October 16, 2003

Excellency,

I have received the copy of the letter dated 7 October, 2003, by the President of the Eritrea-Ethiopia Boundary Commission, addressed to Your Excellency.

The letter has tried to explain and defend the wrong decision that the Commission has made on Badme and other areas in the Central Sector.  The President of the Commission does this in a rather inconsistent and contradictory manner.  I can assure Your Excellency that we stand behind everything said in our Prime Minister's letter, and it is for the purpose of explaining our position that I was compelled to write this to you.

1.  On Badme

We agree fully with what is said in the 7 October letter by the Commission, that what is critical in the determination of the status of Badme should be the colonial Treaty, not who might have been administering the area in recent years.  It is precisely on this basis that, in his September 19 letter, our Prime Minister has reiterated the known Ethiopian position that the relevant colonial Treaty places Badme "well inside Ethiopia".  The President of the Commission in his 7 October letter argues that what Ethiopia claims is not accurate.  In defense of this the letter argues as follows:

The Commission found that on the current interpretation of the relevant Treaty, the boundary, from the point at which it leaves the Setit River (Point 6) to where it joins the Mereb River (Point 9), ran in part across the Badme plain.  If as a result Badme village is found to be located in Eritrea, that is no more than the consequences of the Commission's application of the relevant colonial Treaty.

The Commission further says:

The Parties did not give the Commission the task of deciding which state administered Badme in recent years: and at the critical time, when the relevant Treaty of 1902 was concluded, Badme and certain other villages and settlements which now exist had not then come into existence.

Now, there are two problems here.  In the first instance, what is being argued by the Commission is blatantly inconsistent with the Boundary Commission's own interpretation of the 1902 Treaty.  The April 2002 Decision repeatedly states that the boundary described in the 1902 Treaty leaves the Setit River at its junction with the Sittona River, a location the Commission identified as point 4, and not as point 6, as the 7 October letter now claims.  [Please see the Map attached]  The following is what was partly said by the Commission in its April 2002 Decision:

The Commission is satisfied that the negotiators did not have in mind as the boundary Ethiopia's claim line running from Point 3 to Point 9. [please see same Map]

The Commission then gives the following interpretation of the colonial Treaty with respect to at what point the boundary leaves Setit River to join the Mereb River at Point 9:

The Commission considers the river named "Meeteb" in the Mai Daro map is really Sittona, which flows into the Setit from the north east at Point 4 along a primarily east-west course and that the name "Meeteb" was wrongly attached to it.  The Commission therefore interprets the name "Maiteb" in the 1902 Treaty as being the present-day "Sittona".  [EEBC Decision Regarding the Delimitation of the Border..., P.,82]

It should be recalled here that the 1902 Treaty provides that the "frontier follows [the Setit] river to its junction with the Maiteb following the latter's course".    As indicated in the quotation above, the Commission has already taken the position that 'Maiteb' in the 1902 Treaty is the present day 'Sittona'.

Now, Point 4 on the Commission's decision map [Map attached], which is the Sittona-Setit junction, is well to the west of point 6.  Thus, Your Excellency, the 1902 Treaty boundary as identified by the April Decision of the Boundary Commission places Badme town, as was asserted by our Prime Minister, "well inside Ethiopia".  According to the Commission's own interpretation of the colonial Treaty, the Setit/ Sittona junction (Point 4) is the place from where the boundary proceeds towards the north to join Mareb at point 9.  On the basis of this, it is incontrovertible that Badme falls within Ethiopia.

But despite the contradictory claim made by the Commission in its 7 October letter, the Colonial Treaty was not the basis for its decision on Badme.  The following captures what is being suggested here:

The Commission has taken into account the many maps presented to it in evidence, but has only given weight in relation to this sector to maps produced by the parties themselves in the period prior to 1935.  It has noted that three early Italian maps show the Ethiopian claim line, as does one Ethiopian map of 1923.  However, all the other relevant maps show  the Eritrean claim line in accordance with what has, in the present proceedings, come to be called "the classical" or "traditional" signature characterized by a straight line from the confluence of the Tomsa with the Setit (point 6)  to point 9 at an angle of about 280 from true north.  There is no record of any timely Ethiopian objection to these maps... .  These maps amount to subsequent conduct or practice of the parties evidencing their mutual acceptance of a boundary corresponding to the Eritrean claim line.  [EEBC Decision Regarding..., P.83]

The basis of the Decision is therefore clear.  It is not the Commission's interpretation of the terms of the 1902 Treaty.  It was expected of the Commission in accordance with the Algiers Agreement to determine the boundary, wherever the colonial Treaty is clear, and not ambiguous, on the basis of the Treaty.  With respect to the case under consideration, the Commission itself has ruled that the 1902 Treaty provides for the boundary to leave the Setit /Sittona confluence (Point 4) and join, proceeding in a straight line, the Mareb/Mai Ambessa confluence in the north (Point 9).  The Commission has arrived at this conclusion with little ambiguity.  Obviously, this puts Badme firmly within Ethiopia.  Despite this and despite what is said by the Commission in its October 7 letter about the "critical time" being when the 1902 Treaty was concluded, paradoxically the basis for the Commission's determination of the status of  Badme is the subsequent conduct or practice of the parties, and this resting exclusively on maps.

But the mistake made by the Commission could still have been tolerable if having put aside its own interpretation of the colonial Treaty, the Commission had considered all aspects of the subsequent conduct or practice of the parties for determining the boundary.  This the Commission did not do.  Herein lies the second problem with respect to the Commission's decision on Badme.  It ignored completely issues with respect to administration and to continuous exercise of authority.  The decision was based exclusively on maps even though the Commission itself has stated in the same April 2002 Decision that "[t]he Commission is aware of the caution with which international tribunals view maps".  It goes on to say that "[Maps] which are made authoritative by, for example, being annexed to a treaty as a definitive illustration of a boundary delimited by the treaty, are in a special category, since they 'fall into the category of physical expressions of the will of the state or states concerned.'  The Treaty map annexed to the 1900 Treaty is such a map". 

The Commission goes on to argue,  in the same April 2002 Decision, that:

[It]  is also aware that maps, however informative they may appear to be, are not necessarily accurate or objective representations of the realities on the ground.  Topography is dependent upon the state of knowledge at the time the maps were made, and particularly with older maps this may have been inadequate.  When man-made features are superimposed, such as places of habitation or territorial limits, there is room for political factors to play a part.  Particularly in the case of maps portraying a boundary which is in the interests of the party responsible for the map, the possibility exists that they are self-serving [EEBC Decision Regarding... ,, P,26].

It is precisely in light of all this that Ethiopia finds it absolutely difficult to understand why the Commission, having put aside all other important aspects of subsequent practice of the two parties, chose to base its decision on maps.  Here as well, on the basis of subsequent practice, there is no reason why Badme should not be placed within Ethiopia.  What is equally surprising is the way in which the Commission has tried in the October 7 letter to justify its decision on Badme in a contradictory and inconsistent manner alternately one time on the basis of what it said is "the critical time" when the Treaty was concluded, and, at another time, on the basis of subsequent practice which is exclusively based on maps which are not integral parts of the relevant Treaty.  This is indeed illegal, unjust and irresponsible.

2.  On the Central Sector

How the Boundary Commission has been arbitrary, inconsistent and contradictory can also be seen in a very graphic manner from its Decision on the Central Sector.  The case of Fort Cadorna which was placed wrongly 20km. South West of its real position in the Decision map, is revealing in this regard.  The Commission admitted its mistake following Ethiopia's comment that the location of Fort Cadorna as set forth in the April, 2002, Decision was incorrect.  Having admitted its mistake in its March 21, 2003, Observations the Commission nonetheless said the following which any fair minded person must find absolutely impossible to believe as coming from a legal body:

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 point 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 [EEBC Observations 21 March, 2003, P8]

Having adjusted the 1900 Treaty line because of the mistaken identification of the location of Fort Cadorna, the Commission tells Ethiopia that the discovery of the mistake would entail no correction of the Decision.  It would suffice to look at what the Commission has said and intended to do with respect to the Treaty boundary based on the referred to erroneous identification of Fort Cadorna:

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 Cadorna, the Commission is bound to apply to that place, in the same way as it does to Tserona, the Ethiopian admission.  The Commission therefore decides that the boundary line which it has found to result from the 1900 Treaty must be adjusted in the manner set out in Chapter VIII, paragraph 8.1, sub-paragraphs B [EEBC Decision..., pp. 50-51]

This is why Ethiopia has been insisting that the Commission has been arbitrary in its decision as well as illegal, unjust and irresponsible.  Having moved a whole mountain 20km. from its natural position and having adjusted the boundary as an outcome of that error, the Commission insists that its Decision will continue to be sacrosanct, regardless of the implication of this  for peace and stability and for the lives of the affected people.

   3.    On the Mandate of the UN and the Security Council

The President's  letter has also suggested that Ethiopia's understanding of the Algiers Agreement in respect of Article 4.16 is misconceived, suggesting that the United Nations would have no responsibility for assisting the two parties to remove problems hindering the full implementation of the Algiers Agreement except with respect to narrowly defined matters limited to humanitarian issues.  But this interpretation contained in the President's October 7 letter is inconsistent with what the Commission itself has suggested in its 21 March 2003 Observations wherein it has said:

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 Delimitation Direction 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.

Your Excellency, Ethiopia obviously has not misconceived Article 4.16 of the Algiers Agreement.  The problem rather lies in the inconsistency of the Commission and in its determined effort to undermine Ethiopia's position regardless of the merit of the case that Ethiopia is making.

Now, in its 7 October letter the Commission, departing from its mandate and from any pretense of neutrality, has decided to object to Ethiopia's constructive proposals for diplomatic activities in furtherance of the objectives of the Algiers Agreement and of the peaceful resolution of the boundary dispute.  It can hardly be thought that the Algiers Agreement gives the Boundary commission a mandate to direct, or indeed to comment upon, the exercise of the jurisdiction of the United Nations in this regard.

This in fact is becoming a habit for the Commission. Your Excellency would recall how in its Eighth report the Commission singling out one of the parties to the dispute had attacked Ethiopia, imputing motives to it for which there is absolutely no justification.  By no means can the following attack by the Commission on Ethiopia be taken as a legal opinion:

Notwithstanding the clarity with which the Commission has stated the limits upon its authority, Ethiopia has continued to seek variations to the boundary line delimited in the April Decision, and has done so in terms that appear, despite protestations to the contrary, to undermine not only the April Decision but also the peace process as a whole.  [P., 11]

The Algiers Agreement has given to the Commission no such mandate.  Nor was the Commission given by the Agreement a mandate to question requests that Ethiopia, as a sovereign country, makes to the Security Council.  The Commission has no mandate to determine whether or not a given situation merits the attention of the Security Council.  My Prime Minister has asked in the interest of peace and stability for the establishment by the Security Council of an Alternative Mechanism.  Departing from its mandate and encroaching upon the mandate of the Security Council, the Commission makes in its 7 October letter the following irresponsible and peremptory comment:

... Ethiopia proposes that "an alternative mechanism to demarcate the contested parts of the boundary" be set up.  Such an alternative mechanism would involve a departure from, and thus an amendment to, the terms of Article 4.2 of the Algiers Agreement, which gives the Commission the mandate to demarcate the boundary.

It cannot be lost on the Commission, however, that when Ethiopia decided to approach the Security Council it was with the conviction that with its assistance we may continue to strive towards the achievement of the objective of the Algiers Agreement.  This objective is durable peace and stability between Ethiopia and Eritrea and in our sub-region. It is this objective  to which the Commission, particularly its president, appears to object.

It is in light of all this that Ethiopia has found it difficult to have confidence in the Commission.  The 7 October letter has confirmed our worst fears.  In that letter, the Commission has tried to defend the indefensible arbitrary decision in a manifestly inconsistent and contradictory manner.  For all intents and purposes, the Commission has ceased to be a neutral legal body.  Consideration of peace--the linchpin of the Algiers Agreement-- is completely out of the purview of the Commission, even as an afterthought.

Under these circumstances, Ethiopia has no alternative but to continue counting on Your support and that of the Security Council in creating the conditions for achieving the major objectives of the Algiers Agreement which is durable peace and stability between Ethiopia and Eritrea and in our sub-region.  We can assure you, Ethiopia on its part will continue to be fully committed to the Algiers Agreement and to durable peace between Ethiopia and Eritrea.  In concluding, I would be grateful if Your Excellency would make this letter available to the members of the Security Council.

Please accept, Your Excellency, the assurances of my highest consideration.

                             SEYOUM MESFIN
                  MINISTER OF FOREIGN AFFAIRS

H.E MR. KOFI ANNAN
SECRETARY GENERAL OF THE UNITED NATIONS
NEW YORK

cc. H.E MR. ALPHA OUMAR KONARE
     CHAIRPERSON OF THE AFRICAN UNION
     ADDIS ABABA