Global Policy Forum

Martin Pratt is head of the world-renowned International Boundaries Research Unit (IBRU), an academic research unit based in the UK. The IBRU was involved in the early stages of the boundary dispute between Ethiopia and Eritrea and works to help resolve border disputes. It has been involved in most of the border disputes which have come before the International Court of Justice, including research on the Eritrea/Yemen dispute and the Nigeria/Cameroon case. Here he tells IRIN of the difficulties now faced by the independent Boundary Commission which, on Saturday, will announce its decision on border delimitation between Ethiopia and Eritrea.

Why was the Boundary Commission set up?

Essentially the commission was set up by the two sides and followed a model that had been used in other cases. They are very confrontational things and the parties involved like to sign up experts to advise them. With arbitration tribunals, details are generally kept confidential. If they [the sides] had gone to the International Court of Justice, then everything would have been made public. I suspect one of the reasons why the two sides set up an arbitration commission was so that they could keep their formal claims under wraps.

There are five lawyers. Both parties were allowed to nominate two to the arbitration commission, then those four members nominated a president. In effect, the president has the casting vote because it is likely that the commission members nominated by the two parties might be sympathetic to those two parties, the countries that nominated them. The way the commission was set up by the two parties, there is no right of appeal and that's usually the way with boundary arbitration and it's one of the reasons why you shouldn't always bet on arbitration - it's quite a high risk strategy.

I think on the whole it has been a good exercise, not least because it's happened very quickly. If they had gone to the International Court of Justice, the court has such a huge docket of cases at the moment it would be several years before it was possible to get the case completed and I think with two parties who fought such a bloody war so recently, it's quite important to get a swift settlement.

How difficult will it be to delimit and demarcate the border between Ethiopia and Eritrea?

I think the Ethiopia and Eritrea boundary dispute is quite difficult because it covers a long boundary. There are a lot of issues. I think what makes this particular commission unique is that it has been asked not only to delimit the boundary but to demarcate it on the ground as well. And the members of the commission are all international lawyers who have experience in resolving the delimitation issue - which is actually defining the line and producing a written definition of it or a map definition of it - but they are going to be very reliant on technical experts in terms of the actual demarcation. The demarcation is going to be very difficult because of the number of mines along the boundary. There are going to be huge practical problems actually getting a demarcation.

The demarcation is a technical exercise. Once the line has been delimited it will be described in a fair amount of detail, but the physical marking of it involves technical skills and because of the mines that will be difficult. Because it is a long boundary it could take some time, I suspect months, but a lot will depend on how detailed the actual marking needs to be and that's something the commission needs to decide - whether they want large pillars every kilometre or whether throughout most of the boundary they only need token marks because its so sparsely inhabited. For the delimitation phase, I don't think it will be easy for the international lawyers on the commission to come up with a good line because the treaties they are working with are really quite vague.

What are the main areas of contention and why?

The western end of the boundary is difficult because the various colonial treaties that defined the boundary in the far west are particularly vague on how various rivers are connected. There has become a tradition of showing the boundary in a certain way with a straight line, which is what I understand Eritrea has been arguing to maintain. Ethiopia has, I suspect, evidence that it has administered areas to the northwest of that line for a long period, possibly without any objection from Eritrea or whoever was governing Eritrea, be it the Italians or the British military administration.

So the commission has basically been told to interpret the colonial treaties, which means that the question of administering territories in theory should not come into play. There are not any significant population centres. Really one of the bizarre things about this dispute is that it flared up in a tiny little border village called Badme. For the most part, the border area or the area under dispute are largely uninhabited - either they are barren or some traditional grazing grounds for local people, but settlement is very sparse. In terms of natural resources the disputed area has virtually no value at all, at least as far as I can see.

What authority does the Boundary Commission have?

Its authority stems from the fact it was set up in an agreement between the two countries as part of one of the articles of the [Algiers] peace settlement. And basically the two parties agreed that whatever decision the commission came to would be final and binding with no right of appeal, a once and for all decision, in theory. Also you also get that difficult question of force if one of them chooses to reject it. In general, both parties involved have accepted arbitration on boundary issues even if the decision doesn't go their way.

Do you see one country being a winner and one a loser?

My instinct is if the only thing taken into account is the treaties, I suspect Eritrea is likely to benefit. If it is [a question of] the lines defined on the treaties, it is difficult to see how some of the areas Ethiopia has occupied, and suggested it has administered for a long time, could fit into a different interpretation of the colonial treaties.

But so much depends on the way the two parties have made their claims and they both had very experienced lawyers supporting them in terms of preparing their claims and submissions, so you would expect some quite robust claims from both sides. It will depend on how the commission interprets those claims.

The colonial treaties stem from the first decade of the 20th century. The key ones are 1900, 1902 and 1908. The 1908 one defined the boundary in the eastern sector and that is relatively straightforward because it defined a line 60 km inland from the coast, parallel to the coast. The only real question there is how technically you interpret 'parallel to the coast'. The two earlier ones, 1900 and 1902, describe the western two-thirds of the boundary in a much vaguer way - it's a line following various rivers and connecting them at various points, but at the time the position of those rivers and the points were only vaguely known. I think a lot of the debate in the tribunal will reflect what was known about the border area at the time the treaty was signed, compared to what we know about the area today.

How much has it all cost in financial terms?

The two parties agreed to bear most of the costs but there was also a trust fund set up by the UN where other countries were allowed to give voluntary contributions. The third report to the UN stated at the end of December that Eritrea and Ethiopia had both contributed US $250,000 and other UN member states had committed US $5.4 million to the trust fund, of which US $1.8 million had already been authorised for expenditure. I suspect quite a lot of that will have gone on the process of making decent maps of the border region. If the UN takes responsibility for demining the border area then that US $5.4 million is not going to be enough to do the job. The people with the job of demarcation can't go in until the areas have been demined.

There have been calls for Ethiopia to have access to the Red Sea port of Assab. Will this feature in the decision of the commission?

The key point here is this is totally outside the mandate of the commission which is purely to interpret the colonial treaties as the basis for the boundary, so their room for manoeuvre is really quite limited. They are not allowed to make decisions on the basis of justice or to start awarding chunks of territory to one country and adjusting the boundary to reflect current realities. Whether that is right or wrong is a matter for judgement. Ethiopia had Assab, obviously when Eritrea was part of Ethiopia, but in 1908 Ethiopia didn't feel it had any claim over that part of the coast, and it freely fixed the boundary agreement which left Assab as part of Eritrea, administered by the Italians.

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