Face the Facts: The Recent Ethio-Eritrea Boundary Decision in the Eyes of International Law

By Yohannes Chane Metiku
April 2002

Third World jurists have the uncomfortable task of interpreting and applying “International Law”, which for the most part is made, shaped, twisted or even often times abused in line with the national interests of greater powers. (Presumably two of the five distinguished jurists composing the Ethio-Eritrean Boundary Commission are nationals of Third World countries, a Nigerian and an Indian.)

“International Law” had always the academic ambiguity of being “Law” as such or some other species of power politics in disguise. Thus, the role of international law and international institutions must always be seen in the wider perspective of satisfying an existing international system or great power national interest. Today’s international system is somehow in a relative state of flux and full of uncertainties. A lot of radical changes are taking place. Some of those changes may even qualify to be historical ‘landmarks’ or ‘milestones’ in the context of the general development of international law. There were several such milestones in history. The emergence of the Westphalian international system (1648); the French Revolution and the ensuing Napoleonic wars (1789-1815); The Russian Revolution (1917); the end of World War II and the creation of the UN (1945); the Cold War (1950-1989); the liberation of colonies in Africa since the 1960s were the major ones. And now, at the dawn of the 21st century, we have at hand a new form of international war called “war against terrorism”.

The Westphalian treaty and the Napoleonic wars in Europe might not have any direct impact on the changes affecting the state of Ethiopia at that time, but all the rest most definitely had and continue to have. The Russian Revolution coupled with international politics in the Cold War played significant role in bringing about the liquidation of the millennial Ethiopian Monarchy. Exactly 200 years after the French Revolution, by which the infamous Bastille prison was violently destroyed, another infamous Berlin Wall was torn down in 1989, ushering in several revolutionary changes in the international system. That system had its own bearings in bringing about the devolution of the already beleaguered state of Ethiopia into several mini states.

How are the norms of international law and institutions responding to such drastic global changes in the international system or are being affected by it? Ours is an era in which extensive juridical theories are being reconsidered in the face of fast moving changes in values, the direction of which, for the most part being just obscure and difficult to tell. One aspect of the interesting part of international law affected by such changes is the question of succession of states. Old states dissolve and new ones emerge. Here is an area of research in which law and politics have, as they always had, close interplay in state practice. The interplay even seems stronger after the end of the Cold War. One of the distinguished British jurists in international law, Professor Rosalin Higgins once pointed out that “there is no avoiding the essential relationship between law and policy.” (R. Higgins, “International Law, the Avoidance, Containment and Resolution of Disputes”, 230RdC 28 (1991-C).

1. Use of Force and International Law.
The overriding objective for any international tribunal or body, like the recent Boundary Commission between Ethiopia and Eritrea, in considering procedural priorities must be to arrive at conditions conducive for making immediate peace. To that end, several political avenues could be open for consideration in lieu of pure law. Juridical too, the prohibition against the use of force and the international custom-based obligation to have recourse only to peaceful means of resolving disputes/conflicts comes on top of all other considerations. In this light, the political-legal role the commission has played must have due diplomatic credit by all sides at the initial stage at least, but only just as temporary measure.

2. Ex iniuria non ius oritur (‘illegal acts do not create law’) and ex factis ius oritur (‘facts have a tendency to become law’).
There you have it! international law is inherently full of contradictions. The above two contradictory legal maxims were borrowed from the Roman Law to the international jurisprudence. Upon the general juridical premise that the use of force is basically illegal in modern international relations, almost all major events in the world could have difficulty in attaining any legal sanctity. Almost all major changes in a global scale occur through the use of force. According to the first principle (maxim), then, all the achievements of the victories in World War II would have been of no legal consequences! Because, they were achieved through the use of force. Contrarily, according to the second maxim, facts (events) if generally agreed upon by the public at large or even acquiesced to (with no tangible opposition in the international arena) have a tendency of being sanctified as legal, even though such might have been achieved through heinous use of force. The latter principle seems to work well especially in relation to state succession.

3. State Succession.
States die and are born too. When new states will have to replace old ones, there comes the legal issue of state succession. The doctrine of state succession is full of academically controversial theories and especially with respect to the ambiguities with ‘state continuity’. On this question Prof. James Crawford underlines the importance of making distinction between state succession and state continuity. He states that “[whether] some state can be said to exist, despite changes of government, territory or population, [or] one state can be said to have replaced another with respect to certain territory” must have crucial distinction. (see J. Crawford, The Creation of States in International Law, Oxford, Clarendon Press, 1979, p. 400.)

This doctrinal analysis had a recent applicability in international law on the questions of whether Russia today is a successor of the erstwhile Soviet Union or just its continuation in the eyes of international law. The same question also arose regarding the state of Yugoslavia. How about with respect to the Ethiopian situation? Since 1974 Ethiopia has undergone five forms of governmental formations: from the monarchy to constitutional monarchy (1974-75). From constitutional monarchy to Provisional Military Administrative Council (1975-1984). From a military government to a socialist republic (1984-1991). From a socialist republic again to a ‘Transitional Government’ by EPRDF (1991-1995). From transitional government to a federal democratic republic (1995-present.) The last change has most drastic implications in international law. Because of the deep social and political implications brought about, we will have to raise this question: state continuity or state succession, which is undergoing in Ethiopia? Is the the new federal republic a continuation of the historical Ethiopian state or a successor?

In the case of Russia, even after the dissolution of the Soviet Union, Russia remains bigger than all other former Soviet republics taken together. Also, Soviet Russia after 1917 was a continuing state of the Czarist Russian Empire in the eyes of international law. After the removal of the monarchy in Ethiopia, the same unitary state, under different form/s of government, continued. Added to this too, we have the subjective element, in both situations, of state continuity for the new regimes obviously intended to perpetuate the state. Hence, until 1995, through which Ethiopia continued as a unitary state, there was no doubt as to state continuity. But, the series of events after 1995, more crucially, the devolution of the unitary state of Ethiopia into several mini states, the most troublesome of which being the full independence of Eritrea, (with the silence of the more than sixty million Ethiopian people), forces us to question the legal continuity of the state of Ethiopia or her being succeeded by another state called a “Federal Democratic Republic of Ethiopia”. In the eyes of international law, emerging domestic events in a particular state are, for the most part taken note of, and then accorded the relevant juridical blessings, after passing the test of time. Extending the logic, the several mini states created in Ethiopia today might as well have that inchoate recognition of them by the international community as international persons (subjects) tomorrow, as they pass the test of time. Resolving this question might have far wider implications regarding the international legal status of the boundary delimitation between Ethiopia and Eritrea. Should there be an agreement on the question that there has already occurred state succession in Ethiopia, then an a contrario argument of state restoration, should such occur eventually, will have to annul all international treaties or proceedings by the fictitious state as unlawful ab initio.

4. The Principle of Uti possedetis (“have what you have had”).
The principle of uti possedetis in international law, which in effect means accept what is given by the colonial rulers, emerged following the new international system after the decolonization of Latin America and Africa. The International Court of Justice (ICJ) in its decision on the frontier between Burkina Faso and Mali (22 December 1986) reiterated that principle by declaring that uti possedetis constituted as a general principle of law to be applied after independence. (Burkina Faso vs. Republic of Mali, 1986 ICJ Reports 565) The recent imposition of the colonial treaties of 1900, 1902, and 1908 by the Ethio-Eritrean Boundary Commission also seems to affirm that principle. Speaking of the colonial treaties, there were so many intricated legal arguments, which should have been raised in relation to Ethiopia’s rights, not least of which her right to territorial seas. They simply and silently have been trampled upon by virtue of the words of the Algiers agreement between the respective governments of Ethiopia and Eritrea, explicitly excluding the interpretation of legal principles Ex Aequo et Bono. In other words, the wills of the two leaders simply substituted the historical Ethiopian interests.

5. Ex Aequo et Bono.
Under its Procedural Introduction Chapter I article 1(2) the Boundary Commission skillfully excluded all other very complicated juridical considerations, which could arise with respect to the Ethio-Eritrean relations, by solely relying on the Algiers Accord. Under article 38 of the Statute of the International Court of Justice, prior agreements made by parties, like treaties, technically override all other possible sources of international law, like the customary practices of the historic state of Ethiopia. Here again, a major juridical flout has been made, in preference to political expediencies, which could be a major source of tension in the future of the region.

6. Conclusion.
Inasmuch as peace is the overriding objective, the international commission’s decision must be seen as an important diplomatic clout. Whether or not this intrepid political/legal clout will work for peace is, of course, to be seen on the ground. (Already both sides are claiming ‘victory’ as an outcome of the decision, proving once again the absurdity of the war, if the border was the real cause of it, in the first place, in which thousands of precious lives have perished.) Nonetheless, in view of the carefully ignored historical rights of Ethiopia complacence shall be avoided by any far sighted scholar, and at best the Commission’s decision must be seen as an interim measure to prevent bloodshed.
Yohannes Chane Metiku, Adj. Professor of International Relations/Law. [email protected]