¹ See, eg, the Eritrea—Yemen Arbitration Awards of 1998 (Territorial Sovereignty and Scope of the Dispute) and 1999 (Maritime Delimitation) (2005) Permanent Court of Arbitration Award SeriesGoogle Scholar; Frontier Dispute (Benin/Niger) [2005] ICJ Rep 90Google Scholar; Sovereignty over Pulau Sipadan (Indonesia/Malaysia) [2002] ICJ Rep 625Google Scholar; Land and Maritime Boundary between Cameroon and Nigeria (Cameroon v Nigeria) [2002] ICJ Rep 303Google Scholar; Maritime Delimitation and Territorial Questions between Qatar and Bahrain (Qatar v Bahrain) [2001] ICJ Rep 40Google Scholar; Territorial Dispute (Libyan Arab Jamahiriya/Chad) [1994] ICJ Rep 6Google Scholar; Land, Island and Maritime Frontier Dispute (El Salvador/Honduras) [1992] ICJ Rep 351Google Scholar; Frontier Dispute (Burkina Faso/ Mali) [1986] ICJ Rep 554.Google Scholar

² Eritrea—Ethiopia Boundary Commission Award, para 2.7.

³ ibid paras 2.8–2.13. See also the reports of the International Crisis Group dated 24 September 2003 and 22 December 2005; and Simma, B and Khan, D, ‘Peaceful Settlement of Boundary Disputes under the Auspices of the Organization of African Unity and the United Nations: The Case of the Frontier Dispute Between Eritrea and Ethiopia’ in Ando, N et al. (eds), Liber Amicorum Judge Shigeru Oda (Kluwer, The Hague, 2002) 1179.Google Scholar

⁴ To consist of five members, two of whom were to be appointed by each party by way of written notice to the UN Secretary-General within 45 days of the date of the Agreement and none of whom were to be nationals or permanent residents of the party making the appointment. The president of the Commission was to be selected by the party-appointed commissioners, see Art 4 (2), (3), (4), and (5). Within the time-limits provided for in the Agreement, Eritrea appointed as Commissioners Mr Jan Paulsson and Judge Stephen Schwebel and Ethiopia appointed HE Prince Bola Adesumbo Ajibola and Sir Arthur Watts. Professor Sir Elihu Lauterpacht was selected as President of the Commission. The appointment of Mr Jan Paulsson was challenged by Ethiopia. An Interim Rule of Procedure was adopted on 5 April 2001 allowing for challenges to a member of the Commission to be decided by the remaining Commissioners and if this was not possible, by the UN Secretary-General. In the event the matter was remitted to the UN Secretary-General but before this was decided, Mr Paulsson resigned, it being understood that the resignation did not imply an acceptance of the validity of the alleged grounds of challenge. In accordance with Art 4 (6) of the December Agreement, Eritrea appointed Professor W Michael Reisman to fill the vacancy. Eritrea—Ethiopia Boundary Commission Award, paras 1.3–1.14.

⁵ The UN Cartographer (Dr Hiroshi Murakami) was appointed to serve as Secretary to the Commission.

⁶ See below, p 792.

⁷ Art 4(12).

⁸ Art 4(15).

⁹ Art 4(13) and (16).

¹⁰ According to which the parties would simultaneously file written Memorials on 30 June 2001 and Counter-Memorials on 22 September 2001. The Memorials were filed within the time limits and the Counter-Memorials on 30 September 2001. The Commission decided, after consultation with the parties, to authorise an exchange of Replies and these were filed on 29 Oct 2001. Oral hearings were held at the Peace Palace in The Hague from 10 to 21 December 2001. Eritrea—Ethiopia Boundary Commission Award, paras 1.10–1.11.

¹¹ KasikililSedudu Island (Botswana/Namibia) [1999] ICJ Rep 1045, 1058.Google Scholar

¹² ibid 1059.

¹³ ibid 1102–3.

¹⁴ Eritrea—Ethiopia Boundary Commission Award, para 3.14.

¹⁵ ibid para 3.15.

¹⁶ See, eg, Botswana/Namibia (n 11) 1059–60Google Scholar and Benin/Niger (n 1) para 23.

¹⁷ See, eg, LFE Goldie, ‘The Critical Date’ (1963) 12 ICLQ 1251Google Scholar; Fitzmaurice, G, ‘The Law and Procedure of the International Court of Justice (1951–4): Points of Substance, Part II’ (1995–1956) 32 British Ybk of Intl L 20.Google Scholar See also Shaw, MN, ‘The Heritage of States: The Principle of Uti Possidetis Juris Today’ (1996) 67 British Ybk of Intl L 75, 130.Google Scholar

¹⁸ As, for example, in the Benin/Niger case (n 1) paras 20 and 46.

¹⁹ The Eritrea–Ethiopia Boundary Commission Award, para 3.36. The date taken was thus the date of the independence of Eritrea, 27 April 1993.

²⁰ See, eg, Beagle Channel 21 Rep Intl Arbitral Awards 55, 82–3.Google Scholar

²¹ See, eg, the El Salvador/Honduras (n 1) 401.

²² ibid 56 et seq.

²³ Eritrea–Ethiopia Boundary Commission Award, paras 5.90–5.91.

²⁴ ibid para 3.36. Note that this approach was reaffirmed a few months later by the International Court in the Indonesia/Malaysia case (n 1) para 135. See also Argentina/Chile (1969) 38 International Law Reports 10, 79–80.Google Scholar

²⁵ ibid para 5.90 and see also below, pp 767 and 780.

²⁶ ibid.

²⁷ p 780.

²⁸ See Eritrea/Yemen (n 1) para 153.

²⁹ See Libya/Chad (n 1) 6, 37.

³⁰ ibid and Case concerning the Temple of Preah Vihear (Cambodia v Thailand) [1962] ICJ Rep 6, 34.Google Scholar

³¹ Eritrea—Ethiopia Boundary Commission Award, para 3.3.

³² ibid para 3.4.

³³ See, eg, the Libya/Chad case (n 1) 21–22Google Scholar; Botswana/Namibia case (n 11) 1059; and Indonesia/Malaysia (n 1) para 37.

³⁴ Eritrea—Ethiopia Boundary Commission Award, para 3.4, quoting the 1966 Argentina/Chile Frontier case (n 24) 10, 89.Google Scholar

³⁵ ibid para 5.16.

³⁶ ibid para 3.5.

³⁷ ibid para 5.17.

³⁸ Cameroon v Nigeria (n 1) para 59.

³⁹ Eritrea—Ethiopia Boundary Commission Award, para 4.14.

⁴⁰ ibid para 4.33.

⁴¹ ibid para 4.36. Judge Higgins put this approach as follows: ‘our task is to decide what general idea the parties had in mind, and then to make reality of that general idea through the use of contemporary knowledge’, Botswana/Namibia (n 11) 1114.Google Scholar

⁴² See, eg, Eritrea/Ethiopia Claims Commission, Partial Award, Ius Ad Bellum, Ethiopia's Claims 1–8, 19 12 2005Google Scholar; and Gray, C, ‘The Eritrea/Ethiopia Claims Commission Oversteps Its Boundaries: A Partial Award?’ (2006) 17 Eur J of Intl L 699.CrossRefGoogle Scholar

⁴³ The Commission noted that Eritrea made differing submissions as to the end point of this part of the line, before deciding in its final submissions upon locations termed Points 7A and 7B, Eritrea-Ethiopia Boundary Commission Award, para 5.15.

⁴⁴ See accompanying map 1.

⁴⁵ Eritrea–Ethiopia Boundary Commission Award, para 5.1–5.15.

⁴⁶ ibid, paras 5.20 and 5.24, unlike other maps, ibid.

⁴⁷ ibid para 3.21. See further below, p 777 as to the role of maps generally.

⁴⁸ ibid para 5.26.

⁴⁹ ibid para 5.43.

⁵⁰ ibid para 5.27.

⁵¹ ibid para 5.34.

⁵² ibid paras 5.37–5.41.

⁵³ See, for example, the letter of Martini, the Governor of Eritrea, of 3 Aug 1902, para 5.46; the Prinetti map of 10 Dec 1902, para 5.48; and the Pollara report of 17 May 1904, para 5.52. See generally paras 5.44–5.81.

⁵⁴ ibid para 5.56.

⁵⁵ ibid para 5.83.

⁵⁶ ibid para 5.85.

⁵⁷ ibid para 5.88.

⁵⁸ ibid para 5.89–5.90. See below p 780 as to post-crystallization practice.

⁵⁹ ibid paras 4.2–4.4. See accompanying map 2.

⁶⁰ ibid para 4.8.

⁶¹ See below, p 777.

⁶² Burkina Faso/Mali (n 1) 554, 582.Google Scholar

⁶³ Eritrea—Ethiopia Boundary Commission Award, para 3.18. Footnote reference to the Burkina Faso/Mali case omitted.

⁶⁴ ibid para 4.8.

⁶⁵ ibid paras 4.16–4.21.

⁶⁶ This river was known by different names at different points until it reached, or became known at some point as, the Endeli and Ragali rivers. The Endeli, however, commenced from further north, but was not shown on the treaty map until its lower reaches, which is called the Muna on the map. This then flows into the Ragali and thence to the Salt Lake.

⁶⁷ ibid paras 4.27–4.29.

⁶⁸ ibid para 4.31.

⁶⁹ ibid para 4.35.

⁷⁰ ibid para 4.33.

⁷¹ ibid para 4.34. See also ibid para 4.44.

⁷² ibid para 4.36. As an example of this approach, the Commission, in dealing with the overland link between the Belesa and the Muna, held with respect to the Ethiopian claim as to the river boundary that it was ‘unable to read the Treaty as establishing a boundary so at variance with the Treaty map as to involve a longer and less direct overland sector than that which the map shows’, ibid para 4.41.

⁷³ Eritrea argued that the eastern terminal point was at Massolae, ibid para 4.45.

⁷⁴ ibid para 4.48 and Appendix A, paras A1 and A2.

⁷⁵ ibid para 4.52.

⁷⁶ ibid. The Commission noted that while this was unexplained on the treaty map, on the underlying de Chaurand map, the legend stated that a dotted blue line signified an uncertain river course.

⁷⁷ But see later as to post-decision practice, p 789.

⁷⁸ Burkina Faso/Mali (n 1) 554, 633.Google Scholar The question of subsequent practice is dealt with below, p 776.

⁷⁹ Eritrea—Ethiopia Boundary Commission Award, para 6.2. See accompanying map 3.

⁸⁰ Art II. This in fact never happened.

⁸¹ Art III.

⁸² Eritrea—Ethiopia Boundary Commission Award, para 6.5.

⁸³ ibid para 6.14.

⁸⁴ ibid para 6.17. See also para 6.24.

⁸⁵ See above, p 770.

⁸⁶ ibid para 6.16.

⁸⁷ ibid para 6.19. Eritrea had argued at one point that ‘coast’ included islands, ibid.

⁸⁸ Eritrea proposed the application of the arcs of circles method in order to produce a simplified representation of the coast which would then be moved inland for the prescribed 60 kilometres. Ethiopia suggest the creation of a construct of the coast at the coastline which would then be moved inland 60 kilometres and then readjusted to take account of certain problems inherent in the method itself and then further readjusted in order to adapt it to the nature and variation of the ground, ibid para 6.20.

⁸⁹ ibid.

⁹⁰ ibid para 6.21.

⁹¹ ibid para 6.22.

⁹² See below, p 782.

⁹³ ibid para 6.34.

⁹⁴ Argentina/Chile (n 24) 10, 89 (the Palena case).Google Scholar See also Art 31 of the Vienna Convention on the Law of Treaties 1969.

⁹⁵ Eritrea–Ethiopia Boundary Commission Award, para 6.24.

⁹⁶ ibid para 4.56.

⁹⁷ ibid para 4.58.

⁹⁸ See above, p 768.

⁹⁹ Eritrea–Ethiopia Boundary Commission Award, para 4.9.

¹⁰⁰ ibid paras 4.17–4.22.

¹⁰¹ ibid paras 4.34 and 4.44.

¹⁰² ibid para 4.52. The Commission also referred to the de Chaurand map in the context of its consideration of the 1902 treaty concerning the Western Sector. The Commission attributed great importance to the Mai Daro map, see above, p 764 and the following subsection. It was also stated that: ‘The significance and evidentiary weight of the Mai Daro map is confirmed by its similarity with the de Chaurand map of 1894’, ibid para 5.26.

¹⁰³ ibid paras 5.19–5.24. See also above, p 764.

¹⁰⁴ ibid paras 5.38–5.40.

¹⁰⁵ See Art 31 (3) of the Vienna Convention on the Law of Treaties 1969 and the Argentina/Chile case (n 24) 10, 89.Google Scholar

¹⁰⁶ See, eg, the El Salvador/Honduras (Nicaragua Intervening) (n 1) 351, 401, 558 et seq.Google Scholar

¹⁰⁷ As to which, see Botswana/Namibia (n 11) 1076.Google Scholar

¹⁰⁸ Eritrea–Ethiopia Boundary Commission Award, paras 3.6 and 3.8, citing the Case Concerning the Payment of Various Serbian Loans Issued in France PCIJ Rep Series A, Nos 20/21, pp 5, 38Google Scholar; and the Namibia case [1971] ICJ Rep 22.Google Scholar

¹⁰⁹ See, eg, Kohen, M, ‘La Relation Titres/Effectivites dans le Contentieux Territorial à la Lumière de la Jurisprudence Récente’ (2004) 108 Revue Générale de Droit International Public 567.Google Scholar See also ibid, ‘The Decision on the Delimitation of the Eritrea/Ethiopia Boundary of 13 April 2002’ in Kohen, (ed), Liber Amicorum Lucius Caflisch (Martinus Nijhoff, Leiden, 2007) 767.Google Scholar

¹¹⁰ The Commission noted that: ‘in each case the ingredients are the same: an act, course of conduct or omission by or under the authority of one party indicative of its view of the content of the applicable legal rule–whether or treaty or customary origin; the knowledge, actual or reasonably to be inferred of the other party, of such conduct or omission; and a failure by the latter party within a reasonable time to reject, or dissociate itself from, the position taken by the first. Likewise, these concepts apply to the attitude of a party to its own conduct: it cannot subsequently act in a manner inconsistent with the legal position reflected in such conduct’, ibid para 3.9. This passage ends with a footnote reference to the Nuclear Tests cases [1974] ICJ Reps 253 and 267–8.Google Scholar

¹¹¹ Taba (1989) 80 International Law Reports 226.Google Scholar

¹¹² Eritrea–Ethiopia Boundary Commission Award, para 3.10. cf Kohen (n 109) 566. Linking the issue to the question of the applicable law, the Commission considered that: ‘it is required also to apply those rules of international law applicable generally to the determination of disputed borders including, in particular, the rules relating to the effect of conduct of the parties’, ibid para 3.15.

¹¹³ ibid para 3.16.

¹¹⁴ ibid para 3.18.

¹¹⁵ ibid para 4.8.

¹¹⁶ ibid para 3.20 and see above, p 768.

¹¹⁷ ibid para 3.21. See also Burkina Faso/Mali (n 1) 554, 582Google Scholar and Eritrea/Yemen (n 1) 1, 94 et seq.Google Scholar

¹¹⁸ Eritrea–Ethiopia Boundary Commission Award, para 3.21.

¹¹⁹ See above, p 764.

¹²⁰ ibid.

¹²¹ ibid para 3.22.

¹²² ibid paras 4.67, 4.82–4.83, 4.90 and 6.33.

¹²³ As in the case of the Mai Daro map, ibid para 5.20 et seq.

¹²⁴ ibid para 3.24.

¹²⁵ ibid para 5.88. See also Appendix A, para A33 et seq and above, p 767.

¹²⁶ ibid para 5.89.

¹²⁷ ibid para 3.25. The Commission also clarified the meaning of the various disclaimer terms that appear on maps that show that the map itself is not taken by the party preparing it (whether a State or the United Nations, for example) as authoritative. It was held that such disclaimers do not automatically deprive a map of all evidential value since the map ‘still stands as an indication that, at the time and place the map was made, a cartographer took a particular view of the features appearing on the map’. The disclaimer simply means that legal recognition has not been accorded by the body making the map to the titles or boundaries shown. Nor can a disclaimer relieve a State adversely affected of the need to protest, depending upon the character of the map and the significance of the feature shown. The map would stand as a statement of geographical fact ‘especially where the state adversely affected has itself produced and disseminated it, even against its own interest’. Disclaimers may affect the weight to be attributed to the map, but do not exclude its admissibility, ibid para 3.28.

¹²⁸ ibid para 3.16. Private activity was not relevant, see the Observations of the Boundary Commission dated 21 Mar 2003, para 17, see below, p 788. See also Botswana/Namibia (n 11) 1045, 1105Google Scholar and Indonesia/Malaysia (n 1) para 140.

¹²⁹ The Commission declared that: ‘the actions of a state pursued à titre de souverain can play a role, either as assertive of that state's position or, expressly or impliedly, contradictory of the conduct of the opposing state. Such actions may comprise legislative, administrative or judicial assertions of authority over the disputed area. There is no set standard of duration and intensity of such activity. Its effect depends on the nature of the terrain and the extent of its population, the period during which it has been carried on and the extent of any contradictory conduct (including protests) of the opposing state. It is also important to bear in mind that conduct does not by itself produce an absolute and indefeasible title, but only a title relative to that of the competing state. The conduct of one party must be measured against that of the other. Eventually, but not necessarily so, the legal result may be to vary a boundary established by a treaty’, ibid para 3.29.

¹³⁰ ibid paras 4.65, 4.74, 4.80, 4.88, 5.92–5.95, and 6.25–6.32.

¹³¹ ibid paras 5.44–5.90.

¹³² ibid para 5.90.

¹³³ ibid para 5.91.

¹³⁴ ibid para 5.92.

¹³⁵ ibid paras 5.93–5.95.

¹³⁶ ibid para 4.71. It is to be noted that this region is not specifically marked on the maps accompanying the award. See below p 782 as to the Ethiopian admission concerning Tserona and Fort Cardona.

¹³⁷ The Commission felt that there were probably two customs posts, one belonging to each party located close to each other, ibid para 4.75.

¹³⁸ ibid paras 4.75 and 4.78. Emphasis in original. See also below, p 785.

¹³⁹ ibid paras 4.84–4.85.

¹⁴⁰ ibid para 6.25.

¹⁴¹ ibid paras 6.25–6.29.

¹⁴² ibid para 6.30. See also above, p 781 with regard to Zalambessa.

¹⁴³ ibid para 6.31.

¹⁴⁴ ibid para 3.16. See, eg, paras 4.66, 4.75 and 4.81.

¹⁴⁵ ibid para 3.30.

¹⁴⁶ ibid paras 4.69–4.71.

¹⁴⁷ ibid paras 5.46–5.81 and see also above, p 767.

¹⁴⁸ ibid para 4.75 and above, p 781.

¹⁴⁹ ibid para 6.30 and above, p 782. Not specifically characterized by the Commission, but accepted as an example of the modification of an earlier treaty boundary point by subsequent practice, was the location of the western tripoint between Eritrea, Ethiopia and Sudan. Stated in Art I (ii) of the 1902 treaty to lie at ‘the junction of the Khor Um Hagar with the Setit’, the Commission held that this was modified to ‘the bend of the Setit immediately opposite the mouth of the Khor Rhoyan’ by the operation of the Sudan–Eritrea agreements of 22 November 1901,18 February 1903 (the relevant part being referred to as the Talbot/Martinelli demarcation), and 1 Feb 1916 and the Ethiopian acceptance of the Talbot/Martinelli demarcation by an Exchange of Notes of 18 July 1972. As this was not challenged by the parties and as no monument marking the tripoint was found, the Commission adopted its description in the delimitation decision as the first boundary point on the demarcation line, see Commission's Comments on its Statement of 27 Nov 2006, para 1, see below, p **.

¹⁵⁰ Burkina Faso/Mali (n 1) 554, 586–7.Google Scholar See also the El Salvador/Honduras (Nicaragua Intervening) case (n 1) 398Google Scholar and Cameroon v Nigeria (n 1) paras 68–70.

¹⁵¹ Cameroon v Nigeria (n 1) para 144.

¹⁵² ibid para 68.

¹⁵³ El Salvador/Honduras (n 1) 351, 408–9.Google Scholar

¹⁵⁴ See, eg, the Argentine/Chile award of 1966 (n 24). See also Brownlie, I, African Boundaries (Hurst, London, 1979) 4Google Scholar; Shaw, M, Title to Territory in Africa (OUP, Oxford, 1986) 260Google Scholar; and Jones, SB, Boundary-Making (Columbia University Press, New York, 1945) 190–203.Google Scholar

¹⁵⁵ Art 4 (2).

¹⁵⁶ Art 4 (13).

¹⁵⁷ Art 4 (15).

¹⁵⁸ See Eritrea–Ethiopia Boundary Commission Award, para 3.37 and Art 4(13) of the December Agreement.

¹⁵⁹ Eritrea–Ethiopia Boundary Commission Award, para 8.1 B (iv).

¹⁶⁰ ibid para 8.1 B (vi). In its Comments attached to its Statement of 27 November 2006 establishing the demarcation line, paras 9–13, the Commission noted that in demarcating the line around Tserona and Zalambessa, it had taken into account the views of the parties, the nature of the environs and the extent of manifest impracticability in parts of the area, see further as to the Statement, below, p 791.

¹⁶¹ The Commission produced a table of coordinates in its decision, but noted that such coordinates had been computed to the nearest one tenth of a minute, corresponding to approximately 0.18 kilometres on the ground. The reason for this was because of the ‘limited availability at the present stage of information on the maps available to the Commission’. Accordingly, all coordinates would be ‘recalculated and made more precise during the demarcation as the Commission acquires the additional necessary information’, Eritrea–Ethiopia Boundary Commission Award, para 8.3. See para 11 of the Commission's Observations of 21 March 2003, noting that such recalculation was to be simply for ensuring the accuracy of the locations listed in the decision and was to be a technical exercise not involving any substantial alteration in the boundary, S/2003/257/Add. 1). See below, p 788.

¹⁶² ibid para 6.14.

¹⁶³ ibid para 6.34.

¹⁶⁴ ibid para 6.16. The Commission also held that the determination of a permanent line in boundary rivers would be deferred to the demarcation phase in the light of the wishes of both the parties. However, the Commission did note that: ‘The boundary in rivers should be determined by reference to the location of the main channel; and this should be identified during the dry season’ in view of the parties' agreement, ibid paras 7.2–7.3. This was confirmed in the Comments to the Commission's Statement of 27 November 2006, ibid paras 26–7. The Commission also declared in a manner reflecting the approach of the Tribunal in the Eritrea—Yemen (Territorial Sovereignty) award (n 1) para 526, that: ‘Regard should be paid to the customary right of the local people to have access to the river’, ibid paras 7.2–7.3.

¹⁶⁵ The first was dated 29 May 2001, S/2001/608 Annex I and the 22nd covers the period up to 20 December 2006, S/2007/33, Annex II.

¹⁶⁶ Commission Statement dated 27 November 2006, reproduced as an Enclosure to the Secretary-General's Special Report on Ethiopia and Eritrea to the Security Council dated 15 December 2006, S/2006/992, p 9ff.

¹⁶⁷ S/2002/423. See also the fifth report of the Commission, S/2002/744 Annex, para 2.

¹⁶⁸ ibid para 4.

¹⁶⁹ ibid para 12.

¹⁷⁰ In particular, the Commission noted that: ‘The concept of interpretation does not open up the possibility of appeal against a decision or the reopening of matters clearly settled by a decision’, see Decision Regarding the ‘Request for Interpretation, Correction and Consultation’ Submitted by the Federal Democratic Republic of Ethiopia on 13 May 2002, 24 June 2002, para 16. The Commission emphasized that re-argument of the case was not permitted and this was consistent with international judicial practice as to the limits of interpretation, citing the Chorzow Factory case, PCIJ, Series A, No 13, p 21; and the Arbitration on the Delimitation of the Continental Shelf (France—UK), Interpretive Decision of 14 March 1978 54 International Law Reports, 161.

¹⁷¹ Decision of 24 June 2002, ibid paras 17–18.

¹⁷² Para 14 A.

¹⁷³ See Sixteenth Report of the Commission, S/2005/142 Annex I, Enclosures 1 and 2.

¹⁷⁴ ibid. Enclosure 2, II, 1 and 2.

¹⁷⁵ Eritrean territory under the Delimitation Decision.

¹⁷⁶ Sixth Report of the Commission, S/2002/977 Annex I, paras 7 and 10. Eritrea's request for interim measures was refused, ibid.

¹⁷⁷ Eritrea–Ethiopia Boundary Commission, Determinations, 7 Nov 2002, p 2. See also S/2002/1245 and the Seventh Report of the Commission, S/2002/1393 Annex I. On 14 August that year, the Security Council adopted resolution 1430 calling on the parties to refrain from unilateral troop or population movements, including the establishment of any new settlement in areas near the border, until demarcation and orderly transfer of territorial control had been accomplished in accordance with Art 4 (16) of the December Agreement.

¹⁷⁸ The Commission concluded that ‘In the absence of agreement, however, the Commission's ability to ameliorate—on its own initiative—any problems that might arise is limited to minor clarifications justified principally by the enlargement of the scale of the maps with which it is working’, S/2003/257 Annex I, para 4.

¹⁷⁹ This was done explicitly with the aim of ‘avoiding certain misunderstandings regarding the content and effect of the Commission's Delimitation Decision … and regarding its tasks during the demarcation process’ and in the light of ‘the unusual features of the present situation, in which the Boundary Commission is required to continue its work by demarcating the boundary but without provision for formal pleadings by the Parties or full oral hearings’, para 1.

¹⁸⁰ Para 7. The Commission stated that: ‘a demarcator must demarcate the boundary as it has been laid down in the delimitation instrument, but with a limited margin of appreciation enabling it to take account of any flexibility in the terms of the delimitation itself or of the scale and accuracy of maps used in the delimitation process, and to avoid establishing a boundary which is manifestly impracticable’, para 8. The Commission accepted that in certain matters—Tserona, Zalambessa, Bure, the Eastern Sector as a whole, rivers, the recalculation of coordinates and the need to produce a final and definitive map—further work was required, ibid para 10.

¹⁸¹ Para 13.

¹⁸² Para 17.

¹⁸³ Para 20. In addition, it was felt that insufficient information concerning the precise location of Fort Cadorna had been provided (para 23), and that some clarification was required with regard to the area immediately to the south-east of Zalambessa in view of a discrepancy between the Commission's reasoning (para 4.42) on the one hand and the summary of the Treaty boundary (para 4.59 (6) and (7)) and the dispositif as shown on Map 11 on the other.

¹⁸⁴ Para 24. The Commission also stated that from the aerial photo survey that it was only recently permitted to conduct, it appeared that map evidence submitted by both parties with regard to the placement of Point 20 was inaccurate. Appropriate instructions were to be issued to the demarcation team, para 25.

¹⁸⁵ Eleventh Report of the Commission, S/2003/1186 Annex I, paras 4 and 10.

¹⁸⁶ ibid Appendix I, para 8.

¹⁸⁷ ibid Appendix I, para 9.

¹⁸⁸ ibid, para 10. Further, Art 4 (16) of the December Agreement specifically stated that ‘the parties request the United Nations to facilitate resolution of problems which may arise due to the transfer of territorial control, including the consequences for individuals residing in previously disputed territory’.

¹⁸⁹ In fact in the Cameroon case, decided some six months after the Eritrea—Ethiopia decision, the Court stated clearly that: ‘it has no power to modify a delimited boundary line, even in a case where a village previously situated on one side of the boundary has spread beyond it. It is instead up to the parties to find a solution to any resultant problems, with a view to respecting the rights and interests of the local population’, Cameroon v Nigeria (n 1) para 123. See also para 107.

¹⁹⁰ Eleventh Report of the Commission, S/2003/1186, Appendix 1.

¹⁹¹ ibid para 20.

¹⁹² Fifteenth Report of the Commission, S/2004/973/Add. 1, Appendix.

¹⁹³ Sixteenth Report of the Commission, S/2005/142 Annex I, paras 4–6.The Commission underlined that the boundary as delimited in its decision ‘constituted the final and legally binding line of the boundary’, subject only to the qualifications made in the decision as to the drawing of the line around the ‘current outer edge’ of the towns of Tserona and Zalambessa. Conduct inconsistent with the boundary line was stated to be ‘unlawful’, ibid para 33. What remained to be done was the physical demarcation of the line ‘on the ground by the placing of visible markers at appropriate locations’, ibid para 15 and see above.

¹⁹⁴ Attended by the witnesses to the Algiers Agreement (UN Secretary-General, the EU, USA and Algeria). The parties themselves refused to attend.

¹⁹⁵ Commission Statement dated 27 November 2006, S/2006/992, Enclosure, para 17.

¹⁹⁶ ibid para 18.

¹⁹⁷ ibid paras 20–1.

¹⁹⁸ ibid para 22. This position was reaffirmed by the Commission in its Press Release of 12 September 2007. The Commission also concluded that no further progress could be made towards the emplacement of pillars at this stage. On 25 September 2007 the Ethiopian Foreign Ministry issued a press statement saying that Eritrea was in material breach of the Algiers Agreements and that Ethiopia was entitled to consider its legal and peaceful options including terminating the Agreements or suspending their operation in whole or in part. While this cannot affect the validity of the boundary decision of the Commission, Ethiopia's possible action would clearly affect the peaceful settlement of the disputes as a whole.

¹⁹⁹ ibid paras 23–6.

²⁰⁰ See the preamble to the December Agreement.

²⁰¹ Resolution 1398, paras 2, 5, and 9, adopted on 15 March 2002. The UN Mission in Ethiopia and Eritrea (UNMEE) was established in by Resolutions 1312 and 1320 (2000). A Temporary Security Zone was later established, see the Secretary General's report of 12 January 2001, S/2001/45.

²⁰² SC/7362. See also the Presidential Statements of 17 July 2003, S/PRST/2003/10; 4 May 2004, SC/8085 and 4 Oct 2005, S/PRST/2005/47.

²⁰³ See also Resolution 1586 (2005).Google Scholar Eritrea was called upon to cooperate with the UN Secretary General's Special Envoy for Ethiopia and Eritrea. Eritrea also banned the overflight of UNMEE helicopters and restricted the movement of UNMEE patrols. A presidential statement of the Council on 3 March 2006 called for these restrictions to be lifted.

²⁰⁴ See also Security Council Resolution 1661 (2006) which demanded that the parties comply fully with Resolution 1640 (2005) and extended for one month the mandate of UNMEE.Google Scholar

²⁰⁵ Twentieth Report of the Commission, S/2006/140 Annex II, para 2.

²⁰⁶ ibid para 3 and S/PRST/2006/10. See also the reports of the UN Secretary General, eg S/2002/ 205; S/203/665/Add.1; S/2003/858; S/2003/1186; S/2006/1 and S/2006/140.

²⁰⁷ Adopted on 30 January 2007. The parties were also called upon to cooperate fully with the Commission and to refrain from any threat or use of force against each other. UNMEE's mandate was extended for a further six months and its personnel reduced. See also S/2007/33 and Security Council Resolutions 1681 (2006) and 1710 (2006.Google Scholar

²⁰⁸ Eritrea–Ethiopia Boundary Commission, Determinations (7 11 2002) 2.Google Scholar

²⁰⁹ See, eg, Kohen, who argues that the Commission virtually placed title and State conduct on the same level (n 109) 595.

²¹⁰ Award, para 3.8.

²¹¹ ibid para 3.29.

²¹² See above, p 784.

²¹³ See above, p 758.