Dear Secretary General Kofi Annan,

Sir Elihu's letter (October 7, 2003) highlights the many problems of the April 13 2002 decision. Sir Elihu's misleading statements cannot be left unchallenged. Accordingly they are discussed in detail below.

Correct Treaty Interpretation

Sir Elihu refers in his letter to the "correct interpretation" of the treaty. By the Commission's own account detailed in the April 13 2002 decision (Decision), the correct interpretation of the treaty's reference to the Mai Teb River is as follows:

"The Commission therefore interprets the name "Maiteb" in the 1902 Treaty as being the present day Sittona." (page 82)

The Commission labeled the junction of the Sittona and the Tekeze as Point 4. Meles Zenawi, in his letter of September 19, 2003 said that a line drawn from Point 4 to the Mereb (Point 9) leaves Badme in Ethiopia.

This is an indisputable fact. Yet Sir Elihu's misleading statements in his letter of October 7, 2003 would lead an uninformed observer to the opposite conclusion.

The facts show that the Commission placed Badme in Eritrea as a result of what it labeled "subsequent state practice", not as a result of treaty interpretation.

Subsequent Practice

The Italians unilaterally replaced the Sittona boundary (Point 4) with the Mai Tomsa (Point 6) sometime after 1902. To explain how this unilateral action by Italy became binding on Ethiopia by 1935, Sir Elihu refers to the map evidence and states in his letter:

"The Commission was convinced that these showed the Parties' agreement upon an interpretation of the relevant Treaty"

Let us leave aside the map evidence for now and review evidence compiled by the Commission on pages 76 to 81 of the Decision that refer to activities west of the Eritrean claim line. These include:

- An Ethiopian note from Haile Selassie (then Regent Teferi Makonen) of Aug 13, 1927, where he reminds the Italian minister in Addis Abeba of a 1924/1925 agreement with Mussolini to demarcate the border.

- A report by Zoli, Governor of Eritrea, to the Italian Minister of Colonies (Jan 25, 1929) where he identifies along with a map, the respective border claims of Italy and Ethiopia and describes the Badme area as "territorio contestato."

- An Ethiopian message to the Italian government (Mar 6, 1929) informing Italy that Ethiopia had selected engineers and experts "who are delegated on our part to demarcate the boundary" and calling on the Italian government to do the same.

- A second report by Governor Zoli (April 25, 1929) accompanied with a map that shows an entirely new version of the boundary connecting to the Setit at Point 5 (northwest of the Mai Tomsa)

- A protest from the Ethiopian Foreign Minister (May 2, 1931) concerning Italian soldiers who had killed Ethiopian citizens in Mai Tani

- Armed clashes from 1931 to 1932 in the area of Mochiti and Gongoma. Ethiopia asked that Italy withdraw its troops from the disputed territory.

- A report from the new Italian Governor of Eritrea, Queirolo, (Jan 11, 1932) where he notes that Ethiopian chiefs proposed mutual withdrawal from the disputed territories pending delimitation by a joint Italo-Ethiopian boundary commission.

- An Ethiopian Foreign Ministry complaint, (Jan 12, 1932) concerning aggressive actions of Italian soldiers and proposing mutual withdrawal. The complaint reiterated Ethiopia's definition of the border as passing through the Maiteb-Setit junction (not the Mai Tomsa).

- Another Ethiopian Foreign Ministry complaint, (Jan 15, 1932) referring to unexpected clashes in the area of Mochitti and reasserting the need for the boundary to be marked on the ground: "With regard to this section of the border, what has already been done until today, until the land is marked, we cannot accept as final."

- A telegram from the Italian Foreign Ministry to the Ministry of Colonies, (23 Jan, 1932) where Italy indicates that it clearly understood the reservation by Ethiopia of its position.

- A protest from Italy in May 1935 concerning the killing of Italian soldier at Gogula, near the Sittona. [Note - By September of that year Italy had invaded Ethiopia]

Having regards to the above evidence, Sir Elihu's claim that Ethiopia and Italy agreed upon the boundary by 1935 defies credulity. The unbroken record compiled above - all referring to incidents west of the Eritrean claim line - reflects the consistent disagreement between Italy and Ethiopia, not their agreement. The Commission was not able to refer to a single written document that showed Ethiopia's intent to acquiesce to the Mai Tomsa point.

This above evidence, submitted by Ethiopia and compiled by the Commission is never analyzed and never mentioned again in the Decision. The Commission fails to explain why Zoli, the Governor of Eritrea, reported to the Italian Minister of Colonies that the boundary was "territorio contestato." and presented a detailed map showing the respective claims of Ethiopia and Italy. This action nullifies the evidentiary value of any maps produced prior to this date (1929) since the Eritrean governor himself demonstrates that he was fully informed and convinced that Ethiopia disagreed with the Italian claims.

Maps

On page 25 the Commission states:

The Commission is aware of the caution with which international tribunals view maps

Yet nowhere in the Commission's ruling for Badme did it exercise the requisite caution in assigning legal weight to maps produced between 1902 and 1935. The Commission simply counted the number of maps and said that more showed the Italian version than the Ethiopian version.

The Commission will be hard-pressed to cite a single case in international law where there was an unbroken and consistent assertion of sovereign rights from the relevant authorities and yet this evidence of intent was neglected in favor of a numerical 'balance of maps' approach.

Italy was more industrialized than Ethiopia and had the technical capability to produce more maps than Ethiopia. In fact, Ethiopia did not establish its own mapping agency until 1964. All Ethiopian maps, unless expressly altered for use in negotiation with the Italians, were mere copies of Italian maps. Thus, the Commission's reliance on a numerical balance of maps approach is inappropriate.

None of the maps the Commission refers to as showing Ethiopia's acquiescence were used for the specific purpose of delimiting the Badme boundary. In respect to maps specifically drawn to illustrate the border issues, the Commission was presented with an Ethiopian map from 1923 which presents Ethiopia's official interpretation, as well as the official maps by the Governor of Eritrea (Zoli) in 1929. In addition, the Commission was presented with three Italian maps produced between 1902 and 1904 that show the border according to the Ethiopian interpretation.

The failure of the Commission to make rational sense of the evidence before it departs from accepted international practice and violates its mandate. The resulting conclusions of the Commission in reference to the location of Badme border are thus illegal.

Who Administered Badme?

Sir Elihu implies that the question of who administered Badme is unknown and of no concern to the Commission. In fact, the administration of Badme is not unknown. Eritrea submitted no evidence of administration in Badme. Ethiopia submitted 40 separate pieces of evidence for administration of Badme from the time of Haile Selassie up to 1998. Thirty-six of these involved governmental documents (intra-governmental correspondence, police reports, licenses etc.) while the remainder were documents of the Ethiopian Orthodox Church, whose administrative subdivisions corresponded to governmental subdivisions.

In the April 13 2002 decision, the Commission concluded that the Badme boundary had never been delimited on the ground by Italian and Ethiopian delegates as required by the treaty

"The details of the line between the Sittona and the Mareb, however were left for later delimitation. No formal delimitation was ever carried out." (page 69)

In view of this, it is of paramount importance for the Commission to establish the administrative history of Badme in order to effect delimitation of the border.

In the case of Bure, the Commission took note of an Eritrean customs checkpoint established on the outskirts of the town with Ethiopian permission, as evidence of Eritrean sovereignty. The Commission varied the Treaty line 10 km westward in Eritrea's favor solely on the basis of this one piece of evidence from 1994.

In the case of Badme, the Commission is thus obligated to apply the same standard. Badme, lies along the main road crossing the border in that area. A similar checkpoint existed northwest of Badme along the road leading through Badme into Eritrea. Use of the same rationale as at Bure would place Badme unequivocally within Ethiopia.

Instead, Sir Elihu claims in his letter that the question of Badme's administration was of no concern:

"The Parties did not give the Commission the task of deciding which State administered Badme in recent years."

This provocative statement shows that the Commission has misconceived its mandate and failed to perform its task. Weighing the evidence of state practice was precisely what was expected of the Commission. The Commission fails to explain why it believes its mandate includes identification of checkpoints at Bure (based on a single document from 1994) but not at Badme (40 documents were presented).

A refusal to apply international law in a consistent manner disregards its terms of reference; hence the Commission's work cannot be binding on Ethiopia.

A Final Decision?

That substantive errors found in an arbitration decision can be corrected during later phases irrespective of a predefined agreement to treat the border as 'final and binding' has been established in international law. Further, as explained below, Sir Elihu's characterization of the April 13, 2002 decision as final is contradicted by the Commission's subsequent observations published on March 24, 2003.

Point 20, immediately east of Zalambessa is described as the headwaters of the Muna/Berbere Gado. In fact no such river exists here, rendering the Commission's demarcation instructions as meaningless. On March 24, 2003 the Commission stated:

"The Commission, based on map evidence submitted by both Parties, placed Point 20 at the source of a headwater stream of the Muna/Berbere Gado. From the aerial photo survey that the Commission was only recently permitted to conduct, it is apparent that that map evidence was inaccurate"

Although the Commission believes that its task will be limited to mere recalculation of coordinates for Point 20 once it identifies the true location of the (non-existent) Muna, in fact, it will be changing the location of Point 20 in a manner that revises the Decision. Clearly, the Decision cannot be regarded as final until all substantive errors are corrected.

Substantive Errors

In the Irob area, the coordinates listed for the boundary in the Dispositif directly contradict what the Commission itself established on pages 42-43 of the Decision. In describing the boundary between Point 20 (just east of Zalambessa) and Point 21 the Commission stated:

'It then proceeds in a SSE-trending line following the divide between to the north, the headwaters of the Enda Dashim and, to the south, the headwaters of the streams following southward and then eastward to join the Muna/Berbero Gado at the point where it is also joined by the Enda Dashim (Point 21)"

This conclusion was not modified in the subsequent discussion of state practice. Yet in the Dispositif (the summary of the Decision) the Commission states on page 99:

" (vii) From Point 20 the boundary passes down the Muna until it meets Enda Dashim at Point 21."

This is clearly a mistake. There is a typing error; someone has obviously inserted the wrong text, as this sentence does not agree with the reasoning of the Commission and its conclusion on pages 42-43. Furthermore, as the Commission is well aware, no such river as described above exists in this area.

This typing mistake affects thousands of people living in the area between Zalambessa and Alitena, and places part of the Zalambessa-Alitena road within Eritrea.

The Commission has admitted the mistake in its observations of March 24, 2003, but is now refusing to correct the error. The Commission was supposed to delimit the boundary based on treaties and international law. The delimitation in the Dispositif is based on a typing mistake. Ethiopia did not enter into arbitration with the understanding that the Commission would base its delimitation on typing mistakes. The Commission's use of typing mistakes to establish the boundary violates its terms of reference, and renders the April 13 2002 decision invalid and illegal.

Concluding Notes; A Binding Decision?

It is not our intent to impugn motives to the Commission, however it is not difficult to observe in the Commission's work, an intent to shape the outcome so as to provide something to both sides. Of course, this strategy victimized Ethiopia since it was its people and territory under its administration that was largely at stake. More importantly, this strategy violated the Commission's terms of reference.

The Commission was required to delimit the boundary on the basis of treaties and international law. Instead it has produced a delimitation based on typing errors, and a delimitation hampered by what it itself refers to as the "lack of a generally agreed map depicting place names with any degree of reliability."

We are aware that some of the Commission members were busy with additional cases involving among others, the Philippines, Mexico, and the United States. However, this is not sufficient reason for the Commission to plead that the evidence available to it was inaccurate. The Algiers Agreement empowered the Commission with the discretion to extend its timetable as long as required to collect the requisite facts. Yet the Commission chose to issue a decision without ascertaining the realities on the ground to a satisfactory degree.

This Commission came about as a result of a deadly conflict that claimed thousands of lives. This is not a case involving commercial property. The Commission's work could thus be expected to be held to an exacting standard.

The manifold errors in the April 13 2002 decision demonstrate that the Commission has not met the expected standard. Ethiopia has repeatedly requested the Commission to address all substantive errors that have been brought to its attention. It has failed to do so. This leaves Ethiopia no choice but to withdraw its recognition of the Commission.

Please accept our highest regards.

- Ethiopians United for Boundary Justice