Abstract
This chapter aims to analyse the Eritrea-Ethiopia Claims Commission’s (EECC) Partial Award on Ethiopia’s jus ad bellum claim of 19 December 2005. It specifically focuses on the issue of self-defence, which is one of the most controversial grounds of defence submitted by Eritrea before the EECC. This study contends that, although the EECC’s final conclusion that in 1998 Eritrea violated the prohibition on the use of force established by Article 2(4) of the UN Charter may well be in its essence correct, both the EECC’s methodology and its substantive legal analysis of the relevant law on the use of force raise criticism. It argues that the exclusion of all frontier incidents from the scope of armed attacks in the EECC’s Partial Award marks a step back as compared to the relevant decisions of the International Court of Justice. The conclusion of the chapter is that the EECC’s ruling does not help to bring coherence and unity to the jurisprudence on jus ad bellum, and does not reflect customary international law.
The author is Researcher (qualified Associate Professor) of International Law at the University of Milan, Italy.
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Notes
- 1.
Eritrea-Ethiopia Claims Commission, Partial Award: Jus ad Bellum, Ethiopia’s Claims 1–8, 19 December 2005, PCA Case No. 2001-02. For an overview of the Partial Award, see Weeramantry, Chap. 12.
- 2.
ICJ, Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. United States of America), Judgment (Jurisdiction and Admissibility), 26 November 1984, ICJ Rep 1984, p. 392, para 90.
- 3.
See Kampala Amendments on the Crime of Aggression (Kampala Amendments), 11 June 2010, Resolution RC/Res.6. With 39 ratifications of the Kampala Amendments, and in accordance with the resolution adopted by the Assembly of States Parties in December 2017 (Resolution ICC-ASP/Res.5) on the Activation of the Jurisdiction of the Court over the Crime of Aggression, the activation finally took place on 17 July 2018.
- 4.
About the possible impact of the ICC’s jurisdiction on the international legal framework governing the use of force, see Ruys 2018, pp. 906–915.
- 5.
- 6.
- 7.
See Jus ad Bellum 2005 (above n 1) paras 3–5.
- 8.
Ibid., para 4.
- 9.
Ibid., para 5.
- 10.
Ibid. The EECC asserted that with this declaration both parties confirmed that they interpreted the exclusion in Article 5 ‘[t]he Commission shall not hear claims arising from the cost of military operations, preparing for military operations, or the use of force, except to the extent that such claims involve violations of international humanitarian’, as only excluding from the EECC’s jurisdiction claims based on expenditures in waging war.
- 11.
Above n 6.
- 12.
The EECC concluded the liability phase by issuing its Partial Award in 2005. In 2007, with the beginning of the ‘damage phase’, the EECC held a first round of hearings to allow both States to address the legal extent of compensable damage resulting from its Jus ad Bellum Partial Award. At that hearing, although called to respond to the compensation for damages resulting from the Jus ad Bellum Partial Award of 2005, Eritrea did not challenge the EECC’s jurisdiction. However, as expected, Eritrea and Ethiopia presented vastly different views on compensation issues before the EECC. It is also important to stress that Eritrea acknowledged its obligation to provide reparations for the specific violations of international law identified by the EECC. At that stage of the proceedings, Eritrea admitted its responsibility for violations of jus ad bellum. However, Eritrea contended that Ethiopia’s monetary claims for jus ad bellum violations had to be rejected, and that Ethiopia’s relief be limited to satisfaction (see Eritrea-Ethiopia Claims Commission, Decision Number 7: Guidance Regarding Jus ad Bellum Liability, 27 July 2007, PCA Case No. 2001-02).
- 13.
See Jus ad Bellum 2005 (above n 1) para 8.
- 14.
Ibid., para 9.
- 15.
Ibid., para 10.
- 16.
Ibid., n 5.
- 17.
- 18.
Jus ad Bellum 2005 (above n 1) para 15. On this point, see Castagnetti 2007, pp. 742–743; a different view is expressed by Gray 2006, p. 717, who contends that what the EECC considers ‘as Ethiopia’s ‘peaceful administration’ could in itself constitute a continuing armed attack or even aggression’; criticisms to Gray’s position are expressed also by Weeramantry, Chap. 12; and Murphy et al. 2013, pp. 20–24.
- 19.
ICJ, Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. United States of America), Judgment (Merits), 27 June 1986, ICJ Rep 1986, p. 14, paras 188–190.
- 20.
GA Res 2625 (XXV), 24 October 1970, A/RES/2625 (XXV), Annex.
- 21.
‘… the Commission notes that border disputes between States are so frequent that any exception to the prohibition of the threat or use of force for territory that is allegedly occupied unlawfully would create a large and dangerous hole in a fundamental rule of international law’; see Jus ad Bellum 2005 (above n 1) para 10. Schachter 1991, p. 161 expressed a similar view arguing that: ‘In view of the considerable number of territorial disputes in the world at present, the claim that Article 2(4) does not apply to the use of force to recover territory by the rightful owner would, if sustained, go a long way toward reducing the scope of the prohibition against force. ... Underlying this interpretation is a general awareness among governments that an exception for recovering ‘illegally occupied’ territory would render Article 2(4) nugatory in a large and important group of cases involving threats of force’.
- 22.
Jus ad Bellum 2005 (above n 1) para 9.
- 23.
Ibid., para 17.
- 24.
Ibid.
- 25.
Accordingly, Ethiopia reported its exercise of self-defence to the SC, in conformity with Article 51 of the UN Charter.
- 26.
Jus ad Bellum 2005 (above n 1) para 9.
- 27.
Ibid.
- 28.
See above Sect. 14.2.
- 29.
- 30.
- 31.
Randelzhofer 1994, p. 664 contends that ‘Because of the pre-eminent position of the SC within the Charter system of collective security, the affected state can in that situation merely call upon the SC to qualify the violation of Article 2(4) as constituting a breach of the peace and decide on measures pursuant to Articles 41 and 42’.
- 32.
Some scholars who interpret the gap between Article 2(4) and Article 51 widely limit armed attack to large-scale attacks; others intend the gap more narrowly, also including small-scale attacks within the scope of armed attack; see Ruys 2010, pp. 143–149.
- 33.
Ibid.
- 34.
Randelzhofer 1994, p. 666 n 24. The opponents of this position assume that the customary right of self-defence is not affected by Article 51, but rather as having only received a special emphasis, in a declaratory manner, for the case of an armed attack (ibid., n 26). Randelzhofer replies to this argument affirming that ‘the content and scope of the customary right of self-defence are unclear and extend far into the sphere of self-help in such a way that its continuing existence would, to a considerable extent, reintroduce the unilateral use of force by states, the substantial abolition of which is intended by the UN Charter’.
- 35.
- 36.
In the Partial Award, the controversial and debated issue of anticipatory or pre-emptive self-defence was not addressed, presumably because it was not invoked by Eritrea as a ground of defence. The EECC’s attitude was to only examine the arguments raised by the counterparts. The silence of the EECC on this delicate issue has been criticised by Gray 2006, p. 717.
- 37.
Jus ad Bellum 2005 (above n 1) para 9.
- 38.
Randelzhofer 1994, pp. 667–668.
- 39.
See above Sect. 14.3.
- 40.
Ruys 2010, pp. 200–205.
- 41.
GA Res 3314 (XXIX), 14 December 1974, A/RES/3314(XXIX), Annex, Definition of Aggression.
- 42.
This Resolution aims to define not armed attack in Article 51 but act of aggression for the purpose of Article 39 of the UN Charter. Nonetheless, Ruys 2010, p. 205 pointed out that the travaux préparatoires of the Definition of aggression ‘generally support the idea of a cascading relationship between the terms ‘use of force’, ‘(act of) aggression’ and ‘armed attack’, whereby the latter concept constitutes the narrowest of the three’. Moreover, the definition of Aggression keeps open the possibility to identify a broader definition of armed attack than the one defined in Resolution 3314.
- 43.
Above n 3.
- 44.
Nicaragua v. USA 1986 (above n 19) p. 101, para 191; with the aim to identify less grave forms of the use of force the ICJ referred to the Friendly Relations Declaration (above n 20).
- 45.
Nicaragua v. USA 1986 (above n 19) p. 103, para 195.
- 46.
ICJ, Oil Platforms (Islamic Republic of Iran v. United States of America), Judgement, 6 November 2003, ICJ Rep 2003, p. 161, para 51.
- 47.
On this point Ruys 2010, p. 203 stated: ‘[i]t must be stressed that the Court did not necessarily raise a very high threshold. It did not distinguish the ‘most grave (armed) attacks’ from ‘less grave (armed) attacks’, but discriminated between the ‘most grave forms of the use of force’ and ‘less grave’ forms’.
- 48.
In Nicaragua v. USA 1986 (above n 19) p. 119, para 231 the ICJ stated that: ‘… Very little information is however available to the Court as to the circumstances of these incursions or their possible motivations, which renders it difficult to decide whether they may be treated for legal purposes as amounting, singly or collectively, to an ‘armed attack’ by Nicaragua on either or both States’”; in Oil Platforms 2003 (above n 46) p. 195, para 72 (see also p. 191, para 64) ‘… The Court does not exclude the possibility that the mining of a single military vessel might be sufficient to bring into play the ‘inherent right of self-defence’’; also pointing out the lack of evidence in the case for attributing the responsibility of the alleged attacks to Iran. Furthermore, in the Nicaragua case, with respect to frontier incidents, the Court ambiguously left the door open for proportionate forcible countermeasures by the direct victim of less graves uses of force; on this point, see Ruys 2010, p. 198.
- 49.
Jus ad Bellum 2005 (above n 1) para 11.
- 50.
For a possible explanation of the EECC’s reluctance to refer to the ICJ’s jurisprudence on jus ad bellum, see Weeramantry, Chap. 12.
- 51.
Above n 48.
- 52.
Jus ad Bellum 2005 (above n 1) paras 11–12.
- 53.
Ibid., para 14.
- 54.
Ibid., para 16; for an examination of the EECC’s qualification of Eritrea’s violation of the use of force, see Dekker and Werner, Chap. 13.
- 55.
Gray 2006, p. 719.
- 56.
Nicaragua v. USA 1986 (above n 19) p. 103, para 195, p. 110, para 211.
- 57.
- 58.
Ruys 2010, p. 215.
- 59.
Gray 2008, p. 179.
- 60.
Ruys 2010, pp. 139–149.
- 61.
Ibid.
- 62.
See Dinstein 2011, p. 244, who referred to this kind of resort to armed force as on-the-spot-reaction in self-defence. Hakimi and Cogan 2016, p. 271 took a slightly different position on this point, arguing that: ‘States commonly use and justify defensive force in response to low levels of violence without referring to any armed-attack threshold’; more generally, on other possible legal bases (different from self-defence) put forward by legal doctrine to justify forcible responses to unlawful territorial incursions, see Ruys 2014, pp. 177–179.
- 63.
Above Sect. 14.4.
- 64.
Jus ad Bellum 2005 (above n 1) para 12.
- 65.
Ibid.
- 66.
- 67.
Gray 2006, p. 720.
- 68.
Above n 48.
- 69.
Ruys 2010, p. 219.
- 70.
- 71.
Ruys 2010, p. 224.
- 72.
Jus ad Bellum 2005 (above n 1) para 12.
- 73.
Ibid., para 14.
- 74.
Above Sect. 14.5.
- 75.
International Law Association (ILA), Sidney Conference 2018, Final Report on Aggression and the Use of Force, p. 6.
- 76.
Ibid.
- 77.
Jus ad Bellum 2005 (above n 1) para 11.
- 78.
Scholars commonly believe that failure to report (or to report in a timely manner) could support an evidentiary claim that the action was not one of self-defence. Anyway, such a procedural failure does not invalidate the lawful exercise of the right of self-defence; see Green 2015, p. 563, Kreß 2015, p. 590.
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Ponti, C. (2021). The Eritrea-Ethiopia Claims Commission’s Controversial Ruling on Self-defence. In: de Guttry, A., Post, H.H.G., Venturini, G. (eds) The 1998–2000 Eritrea-Ethiopia War and Its Aftermath in International Legal Perspective. T.M.C. Asser Press, The Hague. https://doi.org/10.1007/978-94-6265-439-6_14
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