Eritrea-Ethiopia Arbitration: A 'Cure' Based on Neither Diagnosis nor Prognosis
| Author | Seyoum Yohannes Tesfay |
| Position | Assistant Professor, Addis Ababa University School of Law |
| Pages | 163-199 |
E
RITREA
-E
THIOPIA
A
RBITRATION
:
A
‘C
URE
’
B
ASED ON
N
EITHER
D
IAGNOSIS NOR
P
ROGNOSIS
Seyoum Yohannes Tesfay
♣
Abstract
The Eritrea-Ethiopia peace process remains stalled a decade after the arbitral
award by the Boundary Commission and several years after awards by the
Claims Commission. This article assesses why arbitration by the two
commissions did not produce the desired outcome. To this end, the author
analyzes primary and secondary sources and argues that arbitration was not the
right method of conflict resolution. Mayer’s multi-dimensional approach to
conflict and conflict resolution informs the discussion that the conflict between
the two countries has cognitive, emotional and behavioral dimensions. It is
argued that arbitration as a settlement of dispute by purely legal means is
ineffective to adequately address the multiple dimensions of the conflict. The
author underscores that such conflicts can only be resolved by using a
combination of different interventions. Specifically, while arbitration may be
appropriate to deal with some essentially resource related matters, the
resolution of emotional and cognitive dimensions of this conflict call for a
multi-track approach in which different segments of the people from the two
countries can play critical roles.
Key words
Conflict resolution, arbitration, border conflict, boundary commission, claims
commission, multi-track, peace, Eritrea, Ethiopia.
DOI http://dx.doi.org/10.4314/mlr.v6i2.1
_____________
Introduction
Ethiopia and Eritrea ‘sought’ to resolve all aspects of their conflict by
arbitration. To this end, they established Boundary and Claims Commissions.
Although the two Commissions have given awards in respect of all the matters
submitted to them, none of these awards have been implemented. What is
worse, the two countries still remain on a war footing. The author contends that
this is in part attributable to the ineffectiveness of arbitration as the sole
mechanism to resolve the conflict.
♣ Assistant Professor, Addis Ababa University School of Law; also teaches on part-time
basis at the Institute for Peace and Security Studies. The author’s deepest gratitude
goes to all those who contributed to this work in a variety of ways. Email:
dayaseyoum@yahoo.com
164
M
IZAN
L
AW
R
EVIEW
Vol. 6 No.2, December 2012
The first section of the article highlights the meaning and causes of conflict
and sheds some light on interstate conflict. Section 2 introduces the states at
conflict and the relationship between the leaderships of the two countries.
Particularly, the multiple underlying causes of the conflict are discussed. In
Section 3, the claims litigated before the two arbitral tribunals and the awards
given are presented in brief. The fourth section demonstrates the mismatch
between arbitration and the Eritrea-Ethiopia conflict. The last section, examines
the parallels between the conflict resolution scheme and the dimensions of
conflict. Then, a few observations are stated as to how resolution of the conflict
between the two countries should be attempted.
As regards methodology, a mix of qualitative and quantitative methods has
been utilized. It should, however, be noted from the outset that participants in
the field study do not necessarily represent the populations of the two countries.
The objective of this article is not to generalize about the entire populations of
the two countries directly from the sample. The aim of the sample is rather
limited to shedding some light on the views and feelings of certain influential
segments of the societies in the countries at conflict and those that were
particularly affected by the conflict. This being the objective, the participants
were for the most part people living close to the border, refugees from Eritrea,
Ethiopian deportees from Eritrea, persons who were considered opinion makers
and others.
1. Conflicts in General and Interstate Conflict: An Overview
1.1. Conflict: Meaning and Causes
Conflict has different meanings in different contexts. For some it refers to
‘behavior’ or ‘action’. For instance, there is a conflict when a trade union goes
on ‘strike’ or when two states are at ‘war’. According to Wallensteen if these
events merely involved ‘actions’, conflict would be over when the behavior or
action ends, say when war stops. He notes that conflict is rather a ‘social
situation in which a minimum of two actors (parties) strive to acquire at the
same moment in time an available set of scarce resources’.
1
In a bid to explain
his definition he writes, one needs to note elements like ‘strive’ and ‘scarce
resources’. The word strive refers to the parties doing ‘something’ however
minimal to acquire the resource. So strive includes anything, ‘war’ being its
highest form. He further states that the notion of ‘available set of scarce
resources’ should be interpreted broadly to include non-material/non-economic
resources. Accordingly, the term ‘resources’ covers all kinds of positions that
1 Peter Wallensteen (2007), Understanding Conflict Resolution (London and Thousand
Oaks: SAGE Publications Limited, 2nd ed), p. 15.
E
RITREA
-E
THIOPIA
A
RBITRATION
:
A
‘C
URE
’
B
ASED ON
N
EITHER
D
IAGNOSIS NOR
P
ROGNOSIS
165
are of interest to an actor. So it can, inter alia, include territory, position of
power, acceptance of responsibility for destructive actions, psychological needs
like retribution and other intangible values.
2
Johan Galtung proposes an influential model regarding how conflict takes
place. According to this model, ‘conflict’ can be viewed as a triangle with
attitude (A), behavior (B) and contradiction(C) at its vertices. “Attitude” refers
to disposition towards an adversary and has two elements, the cognitive and
emotive. The cognitive element refers to the mental image one holds about the
enemy while the emotive element relates to the affect or emotions, the feelings
one has towards an adversary
3
. “B”, the behavioral dimension refers to what
parties do such as gestures signifying cooperation or/and coercion. In violent
conflicts the behavior could be violent attack.
4
That will be war if it involves the
coordinated
use
of
violent force in combination with other instruments according
to Clausewitz.
5
Finally, “contradiction” in this model refers to the underlying
conflict situation including actual and perceived ‘incompatibility of goals’
between the parties to the conflict. These three dimensions taken together make
the conflict system wherein each reinforces the others.
6
Conflict is a dynamic
phenomenon. One actor is reacting to what another actor is doing, that further
leads to yet another action to the extent that it may become difficult to decipher
who is more responsible.
7
1.2. Interstate Conflict: The Different Levels of Analysis
Many have grappled with the causes of interstate conflict and other forms of
state behavior. Particularly, the causes of war have been analyzed in different
ways. Waltz’s ‘level-of-analysis framework’ can be a useful tool in making
sense of the varied understanding of causes of war and other state behavior. His
level-of-analysis framework divides the causes of war in terms of whether they
are located at the level of the individual, the nation-state or international
system.
8
2 Ibid.
3 Johan Galtung cited in Kenneth Fox (2007), “What Private Mediators Can Learn from
the Peace- Builders”, Cardozo Journal of Conflict Resolution, Vol 7, p. 245.
4 Oliver Ramsbotham, Tom Woodhouse and Hugh Miall (2005), Contemporary Conflict
Resolution (Cambridge and Malden : Polity Press), p. 10.
5 Jack Levy (2007), “International Sources of Interstate and Intrastate War”, in Chester
Crocker, Fen Hampson and Pamela Aall (edds) Leashing the Dogs of War
(Washington: US Institute of Peace Press), p. 20.
6 Galtung, cited at note 3 above.
7 Wallensteen, supra note 1, p. 32.
8 Levy, supra note 5, p. 21.
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