah was premature. To make things worse there was, following the Addis Ababa OAU summit, an outburst of frontier conflict between Algeria and Morocco, between Ethiopia and Somalia, between Somalia and Kenya, between Dahomey and Niger. These conflicts made it clear that the creation of a united Africa was too unrealistic. Therefore, the idea of creating a united states of Africa had to be abandoned and African heads of states and governments had to be convened in Cairo in 1964 to pass a resolution concerning the frontier conflict among members of the OAU. The resolution requires that the border inherited from colonial powers at the time of becoming independent should be respected. This means that no country could demand the demarcation of its border basing on past treaties which were once in vigour in the past but changed for different reasons. The best example is the case of Togo. Before the first world war Togo was a German colony. However, when Germany was defeated in the first world war, Togo was divided between Britain and France. A part of Togo was given to the British colony of Ghana whereas the remaining territory of Togo became a French colony. The question now is: can Togo demand the demarcation of its territory on the basis of German colonial treaties or is she bound to accept the border it inherited from France when it declared its independence? The Cairo resolution of 1964 says that the Togolese frontier is the one Togo inherited from France at the time of its becoming a sovereign state. This is clearly stated by the International court of Justice in its ruling on the Frontier dispute between Burkina faso and Mali in which case the court said "....it is this situation that the parties have inherited at the time of their accession to independence and it is the frontier as it existed at the time of becoming independent which the court is expected to determine".
However, the Algiers Agreement is in stark contradiction with the Cairo resolution. Because it makes reference to defunct treaties whereas Eritrea became de facto independent in 1991. Therefore its territory is the one it received from Ethiopia in 1991. As Eritrea did not have a juridical international personality before 1993, it can not ask the demarcation of the border on the basis of Italian colonial treaties. Colonial treaties don't concern Ethiopia as long EPRDF/EPLF argue illegally that Ethiopia is a colonial power of Eritrea. Therefore the reference to Cairo resolution is intended to deceive the Ethiopian people. The fact is that the EPRDF government has agreed, without any legal basis, to the demarcation of the Frontier on the basis of irrelevant and defunct colonial treaties in order to favour Eritrea at the expense of Ethiopia's sovereign right.
The second comment concerns the redundancy of paragraph one because every is said in paragraph two. However paragraph two prevents the Commission from making an ex aequo et bono decision. Why? One should know that an ex aequo et bono decision is a decision which is not based on a strict observance of law. It is a decision based on equity or principle of justice. Thus if the Border Commission were authorised to decide the case ex aequo et bono, one can not rule out the possibility that the Commission would have decided that all territories which have been inhabited by Ethiopians since time immemorial and who have been expressing their determination to remain Ethiopian and only Ethiopian should not be obliged either to change their Ethiopian identity or be displaced out of their will from their ancestral homes. The areas which they inhabit since time immemorial have always been Ethiopian territories. They have never been under Italian or Eritrean administration. So, it would be unjust and inequitable to demand these people to quit their ancestral homes.
However, the Ethiopian government which is out to humiliate Ethiopia and Ethiopians has prevented the Commission from making an ex aequo et bono decision because it wants to cede Ethiopian territories to Eritrea. This is not a mere extrapolation. It is clearly stated in article 5paragraph 16 of the Algiers Agreement which states:
Recognising that the results of the delimitation and demarcation process are not yet known, the parties request the United Nations to facilitate the resolution of problems which may arise due to the transfer of territorial control, including the consequences for individuals residing in previously disputed territory.The disputed territories are Ethiopian territories of Badme, Zala Ambassa, Irob and Bure. As far as I know the Ethiopian government has not made any claim of Ethiopia's right over territories taken forcibly by Italy. Given that the EPLF has been saying for the last forty years that Eritrean territory is that defined by the treaties of 1900, 1902, and 1908, we can see clearly how much the Algiers Agreement is drafted in such a way to satisfy each and every demand of Eritrea at the expense of Ethiopia's right recognised by International law. Given this one can argue that the Algiers Agreement has nothing to do with arbitration. Arbitration supposes the existence of conflict of interest. Where there is no such conflict, it is a contradiction in terms to speak of arbitration. We have seen above that there is arbitration where there is an approximation of view between the contending parties. However the Algiers Agreement shows that not only there is an approximation of views between Ethiopian strong man and his Eritrean counter part but also there is a complete community of view between the two as regards the promotion of Eritrean interest. However, this promotion is not only limited to ceding Ethiopian territories and waiving Ethiopian maritime outlet. It includes also favouring financially Eritreans.This is clearly stipulated in article 5 paragraph 9 of the Algiers Agreement
"In appropriate cases, each party may file claims on behalf of persons of Eritreans and Ethiopian origin who may not be its nationals. Such claims shall be considered by the Commission on the same basis as claims submitted on behalf of that party's nationals"If my command of the English language is good, I consider this article as being intended to enable Ethiopia to submit claims on behalf of Eritreans who are not Ethiopian nationals and Eritrea on behalf of Ethiopians. The curious thing here is why should the EPLF which has been killing torturing, confiscating imprisoning Ethiopians should make claims on behalf of Ethiopians? Is it not a pretext for the Ethiopian government to make financial largesse to Eritreans as it has been doing for the last 11 years? I leave the judgement to the reader.It is important to know that international law is based on the consent of states. The consensual theory has been sanctioned as of the 1927 Lotus case in which the Permanent Court of International Justice clearly stated that international law was based on the consent of states. This means that states can do what ever they want. Accordingly, the EPRDF government which has colonised the Ethiopian state can even give a part of Ethiopian territory to Somalia or to the Sudan. If the EPRDF government were to give tomorrow the whole provinces of Gondar and Gojjam to the Sudan, there is nothing illegal under international law. The assumption behind such a consensual conception is that states will try hard for the respect of their national interests. It is true that in their international relations states use international law to further their national interest. Even when International law is against their interest, they violate it more often than not. But when they violate it, they do not say they are violating it. They argue rather they are complying with it even if there be no doubt that they are violating it. In other words they violate international law by basing themselves on international law. In the case of the present Ethiopian regime, it is exactly the opposite which has been taking place. In order to favour Eritrea, the EPRDF regime violates Ethiopia's legitimate right. It uses International law to damage Ethiopia and Ethiopians. However, when Ethiopian right is violated, no one has given due attention to our cry for justice. Even the UN has turned a deaf ear. Because the act of the Ethiopian government is supposed to be the reflection of the sovereign will of the Ethiopian state. And as it is the government which is supposed to will on behalf of the state, the government's decision however very damaging it is is supposed to be the result of the sovereign will of the Ethiopia state. This is a view widely accepted by positive international law.
However, a government is supposed to will on behalf of the state only when the different organs of the state act in conformity with constitutional duties and responsibilities. In the case of an agreement signed out side the constitutional powers of a government such as the Algiers Agreement, there may be different scenarios.
It is essential to know that the Ethiopian case is a very special one. I never know of a case where the government of a country violates all internationally recognised rights a country it rules in order to favour another country. The EPRDF regime has signed the Algiers Agreement with the bad faith of damaging Ethiopia. The Ethiopian constitution provides in its article 86 (3) that the Ethiopian government should "observe international agreements which respect and accord with the sovereignty and the interests of the Ethiopian people". A contrario, this article forbids the observance of treaties which don't accord with Ethiopia's sovereign interest. A fortiori, this article also forbids the conclusion of an agreement which violates Ethiopian independence and territorial integrity. The Algiers Agreement is a complete violation of Ethiopian independence and sovereign right for reasons mentioned above. It is therefore unconstitutional because it violates article 86(3). Article 9(1) of the constitution provides that THE ALGIERS AGREEMENT AND ITS VALIDITY UNDER INTERNATIONAL LAW
"the constitution is the supreme law of the land. Any law, customary practice, an act of an agency of government or official that contravenes the constitution is invalid".Sub article 3 of the same article stipulates "all international agreements ratified by Ethiopia are an integral part of the laws of the country".International agreements should be conform to the constitution in order to become part of Ethiopian law. When they are not conform to the constitution like the Algiers Agreement, they are unconstitutional and invalid in accordance with article 9(1) of the constitution. An invalid agreement under the constitution should not be obeyed by any one in Ethiopia who wants to respect the sanctity of the constitution. In this regard, article 9(2) stipulates clearly that
"all citizens, government bodies, political parties and other associations and their officials are bound by the constitution. They have a duty to ensure its observance".This means that not only every body is expected to act in accordance with the constitution but he should also work towards the respect of the sanctity of the constitution. This obligation includes the duty to oppose to the prime minister and his rubber stamp parliament from tainting with the constitution. But in a country where the rule of law is replaced by rule of men, therefore rule of gun, it may be naive to expect that courts could oblige the government from auctioning away Ethiopia's sovereign right. Continue
[Opinions in this article are solely that of the writer.]