Dumping the Decision of the Boundary Arbitration Commission

By Tecola W. Hagos

I. How to Recover Afar and our Territorial Waters on the Red Sea

The recent interview (May 28, 2007) of Sebhat Nega is a God sent material gift that would help Ethiopia in recovering its coastal territories and territorial waters on the Red Sea that was illegally taken from Ethiopia through an illegitimate and treasonous independence, the Algiers Agreement, and the corrupt Arbitration Commission decision of 2002. In the past, I have written extensively my legal reasons to vacate, void, nullify, disregard et cetera the decision of the Commission on the border delimitation and demarcation between Ethiopia and Eritrea. I have pointed out specifically �fraud� and �collusion� (secret agreement for an illegal purpose) between the leaders of the Ethiopian Government and the leaders of the Eritrean Government as the basis for nullification.

The venue agreed upon by the Ethiopian Government to resolve the border demarcation and delimitation dispute was an arbitration tribunal rather than the International Court of Justice. To go to arbitration has obvious advantages of quick resolution and less formalistic approach. It is not also unusual to resolve border dispute through arbitration. However, in the case of the Ethiopian-Eritrean border controversy it was part of a scheme deliberately aimed to help Eritrea. Arbitration was most disadvantageous to Ethiopia. Arbitration process are exclusive of the public, the submissions of the parties such as briefs, supporting evidence of their respective claims et cetera will not be open to the public. The entire record of the arbitration hearing is not accessible to the public other than the parties. It is highly secretive. The whole procedure of such arbitration is meant to shield all future public scrutiny of its activities in presenting the case on the Ethiopian side. Such venue was absolutely advantageous to the Eritrean side which has no legal ground for any of its claims. It was a perfect venue for the Government of Meles to defraud Ethiopia without being challenged by anybody in the dark and in secret with the cooperation of a handful of Mahel Sefaries.

In terms of the Arbitrators at the Ethiopia-Eritrea Boundary Arbitration Commission, it is really a judgment of one individual that of the Chairman of the Commission that would ultimately determine the controversy at bar. In the Ethiopia-Eritrea Arbitration each party chose two arbitrators, who are in reality individuals who will be partisans and support the party that appointed them. And in turn the four arbitrators choose a chairman. In the case of Ethiopia-Eritrea arbitration, the arbitrators chose Lauterpacht.  No wonder Arbitration tribunals want to hide their proceedings and records from the public because the public would have been shocked how far arbitrations are a game played out by partisan lawyers promoting the interest of the party that appointed them rather than arbitrating as dispassionate impartial judges. In the Case of the Ethiopia-Eritrea Arbitration Commission it is finally Lauterpacht that decides the dispute. Since Lauterpacht is under a shadow of suspicion of corruption the decision of the Commission should be thrown out. [See ICJ case Avena and Other Mexican Nationals (Mexico v. United States of America), 31 March 2004.]

The Ethiopian interest was not represented properly at the Arbitration Commission. Historical documentation of the superior rights of Ethiopia�s sovereignty and claims of long standing territorial control were not properly presented to the Commission. Tax records, Chronicles of Ethiopia�s fabulous Emperors, records of travelers such as Alvarez, demographic studies et cetera were suppressed and were not submitted to the Commission. In fact, the documents submitted to the Commission were specifically meant to support the short term historical snippets that of Eritrea�s claims without providing the contextual historical proof that could have countered any such claim by Eritrea. The Commission, in a rare moment of honesty, pointed out that puzzling situation wondering that the submissions by Ethiopia tend to support the claims of Eritrea. In fact, at one point, the Commission pointed out that the Ethiopian Government has on its own without any challenge or claim from Eritrea conceded a chunk of Ethiopian territory that the Commission had no choice but to add that territory to the claims of Eritrea.

�The words used by Ethiopia were that �Fort Cadorna, Monoxeito, Guna Guna and Tserona� were �mostly . . . undisputed Eritrean places.� While Monoxeito and Guna Guna are on the Eritrean side of the Treaty line as determined by the Commission, the Commission finds that, on the basis of the evidence before it, Tserona and Fort Cadorna are not. As to Tserona, the Commission cannot fail to give effect to Ethiopia�s statement, made formally in a written pleading submitted to the Commission. It is an admission of which the Commission must take full account. It is necessary, therefore, to adjust the Treaty line so as to ensure that it is placed in Eritrean territory.�  [See Ethiopia v. Eritrea Arbitration Decision (2002), page 50.]

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.

�For its part, 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 in a title to the Islands that became effectively transferred to Ethiopia as a result of the territorial dispositions after the defeat of Italy in the Second World War. This argument will naturally fall to be dealt with in the chapters below dealing with the inter-war periods and the armistice and related proceedings at the end of the Second World War. Yemen has asserted an historic or �ancient title� running back in time to the middle ages, under which the islands are asserted to have formed part of the Bilad el-Yemen. This ancient title predated the several occupations by the Ottoman Empire, asserts Yemen, and reverted to modern Yemen after the collapse of the Ottoman Empire at the end of the First World War. It is thus only Yemen that has raised substantial questions of an �historic� or �ancient, title that existed before the second Ottoman occupation of the nineteenth century; it is therefore to an appreciation of the historical background necessary for an understanding of that claim to an early title that the Tribunal now turns. This chapter will consider the ways in which the overall history of the Arabian peninsula must be understood in then contemporary legal terms, as a preface to the Tribunal's ultimate conclusion on the legal questions concerning �historic titles�. In addition, this chapter will address Yemen's theory of �reversion,� which is critical to any decision as to the legal effect of an �historic title.��[See Eritrea v. Yemen Arbitration Decision, Award, First Stage, Par: 115-117 (1998). Emphasis mine]

The Ethiopian Government should have on its own submitted to the Arbitration Tribunal a request to be included as an interested third party (there are procedural mechanisms and precedents) and submit its body of evidence of its historical presence and superior right in the disputed islands and area and preserved the right of Ethiopia in case of all future controversial cases. What they did instead was a dubious strategy of showing up at the hearings as non-party to the dispute, thus conceding to the fraudulent misrepresentation of the history of the region that cut out Ethiopia�s sovereignty on the islands in dispute and the region in general. All these manipulation to support Eritrea by Meles Zenawi and his TPLF dominated government show clearly that there was no dedicated patriotic Ethiopian representation at the Arbitration Commission hearings. Therefore, with the current new development of the public confession of Sebhat Nega, Ethiopia can have the decision of the Commission thrown out or nullified. This can be done only if a new Ethiopian government takes over from the current treasonous individuals in power such as Sebhat Nega, Meles Zenawi and their associates.

The individual who was responsible as the representative of the Ethiopian side at the Boundary Commission arbitration hearings is/was the Fisseha Yimer, a former Mengistu official, an opportunist who betrayed even at that late stage in 1992 Mesfin Woldemariam, who was grooming him to join the Ethiopian Human Rights Council. This is one good example of excessive self-love and about an individual who prostituted himself first to Mengistu and later to Meles. Despite the fact of his brilliant mind, he betrayed his profession as a lawyer and his duty to his country for �thirty pieces of silver.� He is equally responsible for the conspiracy to defraud the Ethiopian people from their rightful sovereignty and territorial integrity along with the principal culprits Meles Zenawi and Sebhat Nega. The main players in this debacle include Mesifin Seyoum, Tekeda Alemu and others from the Ethiopian Ministry of Foreign Affairs.

On the other side, the Eritrean Government was advised by very dedicated and very cleaver lawyers (or lawyer). The strategy they used is quite outstanding, but hurtful in the long run to a peaceful relationship between neighbors somehow connected at the hips�Ethiopia and Eritrea. They transformed step by step three defunct and nullified international instruments from over a hundred years ago to be revived as part of a formidable �peace treaty,� the Algiers Agreement of 2000. Of course, the lawyers serving Eritrea would not have gone that far if it were not for the cooperation of the Ethiopian leaders. Even though I despise how far such professionals hurt Ethiopia, I admire their craftiness and superb understanding of international law and international political development and process. In international law in general, treaties of peace are unassailable. It is almost totally difficult to discount such peace treaties based on the usual tests that may invalidate or nullify bilateral treaties such as coercion, fraud, defect in authorization of agents et cetera. By creating the Algiers Agreement of 2000, and by tying the creation of the �Boundary Arbitration Commission� to the that treaty which is claimed to bring about peace between Ethiopia and Eritrea, the Eritrean legal advisers have created a difficult international law edifice to attack for their client. One may claim that that the Algiers Agreement is not a �peace treaty� and only a transitory temporal arrangement for the parties to come up with a workable solution at the end of which a comprehensive �Peace Treaty� would be signed.

On the outside, Eritrea is also being supported by very few but very loud academics, politicians, or activists such as John Prendergast, Terrence Lyons et cetera who have done sever damage to the interest of Ethiopia through their shallow analysis of the history of Ethiopia and the development of regional power-politics in that part of the world. Their partial grasp of the border controversy and their total disregard of the seriousness of the problem of land locking seventy million Ethiopians from their historic coastal territories as some form of high school game are troubling to me personally. They start their discussion midway in the far deeper problem of the claim of Eritrea to all of the Ethiopian Afar coastal territory and territorial waters on the Red Sea by assuming the Algiers Agreement of 2000 to be a valid agreement.

Prendergast and Lyons pay no respect or attention to Ethiopia�s thousands of years of history that clearly established a superior right over the entire land and territorial waters that is artificially claimed to be a separate entity recognized by international legal principles as a separate and distinct entity of the State of Eritrea. They have used arbitrarily concepts of �sovereignty� that emphasize particular characteristics of statehood reflective of modern conceptions of modern states with undue emphasis on formal centralized government structure as the key test for state sovereignty. To some extent it is understandable that their bellicose attitude toward Ethiopia is framed by the fact of their status of being the �new kids on the block� as citizens of a nation of immigrants born out of relatively recent rebellion and far more disposed to embracing their new identity by denying their connections to a feudal and often abusive European countries. They seem to think of history as a �story� that can be used as anecdotal and underplay the significance of the Ethiopian system of Empire.

Most importantly they shore up their defective and highly disingenuous and almost mercenary analysis as concern for regional peace and to avoid conflict in the area by imposing the decision of an illegally constituted Boundary Arbitration Commission created based on a fraudulent Algiers Agreement of 2000 signed by a treasonous �Government� of Ethiopia [See Sebhat Nega�s May 28,2007 interview and admission of collusion with the Eritrean leadership], chaired by a corrupt Chairman who is/was monetarily connected with the United States, an interested party in the dispute, while serving on the Commission. To claim that one can bring about peace by bottling up over seventy million people, stealing their historic right to their coastal territory and territorial waters in order to benefit an artificially created new country carved out of an old empire is simply stupid. There can be no peace with such injustice and blatant violation of international law. On one side these same individuals are screaming about the violations of the human rights of people in Darfur, but are advocating the violation of the rights of Afar Ethiopians, Kunama Ethiopians, Irob Ethiopians and others by forcing them either off their historic homes that they have occupied even before the discovery of America, or become Eritrean �citizens� that would diminish their status as part of their own large community into minority status losing all of their rights as citizens of their home country Ethiopia.

I have not even began to discuss the disastrous regional turmoil that would affect the United States Government�s presence and influence in the Middle East during this period of upsurge of Arab nationalism and Islamic fundamentalism. Ethiopia is the only reliable alley of the United States in the region. Eritrea will be swallowed up by the creeping presence of Islamic fundamentalist within and on its borders. It is highly irresponsible and juvenile for anybody to advocate the imposition on Ethiopia an illegal and fraudulent decision and thereby weaken, even destroy, Ethiopia in this time of conflict and tremendous resentment for the United States in that part of the World. The argument and attention of statesmen should focus on empowering and stabilizing Ethiopia. Such wise statesman like approach must include throwing the decision of the Commission of 2002 and the Algiers Agreement of 2000 into the �dust bin of history.�

II. Dumping the 2002 Decision of the Boundary Commission

The following fifteen items* are my reasons for voiding, nullifying, and invalidating both the Algiers Agreement of 2000 and the 2002 decision of the Ethiopia � Eritrea Boundary Arbitration Commission:

1. The Government of Meles Zenawi in 1993 was neither a legitimate nor representative government of Ethiopia, and thus cannot bind Ethiopia to any international treaty or agreement nor encumbers future generations of Ethiopians with any international obligations. The independence of Eritrea was achieved through collusion and complacency of the leadership of the EPRDF (still in power) and through force; however, neither method is legitimate under international law and practices. Thus, any agreement entered by the two leaders or their agents at that time and subsequent to that time is invalid with no legal consequences on Ethiopia and Ethiopians.

[Sebhat Nega�s interview of May 28, 2007 confirms the collusion that existed between the leaders of the present Governments of Ethiopia and that of Eritrea at the time of the signing of the Algiers Agreement. The war between Ethiopia and Eritrea was prosecuted by a dissenting faction of the TPLF that had gained the upper hand momentarily, but lost power back to the Sebhat and Meles group soon after resulting in the decision to sign the one-sided Algiers Agreement of 2000 that fully protected the interest of Eritrea only.]

2. Prime Minister Meles Zenawi and President Isaias Afeworki are leaders of liberation fronts who had a long standing understanding/agreement while they were in the bush, i.e., before they took over the Government of Ethiopia in 1991. The independence of Eritrea was a result of such prior agreed upon scheme during the years the two leaders and their organizations launched a guerrilla war against the legitimate governments of Ethiopia. The same bush-agreement was later used as the basis of the Algiers Agreement. There was no disclosure to the Ethiopian people of such prior understanding or agreement. Thus, there has never been at-arms-length negotiated agreement at Algiers. The Algiers Agreement is a result of collusion thus fraudulent. It does not bind Ethiopian and Ethiopians to any obligation. [Sebhat Nega�s interview of May 28, 2007 confirms the collusion that existed between the leaders of the present Governments of Ethiopia and that of Eritrea.]

3.  The Algiers Agreement resurrected long defunct, dead, terminated, invalidated international instrument (1908) and annex (1900, 1902) from a hundred years ago. There is no precedent in the history of international bilateral or multilateral treaties where such long defunct, dead, terminated, invalidated treaties, annex, or international legal instruments to have ever been resurrected to a new life for the sole purpose to benefit one party to a dispute. Thus, the validity of the Algiers Agreement is a highly prejudicial and bad precedent that should be rejected outright.

4. The Boundary Arbitration Commission did not specifically cite the principle of uti possidetis in its decision. However, the Commission�s use of the international instruments (1908) and annex (1900, 1902) in order to establish legal rights amounts to the same thing. The development of such international legal principle must be understood in its contextual use first in several Latin American cases to settle disputed territorial boundaries and possessions. 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 properly the Afar Coastal territories as its legitimate historic territory. [See Frontier Dispute (Benin v. Niger), 12 July 2005.] The concept of �effectivites� 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 deliberatively dived a people into such discreet areas with diminished human and political rights in order to award some territory to a newly created entity.

5. In the Qatar v. Bahrain (2001) case Judge S.O. Kooijmans in his individual concurring opinion introduced the principle of �superior claim� a principle that should have played a central role dealing with issues involving such an ancient state of Ethiopia.  Had the Arbitration 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.  Judge S.O. Kooijmans wrote, �Much more appropriate for the present case seems to be the Permanent Court's finding in the Eastern Greenland case that "it is impossible to read the records of the decisions in cases on territorial sovereignty without observing that in many cases the tribunal has been satisfied with very little in the way of the actual exercise of sovereign rights, provided that the other State could not make out a superior claim" (P.C.I.J. Reports, Series A/B, No. 53, p. 46; emphasis added). The correct conclusion in my opinion is that one can be �satisfied with very little in the way of the actual exercise of sovereign rights� by Bahrain, since the other State, Qatar, �could not make out a superior claim.�� [See the Decision Maritime Delimitation and Territorial Questions between Qatar and Bahrain (Qatar v. Bahrain), 16 March, 2001.]

6. Special difference and accommodation should have been accorded the State of Ethiopia in its dispute with the new state of �Eritrea.� The wrong approach of the Border Commission has been to treat the exercise of state and sovereign power of an independent state like Ethiopia on equal footing with that of a colonial (Italy) or trust (British) administration, practices that are being succeeded to by the government of �Eritrea.� The ICJ in a recent case has made it absolutely clear that such approach is wrong. �The Chamber observes that the concept of the intention and will to act as sovereign, as mentioned in the Legal Status of Eastern Greenland (Denmark v. Norway) case (1933, P.C.I.J., Series A/B, No. 53, pp. 45-46), is a concept of international law and cannot be transplanted purely and simply to colonial law. The Chamber�s sole task in applying the principle of uti possidetis juris is to ascertain whether it was the colony of Dahomey or that of Niger which effectively exercised authority over the areas which the Parties now claim as sovereign States.� See Frontier Dispute (Benin v. Niger), 12 July 2005.) In other words, all other sovereign attributes of the independent state of Ethiopia dealing with a colonial or trust administration has to be seen in favor of Ethiopia for Ethiopia has the superior claim to any of the claims based on colonial matrix. [See Frontier Dispute (Benin v. Niger), 12 July 2005.]

7. The Algiers Agreement preemptively benefits one party and negates the rights of the second party without the benefit of negotiation or presentations because it is based on the Colonial treaties and annex that favored the colonial power ambition and does not reflect the reality on the ground. It is absolutely clear, even to a child; the only party benefiting from the resurrection of long dead and defunct treaties or annex or international legal instrument is done with a single beneficiary in mind--the interest and claims of �Eritrea,� as a successor nation to Italy�s colonial administration, and Isaias Afeworki. Such succession itself is questionable, and the approach of preemptively awarding all the benefits derived from a treaty against a second party is against public policy and against long established international law and practices.

8. The Algiers Agreement authorized a subordinate organ, the Boundary Commission, with power and authority that far exceeds its own: violations of the principle of Jus Cogens.

9. The Boundary Commission established under the Algiers Agreement is invalid since it is based on an illegal and invalid agreement due to fraud and collusion.

10. The Boundary Commission decision shows inconsistency in its treatment of issues it claims to be within its discretion where it claims it was not deciding ex aequo et bono. The technical assistance provided by the United Nations on the determination of sites from maps is unscientific, confused, and irresponsible to be of any use in any demarcation or delimitation of a boundary between �Eritrea� and Ethiopia.

11. The Boundary Commission based all of its decision without ever visiting a single area under dispute. It is unrealistic and unjust to decide a very important and complex problem in dispute without considering the unreliability of hearsay and basing a decision on the basis of old maps and statements by individual�s self serving dairies or travel logs, individuals who were not familiar with local languages, understanding of villagizations, nomadic life of pasturing and watering traditions et cetera.

12. The Boundary Commission was unduly influenced by the international political structure of the United Nations Security Council. The replacement of the bipolar power structure of the Cold War era has given way to a single-power dictation of international relations by the United States. Ethiopia as a weak nation is treated as a dispensable pawn on a political chessboard. Ethiopians should reject such degradation and being subjected to decisions by political expediency rather than principles of law.

13. The Chairman of the Boundary Commission, Elihu Lauterpacht must be disqualified for breach of professional ethics (conflict of interest). Because of Lauterpacht�s activities, the decision of the Boundary Commission is tainted and must be declared null and void. The reason for disqualification is the type of previous and later arrangement Lauterpacht had with the Government of the United States. During the time Lauterpacht was the Chairman of the Commission, he was also retained as a lawyer by the United States in its case against Mexico and other cases. The United States is an interested party that has repeatedly expressed its preference of the �Eritrean� claims; at the same time Lauterpacht was working as Chairman of the Commission he was also being paid by the United States Government. If this is not a conflict of interest, show me what is? [See ICJ case Avena and Other Mexican Nationals (Mexico v. United States of America).] And Article 23 of the 1899 basic document that created the Permanent Court of Arbitration [Convention for the Pacific Settlement of International Dispute] holds that �each Signatory Power shall select four persons...of known competency in questions of international law, of the highest moral reputation, and disposed to accept the duties of Arbitrators.�]

14. Ultimately, the United Nations Charter entrusts to the Security Council the power and duty to deal with any situation that may plunge any region or the world as whole into armed conflicts, in several Articles. [See Articles 24, 33-34, 39-44, (52-54)]. Land locking Ethiopia under circumstances perceived by millions of Ethiopians as an injustice is not going to be a peaceful situation at all. Sooner than later, the region will be immersed in wars and conflicts and unimaginable suffering.  Already in the 1999-2000 war between Ethiopia and Eritrea due to border and other frictions had resulted in the death of  no less than a hundred thousand soldiers, with enormous economic setback to both Ethiopia and Eritrea.  In light of such injustice and the destabilization of the region, the Security Council is duty bound to throw out the decision of the Border Arbitration Commission�s decision of 2002, and replace it with its own decision by returning Ethiopian Afar Coastal territories back to Ethiopian Sovereignty. This would solve largely the looming disaster in the area if things were left the way they are at this moment.

15. However, the best possible breakthrough would be for Ethiopia and Eritrea to go back to the drawing board and form a unitary single state. It is clear that Eritreans were duped out of their long historic legacy as part of the Ethiopian Empire, except for the sixty years of colonial occupation by Italy in some of the areas in Eritrea. At any rate the last fifteen years have shown that it is not easy to be independent of the rest of Ethiopia. On the Eritrean side, the future is not that bright with the growing threat of Islamic �fundamentalism� engulfing the region, and the Muslim population in Eritrea having grown by some estimation close to seventy percent of the total population of Eritrea.

Considering the natural growth of discrete population for political autonomy in that part of the world and the desire to be part of the long delayed membership in the Arab league of Eritrean Moslems, and with a rich and powerful Sudan salivating to incorporate all of Barka/Bogos and part of Kunama and the Ben Amirs, I do not see much of peaceful future prospect for Eritrea on its own. It is wise for leaders of the Christian highlands of Eritrea to reevaluate their precarious situation. The lowland Moslem population need be equally concerned about the prospect of occupation by the Sudan and living under a fundamentalist Islamic state alien to their low land Ethiopian rich culture of tolerance and peaceful coexistence. The only country in the region that has a far better record of centuries of tolerance and peaceful coexistence between Christians and Moslems than any other country in the region is Ethiopia. Thus, it is in the best interest of all to maintain the independence, territorial integrity, and sovereignty of Ethiopia.Ω

Tecola W. Hagos, Washington DC, June 10, 2007

* [The above fifteen points were taken and modified from an article I wrote and posted in this Website titled ETHIOPIA-ERITREA BOARDER DISPUTE: Challenging the Opposition, Tecola Hagos, December 30, 2005.]

Appendix:

Aklilu Habtewold: in the Footsteps of A Great International Law Jurist; Disqualification of Lauterpacht, Nullification of the Algiers Agreement, and Rejection of the Decision of the Border Commission

By Tecola W. Hagos

October 30, 2003

�..�..

A. Legal and Policy reasons to declare the Algiers Agreement null and void.

1. Principle of Jus Cogens: Brownlie, an international law jurist of great depth and notoriety, pointed out the principle of Jus Cogens that states that there �are rules of customary law which cannot be set aside by treaty or acquiescence but only by the formation of a subsequent customary rule of contrary effect.�[Brownlie, Principles of Public International Law, 515.] The difficult task faced by the Vienna Conference on the Law of Treaties was to draft provisions that would adequately retain the principle of Jus Cogens extracted from customary international law and practices. In fact, McNair asserts that it is easier to �illustrate these rules than to define them.� [McNair, Lord, The Law of Treaties, Oxford: Oxford University Press, 1961, 214.] The first problem was to establish whether there are in fact peremptory norms of general international law. Some jurists consider the concept of Jus Cogens as a recent development of a version of �public Policy� [Elias, T.O. The Modern Law of Treaties, Leiden: A.W.Sigthoff, 1974, 177. In Osca Chinn Case (1934)P.C.I.J., Series A/B, No. 63, pp134-36, 146-50, the Court introduced the concept of international public policy.] with international dimension. However, �according to some authors, some international public policy has always existed.� [Sztucki, Jerzy, Jus Cogens the Vienna Convention on the Law of Treaties: A Critical Appraisal, Wien New York: Springer-Verlog, 1974, 8.]

Article 53 of the Vienna Convention on the Law of Treaties codified the well established principle of Jus Cogens in no uncertain terms as follows:

�Article 53: Treaty Conflicting with Peremptory Norm of General International Law (Jus Cogens) A treaty is void if, at the time of its conclusion, it conflicts with a peremptory norm of general international law. For the purpose of the present convention, a peremptory norm of general international law is a norm accepted and recognized by the international community of states as a whole as a norm from which no derogation is permitted and which can be modified only by a subsequent norm of general international law having the same character.�

The Algiers Agreement at its time of signing preemptively obligate Ethiopia under defunct, long dead, and supplanted international instruments, with dubious validity even at the time of their presentations in 1900, 1902 and 1908, to cede millions of acres of land and coastal territorial waters and islands dispossessing its own citizens or driving them of their ancestral homes, acts that would violate all fundamental principles of human rights incorporated in the Universal Declaration of Human Rights, the Charter of the United Nations and numerous General Assembly Resolutions. [German Settlers in Poland, (Advisory Opinion) 10 September 1923, PCIJ Series B, No. 6, at 36.]

If we accept the fact that anything agreed to by heads of governments is valid, we run into all kinds of absurd situations. This is one reason why the principle of Jus Cogens evolved. Imagine a situation where two dictators agreed on a treaty that will allow one nation to use some citizens of the other nation as slaves. How about selling a piece of territory, as the Czar of Russia did selling Alaska to the United States? Such an act of alienation of the territorial integrity of a sovereign state would have been considered illegal, as some still think the Alaskan deal is still illegal. The case is an extreme situation that clearly illustrates the problem. Any person will object to such an arrangement because such agreement violates fundamental human rights and principles on sovereign power.

The Alaskan purchase of land and that of the initial phase of the Rubattino Steamship Company in 1870 purchase of land in Assab (Ethiopia) and passing it to the government of Italy later, confused simple ownership of land, which anyone person or corporate entity including other nations can exercise under the power of the granting sovereign state if its municipal laws permits, with the concept of sovereign power. When an individual or an entity owns property under the sovereign power of a people constituting a state, such as Ethiopia, irrespective of the fact of the personal status (citizen, foreigner, immigrant, male, female, single, married, et cetera) or corporate status (corporation, foreign governments, representatives of charitable or non-charitable organizations, et cetera) of that individual or entity, such ownership is exercised at the pleasure of the granting Sovereign Power (in this case the People of Ethiopia as constituted as the State of Ethiopia).

Thus, ownership under the sovereign umbrella of a legitimate nation-state does not allow the fabrication or creation in any owner of real property that even remotely resembles �sovereignty� or �sovereign power.� We can see how sound the principle of Jus Cogens is, and also how valid it is to our case under consideration. What the Algiers Agreement created is a legal anomaly that cannot be sustained under any principle of international law. There is no precedent how one can resurrect long dead colonial treaties without first violating principles of Jus Cogens and others in the present case of border dispute and alienation of hundreds of thousands of people into subjugation and minority status.

2. Fraud, Corruption (Collusion): The Vienna Convention on the Law of Treaties, which is a codification of customary international law, in Part V on �Invalidity, Termination and Suspension of the Operation of Treaties� in several Articles has embodied that principle. Both customary international law and multinational treaty based principles hold agreements entered where there is lack of competence (Article 46), or through fraud (Article 49) , collusion (corruption) (Article 50), or under duress or coercion (Articles 51 and 52) to be void or voidable. 

It is a fact that the TPLF/EPRDF and the EPLF had been in close cooperation as guerilla movements for over twenty years. They had coordinated their activities against the Ethiopian government during the period leading to their victory in 1991. There are eyewitnesses and documentary evidence proving prior agreements between the leadership of the two guerrilla movements against the interest of the Ethiopian people and the State of Ethiopia. It was none other than Meles Zenawi, along with Abai Tsehai, who signed on behalf of the TPLF such an agreement with the EPLF. No such agreement was ever disclosed to the people of Ethiopia (or Eritrea) when the two guerilla Leaders became head of states or governments after their victory over the Ethiopian Government in 1991. It is with such undisclosed prior agreement with hidden agenda the new Algiers Agreement was signed by the same guerrilla leaders pretending as if it were an arms-length negotiated agreement.

These same two leaderships of the two guerrilla movements have signed several other hidden agreements that they intended to implement as part of their general strategy to dismantle and destroy Ethiopia. The Algiers Agreement, which anticipated border demarcation as agreed to in their previous clandestine agreements between the two guerilla movements, is simply an implementation of that strategy now floating for all to see at the surface of their deep sea of deception. Thus, there is fraud in the activities of Meles Zenawi pretending to be a leader of the Ethiopian people, but in fact promoting the hidden agenda of an adversary foreign interest.

Where officials representing states had made some other arrangement unknown to their respective government organs (parliament, council of ministers et cetera) entrusted with the power to delegate state authorization to such agents, and where the entry of an agreement by such colluding agents is harmful to the interest of one of the signatories of such an agreement to benefit the other, there is collusion; consequently, a base for voiding and nullifying such an agreement by the prejudiced party. The Vienna Convention on the Law of Treaties is absolutely clear on fraud corruption (collusion) in Part V as cited above.

"No man can serve two masters; for either he will hate the one, and love the other; or else he will hold to the one, and despise the other.� Matt 6:24

3. Coercion and Interference by the United States and Others: The United States was not pleased when Ethiopia and Eritrea went to battle. However, it was not for the same reasons that you and I would have been thinking about to preserve peace in the world. The flare of that conflict prematurely ignited the type of war had it happened much later would have thorn Ethiopia apart and lead to the creation of several tiny nations. The plan of the United States CIA coordinating the Meles-Issaias axis to carry out the destruction of Ethiopia by dismantling Ethiopia into several pieces was to a great extent disrupted. The breakout of such actual engagement saved Ethiopia from CIA planned later destruction. Now we have a resurgence of Ethiopian nationalism that has effectively neutered the CIA from carrying out its ill conceived dismantling of Ethiopia across lines of cracks of Super Power induced ethnic �self-determination.�

The Government of the United States through the United Nations Security Council and on its own national agenda is intimately involved with the Ethiopia-Eritrea border dispute. For all practical purposes its name should have been added to the name of the Commission such as �The United States-Ethiopia-Eritrea Boundary Commission.� The United States government has coerced, threatened, and openly expressed its illegal desire to landlock Ethiopia in pursuit of its ill-conceived foreign policy. It has favored �Eritrea� to acquire illegally Ethiopian territory. Some members of Congress (Lantos, Payne et cetera) have introduced a bill [H.R. 2760 of 16 July 2003] condemning the Ethiopian government [SEC. 5(3)], and are involved in a process no different than cheap blackmailing of the current Ethiopian government with economic and military sanctions [SEC. 6 (a) and(b)] if the Ethiopian government does not go along with the highly prejudicial scheme the United States government had put in place in collaboration with �Eritrea� and Meles Zenawi starting with the drive for the independence of �Eritrea� to the signing of the Algiers Agreement and the setting up of the Commission. The draft bill in Congress has shown no restraint whatsoever, even going to the extent of expressing its support to the Commission [SEC. (1)]in an unusual foray prejudging a complex situation from a pulpit of self-righteous indulgence of self-importance.

B. Legal Basis for the Rejection of the Decision of the Arbitration Commission:

1. Precedent for the Rejection of the Decision of the Commission: Rejection of the determination of an international dispute by an arbitration tribunal or even by the more public forum of the International Court of Justice (ICJ) is not something unusual. It is in the nature of the dynamic relationship of states that determination by international tribunal such as the ICJ or the Arbitration Commission could be set aside by states against whose interest such decision has been entered where the �vital interest� of such states was at stake.

Consider the following examples:

a) In 1974 France informed the United Nations Secretariat that it will not recognize the jurisdiction of the ICJ in its verdict in favor of Australian and New Zealand�s concern of the nuclear test conducted by France in the Pacific Ocean. The ICJ has directed France to stop its nuclear testing. [Nuclear Tests (Australia v. France) 1973- 1974; Nuclear Tests (New Zealand v. France, 1973-1974].

b) (i) In 1984 the United States Government refused to accept the decision of the ICJ in the Nicaragua v. United States case [Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. United States of America), Merits, Judgments, I.C.J. Reports 1986]. The ICJ has found the United States has violated the rights of Nicaragua.

(ii) In 1999 the ICJ ordered the stay of execution of a German national on a finding that the United States had violated international law; nevertheless, the United States rejecting the order executed the German citizen and his brother. [The LaGrand Case(Germany v. United States of America) 5 March 1999] In that case the Court unanimously upheld that treaty provisions override local criminal process, and ordered the following interim measures: �(a) The United States of America should take all measures at its disposal to ensure that Walter LaGrand is not executed pending the final decision in these proceedings, and should inform the Court of all the measures which it has taken in implementation of this Order; (b) The Government of the United States of America should transmit this Order to the Governor of the State of Arizona. �II. Decides, that, until the Court has given its final decision, it shall remain seized of the matters which form the subject-matter of this Order."

Among several other news media the CNN reported, �[T]he world court held a 30-minute hearing at which Sri Lankan Judge Christopher Weeramantry, the United Nations court's vice president, urged the United States to use "all the measures at its disposal" to prevent the execution. It also said the United States should pay unspecified damages for the death of LaGrand's brother, Karl, who was executed last week for his part in the same crime. The world court, however, has no enforcement powers.� [cnn.com, March 4, 1999, Web posted at: 12:02 a.m. EST (0502 GMT)]

c) Let us fold back time in order to consider the decisions of the International Permanent Court of Arbitration soon after its creation in 1899. Some decisions entered by the newly created International Permanent Court of Arbitration between 1900 and 1932 were arbitrated mainly on limited border disputes, nationality issues, and interference  or sovereignty conflicts. Almost all of the decisions dealing with boundaries and nationality issues were blown off with the Second World War. New agreements, usually imposed by the victors on the losing sides, were put in place without regard to previous arbitration decisions in a number of peace agreements. Further political development in the Cold War period eroded such agreements. Moreover, starting in the late 1980s, the borders of new countries have been once again redrawn popping out of the old global order.

All of the developments in international arbitration show us that nothing is written in granite, instead the literature of the time and the decisions of the arbitration tribunal are fluid and are meant to solve problems within a framework of an evolving world order and customary international law. There is no such thing that approximates the rigidity and clarity of say criminal law. It is this sublime mix of statesmanship, difference to history, and the desire to bring about peace and security between states and peoples that motivated and guided jurists and politicians alike.

d) Where there is clear error of principle as well as that of error of fact in an arbitral decision, no one can be held bound by such decision.

Thus, for all the above reasons the Ethiopian government must reject the decision of the Commission. Such act of rejection is not unique, as shown above; in fact, one would fail in ones duty if one does not reject the decision of the Commission in order to protect the �vital interest� of Ethiopia--its survival as a viable nation. In fact, it is even more compelling to reject the decision of the Commission when we take into account the consequence and magnitude of accepting the decision of the Commission. Both the United States and France found it necessary to reject decisions of questionable impact on the survival or sovereignty of France or the United States by a far more public forum, the ICJ, than the case of Ethiopia rejecting a far reaching decision of a low level arbitration tribunal.

2. Conflict of Interest: Disqualification of Lauterpacht: All international adjudication/arbitration forums have certain standards of integrity that must be upheld by members of such forums/courts/tribunals/commissions. The basic documents of the ICJ as well as that of the International Permanent Court of Arbitration and the UNCITRAL rules all have provisions providing for �high moral� standards that members sitting to adjudicate or advise or arbitrate parties to a controversy and the world at large are expected and required to observe. The independence of any such body from undue influence of third parties is a well established principle that evolved out of centuries of the development of customary international law and principles. We have to consider also general principles of law practiced by all �civilized nations� of the World in connection with the integrity of an international court or forum.

Article 2 of the Statue of the ICJ holds that �[t]he Court shall be composed of a body of independent judges, elected... from among persons of high moral character.� [Emphasis added]

Article 23 of the 1899 basic document that created the Permanent Court of Arbitration [Convention for the Pacific Settlement of International Dispute] holds that �each Signatory Power shall select four persons...of known competency in questions of international law, of the highest moral reputation, and disposed to accept the duties of Arbitrators.� [Emphasis added]

From the verse quoted here from the Bible, at least, we should consider its moral teaching.

�For where your treasure is, there will your heart be also.� Matt. 6:21

We should understand the role of arbitrators to be distinct from that of ICJ judges in context of how arbitrators are chosen or appointed in the first place. 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. However, this does not mean that they are not bound by the �highest moral reputation� standard. It may be argued that 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 members, especially the President, Sir Elihu Lauterpacht, have displayed an unusually blatant disregard of both the �high moral� standard expected of his position and impropriety in his activities that clearly shows his lack of independence from the influence of third party governments. It is with sincere regret that one is forced to challenge Lauterpacht�s professional ethical standard due to the gravity of the problem facing ones nation. Lauterpacht is a seventy five year old international jurist who had led a distinguished life until this moment.

Lauterpacht has displayed a degree of liberties in his words of communication with the Government of Ethiopia that boarders an impertinence. He seems to have cast his role as an ICJ judge or a �Secretary General� of an international organization like the United Nations rather than a �President� of a privately established arbitration tribunal. Let us consider the situation in a holistic manner taking into account other activities of undue interferences by third parties that may have direct bearing on the Ethiopia-Eritrea border dispute. Not withstanding the hollow diatribe of the Representative of �Eritrea� at the recent General Assembly of the United Nations, looked at with such global perspective, the Ethiopia-Eritrea Border Commission arbitration process is in a real mess. The Security Council, and the Secretary General are assuming roles that was never envisioned or authorized through practice�roles of a Judiciary (a supreme court) and that of a Chief �Justice.

Thus, it is obvious that the United States is acting in an adversarial role in the case involving the border dispute between Ethiopia and Eritrea. It is no more an impartial neutral body. With such public background in full view, the United States has further stained the arbitration process with its uncouth act of retaining as its lawyer Lauterpacht in its case with Mexico, a case pending at the ICJ [Avena and Other Mexican Nationals (Mexico v. United States of America)]. This act of the United States is no different, for example, from Eritrea hiring Lauterpacht to work on some legal case while Lauterpacht is still a member of the Commission. If that was the case, everybody with some legal background would have called out �conflict of interest� at the top of his or her voice. Thus, the fact of an interested party such as the United States retaining a sitting-Commissioner as its lawyer is only slightly a shade different than the actual party in the controversy�Ethiopia or �Eritrea��retaining any of the sitting-Commissioners as a private lawyer. It does not in any way mitigate the unethical and conflict of interest situation by identifying when Lauterpacht was retained as counsel for the United States, rather what remains is the negative shadow cast on the fitness of Lauterpacht as an arbitrator and the independence of the Commission as a whole. One must realize the Commission�s work is not yet concluded, thus the members of the Commission are still bound by the standards set by the Basic document of the Court of Arbitration and principles developed for such purposes by customary international law.

It is only proper for Ethiopia to demand full disclosure by Lauterpacht of all his activities with third parties that are directly or remotely involved with the on going border dispute with Eritrea. If this is not a clear case of conflict of interest, loss of independence, and a compromise of the principle of �high moral� standing expected and required of the members of the Commission, show me what is.

Not only Lauterpacht is personally involved in such blatant conflict of interest, but also Riesman, another member of the Commission appointed by Eritrea, is involved in other cases that put his behavior in a compromised position. It seems that Lauterpacht is using the Permanent Court of Arbitration based commissions and tribunals as his private law firm away from his home base from his Chambers at 20 Essex Street. His partner Arthur Watts at the Chambers at 20 Essex Street is supposedly picked by Ethiopia for the Commission. Here you have an incestuous relationship where the same characters are showing up again and again as commission or tribunal members. Both the appearance of conflict of interest or conflict of interest in fact is rampant in the whole arbitration process where the �high moral� and �independence� standards are compromised.

Ideally, international arbitration was to be carried out by choosing from the members of the Permanent Court of Arbitration already designated by their respective governments who are signatories of the 1899 or 1907 Treaties (Conventions). With the adoption of the UNCITRAL rules the forum 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 not lose sight of the initial reasons why in 1899 the arbitration forum was needed. It seems there was an interest by the kings, queens, heads of States et cetera who meet at the Hague an idealized element of public duty to bring about peace and security to a Europe and a world at large racked with war and violence and �to record in an international agreement the principles of equity and right on which are based the security of States and the welfare of peoples,� [Preamble, 1899 Convention]. 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.

Looking at the record of the last three to four years, one cannot but notice that Lauterpacht and a few of his exclusive group of individuals seem to have made the process of �arbitration� a money making mechanism for their insatiable appetite for money. Most anyone would be tempted with the prospect of earning an exorbitant amount of money at an hourly rate of 200 to 300 hundred dollars. When I examined the docket of the Permanent Court of Arbitration ad hoc tribunals and commissions, I was amazed to read how Lauterpacht and Riesman seem to have their hands in every pot. Are these individuals truly �disposed to accept the duties of Arbitrators� or are they involved in some kind of money making scheme that compromised and defeated the purpose of having an arbitration in the first place?

Raising the issue of professional responsibility (conflict of interest, corruption et cetera) is a very sensitive and complex matter for anyone. It should not be a point of contention without solid ground. I have first hand experience of good intentions going sour and affecting the judicial system. The psychology of the individual involved is not that important in determining such issues. After all the history of mankind�s failure is littered with good intentions. Neither accusing the messenger of personal misdeeds nor giving examples of the trespasses of others can mitigate the harm done as a result of practices by a couple of Commissioners that undermined the integrity of the arbitration process and the rule of law in general. It is with great concern that I have addressed the issues discussed in this article.

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 obliged 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. Ethiopia should demand the disqualification of the President of the Commission, Elihu Lauterpacht, for conflict of interest and corruption.

C. Third Party Funding as Corruption: The fact of setting a �Fund� out of which the tribunals� and commissions� expense and the compensation for the members of such tribunals and commissions is paid has introduced into the process of arbitration an element 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 that a dose of political consideration rather than law and principles plays a major role in the decision making process of arbitration. Such new structure has further polarized and distorted the independence of the tribunals or commissions.

The United Nations role as played out by the Security Council in the arbitration process was an affront to the Sovereignty of Ethiopia. We have around the world some of the worst violators of international law, and yet the Council does nothing. In the case of Ethiopia, it seems that the United Nations is on the verge of drawing its equivalent economic �weapon of mass destruction� (sanction) against Ethiopia, as its predecessor League of Nations did in 1935 against a lone Ethiopia facing up with great courage Fascism and now ethnic based dismantling.

Conclusion in a nutshell

1. The right perspective on the border controversy: I started this essay by speculating what Aklilu might have done faced with the current political and economic situation of Ethiopia. Aklilu would not have accepted any limitation or cutting back of the historic rights of Sovereignty and Territorial Integrity of Ethiopia. He would have argued and insisted with great patriotic zeal that the Ethiopian cause is not limited to retaining some patches of territory in Bademe or Irob. He would have pointed out the fact that the issue deals with fundamental principles of Justice, Sovereignty, and Territorial Integrity of a respected and founding member of the United Nations. He would have illustrated with graphic historic documentation that the problem of dismantling of Ethiopia would result in the extreme with massive violation of human rights and the dignity of millions of Ethiopians. He would have presented statistical data, in depth studies that the right to develop ones resources is also part of the fundamental rights of every human being. Above all Aklilu would have moved the world with his eloquence and thoroughness in presenting the fabulous history of Ethiopia�s fight in securing and retaining its historic rights of coastal territories and territorial waters of the Red Sea because it has to do with living in good relationship with neighboring nations and their peoples.

For anyone to focus just on some pieces of land in limited areas is to have missed the point. No part of the decision of the commission is to be accepted. Above all the Algiers Agreement is an insult to our intelligence and to our national sovereignty and territorial integrity. It is, in fact, an affront to international law and principles to allow such �agreement� to be considered as a base for any future relationship Ethiopia might have with the rest of the World.

2) What to do about �Eritreans� who are escaping/migrating into Ethiopia: We have been witnessing since the independence and border demarcation of �Eritrea� was thrown in our face, the century of normal practice of Ethiopians of moving around from one region of the province of Eritrea to other parts of Ethiopia being played out by Ethiopians now identified as �Eritreans� moving into northern parts of Ethiopia. Mostly those �Eritreans� coming into Ethiopia�s northern regions belong to the Ethiopian now �Eritrean� Orthodox Church who are faced with real dilemma; they cannot go to the Sudan or neighboring Islamic countries because of fear of persecution because of their religion and because of their �blackness� that seems to be a problem in the eyes of Arabs.

The Moslem �Eritreans� from the Western lowlands in �Eritrea� move freely in and out of the Sudan as they please. And some on the Eastern shore of the Red Sea travel freely to Yemen, Saudi Arabia et cetera. Now, the issue is how we Ethiopians should respond when we are faced with the flow of such �Eritreans� who want to come to Ethiopia. I believe we should receive them with open arms in the same spirit of the Biblical father who received his wayward prodigal son in the story as told by the Christ. Please, take a moment and think about the whole problem. Where else can they go if not to their own mother country Ethiopia? The real criminals in our self inflicted wound are the two leaders of the two �liberation� movements (TPLF/EPLF) that are the cause of the mess we are in.

I am very much aware of the fact that a lot of harm to Ethiopia�s economic and security interest was inflicted by infiltrators from the EPLF and other insurgency groups over the years before and after 1991. One must be careful in allowing the types of �Eritreans� who want to relocate to Ethiopia as Ethiopians. A lot of �Eritreans� are being hurt under the current government of �Eritrea.� The people of both communities obviously need each other on real human level. Should we prolong the pain and suffering of innocent people who are equally victimized by so called brutal �liberation� movements? Let us all be long distance runners, and not undermine our great future as one people by dashing off in a frenzy in what would end up being a short lived sprinting of hate and greed. When all is said and done, what truly would remain is our humanity and our fragile existence. There is a great Ethiopian saying that I would like to share with you all in concluding this rather long essay: �Endih liŤegb, berei�ien aredcoot.�

Tecola W. Hagos

Washington DC, October 30, 2003 [www.tecolahagos.com]