They
say honesty is actually a blunt instrument which bloodies more than it cuts. I
don’t know if that is true in the “walking-around-folks” life. In a politically constrained lawyerly game
however even such callous and calculative utterance tantamount to an
understatement. Judge this for yourself by looking at the behavior of the
Ethiopian and Eritrean government on the boarder dispute. It is the Eritrean
government which apparently trying to paint legality and honesty on itself with
regard to the disposition of the boarder claim. The hypocrisy is aggravated
exponentially when one comes to see that the crude truth of the dispute is not
the boarder line per se in the first place.
Assuming
the boarder is the real bone of contention anyway, the Ethiopian government has
showed flexibility on the matter on different occasions. It manifested at least officially three
gradual but considerate moves in the process here up to. First it was
congratulations we won our case. That was turned out to be a mistaken
understanding of the judgment of the Commission. On finding out the mistaken
belief, the Ethiopian government made it clear its position of rejecting the
determination for it was unjust. After a while it seems to settle on the position
of accepting the determination in principle but wanting to negotiate for its
implementation. Unless presumed as stepping stones over the troubled water, obviously
these stands differ from each other by a long shot. The Eritrean government on
the other hand never budge from its cry for the implementation of the decision
based on the finality and binding clause of the Algiers agreement. So it seems the
Ethiopian government is like a thermostat which controls the temperature within
its vicinity. And the Eritrean one is like a thermometer which merely measures
the temperature.
I
believe for whatever the Eritrean government’s quest for legality worth, the
Ethiopian government should base its claims on firm legal grounds than a
theoretical sense of justice. Officially it has invoked a clause
from the Algiers agreement which says every dispute between the contracting
parties be settled amicably. The ground
helps albeit it is a very weak one as a peaceful settlement is a norm and not
an exception.
The
thing is the Commission agreed up on by both adversaries to look at their claim
and render a decision had done so generally in favour of Eritrea. Apparently
the Eritrean government outward manifestation is to base its claim on legality
and appear as a victim of injustice. If it were not for the pariah nature of
the Eritrean government on the world platform, it would have been almost
insurmountable to debilitate its position based on the current Ethiopian legal
argument. It should not have been the interpretation of the determination or otherwise
it’s content of being a just one especially at the first hurdle which ought to
be at issue here. The status of the determination
itself is.
The
status of a ruling depends on the nature of the body which passes the
judgment. The decision maker was a Commission.
It is not even a permanent court of justice. A
fate of a dispute of which a shuttle diplomacy of the big powers
in the beginning could not bring about conciliation and finally quelled in the
battle field was destined in the hands of five advocates. They came up with a unanimous decision which
is unusual for practicing lawyers.
The
stated agreement confirms the decision of the Commission is final and binding.
Irrespective of that however the words final and binding have a different
meaning and effect depending on the nature of the decision rendering body. Accordingly,
the meaning and effect these two words have for normal and duly constituted
courts is not the same when the body is a Tribunal, Commission or such nature
of Administrative bodies. The first scenario is administered by a system of
laws proper. The latter ones are governed by a refined but complex system of
Administrative law. If I sound technical
forgive me but there is no other way of saying it; I guess.
It is
only when the lawyerly technical meaning of these two words [final &
binding] is taken at a close look that the legal base for the Eritrean claim
sinks in sand.
Binding
Expertise
in legal drafting rests primarily in avoiding redundancy at all costs possible.
This word called “binding” is the quintessential example of redundancy. If one
is not intending to be bound by a decision one does not go to any form of a
tribunal. Submitting oneself to the jurisdiction of a decision making body
amounts to automatically accepting the binding nature of the decision. The alternative is to seek for advice which one
can accept or reject it at liberty. The word “binding” in the Algiers agreement
does not have any meaningful meaning other than being the work of an over
zealous legal craftsmanship. There is no reason to doubt the parties’ intention,
at least apparently, as to be bound by the forthcoming determination of the
Commission at the time of the Algiers agreement.
FINALITY
Everything
boils down to the real meaning of the
finality of the decision. Under the
context the word “final” only means that
there is no appellate procedure from the decision of the Commission. It does
not mean that the aggrieved party is left without recourse to any other legal
mechanism. There is a chance for Judicial Review for instance which is not an
appellate procedure at all. The legal
mechanism should not be only a juridical nature at all. A further negotiation
is another case in point. In summary
words and phrases like “final”, “shall not be questioned” or “no appeal shall
lie from the decision of…” and the like which may be put in agreements between
parties in dispute are not taken at face value. This is particularly true when
the decision is given by a body which does not have a juridical status proper
like the Commission.
The
difficulty in the legal issue is not about procedure which means the
determination being final and binding. The law supports that the Ethiopian
government has not yet exhausted its lawful procedural rights in disposing its
case. The crunch time is in finding where the Commission has erred and even if
it had made a mistake whether it is substantial enough to change the final
outcome of the case. That needs a thorough and painstaking look of the
determination in the round.
There
is a big difference between declaring the decision unjust and challenging it successfully.
The irony is that the Ethiopian
government is pretty much convinced on the mistaken nature of the determination
but does not put its plea on the right course to parry its adversary. Obviously, if it were the aggrieved party who
could say what is just and unjust of a decision is, there won’t be much of
execution of judgements in the world.