Meles Zenawi is scratching Heaven and Earth trying to justify his treasonous activities in the dismemberment of Ethiopia, and his agreement to the boundary delimitation between Ethiopia and its former constitutive part, but now independent �Eritrea.� Since the 13th of April 2002, Meles and his Foreign Affairs Minister, Seyoum Mesfin; and numerous officials were all engaged to varying degrees in further lies and deceptions trying to confuse Ethiopians into believing that losing their brothers and sisters and the dismemberment of their country is legal and beneficial. As we may rightly conclude by listening to the Ethiopian Government media in Ethiopia, and by Selam Radio here in Washington DC Metropolitan area, the campaign to mislead, misinform, and disunite Ethiopians is on.

I will paraphrase the main theme of the rhetoric of Meles and associates. Meles asserted that his action to dispose off the Ethiopian - Eritrean boundary dispute under the Algiers Agreement, the 1900, 1902, and 1908 treaties, is valid and justified because 1) treaties signed between Ethiopia and Italy, or any other colonial power are valid, 2) Emperor Menelik signed the 1896 and all subsequent treaties with Italy at a time when Menelik was strong and capable of protecting Ethiopia�s interest, 3) Ethiopia�s boundaries with Djibouti, Kenya, Somalia, and Sudan were all entered with Colonial powers, and are held to be valid at this point, nevertheless. Therefore, the rhetorical conclusion being advocated by Meles is that Ethiopians must accept the dismemberment of their country as legitimate acts of their leaders/governments without protest.

On the surface these arguments of Meles (and associates) may sound reasonable; however, on closer scrutiny none of Meles� rhetoric could hold water. In fact, other than the fact of their admirable sophistry, they are classic examples of logical fallacies (fallacy of composition, non sequitur, argumentum ad absurdum et cetera) and unsound judgment, to put it generously. Now, let us examine each of the arguments offered by Meles and associates.

Before I present my argument on the subject as stated above, I would like to point out that it is a disgrace for all non-European governments, leaders, and people in general to use the Hague Arbitration Tribunal, the United Nations Security Council et cetera, systems that were structured to serve the interest of Europeans and their descendants elsewhere. It is a sham to all people of color that governments of people of color would seek Europeans and their descendants to be their lawyers, judges, arbitration commissioners et cetera. Most of the international principles cited by the Commissioners in their opinion were derived from common sense that all human societies possess. We, as Africans, have equally rich tradition of principles and practical solutions that we should have utilized rather than running to The Hague and end up with mediocrity and prostituted opinions from indecent and corrupt arbitrators.

I. The Invalidity of Colonial Treaties

No one is disputing the well-established customary international law principle of pacta sunt servanda on the sacredness of agreements in general. On the other hand, international law provides us also with a balancing principle of rebus sic stantibus that acknowledges the dynamic process of our human condition. We all know that agreements over time could be amended, revised, replaced, or invalidated on several grounds one of which is breach by one party. To base an argument on a general principle of international law where the facts of a particular case are completely ignored leads to fallacies and poor judgment. In the case of the three treaties of 1900, 1902, and 1908, first we must understand the circumstance that lead to the signing of such treaties, especially the Treaty of Peace of Addis Ababa of 26 October 1896, which brought the end of hostilities and presumably ended the colonial ambition of Italy. The core obligation of Italy under the Peace Treaty was the recognition of Ethiopia as a sovereign and independent state, and the acceptance of peaceful coexistence between the two states in perpetuity. The ink of the 1896 Peace Treaty has not even dried when Italy started its scheme to expand its colonial possession into the Bogos and Kunam beyond the Mereb River. And with the arrival of two other colonial powers, Britain and France, one on the West and the other on the East, and Ethiopia was being squeezed in the middle; thus, under duress and corruption the three treaties were signed.

At any rate, the fact that Italy violated its League of Nations obligation, and the fact that Italy attacked Ethiopia in 1935 deploying over three hundred thousand soldiers made up of Italians and Eritrean Askaries, hundreds of war planes, thousands of tanks, tens of thousands of heavy artillery et cetera against a peaceful and minimally armed fellow member of the League of Nations was a material breach and as a consequence is a valid cause for the invalidation of all three treaties. Further more, Italy by the 1947 Peace Treaty has renounced all of its claims and interest in Africa. Even more important, Ethiopia had formally declared the 1900, 1902, and 1908 treaties null and void fifty years ago in 1952. [Decision of the Boundary Commission, Ethiopia v. Eritrea, 13 April 2002, para 2.10, page 12; Negarit Gazeta, Order No. 6 of 1952]

The Vienna Convention on the Law of Treaties provides clearly the right of a state to terminate or suspend a treaty in case of breach by one of the parties. �Article 60: Termination or suspension of the operation of a treaty as a consequence of its breach

1. A material breach of a bilateral treaty by one of the parties entitles the other to invoke the breach as a ground for terminating the treaty or suspending its operation in whole or in part. ... 2. A material breach of a treaty, for the purpose of this Article, consists in: (a) a repudiation of the treaty not sanctioned by the present Convention; or (b) the violation of a provision essential to the accomplishment of the object or purpose of the treaty.�

The Vienna Convention on the law of treaties in the main simply codified existing international customary law that has been well established through the centuries. The principle contained in Article 60 (1) and (2) is such principle that is a codification of a long established international customary law. It is valid for all states new or old whether they have signed the Vienna Convention or not. If there is a challenge it need be limited to those Convention provisions that are creatively incorporated reflecting the progressive development of international law, but not in regard to well established principles such as breach due to violations by one of the parties to a treaty as indicated in Article 60 (1) and (2) above.

The Hague Boundary Commission did not consider or decide on the validity of the 1900, 1902, and 1908 treaties. In fact it went out of its way to tell us in a subtle and understated, but profound manner that those treaties have been terminated by Ethiopia in 1952. [Decision of the Boundary Commission, Ethiopia v. Eritrea, 13 April 2002, para 2.10, page 12] Thus void under normal treatment of treaties where there is such obvious breach by one party of a treaty. Now, the real question is what did the Commission do. What the Commission did was delimit the boundary using those treaties as its guide not because they were valid but because that was what the Ethiopian Government and the Eritrean government in tandem wanted the Commission to do. The validity or invalidity issue about those treaties was preempted by the Algiers 12 December 2001 Agreement. Moreover, one may even argue that the Commission�s variation of the treaties from the words of the treaties through interpretation and later actions or non-action of the parties is unauthorized if one follows the mandate of the Commission strictly. That is what Meles argued for also as indicated by the Commissioners in their decision. �Thus it finds itself unable to accept the contention advanced by Ethiopia�� [Decision of the Boundary Commission, Ethiopia v. Eritrea, 13 April 2002, para 3.15, page 25.]

For all practical purposes, the Algiers Agreement may be seen as a new agreement that uses the three treaties as annex, or as a document written in exactly the same wording of those three treaties, and agreed by Meles Zenawi and Isaias Afwerki. Such perception would not be as far fetched as it might sound considering what was being done by the Commission using such document for the purpose of delimitation. But such acknowledgment of the reality at hand would have lacked the illusion of historic validity, and would have minimized its international image in the eyes of the World community. Nevertheless, it still would have been illegal for the same reason the Algiers Agreement is illegal because of collusion, fraud, deceit, and coercion.

What is particularly unacceptable is the claim that �colonial boundaries� are sacrosanct, and that no one may challenge, modify, or override them. This seems to be also the view of the Boundary Commission that did not even bother to establish any nexus between the 1964 OAU Resolution that the Commission was mandated to use with the Ethiopian-Eritrean situation. This approach is one more obnoxious legacy of colonialism of the Nineteenth Century. It is interesting to note here that the Arbitration Commission did not make any reference to the principle that evolved from the period of decolonization on the status of colonial boundaries that is the backbone of the Commission's decision or delimitation. Without the acceptance of the principle of uti possidetis there would have been no delimitation of a boundary that created a landlocked Ethiopia. The international principle that is claimed by western powers (ex-colonial powers) is the concept of uti possidetis that is derived from Civil Law of interdiction �for the purpose of retaining possession of a thing, granted to one who, at the time of contesting suit, was in possession of an immovable thing, in order that he might be declared the legal possessor.� [Black�s Law Dictionary, 1979] In full, in Latin, it states, Uti possidetis ita possideatis, meaning, �that which you possess you shall continue to possess.� In other words it is a provisional remedy, and does not of itself confer ownership in full.

The motive of ex-colonial powers is obvious: their interest to preserve their dominance over their ex-colonies overrides the interest of the indigenous people who were victims of colonialism and slavery. The ex-colonial masters usually defend their continued presence through the structure of governments and boundary demarcations by arguing that the local populations if left to their own devices would be involved in endless blood-letting, fighting on issues of boundaries, scant resources, and traditional tribal feuds. In order to meet the challenges of nationalist groups who envisioned the building of new nation-states on tradition and history and not being artificially limited by colonial boundaries, the colonial powers promoted the concept of uti possidetis, a new concept pulled out of old roman civil law to serve as principle of international relations and later law.

Thus, the principle of uti possidetis is simply a self-serving idea shoved down the throats of unsuspecting or narrow minded champions of ethnic politics some of whom took pride in their past colonial subject status. The concept of uti possidetis is pushed by western jurists and politicians to be closely associated with the concept of self-determination. The concept of self-determination itself is full of unresolved problems. It is a monumental task and also arrogance for anyone to claim to bring some semblance of rationality in a situation that not even the United Nations Commission on Human Rights was unable to make any headway in its effort to define what is meant by �self-determination.�

The counter arguments are several, but the most poignant asserted by Eritrea is that Ethiopia in its application to be a member of the League of Nation in 1923 has acknowledged the boundary delimitation as stated in the 1900, 1902, and 1908 agreements. Other than the fact that membership application under whatever principle of international law does not determine boundary claims between contending parties, estoppels will not work her because of the subsequent act of material breach by Italy in attacking Ethiopia in 1935-41. At any rate, it is not that difficult to find preexisting boundary disputes between the other members of the League at the time Ethiopia applied for membership in the League of Nations.

Most importantly, as pointed out above, the Italian aggression and occupation of Ethiopia in 1935-41 is a material breach that rendered all pre-existing treaties between Ethiopia and Italy voidable, which was carried out by Ethiopia in 1952.

Changing internal administrative structure of a federal state may be distinguished from administrative restructuring of constitutive parts of a non-federal state or nation. There is an assertion by lawyers and jurists that the concept of uti possidetis forbids changing pre-existing boundaries even in a non-colonial setting. The fact of the matter is such claim is simply an assertion by colonial powers and has no historic supporting legal or factual precedent. Until the dawn of the process of liberation from colonialism, developing nations in Africa, Asia, and Latin America accepted colonial boundaries not because of legal obligations but for the sake of expediency and to avoid endless conflict.

The legitimacy of centuries old rights of dismembered states whose territory and people were forcefully alienated is pushed aside. If force did not create rights in one set of circumstances, one must show with overwhelming evidence and clarity that it does if one claims an exception.

It is important to recognize the serious limitation on uti possidetis legal presumption set by the Arbitration Tribunal in another arbitration case that Eritrea was a party to. In the Eritrea and Yemen dispute, the Arbitration Tribunal stated, �there is, however, a prior problem regarding the facts on which a legal presumption of uti possidetis would purport to be based. For such a legal presumption to operate it is necessary to know what were indeed �the boundaries of the administrative units of which the dismembered Empire was constituted.�� [Arbitration Decision of 9 October 1998, Eritrea v. Yemen, para 97, page 28]

The opinion of the Badinter Arbitration Committee and the discussion of the Conference on Yugoslavia, on 20 November 1991 seem to suggest some wild ideas on issues of self-determination, state sovereignty, and uti possidetis. We must be careful in our wholesale adoption of the views and opinions of western jurists and politicians who are often serving the same imperialist and racist goals of Caucasian people against non-white people the world over. For example, Lord Carrington, the Chairman of the Conference, was not a person that should be anywhere near the Bosnian or Serbian people. This is an individual due to his lack of sensitivity of the urgency of the situation in Bosnia failed to prevent the genocide that took place in Bosnia. He should have been standing along with Slobodan Milosevic in the defendant�s dock for criminal negligence resulting the death and destruction of tens of thousands of Bosnian Muslims.

II. Emperor Menilik II

Emperor Menilik II may or may not be the best example of a patriotic Ethiopian. In my judgment he was not the hero that we Ethiopians are proud of. It is true that he took over ten million (10,000,000) lira (over five hundred million dollars in current value) from the Italians for signing extremely prejudicial treaties or agreements that to this day have proved to be against the interest of Ethiopia. Incidentally, the Boundary Commission found it necessary to point out in its decision of 13 April 2002 that Menilik received as an incentive for signing the 1900 treaty five million (5,000,000) lira. [Decision of the Boundary Commission, Ethiopia v. Eritrea, 13 April 2002, para 4.7, page 33] I have read all kinds of excuses for Menelik�s behavior starting from European coercion to Italian blackmail. None of such excuses have convinced me. However, it will be wrong to put the entire responsibility on Menelik because his aristocratic relations and his Rases were all in the pay of the Italians too.

Do not confuse the Battle of Adwa with the treasonous acts of Menelik. The battle of Adwa is as much our victory, the common people of Ethiopia, as much as it is a victory claimed for Menelik. Our heroic ancestors fought for their country, for their land, for their religion, and for their freedom. It is the greatest battle ever fought by a non-white people in the 19th Century. Ethiopians from every corner of the nation showed up for that epic battle. We were made one through our ancestors� blood that flowed and mingled as the blood of one great heroic people.

Another problem that Menilik left as his legacy is the Blue Nile Treaty he signed with Britain literally giving up our patrimony in the waters of the Blue Nile, Lake Tana, and tributaries in the interest of Egypt. What we had in Menilik was someone far more interested in his own political survival and advantages than the interest of Ethiopia. What is anachronistic in all this is the popular picture of a heroic and wise Emperor that is wholly endorsed by the Mehale Sefaries that contrasted sharply with the real man who fortified himself in his mountain fortress somewhere in Central Ethiopia signing away for some personal enrichment our patrimony for money and weapon. Even with such exceptionally difficult problem, such treaty that restricts Ethiopia�s right as originating state of the waters of the Blue Nile and other major tributaries can be repudiated by a formal declaration by the Ethiopian government.

Now, what Meles is claiming by referring to the activities of Menilik is to justify his own action of treason by hiding behind the deceitful activities of past Ethiopian Emperors. What Menilik or anybody else did in the past may serve as a footnote to our history, but has no relevance in the disposition of our boundary dispute with Eritrea or anyone else. Italy by its own aggression has cleaned out all obligations that Ethiopia might have had under bilateral agreements before 1935.

At any rate such argument would have been appropriate had it been argued by the Eritrean side. Paradoxical the Eritrean side did not make much of such an argument since their focus was more directed to events that took place after 1935.

III. Other Boundary Treaties Signed with Colonial Powers

The boundary treaties signed by Ethiopian leaders with colonial powers such as Britain and France are cited by Meles to justify his decision to accept the 1900, 1902, and 1908 agreements as dispositive. However, such argument is not valid. To begin with neither France nor Britain attacked Ethiopia; whereas, Italy did launch massive military attack and occupied Ethiopia between 1935-41. Finally Italy was driven out by the patriotic Ethiopians with Britain coming at the very end of the struggle as a friend of Ethiopia, but with its true mission to protect Italians from another European humiliation of massive surrender. There is no material breach that could void the agreements signed by Ethiopian leaders with Britain or France. Subsequent to the independence of neighboring countries [Djibouti, 1977; Kenya, 1963; Somalia, 1960; Sudan, 1956] none of those countries except Somalia had challenged in toto their boundaries delimitation or demarcation signed by their colonial overlords with the Ethiopian government. There were further negotiations in connection with specific sections of demarcations with particular countries for example with Kenya, and Sudan at different times.

Whatever claims neighboring countries may have, it is their individual prerogative to bring up the concern with a legitimate Ethiopian government. It is ludicrous for Meles to bring up such possibility as an excuse or justification for his specific treasonous act in the boundary dispute with Eritrea. One is baffled by Meles�s extraordinary advocacy for the rights of Eritrea when he is claiming to be the �Prime Minister� of the Ethiopian Government. I have never heard, read, or imagined that a leader of a nation would promote so vehemently the interest of an adversary over and above the interest of his own country. It was reported also that Meles has said that it would be better to obey the law than gain some advantage through other means. My question is that since when has Meles become a law-abiding official. Meles is one of the most politically corrupt, violent, outlaw leaders the Continent of Africa has ever seen since the departure of Idi Amin, and our own Mengistu Hailemariam.

VI. Independence of Eritrea: Estoppels

In the Hanish Islands dispute between Eritrea and Yemen the Arbitration Tribunal extracted Eritrea�s own characterization of its status of independence from Ethiopia to have started as of 1991 [Arbitration Decision, Eritrea v. Yemen, 9 October 1998, para 26, page 8], and not as later claimed in the Boundary Commission acceptance of the Eritrean and Ethiopian governments� assertion of independence date for Eritrea to be in 1993 [Decision of the Boundary Commission, Ethiopia v. Eritrea, 13 April 2002, para 3.36, page 30].

There are numerous examples of independent activities of Eritrea�s government that leaves no doubt that Eritrea achieved its independence in 1991. Thus, if we follow the principle of the 1964 OAU Resolution, then the border of Eritrea would be set at that point in 1991 which border did not include the Afar coastal territories including the Dahlak Islands. The correct principle of estoppels could be applied here against Eritrea. Since Eritrea has stated in its previous dispute with Yemen that it acquired its independence in 1991, it should have been stopped from claiming that it became independent in 1993 in the arbitration case of Ethiopia � Eritrea Boundary dispute. Here is a clear example of the prostitute-like behavior of the Commission when it stated that it would accept the date of independence for Eritrea is 1993. [Decision of the Boundary Commission, Ethiopia v. Eritrea, 13 April 2002, para 3.36, page 30] The Commission never asked nor considered any documentation or correspondence between the Ethiopian Government and the Eritrean government during the period of 1991 to 1993. The Commission did not take into consideration the official statements of the Government of Eritrea and the maps and official communiqu� submitted to other governments. How about the State visits of Isaias Afwerki during that period to Ethiopia and elsewhere?

It is absolutely laughable for any one to try to back track, or hide behind international forums, or seek the protection of �big brother� United States at this late stage of Ethiopia�s betrayal by its own government leaders. For their blatantly treasonous activities Meles Zenawi and associates should be arrested promptly and tried in a court of law.

Dr. Tecola W. Hagos
Washington DC
May 16, 2001