Abstract
On 19 December 2005, in its partial award, the Eritrea-Ethiopia Claims Commission found that Eritrea had acted in violation of the rules of international law on the use of force (jus ad bellum) in resorting to armed force to attack and occupy the disputed border town of Badme and surrounding areas, which were then under the administration of Ethiopia. In its award, the Claims Commission made a number of important findings which, taken with the Eritrea-Ethiopia Boundary Commission’s 2002 decision on boundary delimitation, contribute towards informing and clarifying the substance of international law applicable to disputed territories and the legal obligations of states acting in those areas, especially where the use of force is engaged. This article examines the Claims Commission’s jus ad bellum award and concentrates on three key issues: (a) the legality in international law of the resort to force as a means of gaining control over territory to which a state has (or believes that it has) a valid sovereign title; (b) the specific contours of self-defence in relation to territorial sovereignty claims, and (c) the legitimacy of dealing with use of force issues by arbitral tribunals. In September 2018, the leaders of the two countries signed a peace and friendship agreement, thus, setting course for a new era of peace and cooperation. The lessons that ought to be learnt by these two neighbouring countries and other states have been articulated as concluding remarks.
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Notes
- 1.
The Kingdom of Aksum existed during the first seven (although others submit nine) centuries AD in Northern Ethiopia. Its rule and power influence encompassed modern Yemen, Somalia and Djibouti. It adopted Christianity in the fourth Century AD, introduced, and used its own language called Ge’ez. This ancient civilisation was a dominant trading empire in the Red Sea until the end of the ninth century, see Philipson (1988), pp. 1–55.
- 2.
General Assembly Resolution 390A(V) (2 December 1950) https://documents-dds-ny.un.org/doc/RESOLUTION/GEN/NR0/059/88/IMG/NR005988.pdf?OpenElement.
- 3.
- 4.
The Declaration called upon Eritrea ‘immediately’ and ‘unconditionally’ to withdraw its army from Ethiopian controlled territories, ‘Letter dated 20 December 2005 from the Charge d’affaires a.i. of the Permanent Mission of Ethiopia to the United Nations addressed to the President of the Security Council’ 3 https://www.securitycouncilreport.org/atf/cf/%7B65BFCF9B-6D27-4E9C-8CD3-CF6E4FF96FF9%7D/EE%20S2005816.pdf.
- 5.
The war lasted 2 years and involved the deaths of 70,000 soldiers and the displacement of over a million civilians. Government spending had been diverted to the arms race. Drought and famine seriously aggravated the situation causing a large humanitarian crisis, Gray (2006), pp. 702–704; In addition, one of the consequences of this conflict was its spillover effect on the conflict in Somalia. Ethiopia and the UN accused Eritrea of supporting Al-Shabaab or other Islamises; Eritrea denied such accusations, see Yihdego (2007), pp. 666–676; see also Cliffe (1999), pp. 89–111.
- 6.
Eritrea-Ethiopia Claims Commission, Partial Award, Jus ad Bellum: Ethiopia’s Claims 1–8 (19 December 2005). The Claims Commission was composed of Hans van Houtte (President), George H Aldrich, John R Crook, James C N Paul, and Lucy Reed. See Klein (2013).
- 7.
Ibid, para 16. For a detailed analysis of the Commission’s decisions see Snider and Nair (this volume), pp. 11–34.
- 8.
- 9.
Eritrea-Ethiopia Claims Commission, Partial Award, Jus ad Bellum: Ethiopia’s Claims 1–8 (19 December 2005); Murphy et al. (2013), p. 16.
- 10.
Murphy et al. (2013), p. 30.
- 11.
Art 1, ‘Ethiopia/Eritrea Peace Agreement’ (2000) https://peacemaker.un.org/sites/peacemaker.un.org/files/ER%20ET_001212_AgreementEritreaEthiopia.pdf; A situation of “no war, no peace” prevailed for the following years, see Woldemariam (2018), pp. 407–427.
- 12.
Ibid, Arts 3–5.
- 13.
For a detailed account, see Woldemariam (2018), pp. 407–427.
- 14.
S/RES/1312 (31 July 2000); see ‘United Nations Mission on Ethiopia And Eritrea’ https://unmee.unmissions.org/mandate.
- 15.
Ibid.
- 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’. 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), p. 703; Murphy et al. (2013), p. 23; Murphy (2018), p. 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’.
- 18.
Eritrea-Ethiopia Boundary Commission, Decision Regarding Delimitation of the Border (13 April 2002) http://legal.un.org/riaa/cases/vol_XXV/83-195.pdf; UN Security Council, ‘Special Report of the Secretary-General on Ethiopia and Eritrea’ (15 December 2016) S/2006/992 https://reliefweb.int/sites/reliefweb.int/files/resources/10E68923496B29C049257252000457C4-Full_Report.pdf.
- 19.
Murphy (2018), p. 553; Plaut (1999), p. 59; It has to be noted, however, that Badme was not the only contentious area of the boundary delimitation award. There were territories on other fronts of the border that have been awarded to Eritrea and Ethiopia that were also hotly contested by both parties. Clearly, Badme has become the flashpoint for legal, political, military, and purely symbolic reasons but was not the only point of disagreement with respect to the delimitation award.
- 20.
Eritrea-Ethiopia Boundary Commission, Decision Regarding Delimitation of the Border (13 April 2002) para 9.95.
- 21.
IHL is the branch of international law that regulates the behaviour of warring parties during armed conflict and aims to promote humanity, distinction between civilians and combatants and civilian and military targets, necessity and proportionality, amongst others, see Green (2008). See also Snider and Nair (this volume), pp. 11–34.
- 22.
In contrast to IHL, the law on the use of force prohibits the threat or use of force by a state against another state as a tool of national or international policy. The primary legal source of this field of law is Article 2(4) of the UN Charter and customary international law. However, two key exceptions exist to the ban on the use of force: (a) the inherent right of states to self-defence when there is a prior armed attack launched against them as expressly recognised under Article 51 of the UN Charter and customary international law and; (b) a use of force authorised by the UN Security Council; for an analysis, see Gray (2018), Chapters 2 and 4.
- 23.
Eritrea-Ethiopia Claims Commission, Partial Award, Jus ad Bellum: Ethiopia’s Claims 1–8 (19 December 2005). The Claims Commission was composed of Hans van Houtte (President), George H Aldrich, John R Crook, James C N Paul, and Lucy Reed.
- 24.
As Plaut and Gilkes (1999) explain:
Occasional disputes did occur along the entire Ethiopian-Eritrean border after 1991. Most were local and small-scale. They were the sort of conflicts that frequently flare up along any ill-defined border which is straddled by farming communities. Low-level meetings between local officials took place in an attempt to resolve these matters, but when these failed the problems were referred upwards.
- 25.
- 26.
Lata (2003), p. 369.
- 27.
Interview with President Isaias Afwerki (3 November 2018) https://www.youtube.com/watch?v=FUWQG6XlEDo (rough translation from Tigrigna to English by author).
- 28.
Ibid.
- 29.
Ibid, p. 50.
- 30.
‘A territorial dispute can be defined as a legal dispute between two or more States over the acquisition or attribution of territory (continental or island), or to the creation, location and effect of territorial boundaries’, Yiallourides et al. (2018), pp. 3–4; On the distinction between ‘boundary disputes’, ‘delimitation disputes’, and ‘territorial disputes’ more broadly, see Prescott and Triggs (2008), pp. 138–140; Sharma (1997), pp. 21–28; Cukwurah (1967), p. 6; Hill (1945), p. 25; Thirlway (2018), p. 117.
- 31.
The Hague Centre for Strategic Studies, ‘Pushing the Boundaries: Territorial Conflict in Today’s World’ (2015), p. 21.
- 32.
Diehl, ‘Territorial Disputes’ (2008), p. 2083.
- 33.
Besson defines sovereignty as the ‘supreme authority within a territory’ pursuant to which States can enjoy ‘the plenitude of internal jurisdiction, their immunity from other States’ own jurisdiction and their freedom from other States’ intervention on their territory (Art. 2 (4) and (7) UN Charter), but also their equal rank to other sovereign States’, Besson (2011), paras 1–2.
- 34.
‘[O]ne of the essential elements of sovereignty is that it is to be exercised within territorial limits, and that, failing proof to the contrary, the territory is co-terminous with the Sovereignty’, North Atlantic Coast Fisheries Case (1910), p. 948; see also Shaw (1986), pp. 1–11.
- 35.
Island of Palmas Case (1928), p. 829; Bernárdez (1987), pp. 487–494; Territorial integrity constitutes, according to the ICJ, ‘an essential foundation of international relations’ and ‘an important part of the international legal order’, Corfu Channel [1949] para 35; Kosovo Advisory Opinion [2010] 403.
- 36.
Yiallourides et al. (2018), pp. 3–4.
- 37.
Art 1, ‘Ethiopia/Eritrea Peace Agreement’ (2000).
- 38.
Ibid, paras 6–8.
- 39.
Murphy (2018), p. 563.
- 40.
Eritrea-Ethiopia Claims Commission, Partial Award, Jus ad Bellum: Ethiopia’s Claims 1–8 (19 December 2005) para 9.
- 41.
Murphy (2018), p. 561.
- 42.
Whilst Eritrea claimed that the armed incidents occurred within Eritrean territory, Ethiopia asserted that they occurred within Ethiopian territory, Eritrea-Ethiopia Claims Commission, Partial Award, Jus ad Bellum: Ethiopia’s Claims 1–8 (19 December 2005) para 9.
- 43.
Ibid, para 9.
- 44.
Ibid, para 10.
- 45.
Ibid, para 10.
- 46.
Ibid, para 10.
- 47.
Ibid, para 11.
- 48.
Ibid, paras 11–12.
- 49.
Ibid, para 15.
- 50.
Ibid, para 13.
- 51.
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), pp. 721–722.
- 56.
Ibid.
- 57.
Article 5(1), ‘Ethiopia/Eritrea Peace Agreement’ (2000).
- 58.
Ibid.
- 59.
Art 3, ibid.
- 60.
Ibid, 5.
- 61.
Milano and Papanicolopulu (2011), p. 593.
- 62.
According to Mikanagi (2018), p. 1034, finding a breach of the provisions of the UN Charter on the use of force and the peaceful settlement of disputes in relation to disputed territories contributes ‘to the “rule of law” in the international community, or the rule-based international order, by encouraging the settlement of disputes based on international law.’ It also ‘discourage[s] States from resorting to military measures to resolve international disputes in their favour and thus contribute[s] to the maintenance of international peace and security, which is the most important purpose of the UN’.
- 63.
Costa Rica v Nicaragua (2015).
- 64.
Costa Rica v Nicaragua (2015) (Sep Op Judge Robinson) paras 43, 58–59; see also separate opinion of Judge Simma in Iran v United States of America (2003), para 327–328:
[It is] regrettable that the Court has not mustered the courage of restating, and thus re-confirming, more fully fundamental principles of the law of the United Nations as well as customary international law (principles that in my view are of the nature of jus cogens) on the use of force, or rather the prohibition on armed force, in a context and at a time when such a reconfirmation is called for with the greatest urgency.
- 65.
Gray (2006), pp. 707–710.
- 66.
Costa Rica v Nicaragua (2015) (Sep Op Judge Robinson) para 39.
- 67.
Gray (2006), p. 707.
- 68.
Hans van Houtte, the President of the Claims Commission, is Chair holder in public international law at Leuven University with strong practice in arbitration including as President of the Iran-US Claims Tribunal; Judge George H Aldrich, Professor of international (humanitarian) law at Leiden University is also experienced on matters of international law including as a member of the International Law Commission; John R Crook is a senior figure in the field of public international law including acting as president of the American Society of International law, Judge on NATO’s Administrative Tribunal and advisor to the United States Government; James CN Paul was Professor of Law Emeritus and Dean of Rutgers School of Law-Newark in the United States with several books publications on public international law; and Lucy Reed, a renowned public international lawyer.
- 69.
Eritrea-Ethiopia Claims Commission, Partial Award, Jus ad Bellum: Ethiopia’s Claims 1–8 (19 December 2005) para 10.
- 70.
Guyana/Suriname (Award) (2007).
- 71.
Ibid, paras 433, 445.
- 72.
Ibid, para 433.
- 73.
Ibid, paras 433, 445.
- 74.
Ibid, paras 423, 483–484.
- 75.
Security Council Resolutions 242 (1967) (22 November 1967) and 298 (1971) (25 September 1971).
- 76.
Security Council Official Records S/PV 2345 (1 April 1982); Security Council Official Records S/PV 2346 (2 April 1982); Security Council Resolution 502 (3 April 1982) noted that the ‘invasion on 1982 by armed forces of Argentina’ and demanded Argentina to withdraw its forces from the Falklands; Security Council Resolution 505 (26 May 1982), noting ‘with the deepest concern that the situation in the region of the Falkland Islands (Islas Malvinas) has seriously deteriorated’.
- 77.
Security Council Resolutions 752 (15 May 1992) and 757 (30 May 1992), ‘no territorial gains or changes brought about by violence are acceptable’.
- 78.
Security Council Resolution 1177 (26 June 1998).
- 79.
Security Council Resolution 1227 (10 February 1999).
- 80.
Crawford (2006), pp. 131–132.
- 81.
‘Declaration on Principles of International Law concerning Friendly Relations and Co-operation among States in accordance with the Charter of the United Nations’ 2625 (XXV) (24 October 1970).
- 82.
Eritrea-Ethiopia Claims Commission, Partial Award, Jus ad Bellum: Ethiopia’s Claims 1–8 (19 December 2005) para 10; Guyana v Suriname (2007) para 423.
- 83.
The ICJ has repeatedly emphasised that the principle of territorial integrity is an important feature of the international legal order, see Kosovo Advisory Opinion (2010) para 80; Costa Rica v Nicaragua (Provisional Measures) (Order of 16 July 2013) paras 13–14.
- 84.
Milano and Papanicolopulu (2011), p. 589.
- 85.
Eritrea-Ethiopia Boundary Commission, Decision Regarding Delimitation of the Border (13 April 2002); The Boundary Commission was composed of Professor Sir Elihu Lauterpacht (President), Prince Bola Adesumbo Ajibola, Professor Michael Reisman, Judge Stephen Schwebel, and Sir Arthur Watts.
- 86.
Eritrea-Ethiopia Claims Commission, Partial Award, Jus ad Bellum: Ethiopia’s Claims 1–8 (19 December 2005) para 10.
- 87.
Keesing’s Contemporary Archives, ‘Indian Occupation of Portuguese Territories in India’, (Volume 8, March 1962), 10.
- 88.
Ibid, 9.
- 89.
Keesing’s Contemporary Archives, ‘India-China: Indian Soldiers Killed in Border Incident’ (30 January 1976).
- 90.
Roy (2017).
- 91.
Arend (1984), p. 102.
- 92.
An ‘armed attack’ is a type of aggression, as provided by UNGA Res 3314 (XXIX) (14 December 1974) on the Definition of Aggression.
- 93.
Armed Activities on the Territory of the Congo (2005) para 146.
- 94.
Military and Paramilitary Activities in and against Nicaragua (1986) paras 194, 237; Legality of the Threat or Use of Nuclear Weapons (Advisory Opinion) (1996) para 41.
- 95.
Art 51, UN Charter; In the Nicaragua case, the Court implied that when the use of force is governed by the UN Charter, failure to adhere to the reporting duty under the Charter carries irrevocable consequences for the invocation of the right of self-defence, Military and Paramilitary Activities in and against Nicaragua (1986) para 199.
- 96.
Eritrea-Ethiopia Claims Commission, Partial Award, Jus ad Bellum: Ethiopia’s Claims 1–8 (19 December 2005) para 11.
- 97.
Ibid.
- 98.
Dinstein (2001), pp. 165–167.
- 99.
Prior to the invasion, General Galtieri, leader of the Argentine military government, told to President Reagan of the United States of America that the British had failed to relinquish sovereignty in 149 years and that ‘time had run out’, see ‘Reagan, In a Phone Call, Tried to Deter Invasion’ (New York Times, 3 April 1982) cited in Hassan (1982), pp. 54, 59; Security Council Official Records S/PV 2346 (2 April 1982) para 12.
- 100.
UN Security Council Res 502/1982 reproduced in (1982) 21 International Legal Materials 679.
- 101.
As evidenced by the widespread support (10 yes, 1 no and 4 abstentions) for Security Council Resolution 502/1982 demanding the ‘immediate withdrawal of all Argentine forces from the Falkland Islands (Islas Malvinas)’.
- 102.
- 103.
Dinstein (2001), pp. 212–213.
- 104.
- 105.
See Yiallourides et al. (2018), pp. 81–82.
- 106.
O’Connell (2018), p. 855.
- 107.
O’Connell (2018), p. 855.
- 108.
O’Connell (2018), p. 855; see also Daniel Wisehart, ‘The Crisis in Ukraine and the Prohibition of the Use of Force: A Legal Basis for Russia’s Intervention?’ (EJIL-talk!, 4 March 2014) https://www.ejiltalk.org/the-crisis-in-ukraine-and-the-prohibition-of-the-use-of-force-a-legal-basis-for-russias-intervention/.
- 109.
Alison Smale and Steven Erlanger, ‘Ukraine Mobilizes Reserve Troops, Threatening War’ (New York Times, 1 March 2014) https://www.nytimes.com/2014/03/02/world/europe/ukraine.html.
- 110.
O’Connell (2018), pp. 855–856.
- 111.
See Dinstein (2001), p. 219.
- 112.
Paddeu (2015); Milano (2004), p. 509; BBC, ‘Ukraine Crisis: Russia and Sanctions’ (19 December 2014) http://www.bbc.co.uk/news/world-europe-26672800; ‘EU Sanctions Against Russia over Ukraine Crisis’ https://europa.eu/newsroom/highlights/special-coverage/eu-sanctions-against-russia-over-ukraine-crisis_en.
- 113.
ILC Articles on State Responsibility 31, 60; see also Art 37 (point 4), ILC Articles on State Responsibility.
- 114.
For an account, see Tams (2005).
- 115.
For a discussion, see Woldemariam (2018), pp. 407–427.
- 116.
Gebrekidan (2018).
- 117.
Cornwell (2018).
- 118.
Agreement on Peace, Friendship and Comprehensive Cooperation Between the Federal Democratic Republic of Ethiopia and the State of Eritrea (18 September 2018) available at http://addisstandard.com/full-text-of-the-ethio-eritrea-agreement-signed-in-jeddah/. For specific provisions of the Agreement(s) accompanied by brief explanation see Desta (this volume), pp. 261–268; for lifting UN sanctions against Eritrea see Hirt (this volume), pp. 269–284.
- 119.
Ibid.
- 120.
According to media reports, Ethiopia has started withdrawing its troops from Badme, ‘Ethiopia Withdraws Troops from Contested Town (BBC World Service, 18 December 2018) https://www.bbc.co.uk/programmes/w172w23x1zrpc04.
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Yiallourides, C., Yihdego, Z. (2019). Disputed Territories and the Law on the Use of Force: Lessons from the Eritrea-Ethiopia Case. In: Yihdego, Z., Desta, M., Hailu, M. (eds) Ethiopian Yearbook of International Law 2018. Ethiopian Yearbook of International Law, vol 2018. Springer, Cham. https://doi.org/10.1007/978-3-030-24078-3_3
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DOI: https://doi.org/10.1007/978-3-030-24078-3_3
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