Op-ed: Revisiting Ethiopian quest for reclamation of maritime sovereignty on the Red Sea coast: A blueprint for Ethiopian-Eritrean international legal encounter
By Dejen Yemane Messele, Lecturer and PhD Candidate in Law
Rerouting the Red Sea Agenda to an International Legal Question: A Prologue
Addis Abeba – To redirect the recent Red Sea Agenda that hikes the mood of the Horn into a (more) peaceful international legal argumentation, this op-ed article charts a blueprint for an international law-based resolution of the unsettled maritime disputes between Ethiopia, the predecessor (mother) state, and Eritrea, the successor state constituted through separation from the former. In so doing, the blueprint offers a call for Ethiopian and Eritrean ‘ international law and diplomatic minds’ and the likes to challenge ourselves with; (a) the existence or not of international legal dispute between the two sovereign states regarding an Ethiopian claim for coastline for a direct and free access through the Red Sea (b) the possibility or not of resolving this historical dispute through international legal dispute settlement (c) the perpetual peace dividends of pushing the two sisterly nations for an international judicial litigation to (objectively) determine Ethiopian claims and Eritrean counterclaims. Taking this untrodden legal route, this author strongly believes, could help the two states to dispense their dispute in a peaceful way and to change a course from walking in harm’s way.
This call for an international legal encounter, however, could not be construed as the first of its kind as we had previous international law-based discussions, if not encounters, between the international legal scholars and the likes of the two nations or non-native scholars on this rolling subject matter. This could, therefore, be a continuation of (pre) existing scholarly debates on it.
Having these somehow lofty objectives at its core, this work will (re) examine the use that international law would extend for Ethiopian reclamation of a maritime sovereignty, which obviously brings the State of Eritrea onboard, in the Red Sea Coastal territories. Maritime Sovereignty, for the purpose of this article, shall be understood as an exercise of control and use of coastal territories, of any size, to have a direct and free access to the sea.
Hence, the project of redirecting the Red Sea Agenda to a question or dispute of international law will be presented in the following orders; (i) a cursory critical review on the recently launched Red Sea Agenda; (ii) the international legal basis of Ethiopian quest for reclamation of maritime sovereignty; (iii) the legal visibility of the Afar Coastal territories (the Assab outlet) for the satisfaction of Ethiopian claim; (iv) the peacefulness and conceivability of pursuing an international legal dispute in the presence of the 2003 Eritrea-Ethiopia Boundary Commission Decision; (v) the trustworthiness of the regime to litigate Ethiopian maritime sovereignty reclamation before an international legal dispute settlement forum.
Navigating through Abiy Ahmed Ali’s Red Sea Politics: (Un)Locking Ethiopia?
A call for a peaceful detour into a realm of international legal argumentation should start with accounting the recent Red Sea Agenda as tabled by Abiy Ahemed Ali, Prime Minister of ‘the Federal Democratic Republic’ of Ethiopia. For good or bad, his Red Sea agenda, (re)ignited intellectual and public debates on the longstanding maritime question between Ethiopia and Eritrea.
The Red Sea agenda was set for discussion a few months before the Prime Minister spoke it out in public. As a result of his ‘from a drop of water to Sea’ parliamentary oratory, the matter has so far received greater attention which involves both acclamation and censure from domestic(see here, here, here, and here) and international (see here, here, here, and here) spectators and onlookers. Region wide, it has sparked reactions from coastal states such as Djibouti, Eritrea, and Somalia. Perhaps, attributable to the PM’s diplomatic injudiciousness, the Red Sea agenda is looming large in fueling regional tension.
Ethiopians found themselves in a Catch-22 to continue or halt the Prime Minister’s [Red Sea] agenda. The Prime Minister’s political track records, characterized by deception and betrayal, may have made him distrusted; leading many to criticize or challenge his ‘untimely’ and ‘sinister’ claim that Ethiopia needs an outlet to the Red Sea. There are reasonable doubts on the Prime Minister’s use of the agenda. There are strong beliefs that the Red Sea agenda is nothing, but a means of political diversion from internal political crises and ongoing civil wars in the Amhara and Oromia regions of Ethiopia. It’s also understood as the end of a short-lived friendship between the Prime Minister and President Isaias Afwerki of Eritrea. Hence, the PM’s Red Sea politics is not welcomed with fanfare, especially by his critics who found the agenda both untimely and full of diplomatic and legal failings.
Apparently, in the process of these discussions/debates some concerns have been raised about Ethiopian claims in the Red Sea. The relevance of international law to this vexing matter is one that raises a concern.
Contrary to the Prime Minister’s approach, Ethiopian quest for reclamation of maritime sovereignty could and should center on international legal argumentation. The shift to and use of international legal argumentation neither tantalizes nor belittles the question. It would further save the public from a blind rally behind the Red Sea agenda or total dismissal of the question by the very fact that the Prime Minister has tabled it without a proper account of international law, for reasons that may definitely be known to him only.
For this and other concerns raised below, there is a need to draw the attention of decision makers and the public to international law’s role in the settlement of Ethiopian maritime claims in the Red Sea. Hence, caution must be taken against forming an opinion or taking a position on the question of Ethiopia’s maritime sovereignty reclamation based solely on the Prime Minister’s (mis)understandings and (mis)presentations of such crucial inter-generational jigsaw puzzles.
Does International Law Really Support Ethiopian Bid for Reclamation of Maritime Sovereignty on the Red Sea?
A. Clearing Some Confusion
Following a misguided approach that put Ethiopia and its vital national interests in harm’s way seems a déjà vu for the post-1991 governments of Ethiopia. As it stands now, the Prime Minister’s lawless and inordinate approach is a sequel, not an anomaly, to his predecessors.
As it becomes a reality that cannot be denied even by the wrongdoers, the TPLF-led EPRDF regime of Ethiopia deserves generational vilification for its historical disregard and arrogance towards Ethiopia’s legitimate right to direct access to the Red Sea and control of the Afar Coastal territories. It is, indeed, this historical mystery that resulted in the actual losses of Ethiopia’s maritime sovereignty in the East African Coast of the Red Sea. Unless a swift change is taken by the Prime Minister or his regime toward the misguided and fatal approach on the serious question of Ethiopian maritime sovereignty, the possibility of redressing the TPLF mastered actual and temporal loss of maritime sovereignty seems far-fetched. The approach that is being pursued in recent times is misguided, belittling and reductionist of the Ethiopian question.
Offering shares, such as, in Ethiopian Airlines, Ethiopian Telecommunication, or the GERD to Red Sea Coastal states in exchange for a coastal land are unveiling the level of belittling and reductionist approach that the Prime Minister is following. This in turn signposts the lack of efforts invested in by the Primer or his regime to look into any possible help of international law supporting reclamation of maritime sovereignty. But this belittling and reductionist approach is not limited only to the Prime Minister. There are also individuals (both in the academia and in the public) who reiterated the approach in a way that belittles Ethiopian maritime question by equating the actual loss to a legal loss.
As we shall be reading shortly in the subsequent sections, the bottom line with respect to the Ethiopian question is that its legal status, unlike its actual and temporary loss of control and use of the Red Sea Coastline, has not yet been properly litigated and settled by a court of international law. Hence, actual and temporary loss of control and use of the (Red) Sea outlet does not necessarily result in a permanent loss in the legal right to assert, litigate, and reclaim the maritime sovereignty that is in question. Hence, the argument that Ethiopian actual loss has a direct and a fait accompli effect on its international legal status on the Red Sea Littoral is not legally valid. A conclusive pronouncement on this long standing question of international law can only be given by the International Court of Justice. Neither the actions or inactions of the Ethiopian Governments during and after the separation of Eritrea and its birth as a state in 1993; nor the decision of EEBC be construed as conclusive responses to Ethiopian international legal status on the question. The only status or effect that these and other actions or inactions of Ethiopia and Eritrea could have is to be part of facts in the future international law examination process. They cannot certainly have a conclusive international legal status determining effect.
Let’s further look into the misguided views that belittle the Ethiopian question. Common to many Ethiopian and Eritrean elites, the Prime Minister confuses the question of maritime sovereignty with the rights of landlocked states to have access the sea through negotiation and agreements with coastal or transit states, which can easily be negotiated as set forth in the United Nations Convention on the Law of the Sea. As long as the coastal states agree to provide access through lease agreements, Ethiopia may obtain not just one but multiple sea access points from all coastal states, including from Eritrea. What is the thorniest and toughest question to be faced with and demystified through international legal argumentation is rather the question of Ethiopian sovereign right of access to the Red Sea or maritime sovereignty.
For those of us who confuse these two different questions, historian Hussein Ahmed’s warning, made to Franz Dombrowsks’ Book “Ethiopia’s Access to the Sea“, is still relevant. “The repeated emphasis on what [we refer] to as diversification of access to the sea implies that it compensates for the lack or loss of effective control over the coast. However, for the sovereignty of Ethiopia, the opposite is true.” Let’s not forget this (fore) warning both in the process of reading this article and in our future engagements with the question of Ethiopian maritime sovereignty.
The question of Ethiopia’s maritime sovereignty on the Coast of Red Sea must, therefore, be approached in accordance with the relevant norms and practices of international law, other than the UNCLOS centered and lease-based services that landlocked states could be enjoying.
Come on dear reader! How could a question of securing port access through a lease agreement with Eritrea or any other coastal state ever be worthwhile for a national and international agenda? Wouldn’t it be enough to be discussed between the executive organs of the government on whose mandate port access diversification is bestowed upon? In fact, the Prime Minister, the benefactor of the recent Red Sea Agenda, has a relative clarity on the question although he adopts a belittling and risky approach toward the recovery process. The question clearly is not, therefore, a lease-based transit access to the Red Sea, via Assab or any other coastal route.
B. An International Legal History of Ethiopian Maritime Sovereignty
History and historiography are indispensable to the study of international legal questions in general, and to the question of Ethiopian maritime sovereignty in particular. Historically, maritime control has long been a defining aspect of Ethiopian engagement with international law. Prior to the advent of European colonial menacing in Africa, Ethiopia held a prominent position on the Red Sea. Its historical interactions with European and Arab powers in the mid-19th century were largely centered on control of the Red Sea outlet. Leaders such as Yohannes IV and Ras Alula Nega fought valiantly, utilizing international law and diplomacy, to preserve Ethiopia’s maritime sovereignty. However, the use of treaties by European powers to oust or limit non-European sovereignty and transfer it to colonial powers hoodwinked Ethiopian leaders who viewed treaties as sacred covenants that should be honored. Britain’s transfer of the Massawa Red Sea littoral to Italy, and coupled with the prior occupation of Assab Bay, marked the colonial erosion of Ethiopia’s maritime sovereignty and its subsequent confinement to territorial backcloths. The Battle of Adwa, which resulted in the salvation of Ethiopian territorial sovereignty, took place at a time when Ethiopia had lost effective control over its main coastlines in the Red Sea. For a Country, that was hemmed in ‘between the jaws of hyenas’ , kicking European forces out of the coastal territories was not possible. Their maritime location gave Europeans, including the defeated and fleeing Italians, to have furthered their spheres of influence on Ethiopia and threaten its hard-won territorial sovereignty.
As a result, the reclamation of Ethiopian maritime sovereignty had to wait until the tides in the intra-European relations changed. The post-Italian occupation period that coincided with the culmination of World War II presented an opportune time for Ethiopia to unleash its diplomatic struggle and reclaim its maritime sovereignty through the use of international law. The years between 1940 and 1950, therefore, serve as a prime example of Ethiopia’s utilization of international law to reverse the loss of maritime sovereignty on the Red Sea and decolonize its coastal territories.
The historical records of the Post-World War II peace summits and the United Nations’ efforts in determining the disposal of former Italian colonies (Eritrea, Libya, and Italian Somaliland) exhibit the colossal role of international law in Ethiopia’s pursuit of its natural and historic rights over the Red Sea littorals(See, here, here, and here). Under the headship of the late Tsehafe Tizaz, Foreign Affairs Minister, and Prime Minister Aklilu Habtewold, who was the “great doyen of diplomacy and international law of the 20th century,” Ethiopia demonstrated greater efforts in utilizing the United Nations and international law to resist Euro-centric disposal of the ex-Italian colonies including Eritrea. Ethiopia thus played a pioneering role in the diplomatic fight for United Nations decolonization act.
Its active participation in the Post-World War II international legal order resulted in Ethiopia’s membership to the Paris Peace Treaty of February 10, 1947. Through this treaty, Italy renounced all rights and title to its territorial possessions in Africa, including Eritrea. As laid out in the joint declaration issued by the Governments of the Four Allied Powers, the final disposal of these possessions was finally determined by the United Nations General Assembly. Italy also renounced any claims to special interests or influence in Ethiopia.
As the Four Powers reached a deadlock on the disposal of the territories, the matter was transferred to the UN General Assembly for a decision. The transfer and delegation of the settlement of this ‘most vexing questions’ of the post-war era to the General Assembly was appreciated for its ‘novel and promising precedent’ to enhance the usefulness of the United Nations, and ‘assist the settlement of various other political problems by special agreements, in advance, to accept recommendations of the General Assembly and other organs of the United Nations.”
As authorized by this special multilateral treaty, the General Assembly passed Resolution 289(IV)/1949, which charted out the future of the three ex-Italian colonies. Italian Somaliland was granted independence as a sovereign state after a ten-year UN Trusteeship administration under Italian authority. Libya, comprising Cyrenaica, Tripolitania, and Fezzan, was immediately granted independence. As for Eritrea, the General Assembly decided to establish a Commission consisting of representatives from five member states (Burma, Guatemala, Norway, Pakistan, and the Union of South Africa) to ascertain the wishes and best means of promoting the welfare of the inhabitants of Eritrea, examine the question of disposal of Eritrea, and prepare a report with appropriate proposals for the solution of the Eritrea problem. In carrying out these responsibilities, the Commission was instructed by the UNGA to consider three key points: the wishes and welfare of the inhabitants of Eritrea, including the views of various racial, religious, and political groups; the interests of peace and security in East Africa; and Ethiopia’s rights and claims, particularly its legitimate need for access to the sea.
The Paris Treaty, which Ethiopia was a party to, and to which the joint declaration of the Four Powers toward their commitment to settle the disposal question of former Italian colonies became part thereof, has laid down Ethiopia’s sovereign right to direct access to the [Red] Sea or maritime sovereignty, under international law. As thoroughly examined in light of the accepted rules of treaty interpretations, the 1947 Paris Treaty and the annexed Joint declaration of the Four Powers, and UNGA Resolutions 289(IV)/1949, and 390 A (V)/1950 have primarily addressed and established Ethiopian maritime sovereignty under international law. As a result, the UNGA was acclaimed for ‘laying the foundations for a solution of one of the most vexing problems in the post-war era.’
But which outlet would, to the satisfaction of the legally recognised right of direct and free access to the Red Sea, be returned to Ethiopia? The answer, notoriously, is through the Afar Coastland, aka the Assab outlet.
The International Law that Makes Assab a viable Outlet
Ethiopia’s access to the Red Sea via the Assab Coastal territories remains a legally visible and geographically suitable route. The international legal legitimacy accorded to Assab further strengthens the visibility and accessibility-driven sea outlet option. The deliberations and actions of world states within the United Nations General Assembly following the Paris Conference in 1947 established the legitimacy and legality of Ethiopia’s maritime sovereignty on the African Coast of the Red Sea, mainly through the Assab littoral. The views and positions expressed by the majority of Member States during the First Committee meetings from April to May 1949 demonstrate international laws’ recognition of Ethiopian maritime sovereignty via the Assab sea outlet. Several countries, including the United Kingdom, the United States, Liberia, the USSR, Yugoslavia, Czechoslovakia, Poland, Byelorussian SSR, Ukrainian SSR, Argentina, Turkey, Belgium, Chile, Colombia, Costa Rica, Dominican Republic, Ecuador, El Salvador, Guatemala, Honduras, Panama, Paraguay, Peru, Union of South Africa, Venezuela, Pakistan, Saudi Arabia, Egypt, Cuba, China, and Burma, expressed support for Ethiopia’s claim for maritime access. Their suggestions on the disposal of Eritrea ranged from incorporating Eritrea into Ethiopia, annexing parts of Eritrea to Ethiopia, placing Eritrea under United Nations Trusteeship Administration, and later granting whole or part of Eritrea independence after an interim period. But almost all of these countries had set one major precondition to their respective options; Ethiopia should be given access to the Red Sea through the Assab Coastal Territories.
To recall the position of the Britannic Government, the post-war Military Administrator of Eritrea, and one of the key players of the disposal of the Ex-Italian colonies; it held a firm stand, until it made a subsequent compromise and agreed to the United States’ Federation Formula on the disposition of the colony of Eritrea, that “ without restriction of any kind, the whole Coastal Strip South of Arfali(at the base of the Gulf of Zula) down to the border of French Somaliland” be incorporated to Ethiopia. ‘This would, Britain argued, give to the emperor (Haile Selassie I) a long stretched of the Red Sea Coastline, the whole of the Danakali confederation of tribes (whose paramount chief, the Sultan of Aussa, already lives in Ethiopian territory), and the port of Assab which is connected by a first-class road to Dessie and Addis Abeba. The cession of this territory and port should more than compensate the emperor for his loss of the right of direct administration of the Southern districts’ that were proposed by Britain to be annexed with Sudan. They further were convinced that ‘to give effect [to the financial of needs of Ethiopia and the newly restored government of Haile Selassie I], and to secure the future independence of Ethiopia [they should] annex a territory to include Massawa and Asmara sufficient for a naval, military and air base.’ In its disappointment to the United Nation’s decision on the federating of Eritrea with Ethiopia, the Eritrean Liberation Front had, in 1980, recalled the fact that large members of the UNGA ‘were of the opinion that Ethiopia should be afforded an outlet to the Red Sea’ through Assab.
The collective view of these Member States, which aimed to recognize Ethiopia’s just claim for maritime sovereignty, demonstrates the international community’s conviction and recognition toward the historical claim. Their distinction between incorporating Eritrea into Ethiopia and ensuring Ethiopian access to the Red Sea, particularly via the Assab outlet, highlights the importance of not compromising Ethiopia’s quest for maritime sovereignty. After extensive deliberations, the United Nations General Assembly adopted Resolution 390 A (V), on December 2, 1950, recommending that the former Italian colony of Eritrea be an autonomous unit federated with Ethiopia under the sovereignty of the Ethiopian Crown. This resolution, upon the ratification of the Federal Act, and the proclamation of Eritrean federation with Ethiopia on 11th September 1952, was implemented. The endorsement resolution (UNGA Resolution 617(VII) of 1952) received an overwhelming support, with a vote of 51 in favor and 5 abstentions, applauding the Ethiopian-Eritrean federation and congratulating the Ethiopian and Eritrean public for their historic reunion. The abstentions were related only to the federation arrangement, indicating a consensus among the United Nations General Assembly members regarding Ethiopia’s sovereign right to direct access to the Red Sea, at least through the Assab outlet. Ethiopian sovereign right for a sea outlet as recognized by the first binding decision of the General Assembly or the United Nations couldn’t be overwhelmed by the subsequent activities or decisions of states including the activities of Ethiopian governments. The decision that remained operative for more than forty years (1952-1993 or 1998) was more than a decision. It made Ethiopian maritime rights an international custom.
Hence, the reclamation of Ethiopian maritime sovereignty through its historically and legally recognized Assab sea outlet remains visible so long as the claimant sticks to the process of settlement of international legal disputes. Given the nature of the international law questions it may be involved, the proper judicial venue that would dispense any future Ethiopian-Eritrean Maritime Dispute should be the International Court of Justice (ICJ). Any international dispute settlement forum other than the ICJ, history taught us a big lesson, cannot serve justice to this very outstanding question. Eritrea, for the purpose of this question, can and should be considered as an occupying power who shall be obligated to give the coastline back to its legitimate sovereign through the principle of reversion sovereignty.
The ‘Peacefulness’ and Conceivability of International Legal Dispute vis-à-vis the EEBC Decision
A. A peaceful International Legal Dispute Settlement Is Possible
Certain perspectives argue that Ethiopia’s assertion of its legally recognized right to reclaim maritime sovereignty could potentially infringe upon Eritrean territorial sovereignty, potentially leading to another destructive conflict between the two nations. However, it is essential to avoid war, as it goes against the principles of humanity. Nevertheless, connecting the historical context of the post-Ethio-Eritrean federation or the conflicts following Eritrean independence to Ethiopia’s maritime sovereignty is an oversimplification of history. In Ethiopia’s pursuit to (re)establish its maritime sovereignty, the fear of war should not always hold absolute authority. Instead, friendly nations should engage in peaceful and non-violent means of settling international legal disputes, as it is an erga omnes obligation that binds all sovereign states. If the state of Eritrea receives an official request from Ethiopia for the return of the Assab sea outlet, it should respond in a peaceful manner. If Eritrea believes that Ethiopia lacks the rightful claim, it should be prepared to engage in an international legal dispute and approach the litigation process in good faith. Given the strong international legal foundation supporting Ethiopia’s claim, Eritrea is obligated to negotiate or litigate under the framework of international law. Therefore, the discourse around war should give its way to peaceful and non-violent resolution of the maritime sovereignty dispute through international legal channels.
B. EEBC’s Decision does not Block Ethiopia from instituting lawsuit on a special Maritime Claim
Although the decision of the Ethiopian-Eritrean boundary commission has faced criticism based on international law and encountered challenges in enforceability, it does not preclude Ethiopia from initiating a fresh lawsuit specifically addressing the reclaiming of maritime sovereignty over the Assab sea outlet. The first justification for the legal validity of this claim lies in the distinction between Ethiopia’s maritime sovereignty and Eritrea’s sovereignty over the inland territories leading to the Assab sea outlet. The meetings of the United Nations General Assembly have demonstrated an appreciation for Eritrea’s territorial and maritime divisions. This historical context has shaped the relationship between Ethiopia and Eritrea following the federation, unification, and Eritrean statehood. Therefore, the general boundary dispute brought before and decided by the Ethiopian-Eritrean boundary commission should not be interpreted as encompassing the maritime dispute between the two states. While the EEBC’s decision assigned the inland territory transiting to the Red Sea via the Assab sea outlet to Eritrean territorial sovereignty, it did not address the specific question of maritime sovereignty. Given its distinct status and treatment within the international community under the United Nations, past and present Ethiopian-Eritrean disputes necessitate a distinctive approach. Consequently, the principle of res judicata cannot be invoked to prevent the initiation of a new international legal dispute on this question.
The next question that arises is, how can Ethiopia (re)claim maritime sovereignty while acknowledging Eritrea’s legally recognized territorial sovereignty over the adjacent inland territories? Two alternative arguments can be made in response. First, Ethiopia’s maritime sovereignty should take precedence over Eritrea’s territorial sovereignty on the West Coast of the Red Sea. Second, while Eritrea maintains its territorial sovereignty, it should be obliged to provide Ethiopia with freedom of passage to the Assab seashore through its inland territories, based on the principle of international servitude. Given that Ethiopia’s maritime sovereignty has received special recognition from the international community, it should be accorded a higher normative status, akin to customary international law. This elevated normative status cannot be outweighed by Eritrea’s territorial sovereignty over the inland territories in proximity to the seacoast where Ethiopia’s maritime sovereignty is established. Ethiopian ownership (sovereignty) of coastal territories could not override by Eritrean sovereignty which as a matter of fact is happened through a principle of (external) self-determination, which by no means can overturn Ethiopian permanent sovereignty over its natural and historical right to control and use of the Red Sea without hindering Eritrean sovereign rights to own and use the Sea. Alternatively, a legal compromise can still be reached by preserving Eritrea’s loose territorial sovereignty in the Afar Coastal territories and imposing upon it a duty of international servitude.
It could, therefore, be rightly argued that the Ethiopian-Eritrean boundary commission, established under the Algiers Agreement and its decisions do not have a binding effect on Ethiopia’s unique claim of maritime sovereignty. This right shall supersede every other newly established right in the Red Sea region, one of which is Eritrean occupation of the Assab outlet to the Red Sea.
Regime’s Stewardship for an International Legal Battling
The next point that needs addressing is the trustworthiness of the current regime to take care of the international legal battling to litigate and reclaim Ethiopian maritime sovereignty. This point could only be relevant if the government changes its course to litigate and attempt to reclaim the question of maritime sovereignty through international legal dispute.
The regime’s trustworthiness to handle such matters can be evaluated through the recent track records the Prosperity Party led Government have registered concerning matters of sovereignty and national interests.
The credibility of the Prosperity led Regime has shown a greater regression for the last few years. Lofty promises that were told to the public in the early days of Abiy Ahmed’s rule have gone in vain. What’s worse is the regime has put Ethiopia at devastating war with itself (see here, here, and here). Next to the immense losses and plights that Ethiopians are facing as a result of the senseless civil wars, the legitimacy and international acceptability of the government and the Ethiopian state are deteriorating. Hence, a regime that rules a country by an iron fist and heart wrenching civil wars cannot be a trusted patron to handle international disputes that usually requires a stable political environment at home and in the region. Hence, a regime which itself is seen as a threat to national security and stability cannot be trusted for the questions of sovereign and national interests.
Specific examples that can help us understand the credibility of the regime toward defending sovereignty and national interests are also available. The regime’s unwillingness to respond to Sudan’s incursion into the Ethiopian territory, and its invitation of Eritrea in the Northern Ethiopian war and the continuing presence of Eritrean forces in Ethiopian territories are prima facie evidence that the regime is failing its primary responsibility of defending Ethiopian territorial sovereignty and integrity.
Another recklessness that the regime has unveiled is its (mis)management of the GERD negotiations. A closer reading into the dossiers of the GERD negotiations, from 2018-to-date, underscores that the GERD, a national flagship project, and current and future Ethiopian rights on the Abbay River are in harm’s way. Besides to a number of specific diplomatic and legal risks that the GERD negotiations have posited on Ethiopian sovereign rights, a backfiring effect that the negotiations facilitated and escalated downstream countries’ securitization policy on the (mis)use of the Nile River vilifies the regime’s reckless approach towards national and sovereign matters mostly.
Coupled to the regime’s misguided and belittling approach to the question of reclamation of sovereign maritime access to the Red Sea, the previous track records that the regime has registered on matters that seriously impact Ethiopian sovereignty made the regime an untrustworthy patron to reclaim a direct and free access to Ethiopia either through the international legal litigation that this article proposed or even by its own misguided, belittling, and consequential approach.
In the process of understanding the regime’s intentions in launching the Red Sea agenda in a time when civil wars are raging across Ethiopia, the (geo) political maneuvering of the language, patterns, and narratives of sacredness or greatness of (past) Ethiopia, the sanctity of Ethiopian sovereignty and its continuity by the regime shall be seriously questioned. Given the bad track records that the regime has exhibited over highly sensitive national and sovereign matters, its Red Sea Agenda (the question it framed, the means (the solutions) it proposed, and the time and context it tabled) cannot make the regime any better than its past tricks.
An Epilogue
This article aims to reorient the current Red Sea Agenda that has took many of us to an eyebrow raising reaction into an international legal argumentation between and among the scholarly community of international law and the likes which would ultimately push the concerning states to a peaceful international legal dispute settlement process to litigate and resolve the longstanding maritime dispute on the East African Coast of Red Sea.
The bottom line that this article provides is the existence of an international law-based claim that Ethiopia could ask, litigate and reclaim direct and free sea outlet or maritime sovereignty in the coastal territories of the Red Sea, via the inland territories in the terminus of the Assad Island.
In conveying this central message, the article makes a critical review of the discussions and assertions made, Inter Alia, in political, academic, and media platforms. Despite the differences held on various aspects of Prime Minister Abiy Ahemd’s setting of the Red Sea Agenda, one thing seems to be a commonly accepted understanding for both the supporters and opponents of the agenda. That commonly accepted understanding is the lack of international law that could support Ethiopian reclamation of maritime sovereignty, not a lease-based use of ports of the coastal states. This, the article finds, misunderstanding, mainly occurred due to the perception that equates Ethiopian actual loss of control and use of its legally recognized maritime sovereignty in the Red Sea Coastlines to a loss of legal right to assert, litigate, and possibly reclaim its actual control and use of the coasts line that was temporally lost to the occupation of the neighboring coastal state.
It’s noteworthy noted that the grounds that largely established the mainstream understanding on the (loss of) Ethiopian international legal rights of ownership of a sea outlet are;(I) Ethiopian recognition of the emergence of its formerly province of Eritrea, through a formula of state separation, as state; (II) the non-subjection of Ethiopian rights of coastal territory for legal dispute, litigation, and decision before the 2003 PCA affiliated EEBC (Iii) the inclusion to Eritrea of the territory through which Ethiopia could and should have been used to use the coastal waters through sovereignty or ownership; and (Iv) the subsequent ( though are inconsistent) Ethiopian practices on territorial matters covered by EEBC decision.
Against these facts, the article holds a firm position that Ethiopia’s legal status on its sea outlet has not yet been specifically brought to, litigated and conclusively determined by a court of international law with an objective process of settlement of international legal disputes.
Hence, Ethiopian right to assert, litigate, and (re)claim its natural, historical, and legal rights of control and access to the sea is (still) a valid and viable subject matter of international law that cannot be denied or rendered as a legally impossible matter due to the factual realties of loss of control and use of the sea outlet. There is no such thing called as a fait accompli that would prevent international legal dispute on this question. Through international legal dispute, regaining or (perpetual) losing of control and use of a sea outlet is possible. This possibility should be considered for states relating to the question.
Given the misguided and belittling approach it is following on the question, and the lack of credibility it has on the matters of sovereignty and national interests, the current regime seems not a well-suited patron to lead Ethiopia into an international legal dispute and litigate its maritime rights. Hence, it should be advised to desist from its belittling approach toward the question. International legal argumentation, however, shall be continued. AS
Disclaimer: The views expressed in this article are that of the authors only and do not reflect JAKENN’s editorial stand on the topic.
