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.
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.