መልስ ለኤርትራዊው
ለዶክተር “ዓንደብርሃን ውለድጊዮርጊስ”
ጌታቸው ረዳ
(Ethiopian Semay)
11/10/23
ኢትዮጵያ ውስጥ ሐረርጌ ተምሮ በቅድስቲቷ ኢትዮዖጵያ መዲና አዲስ አባባ ሲያስተምር የነበረ የናት እጅ ነካሹ ኤርትራዊ ነኝ የሚል ከሃዲው የኢሳያስ አፈወርቂ “አምባሳደር” ብሎ የሾመው አስመራ ዩኒቨርሲቲ ዲሬክተር የነበረ ኢሳያስን ሲሸክር /ሲገርድለት/ የነበረው ኪዚያም ተቃዋሚ ነኝ ብሎ ኢሳያስን ማስወገድ አቅም የሌለው አውሮጳ አገር ተቀምጦ ከጥላቻ በቀር ሌላ መፍትሔ ሊያመጣ የማይችለው ዩቱብ ላይ እየወጣ ዋጋ ቢስ ‘አረፋ’ የሚተፋ ሥራ-ፈቱ “ዓንደብርሃን ውለድጊዮርጊስ” ሰሞኑን የኢትዮጵያ ጥላቻ በሽታው አገርሽቶበት ጣሊያኖች ባስተማሩት ሕሊናው ኢትዮጵያን በማሳነስና በመስደብ << When Will They Ever Learn?>> የሚል አንድ ጽሑፍ በመለጠፍ ኢትዮጵያ ስለ ወደብ ያላትን ባለቤትነት ያላትን መብት ለማሳነስ ሞክሯል። ይህ ሥራ-ፈት ምጢጢ ትንሽ ሰው መልስ ይሆነዋል ብየ ያሰብኩት በኢትየ-ኤርትራ ጉዳይ ሲነሳ ሁሌም የማስታውሰው ዓለም አቀፍ የሕግ መምህርና ድንቅ ሰዓሊ የሆነው ዛሬ “በማይታወቅ ሁኔታ” ከመድረክ የተሰወረው ፕሮፌሰር ተኮላ ወ/ሐጎስ <<ኢትዮጵያ እና "ኤርትራ" - ዘላቂ ተቃራኒዎች፡ ኮሄን፣ ሺን- እና ደናቁርቱ ዲያስፖራዎችን ለመታደግ?>> Ethiopia and “Eritrea” - Antagonists in Perpetuity: Cohen, Shinn, and witless Diasporas to the Rescue? (Tecola W. Hagos) በሚል ርዕስ ከ 8 አመት በፊት የጻፈው ድንቅ ጽሑፍ ላስነብባችሁ መረጥኩ። እናንተም ትማሩበታላችሁና ይነበብ።
ስለ ባሕር ወደብና ስለ ባድሜ እንዲሁም የናት ጡት ነካሾች የሆኑት ኢሳያስና መለስ ዜናዊ በኢትዮጵያ ገላ ላይ ዘላቂ ጠባሳ ያሳረፉትን ከሕግ ውጭ የሆነ ሴራና አመጸኛ ውሳኔ ስቃወም “ዛሬ ጊዜው አይደለም” እያሉ “በይደር” ነገር የሚያሻግቱ አሻጋቾች (እስፖይለረስ) እንዳሉ አውቃለሁ። ሆኖም <<ግመልዋ ትሄዳለች ውሾቹ ይጮሃሉ>> እንደሚባለው፤ ነገሩ እልባት እስካላገኘ ድረስ እኛ መጓዛችን ‘ውሾቹም ከኤርትራኖቻቸው ጋር ሆነው መጮሃቸው’ የተፈጥሮ መብታቸው ነውና <<ቁሙ በበሕላዌነ>> !! እነሆ። ሰነዱ ከፒ ዲ ኤፍ ወደ ወርድስ ስለለወጥኩትና ፌስቡክ “ፒ ዲ ኤፍ” ስለማይቀበል፤ የመስመር አሰካክ ስሕተቶች ከታዩበት ተጨናንቃችሁ ሰነዱን ተጠቀሙበት።
5
J. G. Starke, Q.C., “The Concept of Opposability in International Law,” AUSTRALIAN YEAR BOOK OF
INTERNATIONAL LAW, 4, 1968.
6
Fisheries case, Judgment of December 18th, I95I, ICJ Reports 1951, p 116.
7
North Sea Continental Shelf Cases, ICJ Reports 1969, Judgment, p 3 at p. 41.
8
Shinya Murase, “The Relationship between the United Nations Charter and General International Law
regarding Non-Use of Force: The Case of NATO’s Air Campaign in the Kosovo Crisis of 1999,”
Presentations, Sophia University Faculty of Law, Tokyo, 2005.
http://www.lcil.cam.ac.uk/Media/lectures/doc/Murase.doc.
6
4. Fallacy of argumentum a fortiori
It is obvious that the Commission was wrong in its use of “virtual demarcation” in the
demarcation of the border between Ethiopia and Eritrea. Such action was beyond the scope of
its mandate. The Commission acknowledged the fact that both Ethiopia and Eritrea declined
to attend the Commission’s “invitation” to attend a meeting of the Commission to consider
“further procedures to be followed in connection with the demarcation” of the border.
That refusal of the parties should have ended the work of the Commission as an arbitration
body. However, once again the Commission imposed itself beyond its mandate without any
specific authorization from the parties to demarcate the border between Ethiopia and Eritrea
on the Commission’s own areal map.
The Commission cited as authority the Beagle Channel case, and in a footnote stated that
“The present case is not one involving the total non-cooperation of one Party, but rather
the non-cooperation of both Parties, though in differing ways and degrees. Thus, the
9
observation of the Beagle Channel tribunal applies a fortiori.” The Commission totally
misapplied the concept of “a fortiori” in that the exact opposite outcome would have
been the case, if the Commission had applied the concept it tried to use from the Beagle
Channel case correctly. I put great emphasis on the flawed use of a logical concept by
the Commission, for their entire competence to enter a final decision is based on such
fallacious inference from the Beagle Channel case. After all “reason [logic] is the life of
10
the law” to quote the great common law jurist Sir Edward Coke (1552-1634), and
generations of outstanding jurists and Supreme Court Justices in this very United States
of America. Of course, the exception of Justice Oliver W. Holmes emphasis on
“experience” in no way minimizes the great importance of logic and proper inferences in
order to establish factual or legal matters.
“A fortiori” as a contextual concept for its correct application is dependant on unique
facts to a particular case. The form of argument identified in full as argumentum a
fortiori means in Latin that an argument with even stronger reason. “In the art of rhetoric
i.e., speaking or writing for the acknowledged primary purpose of persuasion, the a
fortiori argument draws on the speaker's and/or listener's existing confidence in a
proposition to argue for a second proposition that is implicit in the first, ‘weaker’ (less
controversial and more likely to be true) than the first proposition, and therefore
deserving of even more confidence than the speaker and/or listener places in the first
11
proposition.” The fallacy is obvious, as an example, if one takes some poison in very
small amount curing certain disease, but treating the disease with more poison will result
in death. Accordingly, if one party in arbitration did not participate, some measure
against that belligerent party may be appropriate; however, the exact opposite is the effect
where both parties to an arbitration decline to participate in an arbitration process they
9
Beagle Channel case, 52 INTERNATIONAL LAW REPORTS.
10
Sir Edward Coke, COMMENTARY UPON LITTLETON 97b (Charles Butler ed., 18th ed., Legal
Classics Library 1985) (1628). “[R]eason is the life of the law, nay the common law itself is nothing else
but reason; which is to be understood of an artificial perfection of reason, gotten by long study, observation
and experience, and not of every man's natural reason; for Nemo nascitur artilex.”
Halper, Thomas (1968) "Logic in Judicial Reasoning," Indiana Law Journal: Vol. 44: Iss. 1, Article 2.
Available at: http://www.repository.law.indiana.edu/ilj/vol44/iss1/2
11
Hans V. Hansen, Robert C. Pinto, FALLACIES: CLASSICAL AND CONTEMPORARY READINGS, Penn
State University Press, 1995. See also Avi Sion, “Judaic Logic,” 1995, http://www.thelogician.net.
7
setup, for the consequence of nonparticipation by both parties is the negation of the
arbitration process itself. A short survey of cases decided by both American and English
Courts using the a fortiori argument confirms my assessment of the error of the
Commission.
III. Mistake of Law
1. International Law: Norms and Practices
There seems to be some confusion as to how the Commission was created and by whom,
and the power and scope of the Boundary Commission. It seems the Commissioners
themselves have added to the confusion due to their posturing and the Chairman’s
inflated ego trying to cast himself and the Commission as if they were a United Nations
created Commission. First and foremost the Boundary Commission is an arbitration
tribunal created by the Parties i.e., the Governments of Ethiopia and Eritrea. Neither the
United Nations General Assembly nor its Security Council passed any resolutions
creating the Boundary Commission. There should be no doubt that the Boundary
Commission is a legal creature created by the Governments of Ethiopia and Eritrea by an
12
agreement signed by the two Parties in Algiers in 2000. The role played by the United
Nations is simply that of depositor, or observer or facilitator. It is absolutely clearly stated
by a joint statement of Secretary General Kofi Annan of the United Nations and Secretary
General Amara Essy of the Organization of African Unity that the Boundary Commission
is not a creation of the United Nations. “Six months later, they signed a comprehensive
peace agreement, also in Algiers, providing, among other things, for a permanent
cessation of hostilities and the establishment of an independent commission to decide the
13
border question.”
When I read the delimitation decision of the Boundary Commission, of 13 April 2002, I
wondered why the Commissioners reached so many wrong conclusions and kept insisting
on implementing such corrupted decision. The Boundary Commission’s decision is full
of errors and is highly subjective and politicized. All one needs to do is read the Island of
Palmas case to see how an objective highly learned arbitrator labored in interpreting the
significant treaties and maps in order to distinguish between the opposing claims of
14
Sovereignty. The Arbitrator in the Island of Palmas case laid out also the principles and
norms of international law relevant in disposing contentious claims of Sovereign rights.
He devoted a considerable degree of attention on the issue of using treaties and maps to
establish the rights of the Parties. He investigated the situation both before and after the
crucial treaty date. The general principle on the activity/scope of an international tribunal
is succinctly elucidated by an established publicist of international law. “The Court’s
responsibilities in the maintenance of peace and security under the Charter are not
12
The Algiers Agreement of 12 December 2000, Article 4.
13
Kofi Annan and Amara Essy, “Securing a Lasting Peace Between Ethiopia and Eritrea.”
14
Island of Palmas case (Netherlands, USA) 1928, pp. 829-871. I am aware of the fact that a number of
international law publicists have raised questions on the decision of the Island of Palmas Case on the issue
of the extension of the “intertemporality principle” in as far as its application to the question of the right of
the Spanish crown to claim ownership (sovereignty) by mere discovery of the Island in question. However,
the discussion is not on the validity or applicability of the principle of intertemporality but on how factual
interpretation fits the principle in a particular situation.
8
general. They are strictly limited to the exercise of its judicial functions in cases over
15
which it has jurisdiction.”
There are at list fifteen important international boundary dispute cases with highly
relevant decisions on the use of maps that would have provided the fundamentals for the
disposition of the question of unreliability of maps in deciding on contentious claims of
sovereignty by parties to a border dispute. No rigorous examination of such cases was
attempted by the Boundary Commission. The Boundary Commission cited one case on
16
the issue of using maps for delimitation. The Commission has cited in both Chapters 3
and 4 cases decided by the ICJ. The serious problem for such attempted precedential
authority is the fact that the cases cited by the Commission are tangential to the main
issue the Commission is dealing with. The Commission has cited precisely eight cases for
17
its “Task of the Commission and the Applicable Law.” This most complex border
dispute is dependant on seven cases as authorities, and none of them on point. The
Commission simply rushed to decide the controversy in a political frenzy of the moment
and as a result ended up making ridicules mistakes of legal principles (law) and of facts.
There never was any legitimate demarcation of any sort where Ethiopia and Italy were
represented on a team to demark the border between the Italian colony of Eritrean and
Ethiopia—none took place during the colonial period or later.
Instead of explaining how the actual demarcation following delimitation will be
accommodating of the reality on the ground that communities, towns and villages will not
be divide by necessity of legal interpretation of treaty based provisions through equitable
interpretation of the treaty infra legem, the Commission declined that process outright
opting for the literal reading of the provision and the narrow view of respecting the limit
on any use of “ex aequo et bono” norm. The use of equitable interpretation of treaties
infra legem is not a violation of the “ex aequo et bono” safeguard in Article 4(2) of the
2000 Algiers Agreement. Such legal distinctions was fully stated as the central theme and
analysis of equity in international law cases, in fact, in the very case the Commission
cited to augment its use of a Map that was flawed and should have been disallowed as
evidence. The more important principle that was overlooked by the Commission is the
fact that the ICJ, although similarly barred as the Commission from deciding the case ex
18
aequo et bono; nevertheless, correctly decided a case by using equity infra legem.
The Commission, no matter how it perceived itself, was just an “arbitration tribunal”
serving at the pleasure of the two Parties, Ethiopia and Eritrea. I have clearly established
that fact above in this subsection. The Boundary Commission was not a national court
nor an international court nor a Commission of the United Nations—period. Thus, there
was no need for the Commission to enter a decision if the Parties to the dispute were not
cooperative. Its “virtual demarcation” on areal map is ultra virus act and illegal that
15
Christine Gray, “The Use and Abuse of the International Court of Justice: Cases concerning the Use of
Force after Nicaragua,” EJIL (2003), Vol. 14 No. 5, 867–905, at 891.
16
Case concerning the Frontier Dispute (Burkina Faso v. Mali), ICJ Reports 1986 at 582.
17
Ethiopia v. Eritrea Arbitration Decision (2002) para 3.1-3.37, pp 21-30. I have not included the
Ethiopia-Eritrea Claims case in this paper. However, I do note here that case has its own set of problems of
jurisdiction and competence, but not of corruption.
18
Case Concerning the Frontier Dispute (Burkina Faso v. Mali), ICJ Reports 1986, para 27-28, p 582.
9
could be even prosecuted in the local Courts of Ethiopia as a crime against the economic
and national security of Ethiopia. Here is a clear case of overreaching and abuse of
mandate by the Commission. The Commission should have refused to implement unjust
treaties whose origin is illegal such as colonialism revived to benefit one party in a
fraudulent collusion of the parties camouflaged or hidden from the public; the Boundary
Commission should have exercised its right independently to invoke the interpretation of
19
treaties in preato legem.
The Press Release of 12 September 2007 by the Secretariat of the Commission stated,
“The Commission also reminded the Parties that the determination of the boundary points
listed in its 27 November 2006 Statement followed consideration of the views of the
Parties and was in accordance with the Delimitation Decision of 13 April 2002.” This is
one of several examples of abuse of mandate and the Commission acting as a Court
forcing its decision on the Parties that constituted it—this is a clear situation for a non
liquet withdrawal of the Boundary Commission from deciding the case. Even the single
case cited by the Commission was not dispositive or even relevant to the controversy.
The Commission put it in its lame statement as “A comparable, though not identical,
situation arose in the Argentina-Chile Frontier Case (1966) (38 International Law
20
Reports 10), where aerial photography was used to identify points on the boundary.”
The fact is that citing the Argentina-Chile Frontier Case is a straw-man argument by the
Commission because there is no precedent to the “virtual demarcation” that the
Commission has imposed on Ethiopia and Eritrea under the circumstances where the
parties in arbitration are not cooperative. Unlike the Ethiopia-Eritrea border demarcation
problem, the Argentina-Chile Frontier Case dealt with a situation where both Parties had
agreed to the identification of demarcation on an areal Map to reestablish boundary
points on prior demarked border. It is a serious mistake by the Commission to site a case
that is not dispositive by any stretch of imaginative interpretation of the issue of
competence of the Commission in resolving the demarcation of borders.
In a previous arbitration decision by the Eritrea-Yemen Arbitration Tribunal it was noted
the fact that Ethiopia’s historic rights were not offered as part of the supporting claims on
behalf of “Eritrea” against Yemen’s claims of Islands that were part of Ethiopia for all
historic time. The Arbitration Tribunal wrote with a degree of puzzlement the following:
“Eritrea makes no argument for sovereignty based on ancient title, in spite of the
undeniable antiquity of Ethiopia. Rather, Eritrea in part asserts an historic
consolidation of title on the part of Italy during the inter-war period that resulted
19
Judge Schücking forcefully stated in his dissent stating thus: “The Court would never, for instance, apply
a convention the terms of which were contrary to public morality. But, in my view, a tribunal finds itself in
the same position if a convention adduced by the parties is in reality null and void, owing to a flaw in its
origin. The attitude of the tribunal should, in my opinion, be governed in such case by consideration of
international public policy, even when jurisdiction is conferred on the court by virtue of a Special
agreement.” Oscar Chinn Case, 1934 P.C.I.J. (ser. A/B) No. 63, at 149-50 (Dec. 12) (Schücking, J.
dissenting).
20
Argentina-Chile Frontier Case (1966) (38 International Law Reports 10)
10
in a title to the Islands that became effectively transferred to Ethiopia as a result
21
of the territorial dispositions after the defeat of Italy in the Second World War.”
The Ethiopian Government did not file any brief as interlocutor or interested party as it
ought to do in that case as a matter of its legal obligation as the Government of a
Sovereign People and Country. It is this type of polarized perspective that both the
current Leaders of Eritrea and Ethiopia formatted, as part of their misinterpretation and
revision of Ethiopian history, the ridiculous assertion claiming Ethiopian history to be
only a Century old. One must not discount the fact that there were great war heroes from
Hamassein, Akale Guzai, Serei et cetera who bleed for Ethiopia’s independence believing
in their Ethiopian identity and fighting against the Italian occupation. My discussion of
the Italian Wars of aggression against the Sovereign and truly ancient Ethiopia is not
meant to open old wounds, but to remind us that our Ethiopian history is a complex one
and should never have been left to amateurs, and the propagandist “intellectuals” minted
by either the ELF and/or the EPLF.
IV. Land Locking of Ethiopia and Alienation of Ethiopian Citizens
1. Afar Coastal Territories
It is a truism to say that leaders of governments change, but the nation and its people
persist longer than the lives of individual leaders and governments. Ethiopia’s venerable
Journalist Eskinder Nega writing about the way Abyie, the oil rich region, was stolen
from the legitimate owners, the people of South Sudan, legally with the arbitration
decision setup by the old colonial masters, surmised what could be a perfect example of
our current political bottle neck created due to be having been rendered illegally
landlocked. Eskinder wrote succinctly what is illustrative of our debacle/affair as follows:
“And so what European colonizers had disastrously lumped together as the
modern nation of Sudan oblivious to history, psychology and sentiment was
cleverly given leeway to succumb to local will; albeit generous concessions to the
stronger party. With the secession of Eritrea, the colonial status-quo was re-
established four decades after being reversed by local forces when Eritrea was
reintegrated, with the blessing of the UN, with the historical hinterland,
22
Ethiopia.”
The worst colonial legacy is the bottlenecking of independent states by strips of coastal
land that was earlier alienated from such nations during the colonial scramble. Through
the cover of creating such “independent” straw-nations from tiny coastal colonial
territories a form of neocolonialism is put in place. When I state in writing and in oral
discourse that the entire Afar coastal territory, which includes the port of Massawa and
Assab, and the Afar people are part of Ethiopia, it is not for the sake of having access to
the Red Sea. The issue of Sovereignty (ownership) is often confused with the idea of the
“rights of access” to the Red Sea. The issue should always be on “sovereignty” and
ownership, for “the right of access” is dependant on the moment to moment whims of the
granting state. It is particularly an unreliable “right” in an African setting where the
development of state responsibility is arrested and where irresponsible ad bellum is the
order of the day. My assertion is based on several international law principles and norms,
21
Eritrea v. Yemen Arbitration Decision, Award, First Stage, Para 115-117 (1998).
22
Eskinder Nega, “The South Sudan and Eritrean precedents,” IDN-Indepth News, March 4, 2011.
11
such as solid historically based superior right of Ethiopia, the right of contiguity, the
effective continuous display of state authority, the national security interest of a
sovereign state, and above all the rights of Ethiopian citizens to live in their primordial
homes without any foreign interference against their rights as citizens of a sovereign
Ethiopia.
The Boundary Commission did not specifically cite the principle of uti possidetis in its
decision. This is also one other evidence that indicates that the decision of the Boundary
Commission to have been predetermined. The development of such international legal
principle must be understood in its contextual use first in several Latin American cases. It
was primarily used to settle disputed territorial boundaries and possessions between
newly independent states in South America in order to counter possible resurrected
Conquistador’s claims of res nullius. The concept developed forked solution one dealing
with the test based on historic rights (Sovereign) and the second dealing with effective
control (possession). At any rate, the principle of uti possidetis in its evolved form
through the decisions of the ICJ as indicated below favors Ethiopia if it has claimed
23
properly the Afar Coastal territories as its legitimate historic territory. The concept of
“effectivites” that the ICJ introduced in order to fine tune the uti possidetis principle
would recognize that Ethiopia is the parent nation that has exercised such control on the
area and also the fact that the disputed area with its population is the natural extension of
its territory and demography.
The majority of Afars are found within the larger region within Ethiopia. Thus, there is
no reason or principle of international law that would divide a people in order to award
some territory to a newly created entity, such as Eritrea. In the Qatar v. Bahrain (2001)
case Judge S.O. Kooijmans, in his individual concurring opinion, introduced the principle
24
of “superior claim.” This principle of “superior claim” is well grounded in law and
history, and as an international legal principle should have played a central role dealing
with issues involving such an ancient state of Ethiopia. Had the Boundary Commission
considered properly the principle of “superior claim” it would have found out that
Ethiopia had far superior claim that is more significant than any claim based on colonial
treaty, and would have disqualified itself (Commission) for lack of capacity.
2. Badema and Irob Area
Here is the most heart wrenching effect of the border conflict that was started by the
Eritrean Government, and the decision of the Boundary Commission would only
exasperate an already inhumane situation. Forcing the Afar, Kunama, the Bilen, the Irob
people or the town and village people of Bademe, or that of Zala Ambesa et cetera
against their wishes, into losing their historic land and citizenship goes against the
principles enshrined in the Charter of the United Nations, numerous Resolutions by the
General Assembly of the United Nations, and Resolutions of regional organizations such
as the AU. There is no way one can abrogate such Jus Cogens rights of fundamental
23
Frontier Dispute (Benin/Niger), Judgment, ICJ Reports 2005, p 90.
24
Maritime Delimitation and Territorial Questions between Qatar and Bahrain, Merits, Judgment, ICJ
Reports 2001, p. 40, Para 77. Legal Status of Eastern Greenland (Den. v. Nor.), 1933 P.C.I.J. (ser. A/B)
No. 53 (Apr. 5).
12
norms and principles of international law by a bilateral treaty or by a decision of an
arbitration Commission, or arbitration tribunals or the ICJ.
I respect the views of Theodor Meron on this issue of thinking “outside of the box” not
only because he is an accomplished international law jurist of the highest order but also
25
of his great integrity. After all, he advised the Israeli Government, as a young legal
advisor to that Government, against settlement of Israelis on occupied territories—a point
of view that was not popular within the officials of the Israeli Government of the time. It
is ironic that the people of Irob, whose great contribution to the unity and integrity of
Ethiopia is exemplary, are now threatened by the decision of a corrupted Boundary
Commission. The people of Irob are quintessential Ethiopians in every facet of their
heroic lives. It is absolutely unacceptable by anyone, international law or not, to try to
alienate a people whose history is cemented by their blood fighting countless battles to
preserve their Ethiopian identity and history for thousands of years. The Boundary
Commission divided Irob into two and awarded the northern part to Eritrea, which puts
the entire process of arbitration into question.
The consequence of such hasty and ill-advised and corrupt decision of the Commission
would violate the fundamental rights of the people of Irob. Who would dare in the guise
of international border arbitration reallocate territory to a newly formed entity overriding
history, demography, and norms of international law and principles? The absurdity of the
decision of the Commission is best described in a short article by Alema Tesfaye who is
native to the disputed area, wherein he narrated to us the too human dimensions:
“Today the Irob people find themselves in a very dangerous condition and it will
be worse if the rather hasty “cut-and paste type” of The Hague Border
Commission’s Ruling (April 2002), that partitioned Irob territory into Eritrea and
Ethiopia, is rigidly implemented, without modification. In its desperate search for
the none existing River Muna, the Commission has irrationally renamed valleys
such as Midiriba and Barbare-Gade only to impose new identity on the Irob
minority (despite their strong objections), dislocate their households and expose
them to Eritrean Government reprisals, a government whose occupation they
bitterly fought in the 1998-2000 war. The Hague ultimately benefited neither the
peoples of Eritrea nor of Ethiopia nor the goals of the UN’s four year-old costly
peacekeeping mission. It is not a matter of sheer territory; it is all about people’s
26
destiny and their fundamental human rights to life, protection and security.”
The gravity of the Boundary Commission’s decision is clearly illustrated by the rejection
of that decision by the people of Irob that have lived for generations in the designated
area to be handed over to Eritrea. The sum total of the Commission’s decision adds up to
giving a tract of land to Eritrea and dispossessing the people who have lived on that piece
of land for all of recorded history. This type of decision focuses our attention as to the
purpose of the whole exercise whether we are simply interested in giving a piece of land
25
Theodor Meron, THE HUMANIZATION OF INTERNATIONAL LAW, Hague Academy of International
Law Monographs, 3, 2006; See also Armed Activities on the Territory of the Congo (New Application:
2002) (Democratic Republic of the Congo v. Rwanda), Jurisdiction and Admissibility, Judgment ICJ
Reports 2006, p 6.
26
Alema Tesfaye, “Ethio-Eritrean border debacle and the Irob condition,” www.IROBMABLO.org
13
to Eritrea on the flimsiest of grounds ever devised by politicians and lawyers. Are we
dealing here with a system that has lost the very base for its reality of justice and norms
in dealing with truly crucial question as to the survival of a group of people with distinct
aspirations and fundamental rights? It is obvious that the Commission has erred in its
decision and in its interpretation of the norms of international law.
V. Incompetence of Commissioners
1.The disqualification of Lauterpacht and the Boundary Commission
We should understand the role of arbitrators is distinct with more latitude from that of
ICJ judges. However, this does not mean that we have to throw out all professional
ethical standards when it comes to arbitrators. By the nature of their appointment or
election, arbitrators do have certain preferences in supporting the position of the party
that appointed or elected them. It may be argued that their preference to the party that
appointed them may not disqualify them from being arbitrators. However, when it comes
to the president or chairman elected by the arbitrators themselves pursuant to the
arbitration agreed upon procedure, I believe both standards of “independence” and
“highest moral reputation” standards are applicable to arbitrators who are thus elected by
the other arbitrators to be presidents of particular commissions or tribunals. The
Commission President, Sir Elihu Lauterpacht, had displayed an unusually blatant
disregard of both the “high moral” and “independence” standards expected of a chairman
of an arbitration commission or tribunal, and should be disqualified.
It is obvious that the United States was not an impartial neutral body. The United States
had stained the arbitration process with its uncouth act of retaining as its lawyer
27
Lauterpacht in its case with Mexico, a case cited herein that was decided by the ICJ.
Even worse, Lauterpacht was the Counsel for Pakistan in its case against India in 1999
28
and argued in front of the ICJ. As we all know, Pakistan has been the arch enemy of
Ethiopia, providing moral and financial support to EPLF and ELF. It was the most
vociferous and antagonistic state in the United Nations against Ethiopia in the 1950s.
No degree of disclosure by Lauterpacht of his fiduciary relationships with the United
States, or the Pakistani Government or the Israeli Government or anybody else would
remedy the “conflict of interest” that is inherent in such relationships. Lauterpacht
thereby stained also the impartiality of those Members with whom he had prior
relationships as Members of arbitration tribunals or commissions. The one ideal condition
would have been for an international arbitration to be carried out by choosing from the
pool of experts who are already the members of the Permanent Court of Arbitration
already designated by their respective governments that are signatories of the 1899 or
29
1907 Treaties (Conventions).
With the adoption of the UNCITRAL rules the pool of arbitrators was expanded to
include ad hoc arbitrators who are not designated by any member nations. This process
seems to have opened the door for corruption and conflict of interest problems. One must
27
Avena and Other Mexican Nationals (Mexico v. United States), Judgment, ICJ Reports 2004, p. 12.
28
Areal Incident of 10 August 1999 (Pakistan v. India), ICJ Reports 2000, p. 12.
29
1907 Convention for the Pacific Settlement of International Disputes: Article 44 and Article 45
14
30
not lose sight of the initial reasons why in 1899 the arbitration forum was needed. It was
envisioned that seasoned statesmen and international law jurists would help stabilize the
world through their wisdom by arbitrating conflicting claims by states. It was never
meant a career promoting and money making scheme for lawyers, such as the Members
of the Commission.
2. Third Party Funding as Corruption
The fact of setting a “Trust Fund” out of which the expense of the tribunals and
commissions and the compensation for the members of such tribunals and commissions is
paid has introduced into the process of arbitration elements of corruption that goes
contrary to the desired independence of such forums. The problem is compounded by the
fact of the involvement of the United Nations Security Council in receiving reports as a
matter of course, presumably pursuant to its United States Charter responsibilities,
wherein political consideration rather than law and principles play major roles in the
decision making process of arbitration. Such new structure has further polarized and
31
distorted the independence of the tribunals or commissions.
Thus, the Government of Ethiopia has every right to void all agreements, including the
Algiers Agreement, and to reject the entire decision of the Commission. Ethiopia cannot
be obligated to accept a decision by a Commission that is corrupted where some members
of the Commission have compromised their duty to exercise “independence” and “high
moral” standards. It is not important to show that all and every member of the
Commission is involved in such conflict of interest. As long as one can show at least one
member is involved in such conflict of interest, the entire proceeding and all decisions
thereof, which flowed from such process, are tainted, thus void and invalid. Furthermore,
Ethiopia should demand the disqualification of the President of the Commission, Elihu
Lauterpacht, for conflict of interest and corruption.
VL. Conclusion
I believe that both Shinn and Cohn are misguided in their thinking that patching with
their type of band-aid diplomacy will heel the deep seated hostility of the Eritrean
Leadership and a segment of the population against Ethiopians. I have long given up
writing on the motives of people who write incendiary political articles. Thus, even
though the temptation to divulge into the psychology and motives of the two
diplomates/authors is tempting beyond measure, I bit my tongue from saying anything on
that score. However, we can easily discern their interest to promote the influence of the
United States in that part of the World, where the United States has lost considerable
ground to Chinese, Indian, and European influences.
30
Preamble, 1899 Convention (1) for the Pacific Settlement of International Disputes (Hague 1) (29 July
1899) entry into force: 4 September 1900.
31
RESOLUTION 1177 (1998): Adopted by the Security Council at its 3895th meeting, on 26 June 1998 .
[8. Requests the Secretary-General to provide technical support to the parties to assist in the eventual
delimitation and demarcation of the common border between Ethiopia and Eritrea and, for this purpose,
establishes a Trust Fund and urges all Member States to contribute to it.]
15
John Byrely and group, are specific examples of minor officials at the State Department,
whose political and life experiences in no way should have given them such degree of
influence in creating such a political debacle in East Africa. They were left on their own
to deal with the problems facing Ethiopia, the most ancient nation on earth. It seems no
one of seniority was supervising what those low-level young careerist-climbers were
doing because the big guns were engaged elsewhere. The result was a disastrous foreign
32
policy in that part of Africa. The book by Herman Cohen, a former official at the State
Department, Bureau of African Affairs, is quite revealing if one is capable of reading
between the lines in an otherwise self-serving essay, justifying numerous errors of
political and commonsense judgments.
Contrary to its pretentious title, the intervention and study of diplomacy Cohen is writing
about, seems to be nothing more than the documentation of self-confessed selling-out of
old partners for more ‘sexy’ but temporal change of partners. It shows changes from that
of subtlety, wisdom, and deliberation to that of being swept by leaders of liberation fronts
in army-surplus, often not much better than street thugs in urban streets. From the 1970s
to date, the policy or attitude of the United States Government toward that part of Africa,
especially toward Ethiopia, seems to reflect an underlying scorn, disrespect and
crudeness. [See Tecola W. Hagos, “International Deceit to Destroy Ethiopia: The New
Patriotic Ethiopians and the Birth of the New Ethiopia,” Boston Conference, 9 March
2002 (reposted in Websites including this one)]
Tecola W. Hagos
October 26, 2015
*Tecola W[orq] Hagos, Former Senior Advisor and Diplomat, Ethiopian Governments
[1971-1976; 1991-1993]; Invited to attend Oxford University College; Detained in 1974-
75 by the Derg, Military Regime; Studied Law, and Philosophy at HSIU Law School 1965-
71, and at Georgetown University and the Law Center 1979-1986, earned several
Graduate Degrees; Passed the DC Bar; Visiting Fellow Harvard Law School 1993-95;
retired professor of Philosophy and Composition [taught Symbolic Logic, Ethics, Morality
and Law, Intro- philosophy, and Advanced Composition (English)] at local Colleges for
over fifteen years. Painter, with works collected at the Ethiopian National Museum and
in Private collections; author of several books on law and politics, and numerous articles
and commentaries on social issues posted in several websites. 32
Herman Cohen, INTERVENING IN AFRICA: SUPERPOWER PEACEMAKING IN A TROUBLED
CONTINENT, STUDIES IN DIPLOMACY, St. Martine’s Press, 2000.
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