THE GENESIS, PROCESS AND OUTCOME OF REVOLUTIONS
The recent crisis about accuracy of news from the AP Reporters and the UN has resulted in a serious desire to examine the price of treason and revolution in the horn.
First the latest communication and then the analysis of the historical challenges of the price of treason and revolution in the Horn.
1. http://www.ena.gov.et/EnglishNews/2007/Jun/15Jun07/28869.htm
2. http://www.mfa.gov.et/Press_Section/A%20Letter%20to%20the%20UN%20Secretary%20General.pdf
Source: ENA, the official Ethiopian government news agency
Foreign Affairs Ministry described AP's report about Ethio-Eritrea border demarcation as "gross distortion"
Addis Ababa, June 15, 2007 (Addis Ababa) - The Ministry of Foreign Affairs has said the report circulated by the Associated Press (AP) on Friday concerning Ethio-Eritrea border demarcation is a "gross distortion".
In an interview with Ethiopian News Agency, the ministry's spokesman said, "We have seen the gross distortion by the AP of the contents of the letter by the Ethiopian Foreign Minister addressed to the President of the Security Council [of the UN]."
Anyone interested in the truth can simply go to the website of the Ministry of Foreign Affairs where the full text of the letter is posted, the spokesman said.
The thrust of the foreign minister's letter is in fact not demarcation but rather a call on the Security Council to take measures against Eritrea as provided for in Article 14 of the Agreement on Cessation of Hostilities for its violations of the Algiers Agreement, he said.
"Thus, unless one insisted on reading what one wanted to read in the letter, the message of the letter is clear. The urgent matter now is to restore the Algiers Agreements which are in tatters now; not demarcation," he noted.
This is what is underlined in the letter, he said. " The rest is misrepresentation. We trust that the distortion by the AP is not malicious."
__________________
Source: Ethiopian Ministry of Foreign Affairs website
2. Letter from Seyoum Mesfin, Ethiopan Foreign Minister to H.E. Mr. Ban Ki-Moon, Secretary General, United Nations
June 8, 2007
Excellency,
I have the honour to express my deepest appreciation for the opportunity you afforded
me to exchange views on pressing issues affecting the peace and stability of our region during my recent visit to the United Nations Headquarters. I would also like to reiterate to you that you could
count on the wholehearted support of the Government of Ethiopia in your efforts to discharge the call by the United Nations Security Council to assist Ethiopia and Eritrea normalize their relations,
promote stability between them, and lay the foundation for sustainable peace in the region.
I have also attached a letter that I addressed to the President of the Security Council setting out the position of the Ethiopian Government on current situation between Ethiopia and Eritrea in order to assist you in your endeavors.
Please accept, Your Excellency, the assurance of my highest consideration.
Seyoum Mesfin
Minister
H.E. Mr. Ban Ki-moon
Secretary General of the United Nations
New York
Enc. 5 pages
Page 2
June 8, 2007
Excellency,
I have the honour to state that the Government of Ethiopia has taken note of the
Progress Report of the Secretary-General on Ethiopia and Eritrea of 30 April 2007 and the Security
Council Press Statement on Ethiopia, Eritrea of 8 May 2007. In its Press Statement, the Council
“demand[s] Ethiopia implement fully and without delay the EEBC decision.” In that context, the
Government wishes to communicate the following observations.
Ethiopia Accepts the Delimitation Decision Without Precondition
1. As the President of the Eritrea-Ethiopia Boundary Commission has explicitly
acknowledged,1 as Ethiopia’s Prime Minister has recently reiterated in his statement of 29 March
2007 to the Ethiopian Parliament, and as the Secretary General and the Security Council highlighted
in the latest Progress report and Press Statement on Ethiopia and Eritrea, Ethiopia has accepted the
Commission’s delimitation decision of 13 April 2002 without precondition.
Eritrea, Not Ethiopia, Has Made Implementation of the Delimitation Decision Impossible
1 Transcript of the EEBC meeting of March 10, 2006, which provides at page 33: “THE PRESIDENT: We have taken
note of the fact that Ethiopia have accepted the delimitation decision. At one time there was a qualification of that
acceptance by the expression “in principle” and we understand that that has now been dropped so it is a complete and
unconditional acceptance, so there is no doubt that Ethiopia is willing to move on to the complete demarcation of the
boundary and all we are trying to do now is to figure out how to go about that.”
Page 3
2. Eritrea, not Ethiopia, has made implementation of the delimitation decision impossible.
The Security Council will recall that Ethiopia actively participated in the Boundary Commission’s
meetings last year--under the new initiative of the Witnesses to the Algiers Agreement, supported by
the Secretary General and the Security Council--up to the point at which Eritrea’s actions on the
ground and Eritrea’s refusal to attend Commission meetings2 brought the Commission’s work to a
standstill. At that point, Eritrea had sent its military forces into the Temporary Security Zone (TSZ),
expelled the United Nations peacekeeping force mandated by the Algiers Agreements, and prevented
UNMEE from operating effectively within the TSZ.
3. More recently, the Secretary General’s latest Progress Report to the Security Council
states that Eritrean military deployments into the TSZ have continued and intensified and that Eritrea
has imposed “additional severe restrictions” on UNMEE. For example, the Progress report provides:
According to UNMEE observations, Eritrea has deployed over 2,000
troops and some 1,200 militia in Sector West, accompanied by 16 tanks,
2 multiple-barrel rocket launcher systems and 7 air defence guns. In the
meantime, the deployment of EDF [Eritrean Defence Forces] elements
in Sector Centre, which began in late December 2006, has also
continued . . . Latest estimates suggest that approximately 1,700
suspected EDF elements have been deployed to Sector Centre. . . . In
addition, Eritrea has deployed around 6 anti-aircraft guns around the
area of Assab Airport in Subsector East.
This, in fact, understates the problem. The reality is that Eritrea has almost fully occupied the
TSZ. The separation of troops, which is the reason for the establishment of the TSZ, is no longer
operational. The number of EDF troops in the TSZ is much much bigger than is suggested in the
2 After two meetings were held between the EEBC and the parties in March and May of 2006, Eritrea refused to attend
the next meeting scheduled for June 15, despite Ethiopia’s acceptance of the Commission’s invitation. Eritrea
informed the Commission of its decision by way of letter from its Legal Advisor, dated June 13, 2006, in which the
Legal Advisor concluded the letter stating, “We therefore regret that at the present time it is not possible to accept
your invitation for 15 June 2006 in The Hague.” Eritrea also failed to accept the Commission’s subsequent invitation
to attend a meeting scheduled two months later in August.
Page 4
quotation above, with a number of EDF divisions now having established a firm presence there. In
Sector West, inside the TSZ, are the following EDF Divisions: 21st ,25th , 26th & 37th . In the Central
Sector, EDF Divisions 10th , 29th & 39th as well as an additional Brigade No. 51 st are inside the TSZ.
In Sector East, within the TSZ, EDF Division 35th is to be found along with one additional Brigade.
The TSZ has been made a joke, but a dangerous joke, nonetheless.
4. As the Boundary Commission, its technical staff, and UNMEE officials have
repeatedly emphasized to the parties, so long as Eritrea prevents UNMEE from discharging its
responsibilities and continues to fortify the TSZ and the border region, there is simply no practical
means for the parties or for the Commission to proceed with demarcation.
Eritrea’s Actions Constitute Fundamental Violations of the Algiers Agreements
5. Such actions by Eritrea are fundamental violations of the Algiers Agreements and
undermine the entire structure established by the Algiers Agreements for peaceful relations between
the parties. Eritrea has consistently refused to resolve differences through dialogue and peaceful
discussion, as the Algiers Agreements require and as the Security Council has repeatedly called upon
the parties to do. Instead, Eritrea’s recent letter to the Secretary General threatens the use of force in
connection with the boundary dispute.
6. Indeed, in addition to having invaded the TSZ and expelled United Nations
peacekeepers, Eritrea has used force in carrying out incursions along its border with Ethiopia and has
used force in connection with its active participation in terrorism, and with its support of terrorists
operating in and from Somalia, who have attacked people and commercial activities inside Ethiopian
territory. Such threats and use of force are further fundamental violations of the Algiers Agreements
and also of the United Nations Charter.
7. Article 1 of the December 2000 Agreement provides:
1. The parties shall permanently terminate military hostilities between
themselves. Each party shall refrain from the threat or use of force.
Page 5
2. The parties shall respect and fully implement the provisions of the
Agreement on Cessation of Hostilities.
8. Under paragraph 14 of the Cessation of Hostilities Agreement:
Eritrea commits itself not to move its troops beyond the positions
defined in paragraph 12 above [within the 25 km TSZ]. The OAU and
the United Nations commit themselves to guarantee the respect for this
commitment of the Parties . . . This guarantee shall be comprised of . . .
appropriate measures to be taken under Chapter VII of the United
Nations Charter by the UN Security Council.
It should be mandatory on Eritrea to return to full compliance with the Algiers Agreements,
UN Charter, and Security Council Resolutions for any progress in the peace process to be possible.
9. Eritrea has given no indication of any willingness to remove Eritrean forces from the
TSZ, to allow UNMEE to resume operations without restrictions, or to refrain from the threat or use
of force. Eritrea’s actions not only violate the Algiers Agreements and the Charter, they also defy the
Security Council, including the Council’s support of UNMEE and the Council’s most recent demand
in its Press Statement of May 8 “that Eritrea reverse, without delay or preconditions, all restrictions on
UNMEE’s movement and operations.” A party that continues to breach the Charter and openly defy
the Security Council and that has demolished the Cessation of Hostilities Agreement, which is the
foundation of the Algiers peace process, cannot, by any legal consideration, be regarded to be ready
for demarcation or to be interested in peaceful resolution of disputes. The demarcation process cannot
go forward in the face of the open threat and use of force by Eritrea, a fundamental breach of the
Algiers Agreements and flagrant defiance of UNSC Resolution 1640.
Not appeasement but Chapter VII measures are the response provided for in paragraph 14 of
the Cessation of Hostilities Agreement for such action.
Page 6
Ethiopia Calls Upon the Security Council to Take Further Action
10. Ethiopia calls upon the Security Council to demand that Eritrea fully restore the
integrity of the TSZ and UNMEE’s freedom of movement, cease all military and terrorist activities
aimed at Ethiopia, subject to the Council’s resort to the measures set forth in paragraph 14 of the
Cessation of Hostilities Agreement unless Eritrea comes into full compliance.
11. Ethiopia also calls upon the Security Council to demand that Eritrea fully engage in
good faith dialogue with Ethiopia to move forward in demarcating the boundary, the delimitation of
which they have both accepted, and with the Secretary General, the international community and
Ethiopia in the effort stipulated in Resolution 1741 (2007) “to normalize relations, to promote
stability between the parties, and to lay the foundation for sustainable peace in the region.” 3
12. Ethiopia is deeply and firmly committed to the achievement of sustainable peace and
security in the Horn of Africa region and to working closely with the Security Council and the
international community to this end.
Please accept, Excellency, the assurances of my highest consideration.
Seyoum Mesfin
Minister
H.E. Ambassador Johan Verbeke
President of the United Nations Security Council
New York
3 UNSC Resolution 1741 (2007), para. 9; see also, Secretary General Progress Report on Ethiopia and Eritrea, 30 April
2007, para. 18 and Security Council Press Statement, 8 May 2007.
65641.000004 WASHINGTON 687935v1
Lessons from Patriotism, Treason and outrage against “the constitution” and the land and property connection- the case of Ethiopia and the Horn
Three lessons for history: the guilty verdict of the opposition party, The Boundary Commission and the Claims Commission- a lesson of the outcomes of a bloody revolution that raged between 1974 and 2001. in Ethiopia.
Lesson I. Guilty Verdict of the Opposition Party
Court Pronounces Guilty Verdict on 38 Individuals, 3 Publishing Houses (June 12 ,2007 )
The Federal High Court on Monday convicted 38 individuals and three Printing presses on charges of treason after they had forgone their rights to defend their cases in spite of repeated rulings calling on them to submit their defense evidence.
The Second Criminal Bench passed the verdicts saying it had given them ample chance to go on defending their cases, which they rebuffed.
In their refusal of repeated rulings, the court said they even claimed to do without saying “we shall not have to defend; the court does not have the authority to sit in judgment on our cases”.
In view of the seriousness of the charges brought against them, the court had repeatedly called on them to deposit details of their defense evidences at the registrar, it said.
Responding to their appeals, it said, the court made sure that they had received copies of charges brought against them and that they had been allowed to look again at the audio- and video-taped prosecution evidences that were run in their presence during previous pre-trials.
The court said procedure number 124 of the country’s Criminal Code has it that any defendant should submit his/her defense evidence details to the court’s registrar upon reception of copies of the charge files and prosecution evidences, and before hearing of charges commences.
The court said it has just received from the prisons administration a letter of confirmation that it did what it had been ordered to by the court for the defendants, that is allowing them to look at the audio-visual prosecution evidences and to deliberate on their defense.
All these were in spite of the un-relatedness of the demands made by the defendants to submission of defense evidences to the court, which is a procedure required by law. It said, their refusal to submit their defense evidences is tantamount to not having any, and the court had nothing but to let go of the chance the defendants missed out. The court said it was clear that any defendant who willfully fail to make use of his/her right to defend is liable to face a guilty verdict on the corresponding charges.
Accordingly, the court found guilty of the first count
1. Eng. Hailu Shawl,
2. Abayneh Berhanu,
3. Major Getachew Mengistie,
4. Eng. Gizachew Shiferraw,
5. Dr. Hailu Araya,
6. Muluneh Eyuel,
7. Sileshi Tenna,
8. Dr. Berhanu Nega,
9. Dr. Befikadu Degife,
10. Prof. Mesfin Woldemariam,
11. Dr. Yacob Hailemariam,
12. Bertukan Mideksa,
13. Aschalew Ketema,
14. Dr. Tadios Bogale,
15. Gebretsadik Hailemariam,
16. Assefa Habtewold,
17. Beruk Kebede,
18. Tamrat Tarekegn,
19. Andualem Aragie,
20. Nigist Gebrehiwot,
21. Debebe Eshetu,
22. Yeneneh Mulat,
23. Mamushet Amare,
24. Anteneh Mulugeta,
25. Melaku Fantaye,
26. Mesfin Debesa,
27. Berhanu Alemayehu,
28. Wudneh Dechi,
29. Abyot Waqjira,
30. Melaku Uncha,
31. Daniel Berihun,
32. Tesfaye Tariku,
33. Waltanigus Asnake,
34. Mulugasho Wondimu,
35. Andualem Ayele,
36. Mesfin Tesfaye,
37. Wonakseged Zeleke,
38. Dawit Fasil as well as Sisay Publishing and Advertizing,
39. Serkalem Publishing and Fasil Publishing and Advertizing organizations.
On the second count, the court found guilty Eng. Hailu Shawl, Abayneh Berhanu, Major Getachew Mengistie, Eng. Gizachew Shiferraw, Dr. Hailu Araya, Muluneh Eyuel, Sileshi Tenna, Dr. Berhanu Nega, Dr. Befikadu Degife, Dr. Yacob Hailemariam, Bertukan Mideksa, Aschalew Ketema, Dr. Tadios Bogale, Gebretsadik Hailemariam, Assefa Habtewold, Beruk Kebede, Tamrat Tarekegn, Andualem Arage, Nigist Gebrehiwot, Debebe Eshetu, and Yeneneh Mulat.
The first and second counts relate to trying to dismantle the constitutional system by instigating violence and collaboration.
On the third count, which is instigation of armed riots, the court found guilty Eng. Hailu Shawl, Abayneh Berhanu, Major Getachew Mengistie, Mamushet Amare and Tesfaye Tariku.
On the fifth count, direct or indirect attempt to harm the national defense force, Eng. Hailu Shawl, Abayneh Berhanu, Major Getachew Mengiste, Eng. Gizachew Shiferraw, Dr. Hailu Araya, Muluneh Eyuel, Sileshi Tenna, Dr. Berhanu Nega, Dr. Yacob Hailemariam and Dr. Befekadu Degife were found guilty.
The court adjourned until July 8 to begin passing sentences on the forenamed and to determine further hearings of those defendants who had already submitted as ordered details of their defense evidences.
It also adjourned until June 18 to give rulings on the claims and counterclaims made last week by some defendants and the prosecutor on the issue of defense delivery.
Permanent Court of Arbitration > Cases > Pending Cases > Eritrea-Ethiopia Boundary Commission
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Lesson II. ERITREA-ETHIOPIA BOUNDARY COMMISSION
The Permanent Court of Arbitration serves as registry for this Commission established pursuant to the Agreement of 12 December 2000 between the Government of the State of Eritrea and the Government of the Federal Democratic Republic of Ethiopia, 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 members of the Commission are:
1. Sir Elihu Lauterpacht, CBE QC (President);
2. His Excellency Prince Bola Adesumbo Ajibola
(appointed by Ethiopia);
3. Professor W. Michael Reisman (appointed by Eritrea);
4. Judge Stephen M. Schwebel (appointed by Eritrea);
5. Sir Arthur Watts, KCMG QC (appointed by Ethiopia).
Rules of Procedure
The Eritrea-Ethiopia Boundary Commission delivered its Decision on Delimitation of the Border between Eritrea and Ethiopia to representatives of the two governments on Saturday, April 13, 2002. The Decision was delivered at a session attended by all of the members of the Boundary Commission at the premises of the Permanent Court of Arbitration in the Peace Palace in The Hague. The text of the Decision can be downloaded by chapter.
Decision on Delimitation of the Border between Eritrea and Ethiopia
Table of Contents and Prelims
Chapter 1 - Procedural Introduction
Chapter 2 - Substantive Introduction
Chapter 3 - The Task of the Commission and the Applicable Law
Chapter 4 - The Sector Covered by the 1900 Treaty (Central Sector)
Chapter 5 - The Sector Covered by the 1902 Treaty (Western Sector)
Chapter 6 - The Sector Covered by the 1908 Treaty (Eastern Sector)
Chapter 7 - The Boundary Line within Rivers
Chapter 8 - Dispositif
Appendices
On June 24, 2002, the Eritrea-Ethiopia Boundary Commission issued a "Decision Regarding the ‘Request for Interpretation, Correction and Consultation’ Submitted by the Federal Democratic Republic of Ethiopia on 13 May 2002."
Having completed its task of delimitation by identifying the boundary between the two states, the Commission moved on to effecting the actual demarcation of that boundary on the ground.
On July 17, 2002, the Eritrea-Ethiopia Boundary Commission issued an order concerning the establishment of a field office in Adigrat, Ethiopia, and another order responding to Eritrea's Request for Interim Measures.
On November 6 and 7, 2002, the Commission met with representatives of the parties to discuss matters related to the ongoing demarcation process. Representatives of the United Nations and the African Union were present as observers. In response to certain questions that had arisen, the Commission issued, on 7 November, a decision titled "Determinations".
On February 8 and 9, 2003, the Eritrea-Ethiopia Boundary Commission met with representatives of the parties to discuss matters related to the ongoing demarcation process.
On March 20 and 21, 2003, the Commission held internal meetings in order to discuss demarcation matters with the field office staff and other technical personnel.
On July 7, 2003, the Commission issued a "Decision pursuant to Article 15B of the Commission's Demarcation Directions."
The Eritrea-Ethiopia Boundary Commission held internal meetings on August 10-11, 2003 for the purpose of discussing certain technical issues related to the demarcation of the boundary between the two states. After considering the parties' comments of January 24, April 15, and May 2, 2003, the Commission decided to issue instructions for implementing the plan of work set out in the Commission's latest "Schedule of the order of activities ahead as at 16 July 2003." Copies of these instructions were communicated to the parties.
On November 19, 2003, the Commission met in The Hague with representatives of the parties. The President of the Commission made an opening statement expressing the concern of the Commission at the lack of progress in the demarcation process, setting out the Commission’s understanding of the positions of the parties and indicating that if progress was to be made, certain rigid positions would have to be modified. Following that meeting, the Commission concluded that, until the positions of either or both of the parties were modified, there was nothing more that the Commission could do. Further details on the Commission's position can be found in the Annexes to the Progress Report of the Secretary-General on Ethiopia and Eritrea: UN Doc. S/2003/1186, December 19, 2003.
On March 13, 2006, the Commission issued the following Press Statement:
"The Eritrea-Ethiopia Boundary Commission met with the Parties on 10 March 2006 in London, in order to discuss arrangements for the resumption of demarcation activities which had been halted in 2003 due to circumstances beyond the Commission's control. A further meeting between the Commission and the Parties to discuss progress on demarcation is scheduled to take place in late April this year. The Permanent Court of Arbitration with its seat at the Peace Palace in The Hague acts as Registry for both the Eritrea-Ethiopia Boundary and Claims Commissions."
The meeting originally scheduled for April 2006 was rescheduled to May 2006, and was held in London.
• Press release dated November 17, 2006
• Statement of 27 November 2006
Annex
Overview map
• Press Release of 29 November 2006
• Press Release of 30 November 2006
General information on the activities of the Boundary Commission is provided by the President of the Commission for inclusion in the reports of the Secretary-General of the United Nations to the Security Council.
• Progress Report of the Secretary-General on Ethiopia and Eritrea, June 19, 2001
UN Doc. S/2001/608
• Progress Report of the Secretary-General on Ethiopia and Eritrea, September 5, 2001
UN Doc. S/2001/843
• Progress report of the Secretary-General on Ethiopia and Eritrea, December 13, 2001
UN Doc. S/2001/1194
• Progress Report of the Secretary-General on Ethiopia and Eritrea, March 8, 2002
UN Doc. S/2002/245
• Security Council Resolution 1398, extending the mandate of UNMEE until 15 September 2002 with a view to ensure and facilitate the implementation of the Eritrea/Ethiopia Boundary Decision, March 15, 2002
UN Doc. S/RES/1398
• Security Council Resolution 1430 of 14 August 2002 on the situation between Eritrea and Ethiopia
• Progress Report of the Secretary-General on Ethiopia and Eritrea, August 30, 2002
UN Doc. S/2002/977
• Security Council Resolution 1434 of 6 September 2002 on the situation between Eritrea and Ethiopia
UN Doc. S/RES/1434
• Progress Report of the Secretary-General on Ethiopia and Eritrea, December 20, 2002
UN Doc. S/2002/1393
• Progress Report of the Secretary-General on Ethiopia and Eritrea, March 6, 2003
UN Doc. S/2003/257
• Eritrea-Ethiopia Boundary Commission Observations – March 21, 2003 published as an addendum to the Progress Report of the Secretary-General on Ethiopia and Eritrea, of March 6, 2003
UN Doc. S/2003/257
Addendum: Schedule of the order of activities ahead as at July 16, 2003, July 22, 2003
UN Doc. S/2003/665/Add.1
• Progress Report of the Secretary-General on Ethiopia and Eritrea, June 23, 2003
UN Doc. S/2003/665
• Progress Report of the Secretary-General on Ethiopia and Eritrea, September 4, 2003
UN Doc. S/2003/858
• Security Council Resolution 1507 extending the mandate of UNMEE, September 12, 2003
UN Doc. S/RES/1507
• Progress Report of the Secretary-General on Ethiopia and Eritrea, December 19, 2003
UN Doc. S/2003/1186
• Progress Report of the Secretary-General on Ethiopia and Eritrea, March 5, 2004
UN Doc. S/2004/180
• Security Council Resolution 1560, September 14, 2004
UN Doc. S/RES/1560
• Progress Report of the Secretary-General on Ethiopia and Eritrea, September 2, 2004
UN Doc. S/2004/708
• Progress Report of the Secretary-General on Ethiopia and Eritrea, March 7, 2005
UN Doc. S/2005/142
Pending Cases
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Ireland v. United Kingdom (MOX Plant Case)
Saluka Investments B.V. v. Czech Republic
Eritrea-Ethiopia Boundary Commission
Eritrea-Ethiopia Claims Commission
Eurotunnel
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Lesson III. ERITREA-ETHIOPIA BOUNDARY COMMISSION
DECISION REGARDING THE “REQUEST FOR INTERPRETATION, CORRECTION
AND CONSULTATION” SUBMITTED BY THE FEDERAL DEMOCRATIC REPUBLIC
OF ETHIOPIA ON 13 MAY 2002
1. On 13 May 2002 the Commission received from the Government of Ethiopia a submission entitled “Request for Interpretation, Correction and Consultation”. On May 21 2002, the request was sent to the Government of Eritrea for its observations. These were received on 14 June 2002.
2. Section II of the submission is headed “Issues for Interpretation, Correction or Consultation”. The Section refers specifically to the following matters: “Towns and Villages along the Boundary”; “River Confluence Points”; “Identification of Geographical Features”; “Fort Cadorna”; “Area between Point 17 and Point 18”; “Headwaters of Rivers”; “Tserona and Zalambessa”; “The Endeli Projection”;“River Boundaries”; “Nature and Variation of the Terrain”; and “Bure”.
3. In the case of “Towns and Villages along the Boundary”, Ethiopia requests “that the Commission be consistent in applying its analysis of the conduct of the Parties to accommodate areas lying along the boundary”.
4. With respect to “River Confluence Points”, Ethiopia observes, without giving particulars, that “the location of the confluence of the Setit and Mai Tomsa and the co-ordinates provided for that point in the Decision do not agree and “requests that the Commission address during the demarcation phase the question of confluence points and identify the specific principles applicable to the determination of the precise location of such points”. Ethiopia further requests “that careful field work be undertaken
during the demarcation phase so as to ensure that relevant rivers and streams are properly identified”. 2
5. As to “Identification of Geographical Features”, Ethiopia states that “during demarcation, the Commission, working with their experts and the Parties, will conduct careful field surveys to locate geographical features relevant to the determination”.
6. As to “Fort Cadorna”, Ethiopia contends that the Commission’s references to this location are based on a geographical error and requests the Commission to correct the location and make the necessary adjustments to the boundary during the demarcation phase.
7. As to the “Area between Points 17 and 18”, Ethiopia concludes that it “anticipates that the location of the Acran region will be more precisely defined during the demarcation phase”.
8. As to the “Headwaters of Rivers”, Ethiopia requests that the Commission addresses during the demarcation the definition of the source of watercourses.
9. As regards “Tserona and Zalambessa”, Ethiopia requests the Commission to “identify the relevant criteria for the definition of a town’s ‘outer edge’, in consultation with its experts and the Parties during the demarcation phase”.
10. As to the “Endeli Projection”, Ethiopia anticipates that during the demarcation phase the Commission will describe with greater precision the boundary between Points 22 and 26 in the light of the description in paragraph 4.85 of its Decision.
11. As to “River Boundaries”, Ethiopia understands that during the demarcation phase the Commission will address, in consultation with the Parties, the principles applicable to the determination of river boundaries, including the factors that will determine the main channel of a river.
12. As to “Nature and Variation of the Terrain”, Ethiopia requests the Commission to develop during the demarcation phase the criteria that it will observe in making any adjustment to the boundary on the basis of the nature and variation of the terrain.3
13. As to “Bure”, Ethiopia requests that the Commission consult with the Parties in determining the proper placement of Point 40.
14. Section III of the Ethiopian Submission is headed “Consultation with the Parties”and contains a statement of “Ethiopia’s views regarding the conduct of the demarcation phase”.
15. Section IV of the Ethiopian Submission is headed “Transfer of Territorial Control and Governmental Authority”. Its opening sentence states that “As questions have arisen since April 13 regarding the effect of the Commission’s Decision with respect to transfer of territorial control and governmental authority Ethiopia wishes to set out its views for the Commission’s consideration”.
_______________________________
16. The Ethiopian request appears to be founded on a misapprehension regarding the scope and effect of Articles 28 and 29 of the Commission’s Rules of Procedure. The facility accorded to the Parties in Article 28(1) to request the Commission to give an interpretation of the Decision may only be invoked where the meaning of some specific statement in the Decision is unclear and requires clarification in order that the Decision should be properly applied.
The concept of interpretation does not open up the possibility of appeal against a decision or the reopening of matters clearly settled by a decision. The Commission, through its President, has already stated “that the provisions of Articles
28 and 29 of the Rules of Procedure neither allow substantive amendment nor affect the binding quality of the Decision as rendered on 13 April 2002. Re-argument of the case is not permitted.” In this respect, the Commission is adhering to the authoritative views on the limits of interpretation expressed by the Permanent Court of International Justice in the Chorzow Factory Case, (1927,
PCIJ, Series A No. 13, at p.21) and the Arbitration Tribunal in the Arbitration on the Delimitation of the Continental Shelf (France-UK), Interpretation Decision of 14 March 1978 (Vol.54, International Law Reports, 1979, at p. 161). “Interpretation is a process that is merely auxiliary, and may serve to explain, but may not change, what the Court already settled with binding force as res judicata.”
17. The Commission does not find, in any of the items that appear in Section II of the Ethiopian request, 4 anything that identifies an uncertainty in the Decision that could be resolved by interpretation at this time. The same is true of Sections III and IV. Nor is any case made out for revision. Further, the Conclusions of the Request are not so expressed as to invite the Commission to interpret or revise the Decision in any specific respect by reference to applicable considerations of international law or the actual terms of Articles 28 and 29 of the Rules of Procedure.
18. Accordingly, the Commission concludes that the Ethiopian request is inadmissible and no further action will be taken upon it. It will, however, remain on the record of the Commission as a statement of Ethiopia’s views on the matters therein mentioned; and the Response of Eritrea of 14 June 2002 will also remain on the record as a statement of Eritrea’s views on the matters raised in the Ethiopian request. To the extent that the Commission may deem appropriate, some of these matters may be considered further during the demarcation, pursuant to the Decision of 13 April 2002.
24 June 2002
Sir Elihu Lauterpacht
President of the Eritrea-Ethiopia Boundary Commission
Case IV.
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Case IV. Eritrea-Ethiopia Claims Commission
The Eritrea-Ethiopia Claims Commission was established and operates pursuant to Article 5 of the Agreement signed in Algiers on December 12, 2000 between the Governments of the State of Eritrea and the Federal Democratic Republic of Ethiopia (the “December Agreement”).
The Commission is directed to “decide through binding arbitration all claims for loss, damage or injury by one Government against the other, and by nationals (including both natural and juridical persons) of one party against the Government of the other party or entities owned or controlled by the other party that are (a) related to the conflict that was the subject of the Framework Agreement, the Modalities for its Implementation and the Cessation of Hostilities Agreement, and (b) result from violations of international humanitarian law, including the 1949 Geneva Conventions, or other violations of international law.”
Pursuant to the December Agreement, the Commission is an independent body. Its seat is in The Hague, although it has met informally with the parties elsewhere.
The members of the Commission are:
1. Professor Hans van Houtte (President)
2. Judge George Aldrich (appointed by Ethiopia)
3. Mr. John Crook (appointed by Eritrea)
4. Dean James Paul (appointed by Ethiopia)
5. Ms. Lucy Reed (appointed by Eritrea)
The Permanent Court of Arbitration (“PCA”) serves as registry to the Commission.
The Commission held informal meetings on organizational matters with representatives of the parties at the PCA’s premises in March and May of 2001. In July 2001, it held hearings on significant questions related to its jurisdiction, procedures and possible remedies. The Commission benefited from substantial memoranda filed by the parties prior to both the May and July sessions. In August 2001, the Commission issued its Decisions Numbers 1-5. These address significant jurisdictional and procedural issues bearing on the preparation and presentation of claims. In August 2001, representatives of the Commissions and of both parties met informally with claims experts from the International Organization on Migration to discuss technical issues related to the design and implementation of possible mass claims filing systems. During this period, the Commission provided additional procedural guidance in several letters to the parties.
In October 2001, following consultations with the parties, the Commission adopted its Rules of Procedure. As required by Article 5(7) of the December Agreement, the Commission’s Rules are based on the PCA’s Optional Rules for Arbitrating Disputes Between States, adapted to reflect the Commission’s mandate and anticipated workload.
In December 2001, both parties filed their claims in compliance with the 12 December 2001 filing deadline established by Article 5(8) of the December Agreement. Neither party utilized the possibility, created by Chapter Three of the Commission’s Rules, of filing claims utilizing possible mass claims procedures. State-to-state claims were filed on behalf of the Government of Ethiopia. The Government of Eritrea filed claims on its behalf, as well on behalf of named individuals. The claims filed by the parties relate to such matters as the conduct of military operations in the front zones, the treatment of POWs and of civilians and their property, diplomatic immunities and the economic impact of certain government actions during the conflict. Although the total number of claims filed by each party differs, several of Ethiopia’s claims include extensive sub-elements. Accordingly, the overall scope of the issues raised in the two parties’ claims appears broadly similar.
After the claims were filed, the Commission analyzed the initial filings and requested and received the parties’ views regarding the priorities and sequence for its work. Taking account of the views of both parties, in February 2002, the Commission scheduled the filing of statements of defense in all claims. Both parties have filed all of their statements of defense in accordance with this schedule. (The Commission’s February 2002 order indicated that the Commission did not expect to authorize additional time for the statements of defense, and it has not done so.) The Commission decided to bifurcate its further work by dealing first with issues of liability and only subsequently with the determination of damages.
In May 2002, the Commission identified the first three sets of claims for oral hearings, and set the dates for hearings on liability, memorials and counter-memorials in those claims. The Commission decided to begin with the two parties’ claims alleging mistreatment of their respective prisoners of war; followed by their claims of misconduct related to the armed conflict in the Central Front; followed by their allegations of mistreatment of civilians. Memorials and some counter-memorials have been filed in these three groups of cases as ordered. Following an informal meeting with the parties in July 2002, the Commission also established a schedule for the filings and initial hearings in all of the remaining claims. In August 2002, the President of the Commission met in Geneva with officials of the International Committee of the Red Cross. This meeting sought to determine whether the ICRC would consent to the parties’ use in the POW claims of certain materials originated by the ICRC and in the parties’ possession. The ICRC was not prepared to consent to such use by the parties.
The Commission’s hearings on the parties’ prisoner of war claims took place as scheduled over ten hearing days at the Peace Palace in December 2002. The Partial Awards are available below.
In light of requests received from both parties, the Commission in February 2003 adjusted its schedule of future filings and hearings to take account of requirements resulting from other proceedings involving the parties and of the breadth and complexity of the work remaining to be done. Throughout this process, the Commission and the parties have worked cooperatively, with a view to expeditious and orderly resolution of the Commission’s caseload. The Commission and the parties have met informally several times to discuss possible means for focusing and facilitating the claims process. (The December Agreement calls for the Commission to endeavor to complete its work within three years of the closing date for filing claims.)
On September 1, 2003, the Federal Democratic Republic of Ethiopia asked the Commission to provide an interpretation of the partial award in Ethiopia's claim under Article 21 of the Commission's Rules of Procedure. After receiving the views of both parties, the Commission declined that request expressing doubts whether it involved a matter of interpretation for purposes of the Rules.
The Commission also noted that the specific provisions cited in the request related to matters different from the subject of the request. Emphasizing that providing an interpretation lies in its discretion, the Commission recalled the great volume of pending work and the parties' and Commission's common determination to complete it in an expeditious and orderly way.
The Commission held hearings in camera at the Peace Palace on the Central Front claims from both parties from 11 to 21 November 2003. The Partial Awards, released on April 28, 2004, are available below.
The Commission held hearings in camera at the Peace Palace on the Home Front claims from both parties from 9 to 19 March 2004.The Partial Awards, released on December 17, 2004, are available below.
The Commission held hearings in camera at the Peace Palace on the parties’ remaining liability claims in April 2005. The Awards, as well as the Commission's Decision No. 6, released on December 19, 2005, are available below.
The Commission has now embarked on the damages phase of its work.
General information on the activities of the Commission was provided by the Chairman for inclusion in the first report of the Secretary-General of the United Nations to the Security Council, which can be downloaded here in PDF:
Progress Report of the Secretary-General on Ethiopia and Eritrea, September 4, 2003
UN Doc. S/2003/858
Progress report of the Secretary-General on Ethiopia and Eritrea, June 19, 2001
UN Doc. S/2001/608
Decisions:
Decision 1
Decision 2
Decision 3
Decision 4
Decision 5
Decision 6
Partial Awards:
Prisoners of War - Eritrea's Claim 17
Prisoners of War - Ethiopia's Claim 4
Central Front - Eritrea's Claims 2, 4, 6, 7, 8 & 22
Central Front - Ethiopia's Claim 2
Civilians Claims – Eritrea’s Claims 15, 16, 23 & 27-32
Civilians Claims – Ethiopia's Claim 5
Western Front, Aerial Bombardment and Related Claims - Eritrea's Claims 1, 3, 5, 9-13, 14, 21, 25 & 26
Western and Eastern Fronts - Ethiopia's Claims 1 & 3
Diplomatic Claim - Eritrea's Claim 20
Diplomatic Claim - Ethiopia's Claim 8
Loss of Property in Ethiopia Owned by Non-Residents - Eritrea's Claim 24
Economic Loss Throughout Ethiopia - Ethiopia's Claim 7
Jus Ad Bellum - Ethiopia's Claims 1-8
Final Awards:
Pensions - Eritrea's Claims 15, 19 & 23
Ports - Ethiopia's Claim 6
Pending Cases
Guyana/Suriname
Ireland v. United Kingdom (MOX Plant Case)
Saluka Investments B.V. v. Czech Republic
Eritrea-Ethiopia Boundary Commission
Eritrea-Ethiopia Claims Commission
Eurotunnel
Past Cases
Permanent Court of Arbitration
Peace Palace
Carnegieplein 2
2517 KJ The Hague
The Netherlands
T:+31 70 302 4165
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E:bureau@pca-cpa.org
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Lesson V. ERITREA ETHIOPIA CLAIMS COMMISSION FINAL AWARD
Pensions
Eritrea’s Claims 15, 19 & 23
between
The State of Eritrea
and
The Federal Democratic Republic of Ethiopia
The Hague, December 19, 2005
FINAL AWARD
Pensions
Eritrea’s Claims 15, 19 & 23
between
The State of Eritrea
and
The Federal Democratic Republic of Ethiopia
By the Claims Commission, composed of:
Hans van Houtte, President
George H. Aldrich
John R. Crook
James C.N. Paul
Lucy Reed
FINAL AWARD – Pensions – Eritrea’s Claims 15, 19 & 23
between the Claimant,The State of Eritrea, represented by:
Government of Eritrea
His Excellency, Mohammed Suleiman Ahmed, Ambassador of the State of Eritrea to The
Netherlands
Professor Lea Brilmayer, Co-Agent for the Government of Eritrea, Legal Advisor to the Office ofthe President of Eritrea; Howard M. Holtzmann Professor of International Law, Yale Law School
Ms. Lorraine Charlton, Deputy Legal Advisor to the Office of the President of Eritrea
Counsel and Advocates
Professor James R. Crawford, SC, FBA, Whewell Professor of International Law, University of Cambridge; Member of the Australian and English Bars; Member of the Institute of International Law
Mr. Payam Akhavan Counsel and Consultants
Ms. Megan Chaney, Esq.
Ms. Michelle Costa
Ms. Julie Frey
Ms. Diane Haar, Esq.
Ms. Amanda Costikyan Jones
Mr. Kevin T. Reed
Mr. Abrham Tesfay Haile, Esq.
Ms. Lori Danielle Tully, Esq.
Ms. Cristina Villarino Villa, Esq.
and the Respondent,
The Federal Democratic Republic of Ethiopia, represented by:
Government of Ethiopia
Ambassador Fisseha Yimer, Permanent Representative of the Federal Democratic Republic of Ethiopia to the United Nations, Geneva, Co-Agent
Mr. Habtom Abraha, Consul General, Ethiopian Mission in The Netherlands
Mr. Ibrahim Idris, Director, Legal Affairs General Directorate, Ministry of Foreign Affairs of the Federal Democratic Republic of Ethiopia, Addis Ababa
Mr. Reta Alemu, First Secretary, Coordinator, Claims Team, Ministry of Foreign Affairs of the Federal Democratic Republic of Ethiopia, Addis Ababa
Mr. Yared Getachew, Esq., Legal Advisor; Member of the State Bar of New Jersey
Counsel and Consultants
Professor David D. Caron, Boalt Hall School of Law, University of California at Berkeley; Member of the State Bar of California
Mr. John Briscoe, Briscoe Ivester & Bazel LLP; Member of the State Bar of California; Memberof the Bar of the Supreme Court of the United States
Ms. Anastasia Telesetsky, Consultant, Briscoe Ivester & Bazel LLP (at present); Member of the State Bar of California; Member of the State Bar of Washington
Mr. Amir Shafaie, Consultant
FINAL AWARD – PENSIONS ERITREA’S CLAIMS 15, 19 & 23
TABLE OF CONTENTS
I. INTRODUCTION............................1
II. PROCEEDINGS ...........................1
III. JURISDICTION AND APPLICABLE LAW.......2
IV. FACTUAL BACKGROUND.....................3
V. THE MERITS .............................4
A. Eritrea’s Contentions...................4
B. Ethiopia’s Response ....................5
C. The Commission’s Findings – Eritrea’s Treaty-Based Claims .....6
D. Eritrea’s Taking Claims ................8
E. Eritrea’s State Succession and Unjust Enrichment .............10
F. Eritrea’s Unjust Enrichment Claim .....11
VI. CONCLUDING OBSERVATION................12
VII. AWARD................................12
FINAL AWARD – PENSIONS
ERITREA’S CLAIMS 15, 19 & 23
1
I. INTRODUCTION
1. After Eritrea became independent in 1993, the State of Eritrea (“Eritrea’) and the
Federal Democratic Republic of Ethiopia (“Ethiopia”) entered into discussions and
arrangements regarding the rights and obligations of the previously unitary State of Ethiopia.
These included arrangements regarding the pensions of former Ethiopian state employees, military personnel and employees of nationalized state enterprises who now resided in Eritrea.
2. Three pension programs were involved. The first two, created in the time of Emperor Haile Selassie, were contributory pension programs for Ethiopian military personnel and civil servants. The third, created during the time of the Mengistu regime, was a similar program for employees of state enterprises nationalized during that period. In all three programs, mandatory contributions were withheld from employees’ pay and the employing government agency or state enterprise contributed additional amounts. The decrees and proclamations creating these programs specified the employees’ contribution as 4 percent of salary and the government employers’ contribution as 6 percent.
3. As described more fully in this Partial Award, Ethiopia and Eritrea cooperated for
several years in developing and implementing arrangements to pay pensions to persons in Eritrea covered by these three programs. After hostilities began in May 1998, this
cooperation ended. Eritrea contends that Ethiopia violated international law in ceasing to perform the Parties’ pre-war pension arrangements.
II. PROCEEDINGS
4. The Commission informed the Parties on August 29, 2001 that it intended to conduct
proceedings in Government-to-Government claims in two stages, first concerning liability, and second, if liability is found, concerning damages. Claim 19 is Eritrea’s primary claim concerning pensions. It was filed on December 12, 2001, pursuant to Article 5, paragraph 8, of the Agreement between the Government of the State of Eritrea and the Government of the Federal Democratic Republic of Ethiopia of December 12, 2000 (“the Agreement”).
Ethiopia’s Statement of Defense to Claim 19 was filed on October 15, 2002, Eritrea’s
Memorial on November 1, 2004, Ethiopia’s Counter-Memorial on January 17, 2005, and
Eritrea’s Reply on March 10, 2005. The Claim was addressed in hearings on liability held during the week of April 4–8, 2005.
5. Eritrea also made claims relating to pensions in its Claims 15 (concerning persons
expelled from Ethiopia) and 23 (concerning the treatment of Eritrean nationals and persons of Eritrean origin remaining in Ethiopia). In its December 2004 Partial Awards regarding the treatment of civilians (“Partial Award in Eritrea’s Civilians Claims”), the Commission concluded that the portions of Eritrea’s Claims 15 and 23 concerning pensions were not
FINAL AWARD – PENSIONSERITREA’S CLAIMS 15, 19 & 23 2
admissible at that stage, and were instead to be addressed in connection with its Claim 19.1 As appropriate, the Commission’s findings and conclusions in this Partial Award also apply fully to the pension-related claims asserted in Eritrea’s Claims 15 and 23.
III. JURISDICTION AND APPLICABLE LAW
6. Eritrea’s Statement of Claim describes the Claimant in Claim 19 (Eritrea’s principal pensions claim) as “the State of Eritrea on behalf of itself, by virtue of injuries and losses incurred by the State of Eritrea and its nationals and agents as a result of Ethiopia’s failure to pay certain obligations as required by law.” Such claims for injuries allegedly resulting from violations of international law affecting Eritrea or its nationals are within the Commission’s
jurisdiction under Article 5 of the Agreement.
7. The Statement of Claim in Claim 15 (expulsions) describes the Claimant as “the State of Eritrea on behalf of itself, by virtue of injuries and losses suffered by the State of Eritrea and its nationals (and individuals of Eritrean origin as designated in Article 5, Paragraph 9)” (emphasis added). The Claimant in Claim 23 (persons remaining in Ethiopia) is described similarly. However, in its Partial Award in Eritrea’s Civilians Claims, the Commission found that it did not have jurisdiction under Article 5, paragraph 9, of the Agreement over claims
made by Eritrea for its own account based on injuries to non-nationals.2 At the April 2005 hearing, Ethiopia referred to this finding, and contended that Eritrea’s claims in Claims 15 and 23 based on injuries to persons who were not Eritrean nationals are likewise outside the Commission’s jurisdiction. The Commission agrees. Insofar as Eritrea’s pension claims in Claims 15 and 23 are based upon purported injuries to Eritrea on account of injuries suffered by persons who were not its nationals, they are outside the Commission’s jurisdiction.
8. As a remedy in Claim 19, Eritrea requested a lump sum cash payment equal to the
pension payments it had previously made to former Ethiopian public and state enterprise employees and military personnel based upon their past service to Ethiopia, plus the present value of all such pension payments it might make in the future, including future payments both to persons already receiving pensions and to others becoming eligible in the future.
Ethiopia contended that this request to be compensated for future payments was outside the Commission’s jurisdiction. It contended that this request (a) was not pleaded in Eritrea’s Statement of Claim, and so did not meet the mandatory deadline for filing claims under the Agreement, and (b) did not concern matters related to the conflict between the Parties, the focal point of the Commission’s jurisdiction.3 In light of the disposition of these claims, the Commission need not decide this jurisdictional issue.
1 Partial Award, Civilians Claims, Eritrea’s Claims 15, 16, 23 & 27–32 Between the State of Eritrea and the Federal Democratic Republic of Ethiopia (Dec. 17, 2004), Part XII.A., para. 6 [hereinafter Partial Award in Eritrea’s Civilians Claims].
2 Id. at para. 19.
3 See Commission Decision No. 1: The Commission’s Mandate/Temporal Scope of Jurisdiction, issued July 24,2001.
FINAL AWARD – PENSIONS ERITREA’S CLAIMS 15, 19 & 23 3
9. Ethiopia also contended that Eritrea’s claim for compensation for payments already
made was outside the Commission’s jurisdiction because Eritrea had not presented evidence proving that it had actually made such payments. The Commission considers this objection to relate to the merits, rather than to jurisdiction.
10. The Commission’s jurisdiction under Article 5 of the Agreement is limited to claims for violation of international law. As described more fully below, Eritrea invoked several legal theories in support of these claims. All of these involved obligations said to arise pursuant to international agr eements between the Parties or under customary international law.
As such, they are consistent with the Commission’s mandate to apply international law as the applicable law.
IV. FACTUAL BACKGROUND
11. The Parties’ descriptions of the relevant facts and documents and of their pre-war courses of dealing were generally similar. Beginning in 1993, the Parties entered into a series of discussions, agreements and courses of dealing concerning pension matters. By 1998, systems were operating under which Eritrean agencies administered payment of pensions to former Ethiopian civil servants, military personnel and state enterprise employees in Eritrea, utilizing funds provided by Ethiopia. Ethiopia periodically transferred fresh funds to Eritrea
upon request.4 Ethiopia continued to make such transfers until just before the war began; the last transfer was on April 30, 1998.
12. The foundation document for these arrangements was the Parties’ September 1993
Protocol Agreement on Labour, Social Affairs and Pensions (“the 1993 Protocol”).5 This was a formal document signed by senior officials of the two governments. Its language and appearance are those employed by States intending to create international legal obligations.
The Parties adopted other implementing arrangements as well, including some concluded by officials at lower levels in the two governments that are less formal.
13. Article 3 of the 1993 Protocol authorized two joint bodies. The first was a “joint committee of competent experts to carry out studies and to come out with concrete proposals on the number of pensioners, the amount of the fund, and on the mechanism of its disbursement before the next regular meeting.” The second was a “joint body . . . to effect payment to the pensioners in Asmara.” Ethiopia agreed to cover the administrative expenses of this second body. Article 3.4 then provided that “[t]he contracting Parties have
4 Eritrea’s Claim 19, Pensions, Memorial, filed by Eritrea on November 1, 2004, para. 1.4 [hereinafter ER Pensions MEM], contends that Eritrea paid pensions utilizing its own funds, and was then reimbursed by Ethiopia, rather than distributing funds provided by Ethiopia. This differs from the structure described in some documents in the record and from Ethiopia’s description of the system. However, factual differences in this regard are not material and need not be resolved by the Commission.
5 Protocol Agreement on Labour, Social Affairs and Pensions Between the Government of the State of Eritrea and the Transitional Government of Ethiopia (Sept. 27, 1993), ER Pensions MEM, supra note 4, Annex C, p.95.
FINAL AWARD – PENSIONS ERITREA’S CLAIMS 15, 19 & 23 4 agreed . . . (4) that the Transitional Government of Ethiopia will take responsibility to pay
eligible pensioners effectively and efficiently in Eritrea, until the established committee finalizes its study.” Article 8 provided that either Party could terminate the Protocol on 12 months’ notice.
14. The record indicates that Eritrean and Ethiopian officials met several times over the ensuing years regarding pension matters, but work on a permanent regime proceeded slowly.
Discussions by experts in 1994 focused on necessary data collection. At a more senior level meeting in 1995, “it was agreed that the interests of both nations would be best served by providing the Eritrean Government with the actuarially determined pension fund so it can administer it independently.”6 Experts met again in 1996, and again discussed the data necessary to design a permanent system. That same year, the two sides enlisted the technical assistance of the International Labour Organization (“ILO”), whose experts produced an
actuarial study in 1997.
15. While this work on a possible permanent system was underway, Ethiopia provided
funding for pension payments in Eritrea for several years prior to May 1998. Eritrea made regular payments to pensioners in Eritrea pursuant to these arrangements until the outbreak of hostilities.7 Ethiopia made its last transfer of funds on April 30, 1998.
V. THE MERITS
A. Eritrea’s Contentions
16. Eritrea invoked different legal theories at different stages of the proceedings. Eritrea’s Statement of Claim and Memorial appeared to emphasize bilateral agreements concluded after Eritrea became independent in 1993 as the claims’ legal basis. Eritrea contended that these agreements required Ethiopia to reimburse Eritrea for payments it made to eligible pensioners. It maintained that Ethiopia recognized these obligations through a consistent course of dealing prior to 1998, when it regularly transferred funds for pension payments to Eritrea.
17. Eritrea also contended that these agreements obliged Ethiopia to transfer to Eritrea an actuarially determined sum sufficient to fund all future pension payments to eligible persons in Eritrea, after which Eritrea would take over administering and paying the pensions. Eritrea indicated that at the Parties’ request, ILO experts prepared an actuarial study assessing the funding required. The ILO experts’ 1997 study provided a range of estimates – from $44 million to $76 million – of the funds required to fund pensions for those already receiving pensions at that time, based on various interest rate assumptions. Eritrea contended that after
6 Minutes of the Decisions made on Outstanding issues with regard to Pensions, Apr. 20, 1995, art. 1.1, ER Pensions MEM, supra note 4, Annex C, p. 113.
7 Separate Eritrean mechanisms administered the pensions of former civil servants and military personnel and those of former employees of state enterprises.
FINAL AWARD – PENSIONS ERITREA’S CLAIMS 15, 19 & 23 5
hostilities began, Ethiopia transferred no more funds to Eritrea and repudiated its obligations under the governing agreements, contrary to international law.
18. Eritrea’s Statement of Claim also alleged in broad terms that Ethiopia’s actions
violated guarantees of property rights under the Universal Declaration of Human Rights8 and the African Charter on Human Rights.9 The theory that Ethiopia’s actions involved a taking of property was not developed in Eritrea’s written pleadings, but Eritrea raised it at the hearing, particularly in its final rebuttal presentation.
19. At the hearing, Eritrea briefly developed two further theories in support of its claim:
that Ethiopia’s actions resulted in its unjust enrichment, and that its obligation to pay pensions arose pursuant to customary international law obligations regulating the succession of States.
B. Ethiopia’s Response
20. Ethiopia denied liability. However, in its written pleadings and at the hearing,
Ethiopia affirmed that it recognized the desirability of appropriate agreed arrangements to provide pensions to eligible Eritreans in recognition of their past services to the State of Ethiopia. Ethiopia’s Counter-Memorial stated that “[f]ollowing the conclusion of the war, Ethiopia has stood ready to recommence the negotiations [relating to pensions] within an appropriate diplomatic context.”10 Ethiopia reaffirmed this position at the hearing. Counsel for Ethiopia also accepted the view that, in a situation of State succession like the independence of Eritrea from Ethiopia, international law entitled a successor State to some equitable share of the assets of a predecessor State, that it was correspondingly required to
assume some equitable share of the predecessor’s obligations, and that these general
obligations must be brought into concrete form through negotiations.
21. Ethiopia denied any continuing international legal obligation to fund pensions for persons in Eritrea. It contended that the 1993 Protocol, which it viewed as the foundation of the Parties’ cooperation on pension matters, was aimed at creating a negotiating process and was terminable on twelve-months’ notice by either Party. Ethiopia viewed the funds transferred to Eritrea prior to May 1998 as having been provided pursuant to agreed arrangements that were temporary, transitional, and terminable by either Party. Ethiopia saw its payments as conditional upon continued good faith negotiations to develop a permanent mutually agreed settlement.
22. Ethiopia maintained that it had not incurred a legal obligation to transfer any fixed sum to fund future pensions, and that the amount required for this purpose and other key issues had not been agreed. It cited important questions remaining unresolved following the 8 Universal Declaration of Human Rights, G.A. Res. 217A (III), U.N. Doc. A/810 (1948), at p. 71.
9 African Charter of Human and Peoples’ Rights, June 27, 1981, reprinted in 21 I.L.M. p. 58 (1982).
10 Ethiopia’s Counter-Memorial to Eritrea’s Claim No. 19, filed by Ethiopia on January 17, 2005, at p. 1. FINAL AWARD – PENSIONS ERITREA’S CLAIMS 15, 19 & 23
6 1997 ILO study, particularly the interest rate to be used in calculating the amount to be transferred, a crucial variable. Moreover, the ILO study addressed only persons already receiving pensions, and did not consider others who would subsequently become eligible as they grew older.
23. Ethiopia also stressed that after May 1998, the Parties were involved in a bitter
international armed conflict. It contended that in such circumstances, international law allows a belligerent to terminate financial dealings with an opposing belligerent, and does not require it to transfer funds to its enemy, even if this might have been required under pre-war agreements.
24. Ethiopia contended that the Parties’ agreements regarding pensions were not intended to survive a war between them. It viewed the 1998–2000 war as involving a fundamental transformation of circumstances that terminated agreements bearing on pensions, even without any formal act by Ethiopia announcing such termination. Ethiopia also denied that that its actions resulted in any taking of property, or that it was unjustly enriched.
C. The Commission’s Findings – Eritrea’s Treaty-Based Claims
25 The Commission finds that Article 3.4 of the 1993 Protocol, a clear, formal document concluded by senior officials of the two Parties, created an obligation under treaty law for Ethiopia “to pay eligible pensioners effectively and efficiently in Eritrea” while the Parties worked to develop permanent pension arrangements. Pursuant to Article 8 of the Protocol, either Party could terminate this obligation on one year’s notice.
26. The conclusion that Ethiopia incurred such a legal obligation under the 1993 Protocol is reinforced by the Parties’ subsequent courses of dealing. Officials met several times after 1993 to discuss pension matters, and adopted various documents addressing implementation of the Protocol. Moreover, as noted above, the Parties developed financial arrangements and carried out preparatory work regarding future permanent arrangements. These related agreements and the Parties’ practice help to confirm that the Parties viewed the 1993 Protocol as giving rise to legal obligations.11
27. Accordingly, the Commission must consider the impact of the conflict that began in May 1998 on obligations under the Protocol and its associated documents. This implicates two separate but related strands of customary international law. The first concerns the nature and extent of belligerents’ rights under customary international law to regulate or prohibit financial transactions with an opposing power during an international armed conflict.
There has been extensive modern practice involving belligerents’ assertions and exercises of expansive rights to regulate or prohibit economic dealings with opposing powers.12 Eritrea
11 See Vienna Convention on the Law of Treaties, May 23, 1969, 1155 U.N.T.S. p. 331, arts. 31(2) & 32(3). 12 See, e.g., LORD MCNAIR & ARTHUR D. WATTS, THE LEGAL EFFECTS OF WAR pp. 343–365 (Cambridge 1966); CHARLES ROUSSEAU, DROIT INTERNATIONAL PUBLIC pp. 345–348 (Dalloz, 7th ed. 1973).
FINAL AWARD – PENSIONS ERITREA’S CLAIMS 15, 19 & 23 7argued that a belligerent cannot interrupt pension-related payments to an opposing belligerent
during such a conflict, asserting that Ethiopia:
sought to weaken Eritrea’s military by forcing Eritrea to choose between
spending on elderly pensioners and spending on defense.
However, international law does not allow a state to inflict harm on vulnerable civilians in order to divert its opponent’s resources to protecting them. Denying the
elderly their pensions is not a legitimate tactic in times of war.13
However, Eritrea offered no authority supporting this contention, and the Commission knows of none. Particularly given the widespread and generally accepted modern practice of extensive – indeed, often pervasive – prohibitions on financial transactions between belligerents, regardless of the transaction’s purpose, the Commission does not agree that customary international law prevents belligerents from barring pension-related payments to an opposing belligerent.
28. Second, the Commission must assess the effect of the 1998–2000 armed conflict on
Ethiopia’s treaty obligations under the 1993 Protocol and related documents. The Vienna Convention on the Law of the Treaties does not address the impact of hostilities on treaties between belligerents.14 At an earlier time, writers viewed war as canceling all treaty relationships between the belligerents, except for treaties specifically designed for war.
Contemporary writers take a less absolute view, but modern doctrine does not provide settled guidance on significant points.
29. The parties’ presumed intent is generally seen as a key factor in determining a treaty’s wartime status, even though such intent often is not clear from treaty texts. By their terms, some treaties clearly apply during hostilities, e.g., the Hague Regulations15 and the 1949 Geneva Conventions.16 Other treaties’ nature or purpose is thought to reveal an intention that the treaty continues to operate. Treaties designed to create permanent legal situations, such as boundary treaties or treaties confirming private rights to land, are illustrations. Some other
treaties, such as treaties of alliance – sometimes described as “political” treaties – are thought to reflect transitory political relationships and are seen as terminated by hostilities.
30. This leaves cases, such as this one, where the intention to maintain a treaty in
operation during hostilities is not plainly apparent from the text or the surrounding
13 ER Pensions MEM, supra note 4, at p. 27, para. 1.43.
14 See Vienna Convention on the Law of Treaties, supra note 11, art. 73.
15 Hague Convention (IV) Respecting the Laws and Customs of War on Land and Annexed Regulations, Oct.
18, 1907, 36 Stat. p. 2277, 1 Bevans p. 631.
16 Geneva Convention for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field, Aug. 12, 1949, 6 U.S.T. p. 3114, 75 U.N.T.S. p. 31; Geneva Convention for the Amelioration of the Condition of the Wounded, Sick and Shipwrecked Members of Armed Forces at Sea, Aug. 12, 1949, 6 U.S.T. p. 3217, 75 U.N.T.S. p. 85; Geneva Convention Relative to the Treatment of Prisoners of War, Aug. 12, 1949, 6 U.S.T. p. 3316, 75 U.N.T.S. p. 135; Geneva Convention Relative to the Protection of Civilian Persons in Time of War, Aug. 12, 1949, 6 U.S.T. p. 3516, 75 U.N.T.S. p. 287.
FINAL AWARD – PENSIONS ERITREA’S CLAIMS 15, 19 & 23 8
circumstances. Writers generally maintain that parties should be presumed to intend that such treaties be at least suspended during the hostilities.17 The Commission concludes that this principle applies here, and that the 1993 Protocol and its associated agreements were, at the least, suspended during the hostilities and their immediate aftermath. This seems the most reasonable result. It is not plausible to assume that the Parties intended these arrangements to operate during an armed conflict between them. Ethiopia would not have bound itself to make substantial cash payments to an opposing belligerent; nor would Eritrea have pledged to allow continued activities on its territory by Ethiopian pension administrators or auditors.
Neither Party would have sanctioned regular contacts and communications between nondiplomatic officials administering the pensions program during an armed conflict.
31. Ethiopia contended that its obligations under the 1993 Protocol and related
agreements were terminated, not just suspended. It maintained that these obligations were conditional upon a continuing negotiating process that was ended by the conflict; that the system required official interaction and trust that were also ended by the conflict; and that the key obligations under the 1993 Protocol were in any case unilaterally terminable on 12 months’ notice. Eritrea did not address directly whether the 1993 Protocol and its associated documents were terminated or merely suspended, although some of its arguments seem to have implied that Eritrea also regarded them as having come to an end.
32. The Commission need not decide whether these treaty obligations were suspended or
terminated in order to decide the issues in these claims falling within the limited temporal scope of its jurisdiction under the Agreement.18 It finds that the 1998–2000 conflict resulted at the least in the suspension of pension-related treaty obligations during the period of the conflict and its immediate aftermath, the period with respect to which the Commission has jurisdiction. Accordingly, Eritrea’s claims based upon Ethiopia’s alleged non-performance of the 1993 Protocol and associated documents during that period are dismissed on the merits.
D. Eritrea’s Taking Claims
33. Eritrea also contended that Ethiopia’s actions resulted in an uncompensated taking of property contrary to international law. This claim was not systematically developed, but appeared to involve two separate strands: that Ethiopia took individuals’ property rights to receive pensions, and that it took from the State of Eritrea its rights to monies set aside and held in Ethiopia for future pension payments.
17 See, e.g., VOL. II, OPPENHEIM’S INTERNATIONAL LAW pp. 303–304 (Hersch Lauterpacht ed., Longmans, 7th ed. 1952); GEORG SCHWARZENBERGER, INTERNATIONAL LAW p. 71 (Stevens & Sons 1968); PAUL REUTER, DROIT INTERNATIONAL PUBLIC p. 158 (Presses Universitaires de France 1983); LORD MCNAIR, THE LAW OF
TREATIES pp. 703, 718 (Clarendon Press 1986); CHARLES ROUSSEAU, DROIT INTERNATIONAL PUBLIC pp. 71–74 (Dalloz, 11th ed. 1987); VOL. IV ENCYCLOPEDIA OF PUBLIC INTERNATIONAL LAW p. 1371 (Rudolf Bernhardted., Elsevier 2000); PATRICK DAILLER & ALAIN PELLET, NGUYEN QUOC-DIHN’S DROIT INTERNATIONAL PUBLIC
p. 974 (L.G.D.J., 7th ed. 2002); PIERRE-MARIE DUPUY, DROIT INTERNATIONAL PUBLIC p. 611 (Dalloz, 6th ed. 2002); IAN BROWNLIE, PRINCIPLES OF PUBLIC INTERNATIONAL LAW p. 592 (Oxford University Press, 6th ed. 2003).
18 See Commission Decision No. 1, supra note 3, Section C.
FINAL AWARD – PENSIONS ERITREA’S CLAIMS 15, 19 & 23 9
34. Ethiopia denied any taking of property, contending that it continued to transfer funds
when requested by Eritrea and otherwise performed its obligations fully until hostilities transformed the Parties’ legal relationships. It denied that it had repudiated any responsibilities vis-à-vis individual pensioners, and reiterated its willingness to resume bilateral negotiations on pension matters.
35. The evidence did not clarify the character and extent of individuals’ rights under the three Ethiopian pension programs. Eritrea argued in general terms that those who paid into these programs acquired rights under Ethiopian law, and were “entitled to the funds accumulated by their years of hard work.” However, the evidence did not show that Ethiopian law established legally enforceable individual rights to return of contributions, to any specific level of pension payments, or even to receive a pension. In this regard, counsel for Eritrea
told the Commission at the hearing that Eritrea did “not suggest [ . . . ] that there was an individual proprietary right of a private law character of the pensioners,” although counsel contended that they had other types of rights under the programs.19
36. Thus, the record does not establish that public pension entitlements under Ethiopian law were sufficiently concrete to be property protected by international law. Moreover, there is no proof of an unlawful taking during the jurisdictional period; as the Commission finds above, it was lawful for Ethiopia to cease performing the bilateral agreements relating to pensions during the hostilities between the Parties. Accordingly, the Commission finds that Eritrea has not established that Ethiopia took property belonging to individual pensioners
during the Commission’s jurisdictional period. To the extent that any portion of this claim involves actions by Ethiopia after December 12, 2000, it must be dismissed as outside the Commission’s temporal jurisdiction.
37. Eritrea also appears to have contended that Ethiopia took a property interest belonging to the State of Eritrea in some part of a pool of pension assets held by Ethiopia. This claim must also be dismissed. First, the record does not establish the existence of any such asset pool. The evidence indicates that employees’ and employers’ contributions were not held in separate funds and invested for the benefit of specific employees. Instead, as in many countries, funds taken into the system were used to pay pensions to current pensioners. The minutes of the Parties’ high-level consultations in 1995 indicate that there was no pool of
reserved pension funds. They provide that “[w]ith regards to the transfer of the lumpsum of pension funds to Eritrea, it was agreed that taking Ethiopian’s [sic] capacity into account, a schedule of installment payments shall be agreed upon once the total amount is determined.”
19 Transcript of the Eritrea-Ethiopia Claims Commission Hearings of April 2005, Peace Palace, The Hague, at p. 181 (Apr. 5, 2005) [hereinafter Pensions Hearing Transcript]. It would not be unusual if Ethiopian legislation does not establish a legally enforceable, non-derogable right to receive a pension for past government service.
Many countries’ laws leave the State the flexibility to modify, or even eliminate altogether, such pensions. O’Connell notes that “the right of British civil servants to pensions is not absolute.” VOL. 1, STATE SUCCESSION
IN MUNICIPAL LAW AND INTERNATIONAL LAW p. 470 (D.P. O’Connell ed., Cambridge 1967) [hereinafter
O’CONNELL].
FINAL AWARD – PENSIONS ERITREA’S CLAIMS 15, 19 & 23 10
The 1997 ILO report likewise anticipates that any future transfer to fund future pensions would involve a series of installment payments, not the transfer of an existing pool of assets.
38. Second, Eritrea has not established a legal right to receive any specific amount from Ethiopia. The minutes of the Parties’ 1995 high-level consultations noted that “the interests of both nations would be best served” if an actuarially determined amount of funds was provided to Eritrea, but this was not a binding commitment to transfer funds. The negotiations to determine the amount of any future transfer, a schedule of payments and other related arrangements appeared far from completion in May 1998. Eritrea has not shown any other entitlement to funds held by Ethiopia under customary international law. Third, as noted above, the record does not establish any action by Ethiopia indicating an unlawful taking under international law. Finally, even if the State of Eritrea had claims to money or
other property interests in Ethiopia, those interests would have been subject to Ethiopia’s wartime rights in relation to the State property of an opposing belligerent under customary international law.
E. Eritrea’s State Succession and Unjust Enrichment Claims
39. Eritrea advanced two additional legal theories at the hearing: that customary
international law relating to State succession required Ethiopia to fund pensions for former Ethiopian civil servants, and that Ethiopia was unjustly enriched by its actions. The Commission is concerned that the introduction of significant new legal arguments at the hearing stage may prejudice the opposing Party and invites unfairness and possible abuse. It also undermines the Commission’s ability to reach fair and informed conclusions. Nevertheless, Ethiopia did not object to these additional theories as untimely under Article 5, paragraph 8, of the Agreement or otherwise. Moreover, the Commission has indicated previously that the Parties may present additional legal arguments to support claims that have been timely filed.20 Accordingly, the Commission will consider Eritrea’s additional theories.
40. Eritrea contended at the hearing that customary international law regulating State succession obliged Ethiopia to account to Eritrea in some appropriate way for past pension contributions related to persons now in Eritrea. However, Eritrea’s counsel indicated that “Eritrea had no right under the law of state succession to insist” that pension funds held by Ethiopia be transferred to it.21 Instead, the claim appeared to be that, once the Parties agreed on the 1993 Protocol and its associated documents, the customary law of State succession constituted an additional source of obligation reinforcing Ethiopia’s obligations under those
arrangements.
41. This claim was not briefed or argued in detail. However, based on the arguments
adduced, the Commission is not persuaded that customary international law applicable in situations of State succession allocates to the predecessor State primary responsibility for 20 See, e.g., Partial Award in Eritrea’s Civilians Claims, supra note 1, para. 22.
21 Pensions Hearing Transcript, supra note 19, p. 182 (Apr. 5, 2005).
FINAL AWARD – PENSIONS ERITREA’S CLAIMS 15, 19 & 23 11
official pensions when unitary States divide. State practice varies. In some cases, following the partition of a unitary State, each of the successors assumed responsibility for pensions attributable to past service to the predecessor State payable to persons in the successor’s territory.22 The Tribunal in the Danzig Pension Case allocated responsibility for pensions based on the nationality of the recipient, assigning responsibility for pensions to the successor
State whose nationality the recipient had assumed:
A customary rule of international law has been developed to the effect that
claims to pensions passed to the succeeding State if the person who claimed
the pension became a national of the succeeding State and made no use of the
right to opt for the nationality of his former State.23
42. Given the lack of an established customary rule of the character suggested by Eritrea, Eritrea’s claim based on the laws of State succession is dismissed on the merits.
F. Eritrea’s Unjust Enrichment Claim
43. Eritrea’s invocation of the customary international law doctrine of unjust enrichment was discussed only briefly in the written pleadings and at the hearing.24 The doctrine is predicated upon general principles of international law, and may come into play where there have been unjust shifts of control over assets, even if there has been no violation of a relevant agreement or other international legal rule.25 Given the doctrine’s imprecise and subjective character, it must be applied cautiously, taking account of all relevant circumstances.
The Commission concludes that the record does not demonstrate unjust enrichment during the Commission’s jurisdictional period. As indicated earlier in this Partial Award, Eritrea has not established that either individual Eritreans or the State of Eritrea had ownership interests in any pension assets in Ethiopia. Even had such property interests existed, Ethiopia’s actions to halt transfers of funds to the opposing belligerent during the period subject to the Commission’s jurisdiction would not constitute unjust enrichment.
Any claim in this regard based on actions by Ethiopia subsequent to the Agreement is outside the Commission’s jurisdiction.
22 See O’CONNELL, supra note 19, pp. 467 et seq.
23 Danzig Pension Case, Case No. 41, VOL. 5, ANNUAL DIGEST OF PUBLIC INTERNATIONAL LAW CASES 1929– 1930 p. 67 (Longmans 1935), quoted in O’CONNELL, supra note 19, at p. 468.
24 ER Pensions MEM, supra note 4, at para. 1.3, briefly refers to “an enormous windfall” to Ethiopia “at the expense of elderly Eritreans,” but it does not otherwise indicate a claim for unjust enrichment under international law or address the legal elements of such a claim.
25 See Christoph Schreuer, Unjust Enrichment, in 9 ENCYCLOPAEDIA OF PUBLIC INTERNATIONAL LAW p. 381 (Rudolf Bernhardt ed., North-Holland 1986).
FINAL AWARD – PENSIONS
ERITREA’S CLAIMS 15, 19 & 23 12
VI. CONCLUDING OBSERVATION
44. As noted earlier, Ethiopia indicated to the Commission at the hearing that Ethiopia continues to recognize the desirability of a fair, agreed regime to provide pensions for persons who have served Ethiopia in the past, and Ethiopia’s written pleadings emphasized Ethiopia’s willingness to resume the negotiations on pension matters interrupted by the 1998– 2000 conflict.26 Counsel reiterated this undertaking in Ethiopia’s closing statements. The Commission views these as serious and important undertakings.
27 It encourages the Parties to act on them, and to resume the good-faith process of negotiations and cooperation interrupted by the 1998–2000 conflict, so as to bring about a fair, permanent settlement to ensure pensions to those who served Ethiopia in the years before 1993.
VII. AWARD
In view of the foregoing, Eritrea’s Claim 19, and the pension-related portions of
Eritrea’s Claims 15 and 23, are dismissed on the merits.
[Remainder of page purposely left blank.]
26 Supra, para. 20.
27 See Tribunal arbitral institué par le compromis du 23 Octobre 1985 entre le Canada et la France : différend
concernant le filetage a l’interieur du Golfe du Saint-Laurent, Sentence du 17 Juillet 1986, in REVUE GENERALE
DE DROIT INTERNATIONAL PUBLIC p. 713 (Paris 1986), at p. 756.
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