Eritrea-Ethiopia Boundary Commission issues clarifications on its ruling

• Published in: BBC Monitoring Africa - Political p. 1
• Format: Newsletter
• Language: English
• Published: London BBC Worldwide Limited 31.03.2003
• Subjects: ERITREA

At the time of issuing to the demarcation team its first set of Demarcation Instructions, the [Eritrea-Ethiopia Boundary] Commission considers it opportune to offer the parties certain observations on the commission's approach to the demarcation phase of its work in the light in particular of certain considerations advanced by the parties in their comments of 24 January 2003. In doing so the commission is mindful of the fact that it is not the practice of international tribunals to respond to comments upon, or criticisms of, their decisions. However, the unusual features of the present situation, in which the boundary commission is required to continue its work by demarcating the boundary but without provision for formal pleadings by the parties or full oral hearings, make it desirable that the commission's work in this respect be more fully explained. This will, the commission believes, also be helpful in avoiding certain misunderstandings regarding the content and effect of the commission's Delimitation Decision of 13 April 2002 ("Delimitation Decision") and regarding its tasks during the demarcation process. Similarly, the fact that the commission, in its Delimitation Decision, made an assessment of the effect of subsequent conduct on the boundaries established by the three colonial treaties cannot be read as enabling the commission now to reopen the Delimitation Decision. In considering such conduct, the commission relied on the evidence placed before it by the parties during the written and oral pleadings before the commission, and concluded that in some respects, a departure from the treaty boundary was called for while in others, it was not. The commission's readiness to consider in that way the parties' subsequent conduct was not intended to mean, and cannot be taken to mean, that the commission would now be receptive to additional evidence of that conduct or would itself seek to gather it. To do so would mean that the boundary determined by the commission would have been subject to further variation and would thus have been indeterminate. It would also be inconsistent with the stipulation in the December 2000 agreement that the commission's Delimitation Decision is "final". The boundary laid down in the Delimitation Decision reflects the commission's assessment of the evidence of conduct presented by the parties. The boundary line drawn, for example, in the area of the so-called Belesa and Endeli Projections is not a provisional line subject to further consideration by the commission of new evidence of state practice in those areas. There is, in short, no further room for the introduction by the parties of additional new evidence of their conduct, or for the commission to seek out such evidence. The commission also examined developments after 1935, and concluded that it could "perceive nothing in that chain of developments that has had the effect of altering the boundary between the parties" (para 5.91). The commission observes that its finding that the boundary under the 1902 Treaty had by 1935 crystallized along the line of the traditional signature means that the burden rested upon Ethiopia to substantiate any claimed departure from that line on the basis of conduct that would serve to show that Badme village (which lies close to the line) was subject to Ethiopian control. The commission referred specifically in the Delimitation Decision (paras 5.92-5.95) to the evidence produced by Ethiopia. It noted in particular that Ethiopia had introduced no evidence in its opening pleading (its Memorial) of governmental activities west of that straight line; although it produced some evidence in its Counter Memorial, it did not add to or develop this in its reply. Moreover, maps submitted by Ethiopia were inconsistent as to the location of Badme village. Overall, the evidence was nothing like what might have been expected had Ethiopia's presence there in the period before the case been as significant as Ethiopia now alleges. The commission would note that what is relevant here is governmental and not private activity. The references to Ethiopian governmental control of Badme and its environs were insufficient to persuade the commission that an Ethiopian presence west of the line from Points 6 to 9 would support a departure from the line that had crystallized by 1935.