US diplomatic blunder on Eritrea, Ethiophia border row

US Ambassador Donald Yamamoto Dangerously Out of Line on the Eritrean Ethiopian Demarcation Issue

By Sophia Tesfamariam*

June 8, 2006 — On 02 June 2006 Ambassador Donald Yamamoto, Deputy Assistant Secretary of State for African Affairs discussing his latest trip to Ethiopia and other African States made some undiplomatic and unwarranted statements in an interview with Africa program of the Voice of America. I for one was surprised and dismayed by Ambassador Yamamoto’s diplomatic blunder. To hear such undiplomatic and defiant statements that compromise and distort the Eritrea Ethiopia Boundary Commission’s final and binding decision, and the rule of law from an American official who is handling the issue, is indeed a great disappointment.

Ambassador Yamamoto who had personally assured over 10,000 Eritreans that came to the Peace Rally in Washington (to call upon the United States government to shoulder its moral and legal obligations) on 13 February 2006, that his office was committed to the Eritrea Ethiopia Boundary Commission and its final and binding decision should have chosen his words and remarks in his latest interview with the Voice of America more carefully. Wittingly or unwittingly, Mr. Yamamoto is heard parroting Meles Zenawi’s defiant and repetitive arguments such as “demarcation will not bring lasting peace”, “demarcation will split communities, villages, churches” etc. etc.

Just a few days after he met with Meles Zenawi in Addis, this is what Ambassador Yamamoto said in the 2 June 2006 interview with the VOA:

“…There’s a bigger problem that needs to be resolved, and that is the normalization of relations. Because if we can’t resolve the problem that gave rise to the war, then demarcation only leads to another war. The other issue that’s important is the thirty towns and villages that will be divided. We don’t want these divided towns and villages to be the source of another war or conflict…”

Having met Meles Zenawi several times, Ambassador Yamamoto must have been brainwashed by the street smart Tigrayan Prime Minister of Ethiopia , otherwise, he knows that the Algiers Agreements are crystal clear and unambiguous. Unless he is planning and working to marginalize the EEBC, Ambassador Yamamoto knows that the EEBC’s decision is final and binding and is not open for negotiations, dialogue, interpretations, revision, appeals etc. etc. He also knows that the EEBC, in its Report to the Security Council entitled “Observations of 21 March 2003”, has clearly and eloquently responded to Meles Zenawi’s childish, repetitive requests for clarifications, interpretations, amendments etc.

For the record and for the sake of clarity, let us re-visit the most important tenets of the Algiers Agreements and the EEBC’s Observations, which have been severely attacked and rejected by the Tigrayan regime in Ethiopia in the last 4 years.

First of all, Article 4.2 of the Algiers Agreements says:

The parties agree that a neutral Boundary Commission composed of five members shall be established with a mandate to delimit and demarcate the colonial treaty border based on pertinent colonial treaties (1900, 1902 and 1908) and applicable international law. The Commission shall not have the power to make decisions ex aequo et bono”

Ambassador Yamamoto and the Tigrayan regime in Ethiopia know that the phrase ex aequo et bono means that the Boundary Commission was required to follow the law, and made its decision based on the Colonial Treaties and applicable international law, and not on its own opinions of what is right and good. The rule of law and not human and physical geography was to be the basis for the decision.

Frustrated and disappointed with Ethiopia ‘s continued intransigence, misrepresentations and misinterpretations of the Commission’s decision and function, in its Observations of 21 March 2003, the EEBC said:

“…The Demarcation Phase

3. The Commission has now turned to the second phase of its work, the demarcation of the boundary. Since, as the Parties have expressly agreed, the Commission’s Delimitation determination is “final”, the demarcation has to be the demarcation on the ground of the boundary as delimited in the Delimitation Decision , not a variation of that boundary or the elaboration of some new boundary. This conclusion is reflected in paragraph l4A of the Commission’s Demarcation Directions of 8 July 2002, which reads as follows:

“Division of towns and villages”

A. The Commission has no authority to vary the boundary line. If it runs through and divides a town or village, the line may be varied only on the basis of an express request agreed between and made by both Parties.”

Although Ethiopia had, in its written comments on the draft of this provision, expressed the hope that it could be made more flexible so that demarcations could be more practical and mitigate hardships, the Commission felt unable to accede to that suggestion, given both the finality which the Parties were agreed was attached to its Delimitation Decision and the role given by the Parties to the United Nations in facilitating the resolution of such problems.

4. The position as set out in paragraph l4A thus follows from the mandate given to the Commission by the Parties in the December 2000 Agreement. The Commission cannot by its own actions expand the authority conferred upon it. If, however, the Parties were to agree that the Commission’s authority should be expanded, they would be free to do so.

Flexibility in Demarcation

5. At this point the Commission must address the question of the flexibility which is said to inhere in a demarcation process and which, it is suggested, enables the Commission to depart from the strict application of the boundary line which it prescribed in order to take into account the human and physical geography of certain areas better known now than at the time the Delimitation Decision was handed down.

6. The Commission is, as already noted, constrained by the terms of the December

2000 Agreement. The Commission is unable to read into that treaty language, either taken by itself or read in the light of the context provided by other associated agreements concluded between the Parties, any authority for it to add to or substract from the terms of the colonial treaties or to include within the applicable international law elements of flexibility which it does not already contain.

7. In this latter respect the Commission notes that there is a practice whereby demarcators may be given some latitude, on various grounds, in demarcating the line which has been delimited by some arbitral or judicial award or by a boundary treaty. But the Commission notes that this is a practice, which is normally based on the agreement of the parties concerned, as expressed in some relevant instrument.

Moreover, that practice often involves the demarcation of a boundary by joint demarcation teams composed of representatives of the two States concerned, who can thus act for their States in agreeing to such flexibility as the demarcation team may think appropriate in the course of its work. The Commission is not of the view that there is to be derived from that practice a settled rule of customary international law to the effect that demarcators not so expressly empowered nonetheless possess such power.

8. Hence, consistent with the Parties’ prescription that the delimitation be final, the scope for any clarification of or deviation from the boundary, which the Boundary Commission has laid down, is very limited. In the Commission’s view a demarcator must demarcate the boundary as it has been laid down in the delimitation instrument, but with a limited margin of appreciation enabling it to take account of any flexibility in the terms of the delimitation itself or of the scale and accuracy of maps used in the delimitation process, and to avoid establishing a boundary which is manifestly impracticable.

9. In the present case this conclusion is the more compelling in the light of three considerations in particular to which the Parties had agreed in advance:

(a) first, they knew in advance, and agreed, that the result of the Commission’s delimitation of the boundary might not be identical with previous areas of territorial administration and might follow a course which resulted in populations ending up on the ?wrong’ side of the boundary, and that where such a situation arose the ensuing problems were for resolution by the UN rather than by the Commission (Article 4.16 of the December 2000 Agreement);

(b) second, the Parties knew in advance, and agreed, that it was not open to the Commission to make its decisions on the basis of ex aequo et bono considerations (Article 4.2);

(c) third, the Parties knew in advance, and agreed, that the boundary as delimited by the Commission’s Delimitation Decision would be final (Article 4.15), i.e., not subject to amendment, including therefore amendment during the process devoted to and limited to demarcation of the boundary delimited.

Flexibility Within the Terms of the Delimitation Decision

10. In respect of certain matters – Tserona, Zalambessa, Bure, the Eastern Sector as a whole, rivers, the recalculation of coordinates, and the eventual need to replace the Commission’s “illustrative” map with a final and definitive map – the Commission envisaged that further work was required but it specified in its Delimitation Decision what that work would entail. It would be wrong to read into those exact references some readiness or authority on the part of the Commission to go beyond the limits set, let alone to look again at other sections of the boundary in the light of such further representations as might be made to it.

(a) The recalculation of coordinates

11. This is particularly the case with the Commission’s specification in the Delimitation Decision of the coordinates of the points between which the boundary was to run. The Commission explained that this particular specification was used because of the limited availability at that stage of information on the maps before the Commission. The Commission therefore added that “[a]ll coordinates will be recalculated and made more precise during the demarcation as the Commission acquires the additional necessary information.” As is evident from the words used and from their context the recalculation of the coordinates was to be solely for the purpose of ensuring, on the basis of aerial photography, which the Commission had previously been precluded from initiating, that the coordinates of the locations listed in the Decision were accurate. Nothing in the language used could reasonably be read as suggesting that the Commission intended that the locations themselves would be varied during the demarcation. It was to be a technical exercise not involving any substantive alteration in the boundary. Nothing was said in the Decision to suggest that the line was provisional other than in relation to the locations specifically identified in paragraph 10 above.

12. The Commission is therefore obliged to reject the assertion that it must adjust the coordinates to take into account the human and physical geography in the border region. Moreover, the Commission firmly rejects the contention that if such adjustments are not made the Commission’s work would be devoid of adequate legal basis.

13. Similarly, the fact that the Commission, in its Delimitation Decision, made an assessment of the effect of subsequent conduct on the boundaries established by the three colonial treaties cannot be read as enabling the Commission now to reopen the Delimitation Decision. In considering such conduct, the Commission relied on the evidence placed before it by the Parties during the written and oral pleadings before the Commission, and concluded that in some respects a departure from the treaty boundary was called for while in others it was not. The Commission’s readiness to consider in that way the Parties’ subsequent conduct was not intended to mean, and cannot be taken to mean, that the Commission would now be receptive to additional evidence of that conduct or would itself seek to gather it. To do so would mean that the boundary determined by the Commission would have been subject to further variation and would thus have been indeterminate. It would also be inconsistent with the stipulation in the December 2000 Agreement that the Commission’s Delimitation Decision is “final.” The boundary laid down in the Delimitation Decision reflects the Commission’s assessment of the evidence of conduct presented by the Parties. The boundary line drawn, for example, in the area of the so-called Belesa and Endeli Projections is not a provisional line subject to further consideration by the Commission of new evidence of State practice in those areas. There is, in short, no further room for the introduction by the Parties of additional new evidence of their conduct, or for the Commission to seek out such evidence.

And

29. In its consideration of the comments of the Parties, the Commission must maintain its impartial approach to all matters with which it has to deal. It cannot allow one Party to claim for itself the right to insist on adjustment of parts of the boundary which that Party finds disadvantageous. The Commission continues to owe a duty to both Parties to perform the functions placed upon it by their agreement and it is its intention to perform these functions fully and faithfully… ”

It is clearly stipulated in the Algiers Agreements and clearly spelled out in the EEBC’s Observations; the EEBC is the only body responsible for the demarcation of the Eritrea Ethiopia border. Neither the US State Department, nor the Security Council, or Kofi Annan and certainly not Meles Zenawi and his Tigrayan clique have any legal mandate to alter, amend, revisit, or revise the Final and Binding decision of the Eritrea Ethiopia Boundary Commission.

The diversionary, deceptive, hypocritical and transparent gimmicks that have come under various pre-texts: “dialogue”, “alternative mechanism”, “Lloyd Axworthy”, “General Fulford”, “neutral facilitator” etc. etc. are violation of international law, violation of internationally endorsed Agreements and a recipe for another disastrous war in the Horn of Africa.

Therefore, recent arguments presented by Ambassador Yamamoto, the Tigrayan Prime Minister, its paid lobbyists and agents, visiting the border, taking pictures and videos of the border inhabitants, talking to the inhabitants etc. are not in the EEBC’s terms of reference and are unwarranted illegal intrusions on the duties of the EEBC, and have absolutely no legal bearing whatsoever.

Ambassador Yamamoto in his 02 June 2006 interview also omitted and distorted the facts surrounding his meetings with Eritrean officials. Here is what he said:

“…We went to Eritrea earlier in the month, and of course we only saw one official. The president did not see us, nor did other senior government officials. It’s very difficult to talk to a country if they’re not willing to talk with you or meet with you. We’ve made repeated requests to talk with President Issayas and he ignored us at every step. Until we can have contact of meeting, the only people who have opened their doors have been Ethiopia , and not Eritrea . We find it very frustrating but also very disappointing…”

First of all, Eritrea has never refused to meet with any American officials. Ambassador Yamamoto knows that Mr. Yemane Gebreab, Advisor to the President of Eritrea led a high level delegation that met with Dr. Jendayi Frazier right here in Washington before her ill advised trip to Ethiopia and the occupied territory of Badme , Eritrea .

Secondly, Ambassador Yamamoto and all American officials has been consistently told in clear terms that the Government of Eritrea was not going to talk about the border demarcation issue, the sole mandate of the EEBC, with any third party, or delegation. It was a matter of principle and not in any way to be construed as being personal or selective.

As to meeting with H.E. President Isaias Afwerki, as a former Ambassador, Mr. Yamamoto must know that it is not easy to get an audience with Presidents of any country. Surely, he is not implying that Eritrea , because of its size and because it is an African country, should be treated differently. I for one have not heard Eritrean or any other African officials complaining about not being able to talk to President Bush or Condoleezza Rice at will.

As to meeting with the Tigrayan Prime Minister Meles Zenawi, there is no surprise there. Why wouldn’t Meles meet with Ambassador Yamamoto? After all, is he not advocating Ethiopia’s line of argument and advancing and echoing Meles’ exact sentiments such as “communities will be divided”, “dialogue is essential”, “demarcation will not bring lasting peace”, etc. etc.?

Finally, I would humbly advise Ambassador Yamamoto and his likes not to compromise their “neutrality”. They ought to uphold the rule of law and refrain from becoming Meles Zenawi’s spokespersons. They should stop trying to bend the rule of law by interfering in the activities and mandate of the EEBC and stick to their own mandates and take appropriate punitive actions against the belligerent, defiant, aggressive, and expansionist government in Ethiopia for rejecting the EEBC’s final and binding decision and refusing to allow for the expeditious demarcation of the border in accordance with that decision, by invoking Chapter VII as stipulated in the Algiers Agreement.

Article 14 of the Algiers Agreements says:

“The OAU and the United Nations commit themselves to guarantee the respect for this commitment of the two Parties until the determination of the common border on the basis of pertinent colonial treaties and applicable international law… This guarantee shall be comprised of… measures to be taken by the international community should one or both of the Parties violate this commitment, including appropriate measures to be taken under Chapter VII of the United Nations Charter by the UN Security Council;”

* Sophia Tesfamariam is an Eritrean American, she is working at
the US Foundation for the Horn of Africa and can be reached at [email protected]