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The question is: do international agreements arbitrarily concluded by leaders beyond their constitutional powers be valid under international law. This question raises another question, ie, should the validity of international agreements be examined from the angle of international law or from the angle of municipal law. In other words should we examine the validity of the Algiers Agreement from the angle of Ethiopian constitution or from the angle of international law governing the validity of international treaties. This raises again the question of the relationship between international law and constitutional law. In the past proponents of the theory of head of state or the so-called monistic approach argued that an international agreement invalid from the angle of constitutional law could perfectly be valid from the angle of international law. The idea was that constitutional law was inferior to international law and should an agreement be unconstitutional, it was the constitution which should be modified so that it would be conform to the international obligation of the contracting state. However, the dualistic approach known also as constitutional requirements theory held an opposite view in that international agreements concluded by dictatorial regimes in violation of the constitutional restrictions of their powers should not be valid internationally. The idea is that the principle of constitutionalism and accountable government require that governments abstain from acting in a manner contrary to the sovereign will of their people by violating the constitution. However, the imperatives of ensuring the security of international relations led most scholars of international law not to accept the subordination of the validity of international treaties to domestic laws.
In this regard, Oppenheim writes:The idea is that a contracting state should not be expected to be a specialist of the constitutional law of more than one hundred eighty countries when it enters into a treaty with each of them. This is indeed a sledgehammer argument."while the general rule clearly suggests that invalidity is the consequences of concluding a treaty in violation of a constitutional restrictions, there has been much discussion of the extent to which such a rule is to be applied. While the principle of the invalidity of acts done in the excess of authority must be given due - and probably decisive- weight, there are clearly difficulties in requiring a state to go behind the ostensible authority of another state's representative to conclude a treaty, or form an opinion as to possible controversial question of another state's constitutional law; and allow any violation of any constitutional restriction to invalidate a treaty could jeopardise the security of international relations" (Oppenheim's International law 9th ed. Vol. 1 parties 2-4 edited by Sir Robert Jennings and sir Arthur Watts, 1993, P. 1287).
However the Vienna convention of 1969 has adopted a compromise solution. Under the title of "provisions of internal law regarding competence to conclude treaties Article 46 of the Convention proclaims the following:
Article 46(1) "a state may not invoke the fact that its consent to be bound by a treaty has been expressed in violation of a provision of its internal law regarding competence to conclude treaties as invalidating its consent unless that violation was manifest and concerned a rule of its internal law of fundamental importance"To make more clear, an international agreement is invalid if (1) it is made in violation of a constitutional rule of fundamental importance. In the case of the illegal Algiers agreement this requirement is fulfilled. Because the prime minister of Ethiopia has signed it in violation of article 86 of the constitution which provides that the government shall observe only agreements which accord with Ethiopia's sovereignty and independence. Undoubtedly, the Algiers Agreement violates Ethiopian sovereign right and independence. No government of Ethiopia which works for the interest of Ethiopia could have signed this type of agreement. However, the prime minister's penchant for Eritrea, has led him to write off Ethiopia's sovereign right in order to illegally favour Eritrea at the expense of Ethiopia. The illegal ouster of the tigraian leadership of the TPLF because of their opposition to the prime minister's exceedingly pro Eritrea policy is a good evidence. Therefore as the constitutional provision which forbids the conclusion of any treaty incompatible with Ethiopia's sovereignty and independence is the most important rule of all constitutional rules, the Algiers Agreement is invalid pursuant to the Vienna Convention of treaties.Article 46(2), "a violation is manifest if it would be objectively evident to any state conducting itself in the matter in accordance with the normal practice and in good faith".
(2)The violation of such rule is objectively manifest to Eritrea. Because, Eritrea has conducted itself in bad faith to take illegal advantage on Ethiopia by relying on the unlimited support of the Ethiopian prime minister who has sinned during the last eleven years by his total disregard of Ethiopia's sovereign right and territorial integrity. Not only Eritrea is in bad faith but also the prime minister and his minions are in bad faith. Because in stead of advocating Ethiopian sovereign interest, they have unashamedly argued in various international forums against Ethiopia and for Eritrea. Deforming the historical Ethiopianness of Eritrea, violating all UN resolutions concerning the Ethiopianness of Eritrea, they have argued that Eritrea is a colony of Ethiopia. Their anti Ethiopia argument is however in stark contradiction of international law which defines colonialism as a European adventure in the third world. The conclusion is that the aim of these people is to promote illegally the interest of Eritrea at the expense of Ethiopia. So by violating international law, the independence and territorial integrity of Ethiopia both masters of present day Ethiopia and Eritrea have acted in a bad faith towards Ethiopia. Therefore, Eritrea cannot argue that it did not know that the prime minister acted ultra vires and in violation of Ethiopia's right recognised by international law because not only Eritrea and Eritreans cannot be considered as foreigners to Ethiopia but they know what happens and what will happen in Ethiopia before sixty five million Ethiopians. This enabled them to be ungrateful economic parasites of Ethiopia for the last eleven years and there is no telling when they will stop from coveting Ethiopian resources and start to rely on their own.
Because of the imperious decisions of the Ethiopian government, Ethiopians have been crying for justice for the last eleven years in general and since the conclusion of the Algiers Agreement in particular against the flagrant violation of their sovereign right by a government which does not have the right to conclude treaties in the name of Ethiopia against Ethiopia. The Ethiopian case is so particular that the pro Eritrea position of the Ethiopian government has surprised the whole world in general and observers of Ethiopian political life in particular.
Not surprisingly, the objection of Ethiopians against the ultra vires decision of the prime minister to conclude the Algiers Agreement has been dubbed by Eritrean intellectuals and their government as a war mongering. The Ethiopian government does not say anything different other than parroting them as usual. The United nations has not been either willing to get respected its resolutions regarding the Ethiopianness of Eritrea. As if it did not make it clear on several occasions that the Eritrean case was not a colonial case but an internal Ethiopian problem, it has preferred to be accomplice of the anti Ethiopia crime by agreeing to the delimitation of the frontier on the basis of selectively chosen defunct and illegal colonial treaties. In the face of the Ethiopian government's determination to go ahead with its jungle law policy, Ethiopians have made it clear that their next government would not abide by an agreement which nullifies Ethiopian right recognised by the international society for a half century. They have reminded the United Nations and all international and regional organisations that the Ethiopian government has fought against Ethiopia for Eritrean independence, that it has persistently maintained decision to work for the respect of Eritrean independence and sovereignty whereas it has accepted as legal the total disintegration of Ethiopia.
The conclusion that Ethiopians arrive at reluctantly is that there is a tripartite collusion among the Ethiopian government, the Eritrean government and the United Nations to violate Ethiopia's sovereignty and independence. The Algiers Agreement is the result of such crime against the oldest country in the world to favour unlawfully an nine year old former Ethiopian province.
I think Ethiopians should learn a big lesson from this. Namely, their minor political differences have led to the flagrant violation of their country's sovereign right, to the invasion of their country by its former province. They should always bear in mind that the unity of their forefathers was the main secret which enabled Ethiopia to be permanently victorious. They defeated Arabs, Turks, Egyptians, Italians and Mahdists, Somalis. No country in the world had been obliged to fight numerous enemies such as Ethiopia. Nonetheless, our country gave a lesson to every one who dared desecrate her land. If the result of unity is permanent invincibility, the negative result of division is weakness and vulnerability to the extent of being invaded by a weakling state. It is therefore essential that those who really love Ethiopia and all Ethiopians forget past differences and come together to work out a national strategy with view to bringing about a democratic governance in Ethiopia. Those Ethiopians and political organisations who bear a political and personal grudge against their former political comrades or adversaries should not be an obstacle to the unity of Ethiopians. Instead they should be able to learn from their past errors and contribute towards the national effort of nation saving and building. Only by doing so can they be a reliable alternative political force to be reckoned with by the Ethiopian government and by its western mentors.
By way of conclusion, let me say that this article is a tentative to show the invalidity of the Algiers Agreement under international law. I hope that Ethiopians specialists of international law will come up with a comprehensive analysis so that it would serve for Ethiopians as an intellectual inspiration to continue to wage their fight against the unprecedented injustice against their country for as Ayala in his "De jure et officio bellicis et disciplina militari" argues
"... if a treaty is a cause of very great injury to the state, the succeeding prince is not bound by it... provided that the treaty relates to the transfer of something appurtenant to the royal crown and has been made without the requisite consent of the people... And such a treaty would be quite devoid of force right away from its inception".
[Opinions in this article are solely that of the writer.]