THE LEGAL CLAIM FOR THE RESPECT OF ETHIOPIA'S RIGHT OF ACCESS TO THE RED SEA IS NEITHER WARMONGERING NOR INCONSISTENT
By: Tseggai Mebrahtu ,
Specialist of public law and Jurisprudence
Almost two years ago the Eritrean invasion of Ethiopia was concluded by Ethiopia's blitzkrieg which led to the EPLF's withdrawal from Ethiopian territories. The victory was possible because all Ethiopians rallied behind their government's call for national mobilisation. However, the pyrrhic victory did not hit its target of ensuring Ethiopia's right of access to the Red sea. Our Government preferred, with out consulting us, to conclude a "peace accord" which provided, inter alia, for the demarcation of a border between Ethiopia and its former province on the basis of defunct colonial treaties. As Ethiopians answered to the Government's call for national defence by sending their children to the war front and by contributing money towards the war effort, it was natural for them to expect that the Government handle the case in such a way as to guarantee the right of our nation's access to the Red sea by all means including military, diplomatic and legal. However, our Government agreed hastily and irresponsibly to sign an agreement which factors out Ethiopia's right to the sea. Not only the Government is saying that it does not care two hoots about Ethiopia's right to the Red sea but it has begun belatedly to taunt with war mongering Ethiopians who claim rightfully for the respect of our national right. As someone who signed an article entitled the "unconstitutionality of the Algiers Agreement", I was led to think again if my article was in any way warmongering. I read also an article by Ethiopia's venerable professor Messay Kebede entitled "Assab or how to make a predicament". The professor explains his dissatisfaction with the arguments and counter arguments regarding Ethiopia's right of access to the sea. He then proceeds to anatomise and criticise three "schools of thought" which he considers to be contradictory. And he presents us with his expiationist theory for want of a better alternative.
The professor's article made me cast some doubt on the cogency of my arguments. Although, I was far from believing that my arguments were perfect, I was obliged, in view of the professor's criticism, to reappraise my position. Upon reflection, I convinced myself that my arguments and that of others could hold water. Therefore, I decided to not to write any reply. All the same there are two reasons which made me change my opinion and led me to write this reply. One, I thought that the best service I can do to professor Messay is to express my disagreement when he argues that what he calls the rectifiers' thesis suffers from inconsistencies. Two, unless one demonstrates the defects of the professor's arguments, they may appear to be a sledgehammer and thereby give the impression that all the legal arguments advanced since the signature of the Algiers Agreement are not well-founded and that Ethiopia does not have any cause of action.
My contention is that the legalist approach is perfectly consistent. It needs only to be understood in a strictly legal perspective. I argue that if the problem of border demarcation is to be solved through legal means, it is indispensable that all legal and historical arguments which guarantee Ethiopia's right should be explored and pled. If we fail to do so then there is a risk that the decision could have the effect of res judicata (a case ones decided cannot be revised). Basing my self on this purely legalist approach, I will try to show into two sections why this approach is neither war mongering nor inconsistent. And in a third section, I will try to examine if the expiationist theory constitutes a redemption for Ethiopia.
We Ethiopians can only be perplexed when our Government, instead of examining our advice, prefers to dismiss it out of hand as a war mongering. Is our Government not supposed to exercise state power for the common good of Ethiopians? Why should then it behave in such bizarre way as to give credence to insinuations of sell out and conspiracy with our country's historic enemies?. Politics, political philosophers say, is the art of discussion and persuasion in order to produce ideas and ways of solving problems of a polity. Therefore, in maters of national interest the Government should have been on the same wavelength with Ethiopians. A national debate should have been conducted. And, the Government should have acted in accordance with the decision of the majority. We expect our government to govern us democratically and not in a manner worthy of medieval absolutism. The point is even in medieval politics Ethiopian rulers and their subjects used to spoke and act as one man when it came to Ethiopia's sovereign interest, and there lies the secret of Ethiopian independence. The relevancy of the legalist approach.
The Reader may have heard or read a few weeks ago that the Swiss people were asked to decide by referendum if Switzerland should or should not become member of the United Nations. A fortiori, a referendum is indispensable on such matters as the right of access to the sea for the decision that this Government takes irresponsibly would have far reaching adverse consequences on the present and future generations. However, not only the Government is not addressing our legitimate concern by doing what it is normally expected to do, but it seems to be pleading the cause of the EPLF by taxing warmongering our claim for the respect of our country's paramount interest. Can one in his sane mind consider war mongering a claim for the respect of our country's right? If words have any meaning, the claim is a legalistic one. Unless one wants to condescendingly satirise us, we have never been war mongers. Quite on the contrary, we have been victims of aggression by those vis-à-vis of whom we have been incredibly friendly and generous.
That said, although I am averse to politicking and do not want to involve myself in support of one party or the other, I showed in my previous article why the Algiers Agreement was legally flawed from the substantive and procedural point of view. I tried to show that the Algiers Agreement is substantively illegal for it exhumes defunct treaties which were very detrimental to Ethiopia's national interest. I showed also the procedural defects of the Algiers Agreement because the EPRDF Transitional Government acted beyond its powers by agreeing to Eritrea's secession from Ethiopia. What is more, I argued that the 1993 independence was a result of secession and not decolonization, for Eritrea was decolonized by the UN in 1950. The different UN resolutions which considered the Eritrean question to be an internal Ethiopian problem were cited to prove this line of argument. However as international positive law neither forbids nor permits the accession into independence of a territory formerly belonging to a sovereign state, the UN admitted Eritrea as its member in the wake of the Ethiopian Government's official recognition of Eritrea.
None the less, the fact that Eritrea became independent did not mean that there was an international border. As Eritrea had been part of Ethiopia, the delimitation of a new border is mandatory if the Government says it would fight to the end to make the independence of Eritrea a reality. What we are saying is that Eritrea could be independent through the combined military superiority of the EPRDF and the EPLF. But one should not forget that what is done politically or militarily can be undone in a similar fashion. I leave that choice to politicians. As a lawyer, let me say that whether the EPRDF Government likes it or not, it does not have the right to nullify the various UN resolutions which affirm unequivocally Eritrea's ethiopianness. Legally and historically, Eritrea belongs to Ethiopia before the arrival of Italian colonialists and after their departure. The "international border" that existed during the Italian colonization of Eritrea had disappeared after the defeat of Italy and Eritrea's reunification with Ethiopia. Consequently, when the Transitional Government illegally decided to recognise the secession of Eritrea, there was no border at all. The region of Assab was not for example part of the province of Eritrea before the illegal secession in 1993. Therefore if there is to be a new international border, it is yet to be drawn.
The border cannot be drawn on the basis of defunct treaties unless one wants to harm Ethiopia. In other words, there is no legal basis which enables the Government to exhume defunct colonial treaties whose purpose was the strangulation of Ethiopia. If there is a will and good faith to address our concerns, we are not asking the Government to go to war. We are saying that if the divorce between Ethiopia and Eritrea is final and if a border is to be drawn by legal means, then the Government should enter a plea concerning Ethiopia's right of access to the sea so that we can abide by the tribunal's ruling . However, in stead of presenting all legal arguments which would buttress Ethiopia's claim of access to the sea, the Government has irresponsibly waived our country's historical and legal title to the sea by signing the Algiers Agreement. We are saying that it is up to the tribunal and not to the Government to decide what is our right and what is not. The Government should not bully us "paternalistically" to shut our mouths. Let the Government present all possible legal arguments and we will abide by the final judgement of the arbitration tribunal. What is the secret behind the Government's derermination to impose its diktat manu militari?
In my previous article, I tried to marshal facts and arguments in support of my thesis that if the divorce between Ethiopia and its province was to come to a successful end, one could not selectively exhume defunct treaties in a manner as to harm Ethiopia while selectively ignoring other treaties and resolutions which if taken as a basis for demarcation would not have only made impossible the viability of Eritrea but also would have given to Ethiopia an advantage far more superior than what she is laying claim to now. However, in order not to make the position of our Government very difficult and the very existence of Eritrea geographically non viable, we proposed that the new border be delimited on mutual concessions and on the basis of the respect of consent of the populations concerned without however Ethiopia's right of access to the Red Sea be the object of negotiation.
When we say that Ethiopia's right of access to the Red Sea is not negotiable, we are not demanding a Christian charity either from Ethiopian leaders or from their Eritrean cousins. We are merely demanding that our right recognised by international and Ethiopian law be respected first of all by our own government and then by the international society. And, it is this claim based purely on a legalistic approach which is being taxed as war mongering. My reply to this ill-founded accusation unbecoming of any government worth of the name is that a claim for the respect of ones right is not war mongering. What is war mongering and politically and legally irresponsible is this attitude which aims to muzzle us from insisting on the respect of our rights. We are only demanding justice. And when justice is not done, then the wronged, the helpless can only look up to his own means or to the help of God so that justice could be done one day. Be assured that the victim of injustice has his day of glory too.
To my surprise, Professor Messay described the Government's diktat as ultra-legalist. In my view, it is a misnomer to describe ultra-legalist a phoney "political" argument shrouded in a legal clothe . The idea that Ethiopia does not have a right of access to the sea because of the colonial treaties is not at all a legal argument. It is a simple arbitrary decision. Even if it were a legal argument, it is the personal argument of Ethiopian government officials. If they are genuine about that why do not they allow us to plead our right before the tribunal. We believe sincerely that Ethiopia has watertight arguments as to gain a cause of action. We are sure that the tribunal would rule in favour of us. It is incomprehensible that the Government decided to waive our right. The Government knows pretty well that if it pleads Ethiopia's case before the tribunal, Ethiopia will have a cause of action. What alternatives does our country have now? We have still legal remedies.
Namely, the parliament which seems to have accepted "yes-manism" as its guiding principle can this time take a courageous and epoch making decision by refusing to ratify the Agreement or any decision of the tribunal for reasons of national interest. Unless, the Government wants to give up our territory, the decision of the tribunal is not enforceable by itself. There will be no army or no police who would come to execute the decision. I fear that the government is only waiting for the tribunal's verdict as pretext to cede our territories. The fact that the Algiers Agreement forbids any right of appeal bothers me a lot. So we can still refuse to agree to the waiver of our right. No country negotiates on its paramount national interest. The council of Constitutional Inquiry and the House of Federation can review the constitutionality of the Agreement and declare it unconstitutional in accordance with article 9 of the constitution. Paragraph 4 of this same article states that all international agreements ratified by Ethiopia are integral parts of the laws of the country. But if a treaty is to be part of the law of the country, then it has to be conform with the constitution. Otherwise, it is invalid. So in my view, a joint reading of articles 86 and 9 renders the Algiers Agreement null and void. Opposition parties can for example apply to the Council Constitutional Inquiry for a constitutional review of the treaty. Even, the members of the council can examine the question constitutional review on their own initiative and submit their findings to the House of Federation which will for sure review it as unconstitutional. If these institutions do not discharge their constitutional responsibility by seeing to it that the authorities don't tamper with the sanctity of the constitution, they will be responsible of dereliction of duty. You may say that I am naïve. But, the lawyer does not have any other alternative other than to plead for the supremacy of the law.
The other argument of the Government and which Messay puts under the rubric of ultra legal argument is
"one cannot recognise Eritrea's right to independence and help achieve it while amputating a portion of its territory in the name of Ethiopia's right to the sea. In other words you cannot reincorporate Assab into Ethiopia without challenging Eritrea's right to independence".In first place , this argument begs the question because it takes for granted Eritrean ownership of Assab. In the second place, it confuses Eritrean independence with its territorial jurisdiction whereas the two are completely different things. Eritrea's independence is a matter of acceding to state sovereignty and enjoying international juridical personality. As every body knows Eritrea claimed the Hanish islands basing its arguments, inter alia, on the Ethiopian constitutions of 1955 and 1987 and it is claiming a part of Ethiopian territory. Does it follow that Eritrea ceases to be independent when it was decided that Hanish islands belonged to Yemen by virtue of the theory of geographical proximity? Will it follow that Eritrea will cease to exist if it did not get all the Ethiopian regions which it says are hers? So the argument that you cannot reincorporate Assab without challenging its independence is neither logical nor legally well founded. If the retrocession of Assab had the effect of calling into question Eritrea's independence whereas she has already a maritime outlet, what about Ethiopia which is not only being rendered landlocked but whose right to life is being compromised by the constitutionalisation of the right of secession? If people are that much concerned about Eritrean sovereignty, I wonder why they preach us to accept the "necessity" of the recognition of the right of secession. Why should not we apply to Ethiopia the same logic and consideration that we have for Eritrea? I can see no coherence in this line of argument.The other ridiculous argument is based on the hypothesis that Eritreans will never accept Ethiopia's claim and the only option would be a military one. But we don't ask for any charity. It is a matter of right. If they insist to go to war despite a court decision in Ethiopia's favour, then Ethiopia should defend itself. If the Government does not want to defend Ethiopa's interest by legal means and then by all other means, then I fail to see the purpose for which we have a government.
MESSAY also quotes the Government as saying that " the genuine interest of Ethiopia is to leave Assab with the understanding that it has no relevance unless it becomes a port that Ethiopia can use freely". His Excellency the prime minister also said in the past that Assab would remain a watering hole for camels if Ethiopia did not use it. I have the impression that he is taking sixty five million people for foolish who are ready to swallow everything he tells them. What one should know is that Ethiopia is not in competition with Eritreans. Even if time, fellow country men and circumstances have worked against us and brothers have been separated as a result of short sighted and power hungry politicians and we regret the division of one people into two, we continue to believe that Eritreans are Ethiopians therefore our brothers even if some individuals beyond the Mereb are saying that their brothers are on the other side of the sea. But that does not change our conviction and therefore we wish Eritreans all the best. Our good wish does not, however, mean that we will forgo our rights. As the tigrigna saying goes "kab kisadey kisad wedi ney" "which means I prefer to save my life even if that would mean the death of my own brother". What I am driving at is that we don't care if Eritreans exploit Assab or not. We are only demanding that our legal right be respected and be pled before a court of law.
The Government should not try to lull us by saying that Assab would be a watering hole unless Ethiopia uses it. As saying goes once bitten twice shy. Our recent experience showed us that if Assab could be a watering hole, it could also be a launching pad from which one can try to choke Ethiopia. Was not the Government obliged to send its troops to guard the port of Djibouti lest the Eritrean army block the passage of arms destined for Ethiopia's defence? So we demand that our government be more serious and stop from considering itself so guileful as to make us swallow all what it says. The problem with our Government is it invents meretricious arguments and gives unconvincing answers, without allowing the people to decide who is the right between the government and the opposition. Why doesn't the government organise a national debate or face members of the opposition party or intellectuals and then leave the decision to Ethiopians themselves? We don't demand our leaders to change their personal opinions. But, we find it repulsively irresponsible to give press conferences and say that Ethiopia does not have a right of access to the sea. And all that in the name of sixty five million people. What a presumption!
I think the reader can see from the foregoing that what professor Messay calls an ultra-legalist approach is ultra political, ultra personal which is full of false premises and false conclusions. I hope that my method of reductio ad absurdum has helped me in demonstrating the illogicality and impertinence of what Messay considers to be "ultra legalist". Messay too argues that the Government's approach is contradictory. But he strives also to show the inconsistencies of what he calls the rectifiers approach. Now I proceed to examine if really his argument is convincing. My belief is that the legalist approach is very consistent.
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[Opinions in this article are solely that of the writer.]