Aklilu Habtewold: in the Footsteps of A Great International Law Jurist; Disqualification of Lauterpacht, Nullification of the Algiers Agreement, and Rejection of the Decision of the Border Commission
By Tecola W. Hagos
October 30, 2003
A. Legal and Policy reasons to declare the Algiers Agreement null and void.
1. Principle of Jus Cogens: Brownlie, an international law jurist of great depth and notoriety, pointed out the principle of Jus Cogens that states that there “are rules of customary law which cannot be set aside by treaty or acquiescence but only by the formation of a subsequent customary rule of contrary effect.”[Brownlie, Principles of Public International Law, 515.] The difficult task faced by the Vienna Conference on the Law of Treaties was to draft provisions that would adequately retain the principle of Jus Cogens extracted from customary international law and practices. McNair asserts it is easier to “illustrate these rules than define them.” [McNair, Lord, The Law of Treaties, Oxford: Oxford University Press, 1961, 214.] The first problem was to establish whether there are peremptory norms of general international law. Some jurists consider the concept of Jus Cogens as a recent development of a version of “Public Policy” [Elias, T.O. The Modern Law of Treaties, Leiden: A.W.Sigthoff, 1974, 177. In Osca Chinn Case (1934)P.C.I.J., Series A/B, No. 63, pp134-36, 146- 50, the Court introduced the concept of international public policy] with an international dimension. However, “according to some authors, some international public policy has always existed.” [Sztucki, Jerzy, Jus Cogens the Vienna Convention on the Law of Treaties: A Critical Appraisal, Wien New York: Springer-Verlog, 1974, 8.]
Article 53 of the Vienna Convention on the Law of Treaties codified the well-established principle of Jus Cogens in no uncertain terms as follows:
“Article 53: Treaty Conflicting with Peremptory Norm of General International Law (Jus Cogens) A treaty is void if, at the time of its conclusion, it conflicts with a peremptory norm of general international law. For the present convention, a peremptory norm of general international law is a norm accepted and recognized by the international community of states as a whole as a norm from which no derogation is permitted and which can be modified only by a subsequent norm of general international law having the same character.”
The Algiers Agreement at its time of signing preemptively obligated Ethiopia under defunct, long dead, and supplanted international instruments, with dubious validity even at the time of their presentations in 1900, 1902, and 1908, to cede millions of acres of land and coastal territorial waters and islands dispossessing its citizens or driving them of their ancestral homes, acts that would violate all fundamental principles of human rights incorporated in the Universal Declaration of Human Rights, the Charter of the United Nations and numerous General Assembly Resolutions. [German Settlers in Poland, (Advisory Opinion) 10 September 1923, PCIJ Series B, No. 6, at 36.]
We run into absurd situations if we accept that anything agreed to by heads of governments is valid. This is one reason the principle of Jus Cogens evolved. Imagine a situation where two dictators decided on a treaty that would allow one nation to use some citizens of the other nation as slaves. How about selling a piece of territory, as the Czar of Russia did sell Alaska to the United States? Such an act of alienation of the territorial integrity of a sovereign state would have been considered illegal, as some still think the Alaskan deal is unlawful. The case is an extreme situation that clearly illustrates the problem. Any person will object to such an arrangement because such an agreement violates fundamental human rights and principles of sovereign power.
The Alaskan purchase of land and that of the initial phase of the Rubattino Steamship Company in 1870 purchase of land in Assab (Ethiopia) and passing it to the government of Italy later, confused simple ownership of land, which any person or corporate entity, including other nations, can exercise under the power of the granting sovereign state if its municipal laws permit, with the concept of sovereign power. When an individual or an entity owns property under the sovereign power of a people constituting a state, such as Ethiopia, irrespective of the fact of personal status (citizen, foreigner, immigrant, male, female, single, married, et cetera) or corporate status (corporation, foreign governments, representatives of charitable or non-charitable organizations, et cetera) of that individual or entity, such ownership is exercised at the pleasure of the granting Sovereign Power (in this case the People of Ethiopia as constituted as the State of Ethiopia).
Thus, ownership under the sovereign umbrella of a legitimate nation-state does not allow the fabrication or creation in any owner of real property that even remotely resembles “sovereignty” or “sovereign power.” We can see how sound the principle of Jus Cogens is, and also how valid it is to our case under consideration. What the Algiers Agreement created is a legal anomaly that cannot be sustained under any principle of international law. There is no precedent for how one can resurrect long-dead colonial treaties without first violating the principles of Jus Cogens and others in the present case of the border dispute and alienation of hundreds of thousands of people into subjugation and minority status.
2. Fraud, Corruption (Collusion): The Vienna Convention on the Law of Treaties, which is a codification of customary international law, in Part V on “Invalidity, Termination and Suspension of the Operation of Treaties” in several Articles has embodied that principle.
Both customary international law and multinational treaty-based principles hold agreements entered where there is a lack of competence (Article 46), or through fraud, (Article 49) , collusion (corruption) (Article 50), or under duress or coercion (Articles 51 and 52) to be void or voidable.It is a fact that the TPLF/EPRDF and the EPLF had been in close cooperation as guerilla movements for over twenty years. They had coordinated their activities against the Ethiopian government during the period leading to their victory in 1991. There are eyewitnesses and documentary evidence proving prior agreements between the leadership of the two guerrilla movements against the interest of the Ethiopian people and the State of Ethiopia. Meles Zenawi and Abai Tsehai signed an agreement with the EPLF on behalf of the TPLF. No such agreement was ever disclosed to the people of Ethiopia (or Eritrea) when the two guerilla Leaders became heads of state or governments after their victory over the Ethiopian Government in 1991. With such an undisclosed prior agreement with a hidden agenda, the new Algiers Agreement was signed by the same guerrilla leaders, pretending it was an arms-length negotiated agreement.
These two leaders of the two guerrilla movements have signed several other hidden agreements they intended to implement as part of their general strategy to dismantle and destroy Ethiopia. The Algiers Agreement, which anticipated border demarcation as agreed to in their previous clandestine agreements between the two guerilla movements, is simply an implementation of that strategy now floating for all to see at the surface of their deep sea of deception. Thus, there is fraud in Meles Zenawi’s activities, pretending to be a leader of the Ethiopian people but, in fact, promoting the hidden agenda of an adversary foreign interest.
Where officials representing states had made some other arrangement unknown to their respective government organs (parliament, council of ministers et cetera) entrusted with the power to delegate state authorization to such agents, and where the entry of an agreement by such colluding agents is harmful to the interest of one of the signatories of such an agreement to benefit the other, there is collusion; consequently, a base for voiding and nullifying such an agreement by the prejudiced party. As cited above, the Vienna Convention on the Law of Treaties is apparent on fraud corruption (collusion) in Part V.
“No man can serve two masters; for either he will hate the one and love the other, or else he will hold to the one and despise the other.” Matt 6:24
3. Coercion and Interference by the United States and Others: The United States was displeased when Ethiopia and Eritrea went to battle. However, it was not for the same reasons that you and I would have considered preserving peace in the world. The flare of that conflict prematurely ignited the type of war. Had it happened much later, it would have thorn Ethiopia apart and created several tiny nations. The plan of the United States CIA coordinating the Meles-Issaias axis to conduct the destruction of Ethiopia by dismantling Ethiopia into several pieces was, to a great extent, disrupted. The breakout of such actual engagement saved Ethiopia from the CIA’s planned later destruction. Now we have a resurgence of Ethiopian nationalism that has effectively neutered the CIA from conducting its ill-conceived dismantling of Ethiopia across lines of cracks of Superpower-induced ethnic “self-determination.”
Through the United Nations Security Council and on its own national agenda, the Government of the United States is intimately involved with the Ethiopia-Eritrea border dispute. For all practical purposes, its name should have been added to the name of the Commission, such as “The United States-Ethiopia-Eritrea Boundary Commission.” The United States government has coerced, threatened, and openly expressed its illegal desire to landlock Ethiopia in pursuit of its ill-conceived foreign policy. It has favored “Eritrea” to acquire illegally Ethiopian territory. Some members of Congress (Lantos, Payne, et cetera) have introduced a bill [H.R. 2760 of 16 July 2003] condemning the Ethiopian government [SEC. 5(3)], and are involved in a process no different than cheap blackmailing of the current Ethiopian government with economic and military sanctions [SEC. 6 (a) and(b)] if the Ethiopian government does not go along with the highly prejudicial scheme the United States government had put in place in collaboration with “Eritrea” and Meles Zenawi starting with the drive for the independence of “Eritrea” to the signing of the Algiers Agreement and the setting up of the Commission. The draft bill in Congress has shown no restraint whatsoever, even expressing its support to the Commission [SEC. (1)]in an unusual foray prejudging a complex situation from a pulpit of self-righteous indulgence of self-importance.
B. Legal Basis for the Rejection of the Decision of the Arbitration Commission:
1. Precedent for the Rejection of the Decision of the Commission: Rejection of the determination of an international dispute by an arbitration tribunal or even by the more public forum of the International Court of Justice (ICJ) is not something unusual. Like the dynamic relationship of states, states could set aside determination by an international tribunal such as the ICJ or the Arbitration Commission against whose interest such decision has been entered where the “vital interest” of such states was at stake.
Consider the following examples:
a) In 1974, France informed the United Nations Secretariat that it would not recognize the jurisdiction of the ICJ in its verdict in favor of Australia and New Zealand’s concern about the nuclear test conducted by France in the Pacific Ocean. The ICJ has directed France to stop its nuclear testing. [Nuclear Tests (Australia v. France) 1973- 1974; Nuclear Tests (New Zealand v. France, 1973-1974].
b) (i) In 1984, the United States Government refused to accept the decision of the ICJ in the Nicaragua v. United States case [Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. United States of America), Merits, Judgments, I.C.J. Reports 1986]. The ICJ found that the United States had violated Nicaragua’s rights.
(ii) In 1999, the ICJ ordered the stay of execution of a German national on a finding that the United States had violated international law; nevertheless, the United States, rejecting the order, executed the German citizen and his brother. [The LaGrand Case (Germany v. United States of America) 5 March 1999] In that case the Court unanimously upheld that treaty provisions override local criminal process and ordered the following interim measures: “(a) The United States of America should take all measures at its disposal to ensure that Walter LaGrand is not executed pending the final decision in these proceedings, and should inform the Court of all the measures which it has taken in implementation of this Order; (b) The Government of the United States of America should transmit this Order to the Governor of the State of Arizona. “II. Decides that, until the Court has given its final decision, it shall remain seized of the matters which form the subject matter of this Order.”
Among several other news media, CNN reported, “[T]he world court held a 30-minute hearing at which Sri Lankan Judge Christopher Weeramantry, the United Nations court’s vice president, urged the United States to use “all the measures at its disposal” to prevent the execution. It also said the United States should pay unspecified damages for the death of LaGrand’s brother, Karl, who was executed last week for his part in the same crime. The world court, however, has no enforcement powers.” [cnn.com, March 4, 1999, Web posted at: 12:02 a.m. EST (0502 GMT)]
c) Let us fold back time to consider the decisions of the International Permanent Court of Arbitration soon after its creation in 1899. Some decisions entered by the newly created International Permanent Court of Arbitration between 1900 and 1932 were arbitrated mainly on limited border disputes, nationality issues, and interference or sovereignty conflicts.
Almost all decisions dealing with boundaries and nationality issues were blown off with the Second World War. New agreements, usually imposed by the victors on the losing sides, were put in place without regard to previous arbitration decisions in several peace agreements. Further political development in the Cold War period eroded such contracts. Moreover, starting in the late 1980s, the borders of new countries have once again been redrawn, popping out of the old global order.
All of the developments in international arbitration show us that nothing is written in granite. Instead, the time’s literature and the arbitration tribunal’s decisions are fluid. They are meant to solve problems within a framework of evolving world order and customary international law. No such thing approximates the rigidity and clarity of, say, criminal law. This sublime mix of leadership, differences in history, and the desire to bring about peace and security between states and peoples motivated and guided jurists and politicians alike.
d) Where there is a clear error of principle as well as a mistake of fact in an arbitral decision, no one can be held bound by such a decision. Thus, the Ethiopian government must reject the Commission’s decision for all the above reasons. Such an act of rejection is not unique, as shown above; in fact, one would fail in one’s duty if one accepts the decision of the Commission to protect the “vital interest” of Ethiopia–its survival as a viable nation. It is even more compelling to reject the decision of the Commission when we consider the consequences and magnitude of accepting the decision of the Commission. Both the United States and France found it necessary to reject decisions of questionable impact on the survival or sovereignty of France or the UnitedStates by far more public forum, the ICJ, than the case of Ethiopia rejecting a far-reaching decision of a low-level arbitration tribunal.
2. Conflict of Interest: Disqualification of Lauterpacht: All international adjudication/arbitration forums have specific standards of integrity that members of such forums/courts/tribunals/commissions must uphold. The essential documents of the ICJ as well as that of the International Permanent Court of Arbitration and the UNCITRAL rules all have provisions providing for “high moral” standards that members sitting to adjudicate or advise or arbitrate parties to a controversy and the world at large are expected and required to observe. The independence of any such body from the undue influence of third parties is a well-established principle that has evolved over centuries in the development of customary international law and principles. We also have to consider general principles of law practiced by all “civilized nations” of the world in connection with the integrity of an international court or forum.
Article 2 of the Statue of the ICJ holds that “[t]he Court shall be composed of a body of independent judges, elected… from among persons of high moral character.” [Emphasis added]
Article 23 of the 1899 basic document that created the Permanent Court of Arbitration [Convention for the Pacific Settlement of International Dispute] holds that “each Signatory Power shall select four persons…of known competency in questions of international law, of the highest moral reputation, and disposed to accept the duties of Arbitrators. [Emphasis added]
From the verse quoted here from the Bible, we should consider its moral teachings.
“For where your treasure is, there will your heart be also.” Matt. 6:21
We should understand that the role of arbitrators is distinct from that of ICJ judges in the context of how arbitrators are chosen or appointed in the first place. However, this does not mean we must throw out all professional, ethical standards for arbitrators. By the nature of their appointment or election, arbitrators have specific preferences in supporting the position of the party that appointed or elected them. However, this does not mean they are not bound by the “highest moral reputation” standard. It may be argued that their preference for the party that appointed them may not disqualify them from being arbitrators. However, when it comes to the president or chair elected by the arbitrators themselves under the arbitration agreed-upon procedure, I believe both standards of “independence” and “highest moral reputation” standards apply to arbitrators who the other arbitrators thus elect to be presidents of particular commissions or tribunals.
The Commission members, especially the President, Sir Elihu Lauterpacht, have displayed an unusually blatant disregard for the “high moral” standard expected of his position and impropriety in his activities, clearly showing his lack of independence from the influence ofthird-party governments. It is with sincere regret that one is forced to challenge Lauterpacht’s professional, ethical standard due to the gravity of the problem facing one’s nation. Lauterpacht is a seventy-five-year-old international jurist who has led a distinguished life until now.
Lauterpacht has displayed a degree of liberty in his words of communication with the Government of Ethiopia that borders an impertinence. He seems to have cast his role as an ICJ judge or a “Secretary General” of an international organization like the United Nations rather than a “President” of a privately established arbitration tribunal. Let us consider the situation holistically, considering other activities of undue interference by third parties that may directly affect the Ethiopia-Eritrea border dispute. Notwithstanding the hollow diatribe of the Representative of “Eritrea” at the recent General Assembly of the United Nations, looked at with such a global perspective, the Ethiopia-Eritrea Border Commission arbitration process is in a real mess. The Security Council and the Secretary-General are assuming roles that were never envisioned or authorized through practice—roles of a Judiciary (a supreme court) and that of a Chief –Justice.
Thus, it is evident that the United States is acting in an adversarial role in the case involving the border dispute between Ethiopia and Eritrea. It is no longer an impartial, neutral body. With such public background in full view, the United States has further stained the arbitration process with its uncouth act of retaining as its lawyer Lauterpacht in its case with Mexico, a case pending at the ICJ [Avena and Other Mexican Nationals (Mexico v. United States of America)]. This act of the United States is no different; for example, Eritrea hired Lauterpacht to work on some legal cases while Lauterpacht was still a member of the Commission. If that were the case, everybody with some legal background would have called out “conflict of interest” at the top of his or her voice. Thus, the fact of an interested party such as the United States retaining a sitting-Commissioner as its lawyer is only slightly a shade different than the actual party in the controversy—Ethiopia or “Eritrea”—retaining any of the sitting-Commissioners as a private lawyer. It does not in any way mitigate the unethical and conflict of interest situation by identifying when Lauterpacht was retained as counsel for the United States instead what remains is the negative shadow cast on the fitness of Lauterpacht as an arbitrator and the independence of the Commission as a whole. One must realize the Commission’s work is not yet concluded; thus the members of the Commission are still bound by the standards set by the Basic document of the Court of Arbitration and principles developed for such purposes by customary international law.
It is only proper for Ethiopia to demand Lauterpacht’s full disclosure of all his activities with third parties directly or remotely involved with the ongoing border dispute with Eritrea. If this is not a clear case of conflict of interest, loss of independence, and compromise of the principle of “high moral” standing expected and required of the Commission members, show me what is.
Not only is Lauterpacht personally involved in such a blatant conflict of interest, but also Riesman, another member of the Commission appointed by Eritrea, is involved in othercases that put his behavior in a compromised position. Lauterpacht seems to use the Permanent Court of Arbitration-based commissions and tribunals as his private law firm away from his home base, his Chambers at 20 Essex Street. His partner Arthur Watts at the Chambers at 20 Essex Street is supposedly picked by Ethiopia for the Commission. Here, you have an incestuous relationship where the same characters are showing up again and again as commission or tribunal members. The appearance of conflict of interest or conflict of interest is rampant in the arbitration process where the “high moral” and “independence” standards are compromised.
Ideally, international arbitration was to be conducted by choosing from the Permanent Court of Arbitration members already designated by their respective governments who are signatories of the 1899 or 1907 Treaties (Conventions). With the adoption of the UNCITRAL rules, the forum was expanded to include ad hoc arbitrators not designated by any member nations. This process seems to have opened the door for corruption and conflict of interest problems. One must not lose sight of the initial reasons why, in 1899, the arbitration forum was needed. It seems there was an interest by the kings, queens, heads of States et cetera who met at the Hague an idealized element of public duty to bring about peace and security to a Europe and a world at large racked with war and violence and ”to record in an international agreement the principles of equity and right on which are based the security of States and the welfare of peoples,” [Preamble, 1899 Convention]. It was envisioned that seasoned statesmen and international law jurists would help stabilize the world through their wisdom by arbitrating conflicting claims by states. It was never meant to be a career-promoting and money-making scheme for lawyers.
Looking at the record of the last three to four years, one cannot but notice that Lauterpacht and a few of his exclusive group of individuals seem to have made the process of “arbitration” a money-making mechanism for their insatiable appetite for money. Most anyone would be tempted by the prospect of earning an exorbitant amount of money at an hourly rate of 200 to 300 hundred dollars. When I examined the docket of the Permanent Court of Arbitration ad hoc tribunals and commissions, I was amazed to read how Lauterpacht and Riesman seem to have their hands in every pot. Are these individuals truly “disposed to accept the duties of Arbitrators,” or are they involved in some money-making scheme that compromised and defeated the purpose of having an arbitration in the first place?
Raising the issue of professional responsibility (conflict of interest, corruption, etc.) is an overly sensitive and complex matter for anyone. It should not be a point of contention without solid ground. I have first-hand experience of good intentions going sour and affecting the judicial system. The psychology of the individual involved is not that important in determining such issues. After all, the history of mankind’s failure is littered with good intentions. Neither accusing the messenger of personal misdeeds nor giving examples of the trespasses of others can mitigate the harm done due to practices by a couple of Commissioners that undermined the integrity of the arbitration process and the rule of law in general. It is with great concern that I have addressed the issues discussed in this article.
The Government of Ethiopia has every right to void all agreements, including the Algiers Agreement, and to reject the entire decision of the Commission. Ethiopia cannot be obliged to accept a decision by a corrupted Commission, as some members of the Commission have compromised their duty to exercise “independence” and “high moral” standards. It is not essential to show that every member of the Commission participates in such a conflict of interest. As long as one can show that at least one member engages in such a conflict of interest, the entire proceeding and all decisions that flow from such process are tainted and thus void. Ethiopia should demand the disqualification of the President of the Commission, Elihu Lauterpacht, for conflict of interest and corruption.
C. Third Party Funding as Corruption: The fact of setting a “Fund” out of which the tribunals and commissions’ expense and the compensation for the members of such tribunals and commissions is paid has introduced into the process of arbitration an element that goes contrary to the desired independence of such forums. The problem is compounded by the involvement of the United Nations Security Council in that a dose of political consideration rather than law and principles plays a significant role in the decision-making process of arbitration. Such a new structure has further polarized and distorted the independence of the tribunals or commissions.
The United Nations’ role, as played out by the Security Council in the arbitration process, was an affront to the Sovereignty of Ethiopia. We have some of the worst violators of international law, and yet the Council does nothing. In the case of Ethiopia, it seems that the United Nations is on the verge of drawing its equivalent economic “weapon of mass destruction” (sanction) against Ethiopia, as its predecessor League of Nations did in 1935 against a lone Ethiopia facing up with excellent courage Fascism and now ethnically based dismantling.
Conclusion in a nutshell
1. The proper perspective on the border controversy: I started this essay by speculating what Aklilu might have done when faced with Ethiopia’s current political and economic situation. Aklilu would not have accepted any limitation or cut back on Ethiopia’s historic sovereignty and territorial integrity rights. He would have argued and insisted with great patriotic zeal that the Ethiopian cause is not limited to retaining some patches of territory in Bademe or Irob. He would have pointed out that the issue deals with fundamental principles of Justice, Sovereignty, and Territorial Integrity of a respected and founding member of the United Nations. He would have illustrated with graphic historical documentation that the problem of dismantling Ethiopia would result in the highly massive violation of human rights and the dignity of millions of Ethiopians. He would have presented statistical data and in-depth studies that the right to develop one’s resources is also part of the fundamental rights of every human being. Above all, Aklilu would have moved the world with his eloquence and thoroughness in presenting the fabulous history of Ethiopia’s fight to secure and retain its historic rights of coastal territories and territorial waters of the Red Sea because it has to do with living in good relationship with neighboring nations and their peoples.
Anyone who focuses on some pieces of land in limited areas misses the point. No part of the commission’s decision is to be accepted. Above all, the Algiers Agreement is an insult to our intelligence, national sovereignty, and territorial integrity. It is, in fact, an affront to international law and principles to allow such an “agreement” to be considered a base for any future relationship Ethiopia might have with the rest of the World.
2) What to do about “Eritreans” who are escaping/migrating into Ethiopia: We have been witnessing, since the independence and border demarcation of “Eritrea” was thrown in our face, the century of regular practice of Ethiopians moving around from one region of the province of Eritrea to other parts of Ethiopia being played out by Ethiopians now identified as “Eritreans” moving into northern parts of Ethiopia. Mainly, those “Eritreans” coming into Ethiopia’s northern regions belong to the Ethiopian Eritrean” Orthodox Church and are faced with a real dilemma; they cannot go to Sudan or neighboring Islamic countries because of fear of persecution because of their religion and because of their “blackness” that seems to be a problem in the eyes of Arabs.
The Moslem “Eritreans” from the Western lowlands in “Eritrea” move freely in and out of the Sudan as they please. And some on the Eastern shore of the Red Sea travel freely to Yemen, Saudi Arabia, et cetera. Now, the issue is how we Ethiopians should respond when we are faced with the flow of such “Eritreans” who want to come to Ethiopia. Let’s receive them with open arms in the same spirit of the Biblical father who received his wayward prodigal son in the story as told by Christ. Please take a moment and think about the whole problem. Where else can they go if not to their mother country, Ethiopia? The real criminals in our self-inflicted wound are the leaders of the two “liberation” movements (TPLF/EPLF) that cause our mess.
I am very much aware of the fact that a lot of harm to Ethiopia’s economic and security interests was inflicted by infiltrators from the EPLF and other insurgency groups over the years before and after 1991. One must be careful in allowing the types of “Eritreans” who want to relocate to Ethiopia as Ethiopians. A lot of “Eritreans” are being hurt under the current government of “Eritrea.” The people of both communities need each other on an absolute human level. Should we prolong the pain and suffering of innocent people who are equally victimized by so-called brutal “liberation” movements? Let us all be long-distance runners and not undermine our great future as one people by dashing off in a frenzy in what would end up being a short-lived sprinting of hate and greed. When all is said and done, what indeed will remain is our humanity and our fragile existence. There is a tremendous Ethiopian saying that I would like to share with you all in concluding this rather long essay: “Endih liŤegb, berei’ien aredcoot.”
Tecola W. Hagos
Washington DC, October 30, 2003 [www.tecolahagos.com]