Commentary
Eritrea-Ethiopia Virtual Demarcation is Legal and UN Enforceable
By Sophia Tesfamariam
May 14, 2008, 08:24

It’s the duplicity and hypocrisy of the Council that has me writing today, to take a look at two very similar demarcation cases, the Eritrea Ethiopia case and the Iraq-Kuwait case, to examine the conduct of the Security Council and the Secretary General in both instances. The EEBC’s 27 November 2006 Report makes reference to the UN Iraq-Kuwait Boundary Demarcation Commission (UNIKBDC) to illustrate the legal acceptability of “virtual demarcation”, the approach used by the EEBC in order to fulfill its sole mandate to demarcate the Eritrea Ethiopia border. In this sitting, I would like to take a closer look at the two Commissions, the circumstances that led to their establishment and how they set out to fulfill their respective mandates.

The Algiers Agreements were signed on 12 December 2000 in Algeria, by H.E. President Isaias Afwerki for Eritrea and by Prime Minister Meles Zenawi for Ethiopia and were witnessed and guaranteed by Secretary General Kofi Annan representing the United Nations, President Abdelaziz Bouteflika of the Democratic Republic of Algeria, President Obasanjo of Nigeria, Secretary of State Madeleine Albright representing the United States, Secretary General, Salim Ahmed Salim representing the OAU, and Senator Renato Serri representing the European Union. Kofi Annan even hailed it as “a positive story for Africa which ends the year with a story of peace".

The Agreeement was considered a model for future conflicts. It was a culmination of over 2 years of negotiations and destructive unnecessary war that cost the lives of thousands of Ethiopians who were used as cannon fodder and minesweepers in meles Zenawi’s aggressive war of expansion and occupation. The Algiers Agreement addressed issues of concern to both parties, fulfilled all the requirements desired by both parties as, and was guaranteed by the AU, EU, UN and US. The Algiers Agreements were welcomed and endorsed by the Security Council. In its 9 February 2001 Presidential Statement, the Council said:

“…The Security Council, reiterating its strong support for the Agreement of Cessation of Hostilities signed by the parties in Algiers on 18 June 2000 (S/2000/601), strongly welcomes and supports the subsequent Peace Agreement between the Government of the State of Eritrea and the Government of the Federal Democratic Republic of Ethiopia (S/2000/1183) signed in Algiers on 12 December 2000 (‘Algiers Agreement’). It commends the efforts of the Organization of African Unity, the President of Algeria and his Special Envoy, as well as the United States of America and the European Union for their role in achieving the Algiers Agreement…The Security Council encourages both parties to continue working towards the full and prompt implementation of the Algiers Agreement…”

The Algier’s Agreements had the full blessing of the Security Council and the US led international community.

Article 4.2 of the Algiers Agreement refers to the establishment of the independent Eritrea Ethiopia Boundary Commission (EEBC):

”…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 international law. The Commission shall not have the power to make decisions ex aequo et bono…”

Even before the EEBC delivered its decision, the Security Council in anticipation of the 13 April 2002 decision endorsed its decisions by adopting Resolution 1398 on 15 March 2002. The Council said:

“…Emphasizes the importance of ensuring expeditious implementation of the upcoming decision by the Boundary Commission while maintaining stability in all areas affected by the decision…”

When the Eritrea Ethiopia Boundary Commision (EEBC) delivered its Final and Binding Delimitation Decision on 13 April 2002, Kofi Annan and the Security Council welcomed the Boundary Commission's ruling, and hailed it as a “final legal settlement” of the Eritrea Ethiopia border dispute. Welcoming the decision as “an important milestone in the peace process”, Kofi Annan lauded the parties for their “continued and consistent reaffirmation” that the ruling was Final and Binding, in accordance with the Algiers Peace Agreement of December 2000. In its Press Statement read by Sergey Lavrov (Russian Federation), President of the Security Council, on the decision of the Eritrea-Ethiopia Boundary Commission on 16 April 2002 it said:

“…Members of the Security Council express their satisfaction that a final legal settlement of the border issues between Ethiopia and Eritrea has been completed in accordance with the Comprehensive Peace Agreement signed by the parties in Algiers in December 2000…Members of the Security Council welcome the decision by the Boundary Commission, announced in The Hague on 13 April 2002, which is final and binding… Members of the Security Council underline their commitment to support the implementation of the Boundary Commission’s decision and to contribute to the completion of the peace process…”

For its part, the Security Council in its Resolution 1430 of 14 August 2002 once again called on:

“…the parties to cooperate fully and promptly with the Boundary Commission, including by implementing without conditions its binding Demarcation Directions, by abiding promptly by all its Orders, including the two issued on 17 July 2002 (S/2002/853), and by taking all steps necessary to ensure the personal security of the staff of the Commission when operating in territories under their control…”

When Kofi Annan and Meles Zenawi introduced the idea of creating an “alternative mechanism” to demarcate the Eritrea Ethiopia border, the EEBC eloquently addressed the issue in its March 2004 Observations. It said:

“…alternative mechanism would involve a departure from, and thus and amendment to, the terms of article 4.2 of the Algiers Agreement, which gives the Commission the mandate to demarcate the boundary. Moreover, Ethiopia's reference to "the contested boundary" can only be understood as a reference to those parts of the boundary to which it alone and unilaterally takes exception: no part of the boundary is "contested" by both parties…Only by thus enabling demarcation to proceed unhindered can the mandate given to the Commission by the parties in the Algiers Agreement, namely to expeditiously demarcate the boundary, be fulfilled…"

After hailing the decision and making grand statements about the Commissioners and their work, the flip flopping, lawless mercenary minority regime in Ethiopia led by Prime Minister Meles Zenawi rejected the decision when it found out that the Commission had unequivocally awarded Badme, the casus belli for the conflict, to Eritrea.

Unfortunately, the Security Council, instead of addressing Ethiopia’s violations of international law and the UN Charter, and enforcing its own resolutions and decisions, acting ultra vires of its mandate under the UN Charter, repeatedly endorsed a myriad of deceptive gimmicks and time buying ploys orchestrated by Meles Zenawi and his handlers.

It has been almost 6 months since the EEBC delivered its Final and Binding demarcation decision on 27 November 2007 and whilst Eritrea has accepted the demarcation decision, Ethiopia has rejected the decision calling the demarcation decision “legal nonsense”. For reasons that are still unclear to all that have been following developments in the region, the Security Council has so far refused to endorse the EEBC’s demarcation decision. Why is that? After all, it endorsed the “virtual demarcation’ of the Iraq-Kuwait border and enforced its decision. Why is it then employing double standards today on the EEBC’s demarcation decisions? Let us take a look at the two Boundary Commissions for comparison and to understand why independent observers consider the EEBC as being more “legal” and impartial.

The independent Eritrea Ethiopia Boundary Commission (EEBC) was established pursuant to the 12 December 2000 Algiers Peace Agreement between Eritrea and Ethiopia and its mandate was clearly spelled out in that Agreement. According to Article 4.15 of the Algiers Agreement:

“…The parties agree that the delimitation and demarcation determinations of the Commission shall be final and binding. Each party shall respect the border so determined, as well as the territorial integrity and sovereignty of the other party…”

The parties handpicked the Commissioners after extensive vetting. Out of the 5 members of the EEBC, only one of the Commissioners was a UN appointee. The parties appointed 2 Commissioners each. The four Commissioners appointed by the parties were: Prince Bola Adesumbo Ajibola (appointed by Ethiopia), Professor W. Michael Reisman (appointed by Eritrea), Judge Stephen M. Schwebel (appointed by Eritrea) and Sir Arthur Watts, KCMG QC (appointed by Ethiopia). UN Secretary General Kofi Annan appointed Sir Elihu Lauterpacht as the President. The UN Cartographer served as the Secretary to the Commission.

On the other hand, the UN Iraq Kuwait Boundary Demarcation Commission (UNIKBDC) was not established by the two parties to the conflict as required by international law and the UN Charter. It was established pursuant to paragraph 3 of Resolution 687 adopted by the Security Council on 3 April 1991. Its mandate was also not agreed upon independently by the two parties, it was determined by the Secretary General as his 2 May 1991 Report to the Security Council will show. In that Report, Secretary General Javier Perez De Cuellar wrote:

“…After consultation with the Governments of Iraq and Kuwait, I will now establish a Iraq-Kuwait Boundary Demarcation Commission to be composed of one representative each of Iraq and Kuwait and three independent experts who will be appointed by me, one of which will serve as Chairman…The terms of reference of the Commission will be to demarcate in geographical coordinates of latitude and longitude the international boundary set out in the agreed Minutes between Kuwait and Iraq…the coordinates established by the Commission will constitute the final demarcation of the international boundary between Iraq and Kuwait…the Commission will take its decisions by majority. Its decisions regarding the demarcation of the border will be final…”

The Secretary General appointed Mr. Mochtar Kusuma-Atmadja, former Minister for Foreign Affairs of Indonesia as Chairman, Mr. Ian Brook, then Technical Director, Swedsurvey, National Land Survey of Sweden, and Mr. William Robertson, General/Director General of the Department of Survey and Land Information of New Zealand, as independent experts. Ambassador Riyadh Al-Qaysi represented Iraq and Ambassador Tarek A.Razzouki represented Kuwait. Mr. Miklos Pinter, Chief Cartographer of the United Nations Secretariat, was appointed Secretary to the Commission. The UN Secretary General spelled out UNIKBDC’s mandate. The delimitation formula was the 1932 Exchange of letters between the Prime Minister of Iraq and the Ruler of Kuwait.

As we can see above, while the Eritrea Ethiopia Boundary Commission was set up in accordance with general practice and parity, the UN Iraq Kuwait Boundary Demarcation Commission was not. Whilst the EEBC’s impartiality, independence and clear and coherent mandate was hailed and accepted by Eritrea, Ethiopia and the international community, including the Security Council, the same cannot be said about the independence and neutrality of UNIKBDC, its constitution and or its politically motivated mandate.

Despite Iraq’s expressed reservations about the composition of the Commission, its mandate and its legality, succumbing to international pressure (Operation Desert Storm) it reluctantly accepted the terms and conditions set forth in Resolution 687. Suffice it to mention an excerpt from a letter dated 23 April 1991 sent by Ahmed Hussein, the Iraqi Foreign Minister, to the Secretary General to illustrate Iraq’s frustration with the Security Council and Resolution 687’s legality. The Iraqi Minister wrote:

“…just as we accepted resolution 687 (1991) despite our objections of and criticisms of its provisions, we will cooperate with you and nominate a representative of our government to participate in the Demarcation Commission, even if you take no account of the views and comments expressed above. We do this because the circumstances forcing our acceptance persists…”

The Secretary General was fulfilling a request by the Security Council to establish the Boundary Demarcation Commission. In responding to Iraq’s reservations about the proposed Commission and its mandate, the Secretary General was keen on stressing the Commission’s independence and methodology, in an attempt to assure Iraq of the Commission’s neutrality. In his 30 April 1991 letter to the Iraqi Foreign Minister, Javier Perez De Cuellar wrote:

“…It is up to the Commission to examine and identify the relevant documentation and to determine which technology or combination of can best be used for the fulfillment of its mandate. In my view, it would prejudice the work of the Commission and even hinder its independence if I were to go beyond the level of detail concerning the working methods of the Boundary Commission set out in my draft report…”

There were many that questioned Resolution 687’s neutrality and legality, but were powerless to do anything about it. Not only was it in contravention of Article 33 of the UN Charter and a violation of Iraq’s sovereignty and territorial integrity, it also contradicted the Council’s own Resolution 660 of 1990, which called on Iraq and Kuwait to resolve their differences through negotiations. It was cited as “the first in the annals of the international organization” and it raised many concerns and questions amongst the impartial members of the Security Council. Article 33 of the UN charter is very clear as to what needs to be done when there is a dispute between member states. The Security Council does not have the mandate to amend, revise, revisit or change Agreements signed by two sovereign states.

Many independent observers and legal analysts considered Resolution 687 an immoral and politically motivated Resolution and one that was clearly ultra vires of the Security Council’s mandate under the UN Charter-even if it was acting under Chapter VII. The Resolution was labeled “iniquitous” and legal experts and analysts voiced their concerns and concurred that it constituted “a dangerous legal precedent”. Nonetheless, the Boundary Commission was allowed to execute its mandate and the Security Council immediately endorsed its demarcation decisions when delivered. By its Resolution 833 (1993) adopted on 27 May 1993, the Security Council:

“…Welcomes also the successful conclusion of the work of the Commission… Reaffirms that the decisions of the Commission regarding the demarcation of the boundary are final; Demands that Iraq and Kuwait in accordance with international law and relevant Security Council resolutions respect the inviolability of the international boundary, as demarcated by the Commission, and the right to navigational access; Underlines and reaffirms its decision to guarantee the inviolability of the above-mentioned international boundary…”

The Security Council not only endorsed the UN Iraq-Kuwait Boundary Demarcation decisions, it also guaranteed its inviolability. The Security Council went on to enforce that decision and today Iraq and Kuwait have a secure and internationally recognized boundary.

If virtual demarcation is “legal nonsense” or has no legal applicability, why did the Security Council accept the UN Iraq-Kuwait Boundary Demarcation Commission’s decision and endorse the virtual demarcation of the Iraq-Kuwait border and make efforts to enforce it? When will the Security Council shoulder its legal and moral responsibilities under the UN Charter and enforce international law and the EEBC’s Final and Binding demarcation decisions? If it managed to come up with mechanisms to enforce the inviolability of the Iraq-Kuwait international border, why can’t it also enforce the inviolability of the Eritrea Ethiopia border? Why did it not leave the issue “up to the two parties”, Iraq and Kuwait, as it is now doing with Eritrea and Ethiopia?

If the Security Council can endorse a decision delivered by a legally questionable body and enforce its decisions, why is it reluctant to endorse and enforce the EEBC decision when by all accounts and when compared, the EEBC is not only more independent and impartial but also one that both parties to the conflict chose and established? Why is the Security Council mum about the EEBC’s Final and Binding demarcation decision and searching for other “alternative mechanisms” to demarcate an already legally demarcated Eritrea Ethiopia border? Why are the Security Council and Ban Ki Moon engaging in fruitless time buying gimmicks when thousands are languishing in makeshift camps waiting to return to their homes and villages that have remained under Ethiopian occupation for over 6 years?

Whether or not the Security Council endorses the demarcation decisions of the Eritrea Ethiopia Boundary Commission, that decision is legally binding on all. If the Security Council continues to refuse to call on Ethiopia to vacate from sovereign Eritrean territories it is militarily occupying, Eritrea’s right to self-defense is protected under Article 51 of the UN Charter and Eritrea can exercise that right when and if it deems it necessary. Ban Ki Moon can avoid following in Kofi Annan’s blood stained footsteps by upholding the rule of law and the UN Charter instead of bowing to Washington’s self serving dictates and orders in violation of international law and the UN Charter he swore to uphold.

The rule of law must prevail over the law of the jungle!

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The views expressed in the commentary section of Shabait.com do not necessarily reflect those of the Ministry of Information of the State of Eritrea. The writer contributed this article and bears sole responsibility for its contents.