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Abstract
Twenty-five years after the Algiers Peace Agreement formally ended the Eritrea–Ethiopia border war, the Agreement continues to be invoked as a model of successful legal conflict resolution despite its incomplete and uneven implementation. This article argues that the failure of the Agreement’s guarantors—the United Nations, European Union, United States, and African Union—to ensure compliance with its binding provisions has weakened foundational principles of international legal order, including sovereignty, territorial integrity, and consent-based adjudication.
Central to this process was the Eritrea–Ethiopia Claims Commission’s (EECC) 2005 Partial Award on jus ad bellum, which exceeded its jurisdiction by attributing responsibility for the initiation of hostilities. Building on Christine Gray’s critique, this article situates the EECC’s decision within a broader pattern of selective enforcement and institutional acquiescence, reinforced by subsequent military cooperation between Ethiopia and external powers. The Eritrea–Ethiopia case thus illustrates how the erosion of enforcement, rather than the absence of legal norms, contributes to the weakening of international legal authority.
1. Introduction: Commemoration and Contradiction
On 12 December 2025, the United Nations marked the twenty-fifth anniversary of the Algiers Peace Agreement between Eritrea and Ethiopia, reaffirming its status as a landmark of African peace diplomacy. Statements issued by the UN, European Union, United Kingdom, and France described the Agreement as a foundation for regional stability and a reaffirmation of sovereignty and territorial integrity.
Such commemorations obscure a more problematic legacy. The institutions and states that guaranteed the Agreement have repeatedly declined to enforce its core legal commitments. This divergence between normative affirmation and institutional practice raises fundamental questions about the authority of treaty-based adjudication and the conditions under which international legal obligations retain practical force.
This article contends that the failure of enforcement is not merely political but structural: the institutionalization of lawlessness. This concept refers to the process by which law’s enforcement mechanisms become selectively operationalized, enabling noncompliance to persist under the guise of legality. The Eritrea–Ethiopia case demonstrates how institutional passivity and jurisdictional overreach together produce a form of managed illegality that corrodes the authority of international law itself.
2. The Algiers Agreement: Legal Architecture and Guarantor Responsibility
Signed on 12 December 2000, the Algiers Peace Agreement sought to resolve the Eritrea–Ethiopia conflict through law rather than political compromise. It established two principal mechanisms.
First, the Eritrea–Ethiopia Boundary Commission (EEBC) was mandated to delimit and demarcate the border based on colonial treaties and applicable international law. Article 4(15) stipulated that its determinations were “final and binding.”
Second, the Eritrea–Ethiopia Claims Commission (EECC) was authorized to adjudicate claims for loss, damage, or injury arising from violations of international humanitarian law or other applicable rules of international law.
The effectiveness of this framework depended on international guarantees provided by the United Nations, the Organization of African Unity (OAU, now African Union), the United States, the European Union, and Algeria. These guarantees entailed more than political endorsement; they carried an obligation to ensure compliance. When Ethiopia declined to implement the EEBC’s 2002 Delimitation Decision—most notably the award of Badme to Eritrea—the guarantors failed to act.
By allowing a final and binding arbitral determination to remain unenforced, guarantor institutions weakened the Agreement’s legal authority and transformed an enforceable settlement into a symbolic instrument. As Tomuschat (2006) observes, “non-enforcement of binding decisions transforms adjudication into advice,” thereby undermining the principle of pacta sunt servanda.
3. The EECC’s Mandate and Jurisdictional Limits
The EECC was constituted as a claims tribunal, not as a forum for determining criminal responsibility or adjudicating the legality of war. Its mandate was confined to assessing liability and compensation for violations of international humanitarian law. Article 5(1) of the Algiers Agreement expressly excluded claims relating to the use of force, except where such claims were directly connected to violations of humanitarian law.
Nevertheless, in its 2005 Partial Award on jus ad bellum, the EECC concluded that Eritrea had violated Article 2(4) of the UN Charter by initiating an armed attack against Ethiopia in May 1998. This amounted to a determination of unlawful resort to force—an issue beyond the Commission’s express mandate and unsupported by clear state consent.
Christine Gray (2008) argues that the EECC thereby exceeded its jurisdiction, transforming a compensatory tribunal into a quasi-judicial organ of general international law. By shifting from claims adjudication to determining war legality, the Commission entered a domain reserved for the United Nations Security Council or the International Court of Justice (ICJ).
4. Jurisdictional Expansion and Doctrinal Deficiency
Gray identifies three interrelated aspects of the EECC’s jurisdictional expansion: (1) absence of consent to jus ad bellum adjudication, (2) encroachment upon the OAU’s investigative mandate, and (3) insufficient engagement with jus ad bellum doctrine.
4.1 Absence of Consent to Jus ad Bellum Adjudication
The Commission assumed authority over questions of jus ad bellum without explicit consent from the parties. The Algiers Agreement did not confer such competence; its reference to “violations of international law” was limited to conduct during hostilities, not the legality of resort to force. This expansion contravened the foundational principle that international jurisdiction must rest on clear and express state acceptance (Franck 1990).
4.2 Encroachment upon the OAU’s Investigative Mandate
The OAU Framework Agreement of June 1998 assigned responsibility for investigating the origins of the conflict to a designated African mechanism:
“An investigation be carried out on the incidents of 6 May 1998 and on any other incident prior to that date which could have contributed to misunderstanding between the two Parties.”
By asserting that Eritrea had “triggered the conflict,” the EECC displaced this mandate. The error was not merely procedural; it disrupted the institutional allocation of authority established under African and international legal arrangements.
4.3 Insufficient Engagement with Jus ad Bellum Doctrine
The Partial Award suffered from limited engagement with established jus ad bellum jurisprudence. The Commission did not meaningfully address the threshold of “armed attack” under Article 51 of the UN Charter, the conditions governing lawful self-defence, or the legal significance of unresolved border disputes. Unlike the ICJ’s reasoning in Nicaragua v. United States and Oil Platforms, the EECC relied on conclusory assertions rather than sustained doctrinal analysis.
5. Compliance, Asymmetry, and Enforcement
Despite the EECC’s jurisdictional excesses, Eritrea accepted the Commission’s rulings in their entirety, signaling continued adherence to international adjudication even where the process was contested. Ethiopia, by contrast, rejected the EEBC’s binding border decision for over sixteen years.
This asymmetry exposes a paradox of enforcement: the party that complied with adverse legal determinations faced diplomatic isolation, while the non-compliant party benefited from expanding military cooperation and external support. As Simma and Alston (1992) note, selective adherence to international law transforms norms into “policy instruments rather than obligations.”
The silence of guarantor institutions—particularly the UN and EU—amounts to de facto acquiescence. Their failure to act under Article 103 of the UN Charter and their erga omnes obligations eroded the credibility of the international legal system.
6. External Military Cooperation and Legal Deterrence
Between 2019 and 2025, France, Russia, and Italy concluded naval and defence cooperation agreements with Ethiopia, notwithstanding its unresolved obligations under the Algiers framework. These engagements—undertaken by states that were signatories or witnesses to the Agreement—sit uneasily with their professed commitment to sovereignty and territorial integrity.
By facilitating military reinforcement in the absence of legal compliance, external actors weakened deterrence and contributed to the decoupling of obligation from enforcement. This process exemplifies the institutionalization of lawlessness: law’s continued invocation as legitimacy rhetoric even as enforcement collapses.
7. Systemic Legal Consequences
The Eritrea–Ethiopia case illustrates three broader failures within contemporary international law:
1. When tribunals exceed consent-based limits, the legitimacy of adjudication is undermined.
2. Persistent failure to enforce binding decisions signals that compliance is contingent rather than obligatory.
3. Selective application of legal norms fosters an environment where legality yields to political convenience.
This aligns with Franck’s (1990) argument that legitimacy in international law depends not only on norm articulation but on consistent application.
8. Conclusion
The Algiers Peace Agreement was conceived as a legally grounded alternative to indefinite political contestation. Its trajectory demonstrates that legal precision at the drafting stage is insufficient where guarantor institutions decline to ensure compliance.
The EECC’s jurisdictional expansion, as documented by Gray (2008), illustrates the risks to international adjudication posed by relaxing consent-based limits. More consequential, however, has been the response of external actors, whose selective engagement has severed the link between binding obligation and enforcement.
The Eritrea–Ethiopia case does not reveal an absence of international law, but its uneven application. Where binding determinations are treated as optional, the authority of legal institutions weakens systemically. The durability of international law depends less on norm proliferation than on the willingness of institutions and guarantors to uphold them when compliance proves politically inconvenient.
References
Franck, Thomas M. 1990. The Power of Legitimacy Among Nations. New York: Oxford University Press.
Gray, Christine. 2008. International Law and the Use of Force, 3rd ed. Oxford: Oxford University Press.
Simma, Bruno, and Philip Alston. 1992. “The Sources of Human Rights Law: Custom, Jus Cogens, and General Principles.” European Journal of International Law 12(1): 82–108.
Tomuschat, Christian. 2006. “International Law: Ensuring the Survival of Mankind on the Eve of a New Century.” Collected Courses of the Hague Academy of International Law 281: 1–438.
Editor’s Note : Views in the article do not necessarily reflect the views of borkena.com
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