Abstract
In its December 2005 Partial Award, the Eritrea-Ethiopia Claims Commission addressed two core issues: (1) whether it had jurisdiction over Ethiopia’s jus ad bellum claim, and (2) whether Eritrea’s use of force violated international law. On the first question, the Commission found that it had jurisdiction based on its interpretation of Article 5(1) of the Framework Agreement. While this interpretation has been criticised as being unreasonably wide, the Commission’s interpretation squares with the ordinary meaning of Article 5(1) as it had jurisdiction over ‘other violations of international law’. Moreover, both Eritrea and Ethiopia could have expressly excluded jus ad bellum claims, but did not elect to do so. On the second question, the Commission found that Eritrea was not acting in self-defence and had violated Article 2(4) of the UN Charter. This decision is consistent with the 1970 Friendly Relations Declaration and the principle that a State may not resort to a use of force to recover disputed territory. The Commission also correctly rejected the argument that Eritrea had acted in self-defence. The fighting that had occurred between both States were minor incidents that were geographically limited, therefore falling below the threshold for an ‘armed attack’ as set by the ICJ in Nicaragua. However, the Partial Award would have benefitted from greater factual detail as to why the border incidents did not amount to an armed attack. The Commission also correctly rejected the argument that Ethiopia had declared war given the lack of an explicit affirmation.
[E]ach time that international judicial surgery is used to excise from the world’s political turbulence even a small irritant in the relations of two countries, the world advances a few inches on the long road to peace (Jessup 1971, p. 82)
The author is Counsel at Clifford Chance; Head of International Dispute Resolution and Senior Research Fellow, Centre for International Law, National University of Singapore.
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Notes
- 1.
Briefly stated, the jus ad bellum refers to the rules applicable prior to the outbreak of war. Those rules govern the circumstances under which a State is permitted to initiate force against another State. See also n 3 below. As to the relationship between the jus ad bellum and jus in bello, see Koppe, Chap. 24, Sect. 24.2.
- 2.
Eritrea-Ethiopia Claims Commission, Partial Award: Jus Ad Bellum, Ethiopia’s Claims 1–8, 19 December 2005, PCA Case No. 2001-02. During the Commission’s proceedings concerning this claim, Eritrea and Ethiopia ‘utilized the terminology of jus ad bellum to describe the law governing the initial resort to force between them. At the hearing of this claim in April 2005, Ethiopia confirmed that it meant by this the use of force contrary to the Charter of the United Nations’. Jus Ad Bellum 2005, para 1, n 1.
- 3.
See, e.g., Dinstein 2005, p. 75 (‘the predominant conviction in the nineteenth (and early twentieth) century was that every State had a right—namely, an interest protected by international law—to embark upon war whenever it pleased. The discretion of States in this matter was portrayed as unfettered’). International law did, however, regulate through the jus in bello how warfare, once commenced, should be conducted.
- 4.
Heilborn (1912) Grundbegriffe des Völkerrechts, p. 23, quoted in Randelzhofer 2000, p. 1247. Because of this freedom to wage war, the concept of the right to self-defence generally remained redundant; its invocation being made merely for political purposes and also in respect of incidents occurring during times of peace. See Randelzhofer 2002b, p. 789.
- 5.
See, e.g., The Hague Peace Conferences of 1899 and 1907, the 1907 Hague Convention (II) Respecting the Limitation of the Employment of Force for the Recovery of Contract Debts, the League of Nations Covenant, the 1924 Geneva Protocol for the Pacific Settlement of International Disputes and the 1925 Treaty of Locarno. See generally Franck 2002, pp. 9–11; and Schrijver 2005, pp. 32–33.
- 6.
General Treaty for Renunciation of War as an Instrument of National Policy, 27 August 1928, LNTS 94:57 (Kellogg-Briand Pact).
- 7.
Kellogg-Briand Pact (above n 7) Articles 1 and 2.
- 8.
- 9.
See Brownlie 1963, p. 80 (‘the instrument played a significant role in international relations and state practice in the period from 1929 to 1940. Its obligations were disregarded by some states but were repudiated by none … it was not ignored and forgotten, and its potency was affirmed by the Nuremberg Tribunal in 1946’).
- 10.
See Dinstein 2005, p. 85.
- 11.
Preamble to the Charter of the United Nations.
- 12.
See, generally, Shaw 2003, pp. 1017–1019.
- 13.
Dinstein 2005, p. 85.
- 14.
See, e.g., ICJ, Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. United States), Judgment (Merits), 27 June 1986, ICJ Rep 1986, p. 14, para 190. As an expression of customary international law, Article 2(4) is binding on all States, including non-Members of the United Nations. See, e.g., Dinstein 2005, p. 92. However, to some authors, the degree of congruence between customary international law and Article 2(4) is not altogether clear-cut. See, e.g., Randelzhofer 2002a, pp. 134–135 (‘the prohibition of the use of force under customary international law has a much smaller scope than that laid down in the UN Charter’). The overriding nature of Article 2(4) is also confirmed in the Preamble of the Protocol Additional to the Geneva Conventions of 12 August 1949, and Relating to the Protection of Victims of International Armed Conflicts, 8 June 1977, which provides that ‘every State has the duty, in conformity with the Charter of the United Nations, to refrain in its international relations from the threat or use of force against the sovereignty, territorial integrity or political independence of any State, or in any other manner inconsistent with the purposes of the United Nations’ and that ‘nothing in this Protocol or in the Geneva Conventions of 12 August 1949 can be construed as legitimizing or authorizing any act of aggression or any other use of force inconsistent with the Charter of the United Nations’. As to the terms ‘threat’ and ‘use’ employed in this provision, the ICJ, in its Advisory Opinion on the Legality of the Threat or Use of Nuclear Weapons said the following: ‘The notions of “threat” and “use” of force under Article 2, para 4, of the Charter stand together in the sense that if the use of force itself in a given case is illegal—for whatever reason—the threat to use such force will likewise be illegal’, ICJ Rep 1996, p. 226, para 47. Accordingly, a threat to use force that is not in compliance with the UN Charter would be unlawful. See, e.g., Dinstein 2005, p. 86. Article 2(4) of the UN Charter contrasts sharply to the League of Nations Treaty. The latter did not provide a general prohibition against a State’s resort to force but set certain limitations.
- 15.
Another exception concerning former enemy States during the Second World War is found in Articles 53(1) and 107 of the Charter but these have now become obsolete. See Randelzhofer 2002a, p. 125.
- 16.
Signed in Algiers on 12 December 2000 (the text is reproduced in Appendix A to this volume).
- 17.
Jus Ad Bellum 2005 (above n 3) para 3. The independent body has never been constituted.
- 18.
Jus Ad Bellum 2005 (above n 3) para 4. In this regard, Gray has remarked ‘[i]t is true that the terms of Article 3 are cautious and that they do not provide for the determination of responsibility for starting the war; they do not expressly allow the independent body to assign legal responsibility’. Nonetheless, she adds ‘[b]ut it does not follow that the Claims Commission should assert jurisdiction over this issue.’ Gray 2006, p. 706.
- 19.
Quoted in Jus Ad Bellum 2005 (above n 3) para 5, n 2. This position is consistent with the practice of the United Nations Compensation Commission (UNCC), which excluded claims for the costs of military operations. See UNCC Governing Council, Decision 19: Military costs, 24 March 1994, S/AC.26/Dec. 19 (1994) (‘the costs of the Allied Coalition Forces, including those of military operations against Iraq, are not eligible for compensation’).
- 20.
See, e.g., Gray 2006, p. 704 (‘[t]here is no suggestion in Article 5 that [the Commission’s] jurisdiction would extend to an examination of responsibility for the start of the war’).
- 21.
This interpretative approach employs the ‘ordinary meaning’ approach to treaty interpretation contained in Article 31(1) of the Vienna Convention on the Law of Treaties, a provision considered expressive of customary international law. As to the other main criterion found in Article 31(1), the object and purpose of the treaty subject to interpretation, see n 23 below.
- 22.
Article 5(1) of the Agreement (emphasis added). Without the benefit of knowing the full content of the parties’ written and oral pleadings, this statement—particularly the phrase requiring the determination of all claims (unless excluded)—may also be said to be reflective of one of the objects and purposes of the treaty.
- 23.
This interpretation was recorded in the Commission’s letter to the parties of 24 July 2001, see above n 20. It would constitute a subsequent agreement between the parties that must be validly taken into account under Article 31(3)(a) of the Vienna Convention on the Law of Treaties.
- 24.
Jus Ad Bellum 2005 (above n 3) para 16.
- 25.
As to the areas initially invaded by Eritrean forces, the Commission considered these to be undisputed Ethiopian territory or territory that was peacefully administered by Ethiopia and which would subsequently be located on the Ethiopian side of the line to which Ethiopian troops were obligated to withdraw under the 18 June 2000 Ceasefire Agreement. Jus Ad Bellum 2005 (above n 3) para 15.
- 26.
Jus Ad Bellum 2005 (above n 3) para 14.
- 27.
Jus Ad Bellum 2005 (above n 3) para 10 (footnote omitted).
- 28.
Declaration on Principles of International Law Concerning Friendly Relations and Cooperation Among States in Accordance with the Charter of the United Nations, Annex to UNGA Res 2625 (XXV), 24 October 1970, A/RES/2625.
- 29.
Declaration on Friendly Relations (above n 29), quoted in Jus Ad Bellum 2005 (above n 3) para 10, n 5. It should be noted that this resolution was adopted unanimously by the UN General Assembly and that the rule in question is addressed to ‘every State’, not simply ‘all Member States of the UN’. See Rosenstock 1971, p. 717.
- 30.
Gray 2006, p. 711.
- 31.
Gray 2006, pp. 711–712.
- 32.
Eritrea-Ethiopia Claims Commission, Decision Number 1: The Commission’s Mandate/Temporal Scope of Jurisdiction, 24 July 2001, PCA Case No. 2001–02, para D.
- 33.
The Eritrea-Ethiopia Boundary Commission was mandated under Article 4 of the December 2000 Agreement ‘to delimit and demarcate the colonial treaty border [between the two States] based on pertinent colonial treaties (1900, 1902 and 1908) and applicable international law’.
- 34.
Observations of the Eritrea-Ethiopia Boundary Commission, Addendum to Progress Report of the Secretary-General on Ethiopia and Eritrea, 31 March 2003, S/2003/257/Add.1, p. 6, para 18 (‘Badme village (as opposed to some other parts of the Badme region) lay on what was found to be the Eritrean side of the treaty line’).
- 35.
Gray 2006, pp. 710 and 712–713.
- 36.
See, e.g., Fleischhauer 1997, p. 333; and the speech by Judge Rosalyn Higgins, in her capacity as President of the International Court of Justice, at the tenth anniversary of the International Tribunal for the Law of the Sea, 29 September 2006, available at https://www.icj-cij.org/files/press-releases/0/000-20060929-PRE-01-00-EN.pdf. Accessed 3 September 2020.
- 37.
See, e.g., Pinto 1983, p. 10.
- 38.
Dolzer 1995, p. 355.
- 39.
Eritrea-Ethiopia Claims Commission, Partial Award: Central Front, Ethiopia’s Claim 2, 28 April 2004, PCA Case No. 2001–02, para 27.
- 40.
Jus Ad Bellum 2005 (above n 3) para 15.
- 41.
Jus Ad Bellum 2005 (above n 3) para 9. Article 51 of the UN Charter provides: ‘Nothing in the present Charter shall impair the inherent right of individual or collective self-defence if an armed attack occurs against a Member of the United Nations, until the Security Council has taken measures necessary to maintain international peace and security. Measures taken by Members in the exercise of this right of self-defence shall be immediately reported to the Security Council and shall not in any way affect the authority and responsibility of the Security Council under the present Charter to take at any time such action as it deems necessary in order to maintain or restore international peace and security.’ A difference between Articles 2(4) and 51 of the Charter is that the former speaks of the use of ‘force’ and the latter refers to an ‘armed attack’. The implications of this difference in terminology are not addressed in this chapter.
- 42.
Jus Ad Bellum 2005 (above n 3) para 11.
- 43.
Ibid., para 11.
- 44.
Ibid., para 12.
- 45.
Ibid., para 14.
- 46.
Ibid., para 10, n 5.
- 47.
See, e.g., Randelzhofer 2002b, p. 796 (‘despite the exertion of considerable effort, a generally recognized definition of “armed attack” is yet to be found’).
- 48.
See Brownlie 1963, p. 278.
- 49.
Nicaragua v. United States 1986 (above n 15) para 195. See also Randelzhofer 2002b, p. 796 commenting in relation to Article 51 that ‘[w]hereas an “armed attack” always presupposes a violation of Article 2(4), not all such violations constitute an “armed attack”. The latter only exists when force is used on a relatively large scale and with substantial effect. Thus, mere frontier incidents, such as the incursion of an armed border patrol into another State’s territory, may well be characterized as a use of force contrary to Article 2(4), but hardly as an “armed attack”.’ (footnote omitted).
- 50.
See, e.g., Dinstein 2005, p. 195 (observing that ‘[t]here is certainly no cause to remove small-scale armed attacks from the spectrum of armed attacks’); Hargrove 1987, p. 139 (commenting that Article 51 ‘in no way limits itself to especially large, direct or important armed attacks’); and Kunz 1947, p. 878 (‘[i]f “armed attack” means illegal armed attack it means, on the other hand, any illegal armed attack, even a small border incident’). For a discussion of the criticisms of the distinction between an armed attack and a frontier incident, see Gray 2018, pp. 155–157.
- 51.
- 52.
See, e.g., Gray 2006, p. 715 (‘[t]he Claims Commission gave no explanation of its approach to the evidence’) and p. 716 (‘It is true straightforward form of that the type of self-defence invoked in this conflict between Ethiopia and Eritrea is in theory the most self-defence, that invoked by one state in response to a cross-border attack by regular forces of another state. However, the establishment of the facts in such a situation is often far from straightforward’). In relation to the standard of evidence required in the Partial Award, see O’Connell 2006, p. 45 (commenting that the Commission ‘referenced a standard of “clear” evidence’).
- 53.
In this regard, Dinstein has written: ‘When elements of the armed forces of Arcadia ambush a border patrol (or some other isolated unit) of Utopia, the assault has to rank as an armed attack and some sort of self-defence must be warranted in response.’ Dinstein 2005, p. 195.
- 54.
- 55.
The Partial Award does not indicate the number of troops involved. A typical battalion in the US Army consists of between 500 and 600 soldiers. See https://www.britannica.com/topic/battalion. Accessed 3 September 2020.
- 56.
Jus Ad Bellum 2005 (above n 3) para 9.
- 57.
The Partial Award does not articulate what the consequences would have been in respect of Eritrea’s resort to force on 12 May had there in fact been a subsequent declaration of war by Ethiopia on 13 May.
- 58.
In support of this position, the Commission cited the Hague Convention (III) Relative to the Opening of Hostilities 1907 (Jus Ad Bellum 2005 (above n 3) para 17, n 12). But see Dinstein 2005, p. 32 (‘Hague Convention (III) cannot be considered as a reflection of customary international law’).
- 59.
In its Ports Final Award (Eritrea-Ethiopia Claims Commission, Final Award: Ports, Ethiopia’s Claim 6, 19 December 2005, PCA Case No. 2001–02) para 11, the Commission described the Ethiopian parliamentary action as expressing ‘Ethiopia’s determination to resist Eritrea’s actions’.
- 60.
Jus Ad Bellum 2005 (above n 3) para 17. Diplomatic relations, however, are not always cut off by a declaration of war.
- 61.
Jus Ad Bellum 2005 (above n 3) para 19. In its Decision Number 7, the Commission has indicated that an ongoing breach of the jus ad bellum would involve conduct akin to that of Iraq’s invasion and occupation of Kuwait, which, according to the Commission represented ‘pervasive, continuing illegal conduct by Iraq extending far beyond an initial breach of the jus ad bellum …’, Eritrea-Ethiopia Claims Commission, Decision Number 7: Guidance Regarding Jus ad Bellum Liability, 27 July 2007, PCA Case No. 2001–02, para 30. For criticism that the Commission took a very narrow view as to the conduct proscribed by Article 2(4) of the UN Charter by injecting a requirement that it be preplanned, see Murphy et al. 2013, p. 118 (‘The Article 2(4) prohibition is not so narrowly crafted; instead, it broadly instructs states not to use force against the territorial integrity or political independence of another state, whether preplanned or not’).
- 62.
Christine Gray, for example, has remarked that the Partial Award is surprisingly brief for the disposition of an issue as important as a State’s illegal use of force. She states: ‘The total award of the Claims Commission in this case was only six pages, with one further page for the dispositif. It seems almost unbelievable that such an important issue as the illegal use of force, in a case where the facts were contested, and potentially involving extensive liability, could be disposed of in this apparently cursory way’. Gray 2006, pp. 714–715.
- 63.
See, e.g., Nicaragua v. United States 1986 (above n 15) para 194 (‘reliance is placed by the Parties only on the right of self-defence in the case of an armed attack which has already occurred, and the issue of the lawfulness of a response to the imminent threat of armed attack has not been raised. Accordingly the Court expresses no view on that issue’); and Case concerning Armed Activities on the Territory of the Congo (Congo v. Uganda), Judgment, 19 December 2005, ICJ Rep 2005, p. 168, para 143 (indicating that because ‘Uganda has insisted in this case that operation “Safe Haven” was not a use of force against an anticipated attack’ the Court did not express a view on that issue). In this regard see Gray 2006, p. 717.
- 64.
The ‘accumulation of events’ theory relates to a situation where a number of minor violations of the prohibition against the use of force, although not individually of a magnitude to constitute an armed attack, considered cumulatively, may qualify as such an attack. See Oil Platforms 2003 (above n 55) para 64; Cannizzaro 2006, pp. 783 and 785; and Gray 2006, p. 720.
- 65.
Eritrea-Ethiopia Claims Commission, Final Award: Ethiopia’s Damages Claims, 17 August 2009, PCA Case No. 2001-02.
- 66.
- 67.
The reticence of international law bodies to attribute responsibility for unlawful resort to force and the attendant difficulties of proof is highlighted by the following observation: ‘typically one or both states involved asserts that it has been the victim of an armed attack and claims the right to self-defence; the controversy centres on the questions of fact as to whether there has actually been an armed attack of the type claimed and, if so, which state was the victim. In theory it should always be possible to determine whether there was an armed attack and who is acting in self-defence. But in practice the situation is more complex. The difficulties in establishing the facts in cases involving self-defence and the legality of use of force were very obvious in the ICJ cases, Cameroon v Nigeria (2002), Iranian Oil Platforms (2003), and Armed Activities on the Territory of the Congo (DRC v Uganda) (2005) … . The issue is left unresolved in the vast majority of conflicts; certainly the Security Council does not generally make express pronouncements determining this crucial legal issue. The parties may register their positions with the Security Council, but often there may be no debate and no resolution or statement. Even if there is a resolution or statement, it is far more common for this to take the form of a call for a ceasefire rather than any attribution of responsibility’. Gray 2018, pp. 121–122 [footnotes omitted]. It is also relevant to note that she later added that ‘[i]t is rare for the Security Council today to enter into this question; members clearly see its role as the promotion of the restoration of peace rather than as the assignment of responsibility’. Gray 2018, p. 123.
- 68.
Congo v. Uganda 2005 (above n 64).
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Weeramantry, R. (2021). International Law as to the Use of Force. In: de Guttry, A., Post, H.H.G., Venturini, G. (eds) The 1998–2000 Eritrea-Ethiopia War and Its Aftermath in International Legal Perspective. T.M.C. Asser Press, The Hague. https://doi.org/10.1007/978-94-6265-439-6_12
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