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Ethiopian Exceptionalism and the Eritrea-Ethiopia Boundary Commission

Document Cited in Related
Vincent
Date01 May 2017
Pages135-157
AuthorJames D. Fry
Published date01 May 2017
DOI10.3366/ajicl.2017.0191
INTRODUCTION

The Eritrea-Ethiopia Boundary Commission stands out in history for several reasons, most notably for showing how disputants can rely on law and legal resolution so close in time to actual hostilities between the disputants. In fact, the last time belligerents relied on law and legal resolution in similar proximity to a shooting war was the conflict between Peru and Chile towards the end of the nineteenth century,1 and a similar example arguably has not been seen since, which underlines the truly special nature of the Boundary Commission. The question arises why Ethiopia would turn to law and legal resolution to resolve its border issues with Eritrea when Ethiopia, by most accounts, successfully had won the war by 2000, if not by 1999.2 Nor did the UN Security Council ever coerce Ethiopia to submit the border dispute to arbitration in any of the seven resolutions it adopted regarding the conflict prior to the creation of the Boundary Commission.3 There ostensibly is no public record of the negotiations leading up to the relevant agreements that ended the hostilities and created the Boundary Commission.4 Therefore, commentators are left to speculate as to why Ethiopia would agree to this arrangement, perhaps using a type of process tracing to help understand the original decision that was taken.5 While states such as Ethiopia usually cannot choose what happens to them,6 they nevertheless can choose their response. The simplest explanation to imagine, which usually is the correct explanation according to the philosophical principle of Occam's razor,7 is that Ethiopia believed it possessed an airtight legal claim to the south-western part of Eritrea but needed an arbitral award supporting that claim because it did not yet actually possess that territory. Even assuming, arguendo, this is the correct explanation, it still does not tell us why Ethiopia would put so much faith in law and legal resolution when it could have required Eritrea to turn over that territory as a condition of ending the hostilities or rely on some other option that did not involve law and legal resolution.

This article explores three possible explanations for Ethiopia's decision to create the Boundary Commission: (1) Ethiopia's relative familiarity with Western-style legal resolution; (2) the relative lack of nationalism throughout its history and in relation to this dispute; and (3) Ethiopia's general sense of exceptionalism, which has given it the confidence to take risks and set an example as a regional and global leader over the years. After providing a brief description of the Eritrea–Ethiopia war and the history leading up to the war, this article explores these three options. Presumably multiple factors went into Ethiopia's calculations to rely on law and legal resolution, and so an aim to determine one cause would be unrealistic, especially with such a qualitative study as this one. Nevertheless, this article is the first to focus on Ethiopia's general sense of exceptionalism to try and understand why it took this unusual step, especially so close in time after actual hostilities had ceased, with the hope that other states will follow suit in trying to resolve their own disputes.

This article adopts four definitions and delimitations. First, by ‘legal resolution’, this article means attempts to settle a dispute by relying on a third-party's binding decision that was reached through the application of law.8 Legal resolution typically involves an international court or tribunal as the third party, such as the International Court of Justice or an international arbitral tribunal. The Boundary Commission is seen as the equivalent of an ad hoc arbitration tribunal with the administrative support of the Permanent Court of Arbitration, which is not an actual court stricto sensu. Second, this article will not look at the Boundary Commission's decision itself or the results after the decision, which are reserved for later research,9 inasmuch as they cannot be relevant in understanding why Ethiopia consented to the proceedings in the first place. Third, the same factors leading up to the Boundary Commission also played a part in the creation of the Eritrea-Ethiopia Claims Commission, inasmuch as they both were established by the Algiers Agreement of 2000, which brought the hostilities to a conclusion. This study is delimited by only focusing on the Boundary Commission, partly because the Eritrea-Ethiopia Claims Commission already has received considerable attention, whereas the Eritrea-Ethiopia Boundary Commission has not. In fact, only six academic articles in the English legal literature have focused on the Boundary Commission,10 whereas the Eritrea-Ethiopia Claims Commission has had at least one book and 18 academic articles and reports written about it,11 which undermines the basic notion that the Claims Commission has been overshadowed by the Boundary Commission.12 More importantly, this article focuses on the Boundary Commission because it involved a dispute that arguably is more politically sensitive than that of the Claims Commission,13 inasmuch as borders more directly involve a state's vital interests and even survival, especially within the African context.14 Finally, this article is revisionist in the sense that prior commentators on the Boundary Commission have ignored the broader historical context leading up to this conflict, and so have missed much of its significance in relation to the peaceful settlement of international disputes.

 A BRIEF HISTORY LEADING TO THE BOUNDARY COMMISSION

As with most conflicts, the causes leading up to it are complex. Space limitations require a summary of the relevant facts to be brief. In the late nineteenth century, parts of Eritrea were controlled by Italy, and fighting between Ethiopia and Italy led to treaties in 1889 that created a border between Ethiopia and Italian parts of Eritrea, although the border appears never to have been defined.15 Ethiopia and Italy signed similar treaties in the first few years of the twentieth century, all of which also did not clearly define the boundary.16 The British removed the Italians from Ethiopia and Eritrea during the Second World War and promptly gave control of Ethiopia to the former emperor of Ethiopia, Halle Selassie, in 1942, with the United Nations ultimately deciding to join Eritrea to Ethiopia in a federal state in 1952.17 Ethiopia subsequently ignored the federalist system that the United Nations established, as well as the treaties between it and Italy, and took control over Eritrea.18 This led to a long civil war between Ethiopia and Eritrea. Internal strife within Ethiopia, combined with Eritrean persistence, ultimately led to Eritrean independence in 1993.19 By most accounts, relations between 1993 and 1998 were amicable, largely because the Ethiopian government had been replaced by one favourable to Eritrea shortly before its independence.20 However, hostilities broke out again between Ethiopia and Eritrea in 1998 over ownership of Badme, which was a village located in the western portion of the border, and the area around it that is known as the Yirga Triangle, which constitutes 150 square miles of desert.21 Some commentators are surprised that the hostilities broke out over such a seemingly insignificant bit of territory, which they use as a basis to conclude that the dispute must not have been about the territory itself.22 Be that as it may, the underlying dispute over the three border zones involved the three treaties that Ethiopia and Italy (the colonial power with control over Eritrea) had concluded in 1900, 1902 and 1908, all of which involved the boundary between the two,23 and all of which were voided by Ethiopia in 1952.24

Some commentators note how both sides argue that the other started the fighting.25 However, there appears to be consensus among commentators that Eritrea started the hostilities, which seems reasonable inasmuch as the Claims Commission determined as much.26 Regardless of who started the fighting, the fighting spread along the border within a short period of time.27 The United Nations tried to encourage Eritrea and Ethiopia to resolve the dispute peacefully.28 In addition, the United Nations asked Eritrea to leave so that it could have its cartographers determine the boundary, but Eritrea refused, ostensibly because it did not want to be seen as conceding the territory was Ethiopia's.29 The hostilities continued until the point where Ethiopia's military strength forced Eritrea to accept the Framework Agreement on 27 February 1999, but Ethiopia was not ready to accept this, as it essentially had won the war.30 Instead, Ethiopia pushed for Eritrea to recognise Ethiopia's sovereignty over the disputed areas.31 The UN Security Council imposed through its Resolution 1298 in May 2000 obligations on Ethiopia and Eritrea, including a requirement to stop the hostilities, withdraw their forces so as not to aggravate the situation, and to ‘reconven[e], without preconditions, [the] substantive peace talks, under OAU auspices, on the basis of the Framework Agreement and the Modalities and of the work conducted by the OAU as recorded in its Communiqué issued by its current Chairman of 5 May 2000 (S/2000/394), which would conclude a peaceful definitive settlement of the conflict’.32

Ethiopia and Eritrea eventually agreed to a cessation of hostilities in June 2000.33 This was followed up by a peace agreement in December 2000, the Agreement Between the Government of the Federal Democratic Republic of Ethiopia and the Government of the State of Ethiopia (‘Algiers Agreement’),34 which formally ended the war and established the Boundary Commission, along with the Claims Commission. Article 4 of that agreement established the Boundary Commission with the following features:

‘a neutral Boundary Commission [located in The Hague] composed of five members shall be established with a mandate to delimit and...

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