A critical analysis of the current development

Most media outlets have reported that the meeting of the legal representatives of both Eritrea and Ethiopia was a point in the right direction.  The meeting was chaired by the EEBC with both the US and United Nations representatives present.  The second meeting is scheduled for late April.  The question, however, is whether or not the first meeting was a success. Should we feel optimistic about it?

I, myself, would describe the meeting as a mere start.  I cannot help but be cautious and less optimistic.  One needs to look at the background facts that help the meeting to be materialised.

Before looking at the background, there are a few and obvious points that need to be addressed.  As everyone knows the decision of the EEBC is final and binding and the Commission does not have the power to make decisions ex aequo et bono under Article 4 paragraphs 15 and 2 of the Algiers Agreement respectively.  Indeed, under Article 14(A) of the Demarcation Directives, the Commission has no authority to vary the boundary line. If it runs through and divides a town or village, the line may be varied only on the basis of an express request agreed between and made by both Parties.

Now having laid the legal tenets, lets measure the meeting according to those tenets.  First and foremost, the meeting happened following a call made to the EEBC by the witnesses of the Algiers Agreement.  Indeed, the Council of the EU, in their press release, said:  “The Witnesses urge the Commission to convene a meeting with the parties and invite the Commission to consider the need for technical discussions with the support of a neutral facilitator to assist with the process of demarcation” (my emphasis).

What the witnesses are calling for is the EEBC to appoint a neutral facilitator to assist with the process of demarcation.  The EEBC cannot appoint a neutral facilitator.  To request it is to ask the Commission to act ultra virus, outside its legal power.  No one is disputing that the Commission may engage the services of additional experts as it deems necessary as it is noted in Article 4 paragraph 7 of the Agreement.  However, that additional expert is in relation to the cartographer, but not as a go between.  Therefore, the mere attempt to appoint such neutral facilitator is illegal under the Agreement.

Even if such a neutral facilitator is to pass this first hurdle, it is evident, however, from the name that has been floated around as a possible neutral facilitator that the witnesses are looking for a go between and not an additional expert as stipulated by the Agreement.  The person the witnesses are putting forward is General Fulford.   Here I want to make two points. 

First, General Fulford is a retired Marine who is currently the Director of the Africa Centre for Strategic Studies.  With respect to the General, he is not a qualified person to be an additional expert under Article 4(7) of the Agreement.  He is not a cartographer nor a surveyor, full stop. 

Second, he was a member of the US delegation that was led by the Assistant Secretary of State for African Affairs Jendayi Frazer.  Now we know from Ms Frazer’s interview with the VOA, that she believes that, “the Algiers Agreement basically says that the demarcation has to be done according to what is just and reasonable….so that requires some dialogue” (my emphasis).  Although this misguided policy might not be directly attributed to him, since he has not distanced himself from it and he was part of the delegation, one can only conclude that he also believes that the delimitation decision is open for dialogue.

It is obvious that what the witnesses are trying to do is to open up the delimitation decision for negotiation under the disguise of a neutral facilitator.  It should be clear by now that the Algiers Agreement is a comprehensive agreement which have provisions for almost every eventuality.  For example, both Parties will have to talk about anomalies that may occur during the demarcation process.  Indeed, the duties of both Parties Field Liaison Officers are to make presentations on their behalf to the technical staff of EEBC when such situations arise.  If a Party is not satisfied by the decision of the technical staff, the Party could appeal to the EEBC and its decision would be final and binding.

Finally, I believe that any attempt to appoint a neutral facilitator runs contrary to the Algiers Agreement.  Even if this appointment is to be regarded as an additional expert, the very person whose name is associated with it does not give much comfort.  In fact Ethiopia’s continued insistence that its five point peace proposal is the most realistic roadmap for peace between Ethiopia and Eritrea and the sole approach for success, both with respect to the successful demarcation of the boundary and for normalisation of relations between the two countries.  Furthermore, Ethiopia rejected an earlier invitation by the EEBC on grounds that it would be premature, unproductive and could have adverse impact on the demarcation process and instead called for an open ended dialogue.  It is a widely held view among Eritreans that the only neutral body that has the legal and moral legitimacy to take the whole process to its conclusion is the EEBC.  No other facilitator has the legitimacy of the EEBC and any attempt to bring a new facilitator could only be regarded as an attempt to dilute the final and binding nature of the EEBC decision and it will fail to achieve what is needed, demarcation according to delimitation decision. Thus, there are good reasons, for us Eritreans, to adopt a cautious and a wait and see approach regarding this new development.