Christine Gray

The recent decision by the Eritrea/Ethiopia Claims Commission on the ius ad bellum claims of Ethiopia – that Eritrea had violated the law on the use of force in starting the 1998– 2000 war between the two states – is a troubling one. It raises questions about the proper role of arbitral tribunals in such cases. There were many factors which suggested that the Commission should have abstained from giving judgment. There was no unequivocal agreement between the parties that the Commission’s jurisdiction extended beyond claims for violations of humanitarian and other international law during the conflict to an examination of responsibility for the start of the war. Moreover, the award is extremely brief, and consequently it deals with controversial issues of the law of self-defence, such as the meaning of armed attack and the duty to report to the Security Council, in a rather limited way. The award also raises important questions about the relationship of an arbitral tribunal to other bodies. In this case, the award of the Claims Commission undermined the Eritrea/Ethiopia Boundary Commission’s 2002 Delimitation Decision, already under challenge by Ethiopia, at a time of increasing tension along the border.