The unconstitutionality of the Algiers Agreement
By: Tseggai Mebrahtu
" Every thing has been said but as no one listens, we must begin again "
Andre GideIntroduction
Ethiopian intellectuals and opposition political parties have been voicing their objection against the so-called Algiers Agreement and the Border Commission which is purportedly entrusted to determine the boundary between Ethiopia and its former province Eritrea. Surprisingly enough, the rightful objection of Ethiopians has remained so far (and there is no sign that it will ever be in the near future) unheeded on the part of the Ethiopian Government and the United Nations. One would say there is a collusion which aims at depriving Ethiopia of its natural right of access to the Red Sea and forcing its citizens either to change their Ethiopian identity if they elect to remain in their ancestral homes or to leave their homes if they prefer their Ethiopian identity. For the sake of satisfying Eritrea's national aggrandizement and under the pretext of demarcating the border, the Ethiopian Government (hereinafter abbreviated EG), the US and the UN have engineered the Algiers Agreement (hereinafter referred to as Agreement) whose real purpose is to give a legal basis to the illegal cession of Ethiopian territory and its landlocked status. Therefore, as the Agreement aims to legalise the illegal and immoral strangulation of Ethiopia, anyone who wants to see a stable Horn of Africa should denounce this conspiracy which promotes Eritrea's delusion of grandeur at the expense of the vital interest of Ethiopia. However very peace loving Ethiopians may be, it is very naive to think that they will yield to any kind of diktat. The fact that the Ethiopian Government is an active promoter and an ardent defender of the relevancy of irrelevant and defunct treaties does not and cannot give any semblance of legality to the Agreement as far as the present and the future generation of Ethiopians are concerned.
The international community has an obligation to see to it that the secession of Eritrea from Ethiopia take place in an equitable fashion so that the peoples of both countries could work together to improve their well being and there by contribute to the stability of the region. It should therefore desist from giving myopically its imprimatur to this Agreement which is a sure-fire recipe for another war of devastation. The decision of Western democracies to disregard Ethiopia's inalienable right to the Red Sea because of its economic difficulty is a great mistake. The West should not be oblivious of the fact that a strong Ethiopia with its humanist philosophy is a precious strategic ally in this part of the world beset by Islamic fundamentalism and violence. I can imagine that some leaders of the West may take it to be a diplomatic impropriety to try to be more catholic than the Pope whereas the EG has not even been bothered to raise the issue. My contention is that no amount of legal sophistry can confer the Agreement even a touch of validity for it is a still-born agreement which, if implemented, even goes counter to the long term interest of Eritreans to live peacefully. By saying this, I am not trying to be a prophet of disaster. I am only trying to bring to the attention of the reader how much the Agreement which aims at asphyxiating sixty five million Ethiopians is ill-advised and therefore ill-fated.
The objective of this article is to substantiate why the Agreement is legally flawed and very pernicious to Ethiopia's vital national interest. That said, I must say that the contents of this article are by no means new. Everything has been said before by distinguished Ethiopian scholars having a detailed knowledge of the problem. However, as the EG miserably fails Ethiopia to be the best advocate of its vital interests, and as the UN's eagerness to see the border demarcated on the basis non-existent colonial treaties is a clear violation of all its previous resolutions, I have felt obliged, as a concerned Ethiopian and as one whose native awraja is likely to be affected adversely by this illegal Agreement, to make a modest contribution with view to highlighting, what I consider is, the monumental error being committed by the architects of the Agreement who see naively in it a lasting modus vivendi between the peoples of Ethiopia and Eritrea.
My personal belief is that Ethiopians do not oppose to the demarcation of the border. Nonetheless, the demarcation must be effected in a manner which should ensure Ethiopia's right of access to the Red Sea and help the future rapprochement between the two peoples. It goes without saying that Ethiopia and Eritrea are, nolens volens, condemned or blessed, if you like, to coexist as neighbours. Depending on how the divorce takes place and on how the people perceive it, the cohabitation could be nightmarish or a blessing. It is therefore essential to bear in mind, when we contemplate of the demarcation, to think about all round relationship beyond and after the demarcation. Despite the atrocity and the barbarism to which our people have been subjected, I think it will be necessary some times in the future to be able to say that bygones are bygones. We should not look therefore on the black side of our future relationship. In this epoch of economic globalisation where the planet has become a small village, we cannot afford to live a kind of cold war mentality in the Horn Africa.
Nevertheless and to our big regret, the Agreement erects another Berlin Wall in our region. It militates against the creation of a conducive environment for the improvement of the highly envenomed relation between the peoples of the two countries. It rather paradoxically perpetuates the state of war which it purportedly aims to put an end to. By denying Ethiopia's right of access to the Red sea and by making our people and the historical places where they live in the objects bargaining, the Agreement impairs not only our people's ambition to economic development but submits our identity and history to the verdict of foreigners. It compromises also our country's independence by exposing us to an eventual capricious blackmailing of far away historic enemies and the new tiny hostile neighbouring states.
As everybody knows the skeleton of the Agreement is the exhumation of defunct colonial treaties of 1900, 1902 and 1908. Before, I dwell on the invalidity of these treaties, I challenge those who defend the exhumation and applicability of colonial treaties to answer the following question: why should the Agreement confine to selectively exhume the above mentioned treaties and not other treaties such as
(1) the treaty signed between Ethiopia, Great Britain and Egypt at Adowa on the 3rd of June 1884, which read
"Her Majesty the Queen of the United Kingdom of Great Britain and Ireland, Empress of India , His Majesty Johannis, made by the Almighty King of Sion , Noogsa Negust of Ethiopia, and his His Majesty Mohammed Tewfik, Kedive of Egypt, being desirous of settling the differences which exist between the said Johannis, Noogsa Negust of Ethiopia and Mohammed Tewfik, Kedive of Egypt, and establishing an everlasting peace between them, have agreed to conclude a Treaty for this purpose which shall be binding on them selves, their heirs, and successors"Article 1 of the Treaty provided for the free transit for all goods through Massowah to and from Ethiopia, whereas article 11 stipulated as follows:"On and after the first day of September, 1884, corresponding to the 8th day of Maskaram 1877, the country called Bogos shall be restored to his Majesty, the Noogsa Negust; and when the troops of His Highness the Kedive shall have left the garrisons of kassala , Amedib, and Sanhit, the buildings in the Bogos country, which know belong to His Highness the Kedive, together with all stores and munitions of war which shall then remain in the said buildings, shall be delivered to and become the property of His Majesty the Noogsa Negust."
2) the treaty signed between Ethiopia and Italy on the 2nd of May 1889 whose article 4 provided" the convent of Debra Bizen, with all its property, shall remain in the possession of the Ethiopian Government, who shall not, however, be able to make use of it for military purposes."
(3) The Treaty of 26th of October 1896 whose article 4 read"Till the final demarcation of the border by the Ethiopian and Italian Governments, the Italian Government engages itself not to cede any territory to any other country. In case it decides to abandon of its free will a part of territory under its control, it will hand it over back to Ethiopia" (the writer's own translation)
(4) the Treaty of the 10th July of April, 1900 whose article 11 read"the Italian Government binds itself not to cede or sell to any other country the territory comprised between the line Tomat, Tadluc, Mareb-Mai, Ambessa-Mai, Feccia-Mai, Maretta-Mai, HaMahio, Piano, Faraone, and the line Tomat, Todluc, Mareb, Belessa, Muna, left by His Majesty King Menelik, King of Kings of Ethiopia to Italy ".
I can guess that proponents of the applicability of the treaties of 1900, 1902, and 1908 as the only basis of the border demarcation would say that the treaties of 1884, 1889, 1896 and 1900 (article11) would not be applicable because they were modified by subsequent treaties. My rejoinder is simple: the treaties which the Agreement tends to give a new lease of life were also extinguished by other subsequent juridical acts the detail of which we will see below. This means that either we take into account all treaties entered into between Ethiopia and Italy or between Italy and other countries from 1884 to 1947 when Italy renounced its right to claim its colonial possession of Africa and all other UN resolutions concerning Eritrea or we don't take any of them and proceed to demarcate the border on the basis of mutual concession and on the consent of the population concerned without however Ethiopia's sovereign right to the sea being a subject of negotiation. In my view, the second alternative is the most realistic and capable of bringing a new wind of reconciliation in the region. Regrettably, common sense has not prevailed and the Agreement has written off Ethiopia's sovereign right. The establishment of the Border Commission is no more than a diplomatic window dressing. Every thing has been decided in Algiers.At this juncture, it must be stated that the Agreement is the first of its kind to exhume non existent treaties as far as the history of international law is concerned. Never has, as far as I know, a country compromised its territorial integrity by referring willingly to non existent colonial treaties which it knows are very harmful to its vital national interests. Ethiopia is therefore adopting a suicidal policy. The conclusion at which I arrive is this: there is no legal basis which justifies EG's decision to agree to a selective exhumation of defunct treaties if not its political good will to accede to the claim of Eritrea. Of course, I understand that the behaviour of the EG is dictated by the long standing decision of the TPLF/EPRDF to consider the Eritrean question as a colonial issue. We know how much the TPLF had moved heaven and earth to sell to the tigrean peasantry its ideology of Eritrea as a colony of Ethiopia. The conclusion of the Agreement is therefore another attempt to sell to the international community this historical and legal distortion.
The question that must be asked is: should the UN buy this indefensible theory which is at variance with the definition of colonialism as established by principles of public international law? Is the Agreement not a clear violation of resolution 390(V) of the UN General Assembly which sanctioned the decolonization Eritrea by deciding its federation with Ethiopia? Did not the UN consider the Eritrean problem to be a domestic Ethiopian problem and not a problem of colonialism in line with the definition adopted by resolution 1541(XV)?
This article, which centres around this key issue and other related questions, is divided, for the sake of clarity, into two parts. The first part attempts to demonstrate why the so-called treaties of 1900, 1902, and of 1908 were legally non-existent because void ab initio. Besides, an attempt will be made why, should one admit in the first place that they were legally valid, these treaties were non-existent because they were violated by Italy on several occasions and more importantly because of their extinction by various UN resolutions. This will lead us to argue in the second part that Agreement's reference to colonial treaties is destined to show Eritrea's decolonization in 1993 where as it has been part of Ethiopia. Its accession to independence is the result of the EPRDF's decision to implement Eritrean "right to secession". The inescapable conclusion is that Eritrea belongs juridically to Ethiopia even today. Nonetheless, this will not lead me to argue for the calling into question of its illegal independence or for its return. I am of the opinion that the divorce was unnecessarily long overdue. That said, I would like to underscore the fact that if the divorce is to come to a successful end, it should be fair in the eyes of both parties so that the separation could lead, at least, to a détente in the Horn of Africa. However, the Agreement does not augur well because it is based on defunct treaties whose aim was the strangulation of Ethiopia.
On the non-existence of colonial treaties
This is hardly the proper place to dwell on treaties. Nonetheless, we can take as our point of reference the definition of a treaty as an "agreement between two or more subjects of international law destined to create legal obligations governed by international law " (Quoc Dinh, Daillier, Pellet, 1999). Besides a treaty must be concluded in good faith, i.e., it should be free from duress, fraud et cetera in order to be binding. If one examines the treaties of 1900, 1902 and of 1908 in the light of this general description, one cannot fail to see that the object of these treaties was the cession of Ethiopian territory to Italian colonialists. The question is why should Ethiopia agree to the cession of her territory given that all leaders of Ethiopia starting from King Zer'a Yacob (1434-1468) to nineteenth century Ethiopian leaders did their level best to make sure that Ethiopia be in a repossession of its natural sea outlets. Indeed, this question has been a moot point for historians. For some, the territorial cession is seen from angle of the then existing rivalry between tigrean and shewan nobility. Because of this, they believe that Menelik gave the territories to Italy in a bid to weaken his northern rivals. In view of the fierce determination of ast'e Yohannis to drive away Egyptians first and Italians later (David 1947), one may be tempted to lend credit to this facile theory. However this approach is epistemologically incorrect for instead of conceiving history wie es eigentlich gewesen (as it really happened)( Ranke, 1824) it makes it an exercise of a simple logical inference.If we try to look at history as it really happened, we realise that Ethiopia was encircled from all directions by hostile European colonial powers. The two Europeans major powers England and France and their junior partner Italy were knocking at the doors of Ethiopia to share her territory between themselves despite Ethiopia's victory over Italy in 1896. Besides, Ethiopia was under a material impossibility to defend itself against the three not to mention that they had an entente to prevent any importation of weapons by Ethiopia. The only way Ethiopia could survive the colonial encounter was to resort sometimes to diplomacy, sometimes to force, sometimes to territorial cession following the example of China and Thailand. Because of the highly critical situation which Ethiopia found itself in, it was very easy for Europeans to dictate their conditions and duress her into ceding its territories and sea outlet. The so-called colonial treaties of 1900, 1902 and of 1908 were the direct result of this duress. If not, one cannot see any reason why Ethiopia should agree to cede its territory four times within a space of 18 years(1889-1908). The treaties were therefore void ab initio because there was no free expression of will on the part of Ethiopia.
What is more, the behaviour of Italy was not in keeping with the basic principle of international law: pacta sunt servanda (treaties validly made are binding and observed in good faith). I argue that Italy ruled out from the outset the question of being abided by these treaties because it was not at all interested in the northern tip of Ethiopia. Italy which was threatened by a depopulation as a result of the massive migration of its impoverished population to America had to find a place for their resettlement in the fertile and the salubrious Mediterranean type of climate of Ethiopian highlands. For this reason, Italy could not be satisfied in its colonial endeavour short of taking the whole of Ethiopia. The successive conclusion of different treaties testified to its growing territorial greed.
Moreover, the absence of any intention on the part of Italy to be abided by these treaties was borne out by the 1906 tripartite agreement between England, France and Italy wherein the three parties agreed to share out Ethiopia into their respective zone of influence (Doresse 1970), a diplomatic euphemism to say their respective colony. That western plot showed, one the hand, their lip service recognition of Ethiopian sovereignty, and on the other hand, Italy's long standing desire not to abide by these treaties. The other less known but a clear manifestation of Italy's determination to take the whole Ethiopia concerns the secret agreement Italy and England concluded on the eve of the First World War. This agreement, which was concluded without the knowledge of the French, stipulated Britain's pledge not to oppose to Italy's take over of Ethiopia as a reward for Italy's participation in the war on the side of the Allied Powers. Fortunately, this anglo-italian conspiracy did not came to fruition because of new developments within Ethiopia itself.
I would like to remind the reader that the aggravation of the ailing health condition of King Menelik was seen by European colonial neighbours of Ethiopia as a golden opportunity because they thought that the country would collapse with the passing away of the sovereign. Sensing that his days were coming to end, King Menelik decided to appoint his grand son, Lij Iyassou as his successor. Wary of the 1906 tripartite agreement to divide Ethiopia, the very perspicacious and talented Iyassou adopted an openly pro German policy. For the young Iyassou, the cloud of aggression that was looming large on Ethiopia had to be averted by a close rapprochement with such countries as Germany, Austria and the Ottoman Empire which had not any territorial interest in the Horn of Africa (Atsebeha Hailemariam, 1978).The Germans which had considered this part of Africa to be a special Anglo-Franco-Italian domain were agreeably surprised by the new Ethiopian foreign policy which used to be francophile. The conclusion of many generous treaties in favour of Germany sent a wave of terror to both England and France ( Alype, 1917).
Nonetheless, Iyassou, unlike his successors did not have any confidence on foreign powers. His astuteness led him to count only on his people. To this end, Iayssou started to take unprecedented measures intended to show to all Ethiopians that he was their impartial king despite their regional, religious and linguistic differences. In the token of his commitment towards national reconciliation (Atsbeha Hailemariam) not only Iyassou embarked on an enterprise of renationalisation of state power but he also decided to make tour of his country in order to better know his people and understand their problems. In southern and eastern Ethiopia, the simplicity and humbleness of Iyassou conquered the hearts of millions of peasants. In Northern Ethiopia too, all major provincial governors rallied behind this national cause. His father King Michael obtained the patriotic support of all governors of Tigrai, Beguemedir, Gojjma (ibid) and, of course, of his fief wello in his drive to liberate their brothers in Eritrea smarting under colonialism and racism. By the same token the talented and farsighted Iyassou thought that a real national reconciliation between Ethiopians had to be accompanied by a close relationship between Ethiopia and the neighbouring European colonies of the Sudan, Djibouti, and Somalia if Ethiopia was to continue to be a symbol of independence(ibid.).
However, the germanophile policy and the pan-Horn Africa move of Iyassou were particularly dreaded by the parties to the 1906 agreement. In addition, the shewan aristocracy considered the policy of "deshewanisation" of state power as a betrayal of the Menelikian legacy. As a result, the European powers and the shewan elite had made a common cause to remove Iyassou from power. Accused of trumped up charges of conversion to Islam, Iyassou was excommunicated in absentia by the patriarch as a heretic in conformity with the fetha negast. Neither the church, the population nor the provincial nobility did however buy the charge of apostasy. Iyassou's policy of national reconciliation and nationalisation state power, unfortunately very far from being realized even at the dawn of the 21st century, were too untimely modern, too good to be to be realised and lasting. The Europeans carried the day. The project of breaking Ethiopia's siege was nipped in the bud. There was, however one temporary consolation prize for Ethiopia. That is the British could not give the green light for the Italians to take over Ethiopia as had been agreed before.
This digression is made to show to the reader how much Italy did not have any intention of being abided by the treaties. The Italians did not however despair. They thought that they could do business with young Tafari who became the foreign minister and the crown prince. They decided to give the impression of being friendly towards Tafari, who naively thought that the admission of Ethiopia into the League of Nations could protect her from being invaded. Tafari, who was hopelessly seeking the diplomatic support of a European power to be admitted into the closed white club, was trapped by Italy's offer to help him in his endeavour. Indeed, Italy and France propped up Ethiopia's application for adhesion in the face fierce British opposition whereas with the appointment of fascist government in Italy preparations to invade Ethiopia were being made. In the late 1920s, the newly appointed Italian fascist administrator of Eritrea embarked on appropriating territories in the Tigrai province arguing that these were i terra nullius (a land without owner) in accordance with the Berlin Conference of 1885 which sanctioned, by virtue of the colonial right of Europeans, the scramble of Africa. The decision of Italy to consider Ethiopia as a territory with out owner did not only reflect the pinnacle of racism but also a clear manifestation of the absence of any intent on the part of Italy to be abided by the treaties which the EG intends to immortalise. The conclusion that one cannot fail to arrive at is that Italy did not have any intent to be abided by the treaties. One cannot therefore safely argue that there was a valid treaty between Ethiopia and Italy.
The other point which militates against the existence of colonial treaties was fascist Italy's megalomaniac policy of building another Roman Empire which aimed at bringing defiant Ethiopia to its knees by the use mustard gas in violation of the international convention which prohibited its use. The fascist invasion of Ethiopia in 1935 saw the culmination of Italian half century old dream of colonising Ethiopia. On the paper, the enemy adopted a divide and conquer policy and divided the country into numerous ethnicised administrative territories which formed part of the East Africa Italian colonial territory. In accordance with the policy of ethnic territorialization , the provinces of Tigray and Eritrea were also lumped together and came under one ethnic administration. On the international plane, the League of Nations tolled its death knell by deciding to cancel Ethiopia from its membership and erased it from the world map although more than two third of Ethiopian territory remained in the control of Ethiopian patriots. In this regard, one must know that although every kind of war does not have the effect of extinguishing every kind of treaty, the Italian invasion of Ethiopia in 1935 had without doubt extinguished the border treaties.
Fortunately, the complaisance of the League of Nations did not deter Ethiopians from waging a heroic war of independence which was to be crowned with a resounding success in 1941. After its defeat, Italy relinquished by the Paris Treaty of 1947 its former colonial possessions in Africa and agreed to pay a war indemnity to Ethiopia . But Negus Haile Selassi'e refused to accept the offer saying that such a meagre sum would do disservice to the Ethiopian national pride and to the pride of the 700, 000 patriotic Ethiopians fallen under fascist bullets.
In the mean time, Eritrea which should have been automatically reverted to Ethiopia was made to stay illegally under British administration. The legal status of Eritrea was however an amorphous one, for it was neither a colony nor a decolonized territory. Although, Ethiopia's historic and legal right on Eritrea was not debatable, the British decided to turn a deaf ear to Ethiopia's claim. One important point was however a subject of consensus, i.e., the recognition of Ethiopia's right of success to the Red Sea. The Four Victorious Powers, USA, UK, France and USSR recognised that the Assab territory would be reverted to Ethiopia what ever might be the final destiny of Eritrea. At last, the UN General Assembly passed a resolution in 1950 federating Eritrea with Ethiopia under the sovereignty of the Ethiopian crown. The resolution was supported by 46 countries with 10 opposition and 4 abstentions. This resolution formalised the decolonization of Eritrea which was in abeyance since the termination of its colonial status by the treaty of 1947.
At this juncture, it must be stated that the Federal Act was not and could not be an international treaty between Ethiopia and Eritrea. Until 1993, Eritrea did not have a legal personality under international law because it was not a subject of international law. As a result, it could not conclude a treaty in the sense that we have defined the term treaty above. In other words, the federal arrangement was an internal act which the Negus could modify or abrogate. The fact that the Revised Constitution of 1955 did not make any reference shows that Ethiopia was a unitary state. The so-called federation was in actual fact a kind of local autonomy governed by a simple act of parliament not even by the constitution. In my view, it was not realistic to envisage the federalisation of Ethiopia given that a true federalism is conspicuous by its absence in the African continent even today. One must remember that the federal formula was proposed by the USA as a middle ground to appease its Islamic middle eastern allies which were opposed to the complete union of Eritrean Moslems with Ethiopia whom they wrongly considered and continue to consider to be anti Arab, Zionist and Christian.
Be that as it may be, the royal act abolishing "federation" in 1962 was considered by Arab and Eritrean nationalists to be an act of outright annexation. And the theory of Ethiopia as colonizer of Eritrea was born. On the Ethiopian side, the theory of colonisation got also an enthusiastic endorsement from the TPLF/EPRDF. Although the EPRDF stance vacillates from colonial question to that of a simple recognition of the right of self determination (EPRDF 1984 eth. c.), we can safely argue that the 1993 Eritrean independence is viewed both by the TPLF and the EPLF as the outcome of a national liberation struggle against what they call black Abyssinian colonialism and it is because of this that the EG is intransigent on the "sanctity" of colonial treaties. The EG is determined to accept this theory, if need be against the whole world, because its refusal to accept the Ethiopian colonization of Eritrea would frustrate legally the secession of Eritrea. However, the theory of black Abyssinian colonialism is a fallacy devoid of any historical, sociological and juridical backing.
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[Opinions in this article are solely that of the writer.]