The EPRDF executive committee has recently announced its decision to implement the ruling made on 13 April, 2002 by the Eritrea - Ethiopia Boundary Commission regarding delimitation of the border between the State of Eritrea and the Federal Democratic Republic of Ethiopia. Following the announcement, there is a considerable debate going on around the legality of the decision with regard to issues regarding absence of transparency, lack of public participation and usurpation of the power of the parliament. This piece argues that the decision is not official yet and, even if it were official, implementing it won’t be illegal.

It is not official because it was only decided by the EPRDF executive committee – not by the government.There is a common mistake of confusing a ruling party with the government perhaps because of the inertia of the past which failed to draw a line between the two. It may appear rudimentary but we have to, in order to draw a line between the two, address the fact that: (1) the government has its own three organs (the legislative, the executive and the judiciary); (2) a party can influence the decisions and operations of the government but a decision of a party’s executive committee or its general meeting is not equivalent with a decision by any of the three organs of the government; and, as a result, the decision made by the EPRDF does not amount to an official decision by the government of Ethiopia.

A party which constitutes a majority in the parliament has a right to elect a prime minister – the person who leads the executive branch of the government (see article 72(1) & 73 of FDRE Constitution). The party, in our case the EPRDF, has the ability of influencing the decisions of the parliament by using its majority seat in the parliament. Once elected, the prime minister may appoint its cabinet upon the approval of the parliament. Members of his cabinet may neither be members of the parliament nor members the ruling party, but the ruling party may influence the decision of the prime minister by refusing to approve their nomination in the parliament. (see article 74(2) of FDRE Constitution). The bottom line is, the role of a party (EPRDF in our case) is limited to influencing the conduct of the government. To make it clearer, the party does not have a power to act on behalf of the government. Therefore, the decision of the EPRDF executive committee to implement the award made by the Eritrea - Ethiopia Boundary Commission does not amount to be more than influencing the Ethiopian government to enforce the award. I believe that an enforceable decision on the matter should come from an official declaration of the government. Accordingly, the decision is not official so far.

If it were to be official, which branch of the government has to make the decision for it to be official? And would the decision be illegal? Answering this question demands inquiring how the award was made by the Commission and determining the status of the award from a legal and political point of view in the international setting.

Unfortunately, abiding by and implementing the award of the Commission is not illegal from a legal point of view. On 8 December, 2000, Ethiopian parliament (legislative organ of the government) has agreed upon, ratified and delegated the executive organ of the government to, on behalf of Ethiopia, sign the “Peace Agreement between the Government of Ethiopia and the Government of Eritrea. (see article 2 of Peace Agreement between the Government of the Federal Democratic Republic of Ethiopia and the Government of the State of Eritrea Ratification proclamation No.225/2000 (henceforth “the Proclamation”))Four days later (on 12 December, 2000), Ethiopia’s executive organ signed the agreement on behalf Ethiopia at Algiers, Algeria. One may argue that the agreement won’t be valid since it was ratified before it was signed by Ethiopia and Eritrea. But the argument would wither away once we note that the parliament already knew the agreement is yet to be signed and, has in fact, stated under article 3 of the proclamation that the ratification would become effective as of the date it got signed by the executive.

The agreement signed on 12th of December, has authorized the establishment of a commission to adjudicate the matter. In particular, article 4 paragraph 2 of the agreement states that “[t]he parties agree that a neutral Boundary Commission composed of five members shall be established with a mandate to delimit and demarcate the colonial treaty border based on pertinent colonial treaties (1900, 1902 and 1908) and applicable international law” Accordingly, the Commission was constituted in Hague and rendered its award on 13 April, 2002. This award of the Commission is a final and binding award on the matter since article 4 paragraph 15 of the agreement proclaims that “[t]he parties agree that the delimitation and demarcation determinations of the Commission shall be final and binding.” It further states that “[e]ach party shall respect the border so determined, as well as territorial integrity and sovereignty of the other party.” Hence, enforcing the decision of the Commission would not be illegal both under Ethiopian domestic law and public international law. If one has to raise absence of transparency and lack of public participation, it has to be raised with regard to the then parliament and executive organs. However, what I find especially annoying is the recklessness of the then parliament who blatantly authorized the executive to sign such an agreement on behalf of Ethiopia and ratified it even before it was signed. What if the copy of the agreement ratified by the parliament is different from the copy of the agreement later signed by the executive? (By the way, the content of the agreement is not stated in the proclamation and we can’t verify whether both copies are identical). If there is a difference, we have a room for partially or fully contesting validity of the award. If not, I believe the present government has a legal obligation to enforce the decision.

From a political point of view, I am no expert but I believe that some things can be bargained and Ethiopia, who is a landlocked country, needs to bargain for access to the sea and potentially other matters of national security and territorial integrity. Anyone who is familiar with public international law is also familiar with the fact that not all laws are enforced in the international setting. That is why Malcolm Shaw and other scholars of the field pose the riddle “Is international law (public) a law?” Politics and political economy also come into the play in the international setting. And I can’t make further analysis on this subject but just hope that the executive makes the best use of this line to get Ethiopia a better deal.


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