In doing so
the Commission is mindful of the fact that it is not the practice of
international tribunals to respond to comments upon, or criticisms of, their
decisions. However, the unusual features of the present situation, in which
the Boundary Commission is required to continue its work by demarcating
the boundary but without provision for formal pleadings by the Parties or
full oral hearings, make it desirable that the Commission’s work in this
respect be more fully explained. This will, the Commission believes, also be
helpful in avoiding certain misunderstandings regarding the content and
effect of the Commission’s Delimitation Decision of 13 April 2002
(“Delimitation Decision”) and regarding its tasks during the demarcation
process.
In the Delimitation Decision, the Commission delimited the colonial treaty
border between Eritrea and Ethiopia as prescribed by the mandate given to
it by the Parties, namely, in accordance with the pertinent colonial treaties
and applicable international law. Under the December 2000 Agreement
“[t]he parties agree that the delimitation … determination […] of the
Commission shall be final and binding.” Both Parties have affirmed their
acceptance of the Delimitation Decision.
The Demarcation Phase
The Commission has now turned to the second phase of its work, the
demarcation of the boundary. Since, as the Parties have expressly agreed,
the Commission’s Delimitation determination is “final”, the demarcation
has to be the demarcation on the ground of the boundary as delimited in
the Delimitation Decision, not a variation of that boundary or the
elaboration of some new boundary. This conclusion is reflected in
paragraph l4A of the Commission’s Demarcation Directions of 8 July 2002,
which reads as follows:
“Division of towns and villages”:
A. The Commission has no authority to vary the boundary
line. If it 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.”
Although Ethiopia had, in its written comments on the draft of this
provision, expressed the hope that it could be made more flexible so that
demarcations could be more practical and mitigate hardships, the
Commission felt unable to accede to that suggestion, given both the
finality which the Parties were agreed was attached to its Delimitation
Decision and the role given by the Parties to the United Nations in
facilitating the resolution of such problems.
The position as set out in paragraph l4A thus follows from the mandate
given to the Commission by the Parties in the December 2000 Agreement.
The Commission cannot by its own actions expand the authority conferred
upon it. If, however, the Parties were to agree that the Commission’s
authority should be expanded, they would be free to do so.
Flexibility in Demarcation
At this point the Commission must address the question of the flexibility
which is said to inhere in a demarcation process and which, it is suggested,
enables the Commission to depart from the strict application of the
boundary line which it prescribed in order to take into account the human
and physical geography of certain areas better known now than at the time
the Delimitation Decision was handed down.
The Commission is, as already noted, constrained by the terms of the
December 2000 Agreement. The Commission is unable to read into that
treaty language, either taken by itself or read in the light of the context
provided by other associated agreements concluded between the Parties,
any authority for it to add to or substract from the terms of the colonial
treaties or to include within the applicable international law elements of
flexibility which it does not already contain.
In this latter respect the Commission notes that there is a practice
whereby demarcators may be given some latitude, on various grounds, in
demarcating the line which has been delimited by some arbitral or judicial
award or by a boundary treaty. But the Commission notes that this is a
practice which is normally based on the agreement of the parties
concerned, as expressed in some relevant instrument. Moreover, that
practice often involves the demarcation of a boundary by joint demarcation
teams composed of representatives of the two States concerned, who can
thus act for their States in agreeing to such flexibility as the demarcation
team may think appropriate in the course of its work. The Commission is
not of the view that there is to be derived from that practice a settled rule
of customary international law to the effect that demarcators not so
expressly empowered nonetheless possess such power.
Hence, consistent with the Parties’ prescription that the delimitation be
final, the scope for any clarification of or deviation from the boundary
which the Boundary Commission has laid down is very limited. 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.
In the present case this conclusion is the more compelling in the light of
three considerations in particular to which the Parties had agreed in
advance:
(a) first, they knew in advance, and agreed, that the result
of the Commission’s delimitation of the boundary might not
be identical with previous areas of territorial administration
and might follow a course which resulted in populations
ending up on the ‘wrong’ side of the boundary, and that
where such a situation arose the ensuing problems were for
resolution by the UN rather than by the Commission (Article
4.16 of the December 2000 Agreement);
(b) second, the Parties knew in advance, and agreed, that it
was not open to the Commission to make its decisions on
the basis of ex aequo et bono considerations (Article 4.2);
(c) third, the Parties knew in advance, and agreed, that the
boundary as delimited by the Commission’s Delimitation
Decision would be final (Article 4.15), i.e., not subject to
amendment, including therefore amendment during the
process devoted to and limited to demarcation of the
boundary delimited.
Flexibility Within the Terms of the Delimitation Decision
In respect of certain matters “Tserona, Zalambessa, Bure, the Eastern
Sector as a whole, rivers, the recalculation of coordinates, and the
eventual need to replace the Commission’s “illustrative” map with a final
and definitive map” the Commission envisaged that further work was
required but it specified in its Delimitation Decision what that work would
entail. It would be wrong to read into those exact references some
readiness or authority on the part of the Commission to go beyond the
limits set, let alone to look again at other sections of the boundary in the
light of such further representations as might be made to it.
(a) The recalculation of coordinates
This is particularly the case with the Commission’s specification in the
Delimitation Decision of the coordinates of the points between which the
boundary was to run. 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. It was to be a technical exercise not involving any
substantive alteration in the boundary. Nothing was said in the Decision to
suggest that the line was provisional other than in relation to the locations
specifically identified in paragraph 10 above.
The Commission is therefore obliged to reject the assertion that it must
adjust the coordinates to take into account the human and physical
geography in the border region. Moreover, the Commission firmly rejects
the contention that if such adjustments are not made the Commission’s
work would be devoid of adequate legal basis.
(b) The Parties’ subsequent conduct
Similarly, the fact that the Commission, in its Delimitation Decision, made
an assessment of the effect of subsequent conduct on the boundaries
established by the three colonial treaties cannot be read as enabling the
Commission now to reopen the Delimitation Decision. In considering such
conduct, the Commission relied on the evidence placed before it by the
Parties during the written and oral pleadings before the Commission, and
concluded that in some respects a departure from the treaty boundary was
called for while in others it was not. The Commission’s readiness to
consider in that way the Parties’ subsequent conduct was not intended to
mean, and cannot be taken to mean, that the Commission would now be
receptive to additional evidence of that conduct or would itself seek to
gather it. To do so would mean that the boundary determined by the
Commission would have been subject to further variation and would thus
have been indeterminate. It would also be inconsistent with the stipulation
in the December 2000 Agreement that the Commission’s Delimitation
Decision is “final.” The boundary laid down in the Delimitation Decision
reflects the Commission’s assessment of the evidence of conduct presented
by the Parties. The boundary line drawn, for example, in the area of the
so-called Belesa and Endeli Projections is not a provisional line subject to
further consideration by the Commission of new evidence of State practice
in those areas. There is, in short, no further room for the introduction by
the Parties of additional new evidence of their conduct, or for the
Commission to seek out such evidence.
The Three Boundary Sectors
As the Commission indicated in its Delimitation Decision, its approach to
the task of delimiting the boundary between Eritrea and Ethiopia was
dictated by the December 2000 Agreement, in which the Parties stipulated
that the Commission’s mandate was to determine the boundary on the
basis of the three Treaties and applicable international law. Accordingly,
the Commission dealt with the boundary in three sectors corresponding to
the three Treaties. As they were not identical in content, the interpretation
and application of each by the Commission required different approaches in
each of the sectors to which they related.
(a) The Western Sector
The boundary in the Western Sector, governed by the 1902 Treaty, was
never completely laid down prior to the dispute between the Parties. It
was, therefore, a principal task of the Commission to complete the
delimitation of that boundary.
The Commission concluded that the boundary in the uncompleted section
had crystallized by 1935 so as to follow a straight line between Points 6
and 9 as depicted on the map accompanying its Delimitation Decision. That
straight line had been represented on many maps, including maps
published by Ethiopia as well as Eritrea.
The Commission also examined developments after 1935, and concluded
that it could “perceive nothing in that chain of developments that has had
the effect of altering the boundary between the Parties” (para 5.91). The
Commission observes that its finding that the boundary under the 1902
Treaty had by 1935 crystallized along the line of the traditional signature
means that the burden rested upon Ethiopia to substantiate any claimed
departure from that line on the basis of conduct that would serve to show
that Badme village (which lies close to the line) was subject to Ethiopian
control. The Commission referred specifically in the Delimitation Decision
(paras 5.92-5.95) to the evidence produced by Ethiopia. It noted in
particular that Ethiopia had introduced no evidence in its opening pleading
(its Memorial) of governmental activities west of that straight line;
although it produced some evidence in its Counter Memorial, it did not add
to or develop this in its Reply. Moreover, maps submitted by Ethiopia were
inconsistent as to the location of Badme village. 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.
This conclusion followed from the inadequacy of Ethiopia’s evidence. Since
Badme village (as opposed to some other parts of the Badme region) lay
on what was found to be the Eritrean side of the treaty line, there was no
need for the Commission to consider any evidence of Eritrean
governmental presence there, although Eritrea did in fact submit such
evidence. Moreover, 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.
The Commission must also observe that the 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.”
(b) The Central Sector
ln the Central Sector the boundary was decided by reference, in the first
place, to the Treaty of 1900. The subsequent conduct of the Parties was
then examined with a view to determining whether any such conduct
required the Commission to depart from the Treaty line as so determined.
The Commission found that on the evidence placed before it such
departure was required at a number of locations which were clearly
described. However, at two points determination was left to be made more
precise later, namely, at Tserona and Zalambessa. The Delimitation
Decision contained no indication that the demarcation would involve any
change or completion of the boundary at any other locations.
Nonetheless, in the 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, 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.
Demarcation instructions relating to these areas will be issued later.
In addition, the Commission is aware 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 Delimitation Decision
simply as the “Eritrean claim line.” These issues will be addressed in future
instructions to the demarcation team.
In two additional respects the Commission’s delimitation of the boundary in
the Central Sector may call for some clarification.
Although it now appears that the Commission may have been provided
with insufficient information concerning the precise location of Fort
Cadorna, this 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 other respect in which the Delimitation Decision calls for some
clarification concerns the course of the boundary between Points 20 and
21, immediately to the southeast of Zalambessa. In that area 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, as shown on Map 11 of the Delimitation Decision. 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.
There is a further issue in that the Commission, based upon map evidence
submitted by both Parties, placed Point 20 at the source of a headwater
stream of the Muna/Berbera Gado. From the aerial photo survey that the
Commission was only recently permitted to conduct, it is apparent that
that map evidence was inaccurate. There may therefore be some
uncertainty regarding the boundary line around Zalambessa and the
commencement of the line passing down the Muna until it meets the Enda
Dashim at Point 21. The Commission will give the demarcation team
appropriate instructions in due course.
(c) the Eastern Sector
The boundary in the Eastern Sector was governed by a third Treaty, that of
1908, which used the formula that the boundary should proceed parallel to
the coast and at a distance of 60 kilometres from it, adding that the two
Governments would fix the line on the ground by common accord,
“adapting it to the nature and variation of the terrain.” The Commission
accordingly sought the views of the Parties as to what adaptations might
be called for in accordance with that provision. In their comments of 24
January 2003, both Parties gave their views on this matter. The
Commission has carefully considered those views, and has reached
conclusions which it has embodied in the demarcation instructions which it
has today given to the demarcation team.
Rivers and Islands
The Commission also acknowledged in its Delimitation Decision that there
could be certain practical difficulties in the demarcation of the boundary in
those stretches where it follows the course of a river. It therefore asked
both Parties for their views on these questions, which the Parties duly gave
in their comments of 24 January 2003. The Commission is considering
those views.
Concluding Observations
It is inherent in any boundary delimitation that it may give rise to
anomalies on the ground. This was expressly anticipated and accepted by
the Parties in their December 2000 Agreement, and by the Commission in
its Demarcation Directions of July 2002. This is essentially a matter for the
Parties to deal with by agreement between themselves, or by agreeing to
empower the Commission to vary the boundary, or by turning to the
United Nations as contemplated in Article 4.16 of the December 2000
Agreement.
In its consideration of the comments of the Parties, the Commission must
maintain its impartial approach to all matters with which it has to deal. It
cannot allow one Party to claim for itself the right to insist on adjustment
of parts of the boundary which that Party finds disadvantageous. The
Commission continues to owe a duty to both Parties to perform the
functions placed upon it by their agreement and it is its intention to
perform these functions fully and faithfully.
The next steps to be taken are clear: the Commission’s surveyors must be
allowed to continue, without hindrance, to establish the locations of the
marker pillars and the contractors must be allowed to construct the pillars.
The Parties must cooperate with the Commission in ensuring that the
Commission be enabled to complete its work as set out in the Schedule of
Operations. The Commission’s personnel must be fully safeguarded in their
operations. While the Commission notes with appreciation the firm
undertakings that both Parties have given in this connection, it still
remains for the Parties to discuss with the Chief Surveyor at an early date
the details of the manner in which they propose to fulfill these
undertakings.
