1. Ethiopia was surprised and dismayed to see the 16th Report of the Eritrea Ethiopia Boundary Commission, dated 24 February 2005, annexed to the Report of the Secretary General on Ethiopia and Eritrea.  Unfortunately, the Report is transparently self-serving, and it is quite misleading with respect to recent communications between Ethiopia and the Boundary Commission.  Certain of its assertions as to the legal effect of the Commission's decisions are in direct conflict with the clear provisions of the Cessation of hostilities Agreement of 18 June 2000 and the Agreement of December 2000, as well as the Delimitation Decision of 13 April 2002 itself.

2. Ethiopia must observe, with great regret and dismay, that the Commission's 24 February 2005 Report, as well as a number of the Commission's other actions have widely exceeded the Commission's mandate and scope of authority granted in the December 2000 Agreement.  That Agreement established the Commission and is the sole basis of its mandate and authority.  The mandate granted there was limited to issuing decisions, based on international law, delimiting and demarcating the boundary.  As demonstrated by the 24 February 2005 Report, the Boundary Commission President has now undertaken actions purporting to involve the Commission in the diplomatic aspects of the peace process, a role never contemplated by the Parties and a role for which the Commission is not well suited.

3. The Report's assertion that the line determined in its Delimitation Decision of 13 April 2002 is binding as to present conduct of Ethiopia and Eritrea is in direct conflict with the Boundary Commission's own Delimitation Decision.  For example, the Decision states in paragraph 2.16 that coordinates for reference points "are not necessarily final and the Commission may have to adjust or vary them in the course of demarcation.  Only the final demarcation map will be definitive."

4. Moreover, the Report's assertion directly contradicts Articles 10 and 14 of the Cessation of Hostilities Agreement, the conduct and practice of the two Parties and the United Nations Secretary General and Security Council, and the conduct, practice and decisions of the Commission itself since its Delimitation Decision of 13 April 2002.

5. The Cessation Hostilities Agreement at Article 10 provides that "the final status of the contested areas will be determined at the end of the delimitation and demarcation of the border."  Among other reasons for such prudent and practical provisions was the need to accommodate changes in the delimitation line during the course of demarcation of that line on the ground.  Indeed, the Line in the Commission's Delimitation Decision in the Eastern Sector of the boundary has already been revised during the course of the demarcation process to date to shift 162 square kilometers in Ethiopia's favor and 113 square kilometers in Eritrea's favor.  Other significant changes are clearly foreseen in the Commission's various instructions to its demarcation staff.

6. Ethiopia remains firmly committed to achieving a sustainable peace with Eritrea encompassing demarcation of the boundary and normalization of relations. Ethiopia firmly rejects the use of force in accomplishing this and calls upon Eritrea to do the same.  Ethiopia deeply appreciates the efforts of the Secretary General, the Security Council and the many friends of the Peace Process whose continued support will be essential in completing the Peace Process and advancing the security and prosperity of the region's people.
 

March 10, 2005

Incorrect Statements and Conclusions in the 16th Report of the EEBC

The 16th Report of the EEBC President is replete with misleading and incorrect statements and conclusions with respect to important aspects of the Commission' proceedings and record.  The following is an analysis of selected examples that warrant correction.

Paragraph 6 The Commission states that Ethiopia "now insists on prior 'dialogue' but has rejected the opportunity for such 'dialogue' within the framework of the demarcation process provided by the Commission's proposal to meet with the Parties on 22 February.  This is the latest in a series of obstructive actions taken since the summer of 2002 and belies the frequently professed acceptance by Ethiopia of the Delimitation decision."

It is preposterous for the Commission to characterize Ethiopia's declining the invitation to meet on 22 February as a rejection of an opportunity for dialogue.  The Commission's 4 February invitation to the proposed 22 February meeting said nothing of dialogue.  The "framework of the demarcation process" established by the Commission does not provide for dialogue.  Moreover, Eritrea's position against dialogue made any talks between the Parties at the proposed 22 February meeting impossible.  Ethiopia has never rejected an opportunity for dialogue and remains eager to engage Eritrea in discussions on how to implement the Commission's delimitation decision.

Paragraph 10  The Commission defines delimitation as "to determine and to describe precisely the legal boundary between the two Parties"  and demarcation as "to arrange for the boundary so determined to be visibly marked on the ground by the placing, where necessary, of boundary markers."  This formulation ignores the fact that, as demonstrated in Ethiopia's January 24, 2003 Comments to the Commission, demarcation practice allows latitude to make substantial adjustments during demarcation to take account of conditions that could not be anticipated during delimitation.  For example, the demarcated boundary produced by the U.N'.s Iraq-Kuwait Boundary Demarcation Commission differed significantly from the delimitation line. Consideration of the human and physical geography of the boundary during the demarcation phase is particularly important in this case because neither the Commission nor its staff visited the boundary area before the delimitation decision.

Paragraph 11  The Commission states that "[i]n the proceeding leading to the Delimitation Decision, neither Party contended that the Commission should depart from the boundaries that it would objectively determine were laid down in the stated treaties."  Both parties during the delimitation proceedings considered the relevant treaties to support their respective claim lines and thus did not ask for departures from these lines.  However, in its delimitation decision, the Commission determined the location of the treaty boundary and departed significantly from those boundaries in order to reflect the conduct of the parties.  In the Western Sector, the Boundary Commission inexplicable deviated from the treaty boundary in Eritrea's favor in such a way as to leave Badme on the Eritrean side of the delimitation line.  This is despite the fact that Ethiopia provided the Commission with 40 documents demonstrating Ethiopia's administration of Badme while Eritrea, having acknowledged Ethiopia's administration of Badme, provided none.

Paragraph 13  The Commission claims that "[t]he coordinates of all reference points mentioned in the Decision were specified in a table."  The Commission did not provide coordinates for reference Point 10, which it defined simply as "Between the two checkpoints of Eritrea and Ethiopia at Bure."  Moreover, it should be noted that some of these coordinates do not correspond to the reality on the ground.  For example, Point 20, which the Commission identified as the source of a stream, is in the ruins of a house in the middle of the town of Zalambessa.

Paragraph 15  The Commission states that "[t]he boundary, as delimited by the Commission, and subject only to two qualifications [with respect to the towns of Zalambessa and Tserona], constituted the final and legally binding line of the boundary.  What remained to be done was the physical demarcation of the line on the ground by the placing of visible markers at appropriate locations."  This statement is demonstrably inaccurate.  The line for the Eastern Sector of the boundary, which the Commission published in August 2003, as a demarcation line, differs significantly from the April 2002 delimitation line.  The boundary shifts for more than 100 square kilometers on both sides.  By any standard, this amounts to more than the physical placement of markers.  It is obviously wrong, then, to state the line illustrated in the April 2002 delimitation decision was final.

 The Commission also claims that at the time the Commission promulgated the Demarcation Directions in July 2002, "neither Party suggested that the Commission had, or should have, a power to vary the boundary in the course of demarcation or that there was any need for more than limited technical discussion between them before the demarcation could begin and be carried to a conclusion."

 This statement is flatly inconsistent with the documented history of the Commission's proceedings.  In its 13 May 2002 Request for Interpretation, Correction, and Consultation, filed one month after the delimitation decision, Ethiopia stressed that "the lives and welfare of the people living in the boundary area [must] be given the highest priority as the demarcation process moves forward."1   It also requested  "that the Commission be consistent in applying its analysis of the conduct of the parties to accommodate areas lying along the boundary, which the evidence demonstrates have been consistently administered by Ethiopia.  The Commission will, thereby, minimize the dislocation of the large numbers of people living in the towns and villages in question."2

 Ethiopia also pointed out that the delimitation line had departed significantly from the treaty-based boundary based on a major error (since acknowledged by the Commission) as to the location of Fort Cadorna.3  Ethiopia stated, "Ethiopia requests that the Commission correct the location of Fort Cadorna, as shown on the illustrative maps in the April 13 Decision, and make the necessary adjustments to the boundary during the demarcation phase."4

 As to one segment of the boundary, Ethiopia requested that the Commission "demarcate a line that recognizes the practice of the parties in this region and that will minimize the dislocations caused to residents of villages along this segment of the boundary." As to the Acran region, Ethiopia stated that it "understands that the boundary points identified in this portion of the central sector are based on the Commission's view as to the location of the Acran region. Ethiopia anticipates that the location of the Acran region will be more precisely defined during the demarcation phase." 5 

 As to the Irob region, Ethiopia noted that "[t]he illustrative maps attached to the decision depict a boundary that appears to be inconsistent with the description of the Commission's decision in paragraph 4.85, which indicates that Ethiopia has established its effective sovereignty to the required degree over all but the 'northern and western fringes' of the Endeli Projection.  Ethiopia anticipates that during the demarcation phase the Commission will describe with greater precision the boundary between Points 22 and 26 in light of the description in paragraph 4.85 of its Decision."6

 Ethiopia continued to press the Commission for flexibility in the demarcation process during the 21 May 2002 Meeting with the Parties.  Moreover, in its 1 July 2002 Comments Regarding the Draft Demarcation Directions, Ethiopia took issue with the Commission's "Provisional view that it has no jurisdiction to vary the boundary line due to the line's division of a village,"7 Ethiopia argued:
The December 2000 Agreement does not impose so inflexible a position on the Commission but simply directs it to carry out an expeditious demarcation of the boundary which it has delimited. Thus, it would seem to be within the discretion of the Commission to follow the example of demarcation Commissions in the past, including those demarcating other boundaries of Ethiopia, which have found a basis upon which to make demarcations practical and to mitigate hardships which might otherwise be imposed on the local populations.8

Ethiopia then proposed "a practical and humanitarian approach to the issue of population centers in the path of the border."9  Ethiopia's proposed procedure provided that the Commission would identify such population centers and examine "evidence of administration of the population center before 1998" as well as "the number and location of essential resources such as water sources, schools, churches, and medical services, and any other facts that may assist in assessing the potential effect of the new border on the population center."10  Ethiopia proposed that, after a report of the Commission and comments by the Parties, "the Commission [would] decide the final location of the boundary line"11

Paragraph 16  The Commission complains that "Ethiopia filed 141 pages of comments" that "went beyond the scope of technical comment."  Ethiopia made these carefully researched comments at the invitation of the Boundary Commission extended during the 8-9 November meeting with the Parties in London.  Ethiopia has been surprised at the Commission's criticism of the length and subject matter of Ethiopia's Comments.

Paragraph 17  The Commission refers to "a complaint by Eritrea that Ethiopian nationals were being settled in Dembe Mengul."  Eritrea made no such complaint.  Eritrea's complaint was that Ethiopian nationals were being settled in Dembe Gedamu and Hadish Adi.  The Boundary Commission's field investigative team found that there was no evidence of civilian settlement in Dembe Gedamu and that Hadish Adi was on the Ethiopian side of the delimitation line. The team, however, looked beyond the villages named by Eritrea and found in Dembe Mengul (a place not mentioned in the Eritrean complaint), 400 meters west of the delimitation line, tents appearing to house some 90 persons.12   The inhabitant interviewed by the team was a displaced person from the village and "pointed to one of the nearby ruins and explained that it had been his house."13  This was the basis of the Commission's order requiring Ethiopia to withdraw those nationals from village.

Paragraph 20  The Commission quotes its baffling statement from its March 2003 Observations criticizing Ethiopia's evidence regarding Badme, ignoring the fact that Eritrea provided not a single piece of evidence demonstrating its administration of Badme.  As Ethiopia explained in its 2 May 2003 Comments:

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).

* * *

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).

Paragraph 21 and 24   The Commission recalls that it identified "two areas in the Central Sector where strict application of the line as delimited in the 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."  The Commission also notes that it instructed its staff "to investigate whether 'the boundary as set out in the Delimitation Decision' is 'manifestly impracticable' in the region from Zalambessa to Point 21 and in the plateau land to the east of Zalambessa: the Commission also determined that pillar sites should be fixed along straight lines following the perimeter of the plateau to the west of Zalambessa."  The Commission only identified these areas of impracticability because Ethiopia's 24 January 2003 Comments (which the Commission has found to be excessive in length and scope) explained that the human and physical geography of these locations required the boundary to be varied from the delimitation line.  The Commission's recognition of the need to vary the delimitation line in these places further contradicts the Commission's claim that the line depicted in the delimitation decision is final.

Paragraphs 25 and 26   The Commission alleges that "Ethiopia's complaint was with the Delimitation Decision rather than with the demarcation process."  Ethiopia accepts, in principal, the Commission's delimitation decision.  It is the inflexible, unorthodox method of demarcation that the Commission has selected with which Ethiopia takes issue.  Ethiopia looks forward to engaging in a dialogue with Eritrea on how to implement that decision in a way that will ensure a lasting peace.

Paragraph 31  The last sentence of the Commission's Report reads:  "Though undemarcated, this line is binding upon both Parties, subject only to the minor qualifications expressed in the Delimitation Decision, unless they agree otherwise.  Conduct inconsistent with this boundary line is unlawful."

This statement is in direct conflict with the 2000 Cessation of Hostilities Agreement.  The agreement provides that "the final status of the contested areas will be determined at the end of the delimitation and demarcation of the border."14   Moreover, the United Nations and the OAU [(AU)] guarantee Ethiopia's commitment "not to move its troops beyond the positions it administered before 6 May 1998" and Eritrea's commitment "not to move its troops beyond [the northern boundary of the temporary security zone]. . . until the determination of the common border . . . through delimitation/demarcation"15

The fact that the Parties agreed to maintain the temporary security zone until after demarcation is complete is also shown by statements of the U.N. Secretary General and Resolutions of the Security Council.   In a joint statement entitled "Securing a Lasting Peace" published April 13, 2002, the Secretaries General of the United Nations and the OAU stated:  "The Boundary Commission's decision will only be one step in the resolution of the border conflict.  After delimitation  . . . comes demarcation . . .  In the Algiers agreements, the parties promised to respect the security arrangements throughout this process, with the continued monitoring of their compliance by UNMEE."  In his 8 March 2002 report to the Security Council, the Secretary-General of the U.N. noted:

In accordance with the Agreement of Cessation of Hostilities, the security arrangements are to remain in effect until delimitation and demarcation are completed.  Accordingly, arrangements for the separation of forces, as achieved by the establishment of the Temporary Security Zone, will continue to be of crucial importance.  Until the border demarcation has been completed, UNMEE will continue to discharge its mandate.

The Secretary General's Progress Report to which the Commission's 16th Report is appended also makes clear that the TSZ remains the basis for UNMEE's maintenance of peace and stability.  The Secretary General's report also refers to Mai Cha and Kafna as being in Ethiopia, recognizing that places south of the TSZ are Ethiopian territory, regardless of whether they are on the Eritrean side of the line depicted in the delimitation decision.

Security Council resolutions have consistently recognized that UNMEE must maintain the TSZ until demarcation is complete.  For example, Resolution 1398, issued 15 March 2002, "emphasizes that until the border demarcation has been completed, UNMEE will continue to discharge its mandate."  Resolution 1369 of 14 September 2001 states specifically: "the Algiers Agreements link the termination of UNMEE with the completion of work of the Boundary Commission related to delimitation and demarcation of the Ethiopia-Eritrea border" and "further emphasizes that the Temporary Security Zone must be completely demilitarized."16

The Commission's own decision on delimitation also makes clear that the location of the delimited boundary will not be known until after demarcation.  The decision provides not even provisional coordinates for a number of the boundary's turning points.  The decision consistently emphasizes that the coordinates are not definitive and that more information must be gathered before definitive coordinates are to be known.  In addition, the decision stresses that the maps provided are illustrative and that there will be no definitive maps of the boundary until after demarcation.  The decision states in paragraph 2.16 that coordinates for reference points "are not necessarily final and the Commission may have to adjust or vary them in the course of demarcation.  Only the final demarcation map will be definitive."17

 Moreover, as discussed above, the Commission has already made significant adjustments to the delimitation line in the Eastern Sector and foresees making significant adjustments elsewhere.  The line depicted in the delimitation decision is simply not a final boundary