The Eritrea-Ethiopia Boundary Commission: A Legal Analysis of the Boundary Delimitation Decision of 13 April 2002 and Relevant Subsequent Decisions

Abstract

The Delimitation Decision of the Eritrea-Ethiopia Boundary Commission (13 April 2002) is, for all intents and purposes, an arbitral award returned by a tribunal as opposed to being a politico-diplomatic or quasi-judicial decision of a boundary commission. It is an outstanding juridical analysis of boundary problems between two traditionally hostile States, dedicated to resolving their complex border disputes with a clinical and impartial application of the relevant principles of law on the matter. Despite some difficulties the Decision has, by and large, succeeded in doing what it was mandated to do. That is, it provides a delimitation of three disputed sectors of the long border between Eritrea and Ethiopia, a delimitation which is primarily an interpretation of three colonial treaties. But this interpretation evolved into a determination of the alignment as it was actually interpreted and effected on the ground regardless of the precise clauses of the treaties. The Commission gave full and dominant importance to the role and doctrine of subsequent conduct where such conduct was at variance with the boundary treaty or with other instruments, national and international. The Decision has made a signal contribution to the principles of title to territory and international boundaries in terms of developing the doctrine of State practice in the context of treaty interpretation and modification of boundary lines. The Commission’s positive approach to the admission of map evidence constitutes a major positive milestone in international arbitration. However, the fact that the parties were unable to accept the delimitation carried out by the Commission shows perhaps that this dispute settlement procedure ought not to have been embarked upon in the first place. Attempts at political solutions and settlements wherever possible tend to be better in this sort of hostile environment.