The Eritrea/Ethiopia Claims Commission Oversteps Its Boundaries: A Partial Award?

Abstract

The recent decision by the Eritrea/Ethiopia Claims Commission on the ius ad bellum claims of Ethiopia-that Eritrea had violated the law on the use of force in starting the 1998-2000 war between the two states-is a troubling one. It raises questions about the proper role of arbitral tribunals in such cases. There were many factors which suggested that the Commission should have abstained from giving judgment. There was no unequivocal agreement between the parties that the Commission's jurisdiction extended beyond claims for violations of humanitarian and other international law during the conflict to an examination of responsibility for the start of the war. Moreover, the award is extremely brief, and consequently it deals with controversial issues of the law of self-defence, such as the meaning of armed attack and the duty to report to the Security Council, in a rather limited way. The award also raises important questions about the relationship of an arbitral tribunal to other bodies. In this case, the award of the Claims Commission undermined the Eritrea/Ethiopia Boundary Commission's 2002 Delimitation Decision, already under challenge by Ethiopia, at a time of increasing tension along the border.

Disputed Territories and the Law on the Use of Force: Lessons from the Eritrea-Ethiopia Case

“…After a series of offensives and counter-offensives involving the military forces of the two states that lasted for nearly two years and following the advancement of Ethiopian troops to many parts of Eritrea, the two parties negotiated and concluded the 2000 Algiers Agreement 8 For a detailed factual background to the Eritrean-Ethiopian armed conflict 1998-2000, see Gray (2006) 700-704; Murphy, Kidane and Snider (2013) Ch 1; Murphy (2018) 552-572; A de Guttry and others (2009) 109-223. 9 Eritrea-Ethiopia Claims Commission, Partial Award, Jus ad Bellum: Ethiopia's Claims 1-8 (19 December 2005); Murphy, Kidane and Snider (2013) 16.…”

“…13 For a detailed account, see Woldemariam (2018) 16 Article 3 of the Algiers Agreement provided for the creation of an independent body tasked with the investigation of 'the origins of the conflict'. 16 This body was never constituted by the UN Secretary-General, nor by either the Organisation of African Unity (OAU) or its successor, the African Union, see Gray (2006) 703; Murphy, Kidane and Snider (2013) 23; Murphy (2018) 557. 17 Article 4 of the Algiers Agreement provided for the creation of a neutral Boundary Commission ('the Boundary Commission') charged with delimiting and demarcating the parties' land border in accordance with pertinent colonial treaties and applicable international law; Article 5 of the Algiers Agreement provided for the establishment of a neutral Claims Commission ('the Claims Commission') 'with the mandate to decide through binding arbitration all claims for loss, damage or injury by one State against the other resulting from violations of international law'.…”

“…ibid, para 11.52 ibid, para 17.53 ibid, para 17.54 ibid, para 16.55 Although the article also argues that the Commission 'did not give a satisfactory decision on the substantive law on the use of force',Gray (2006) p 721-722.56 ibid.…”

Politics of belonging and the Eritrean diaspora youth: Generational transmission of the decisive past

“…From an Eritrean perspective, the monitoring governments, above all the United States, omitted to exercise pressure on Ethiopia because they did not want to risk the good relations with their chosen regional ally Ethiopia (Hirt 2013, 7;Gray 2006). A more recent decisive event is the imposition of sanctions by the UN in 2009.…”

From rebel governance to state consolidation – Dynamics of loyalty and the securitisation of the state in Eritrea

“…But the war's root causes remain unresolved, and due to Ethiopia's refusal to adhere to those agreements a state of 'cold peace' has prevailed between the two countries ever since (for a detailed discussion see Healy and Plaut, 2007;International Crisis Group, 2003 The latter implies that Eritrean and Ethiopian troops are still only metres apart on certain sections of the (as yet) un-demarcated joint border, a matter of little urgency to Ethiopia that has indeed an interest to prolong the status quo (Cliffe et al, 2009). For the Eritrean government this state of affairs substantiates the need to maintain an unusually large standing army in order to be able to prevent any future potential attack, a need at least partly justified by patterns of action or inaction in relation to different sections of the international community in the course of the conflict that were clearly favourable to the Ethiopian version of events (Gray, 2006;Müller, 2006). But those justified security concerns serve at the same time to consolidate a securitisation of the state that has gathered pace since 2001.…”