The Entire Assab Region, including the Port of Assab, was not defined by the 1908 Colonial Treaty between Ethiopia and Italy.
The “colonial thesis” for determining the boundaries of a new state is governed by a fundamental principle of international law called Uti possidetis juris. This principle was adopted by the Organization of African Unity (OAU).
In the case of Ethiopia and Eritrea, however, the principle of Uti possidetis juris does not apply, since Eritrea gained its independence in 1993 from Ethiopia rather than from a colonial power such as Italy or the United Kingdom.
Moreover, the Eritrea and Assab regions had been self-governing administrative units within the Ethiopian state before 1889. This status was also maintained during the reign of Emperor Haile Selassie and later under the Derg regime.
The Ethiopia–Eritrea border has had a troubled history. Over the last century, it has frequently been disputed, never formally delimited and demarcated, and it has been effectively abolished on two occasions. Unlike most African boundaries, which were reaffirmed at independence from colonial power, Eritrea’s borders rested on an Italian colonial administration that had ended some sixty years earlier.
Eritrea’s most recent colonial status was under the temporary British Military Administration, which concluded in 1952.
With the reassertion of Ethiopian sovereignty over Eritrea in 1952 and its formal incorporation in 1962, the border ceased to exist as an international boundary and functioned instead as an internal administrative division. It remained so until Eritrea’s formal separation from Ethiopia in 1993. Accordingly, the principle of Uti possidetis juris should not be applicable in this context.
Additionally, Article 4(1)-(2) of the Agreement between the Government of the Federal Democratic Republic of Ethiopia and the Government of the State of Eritrea, Algiers, December 12, 2000 (commonly known as the Algiers Peace Agreement) provides that the Boundary Commission shall delimit and demarcate the colonial treaty border based on pertinent colonial treaties (1900, 1902 and 1908) and applicable international law. The 1900, 1902, and 1908 treaties were bilateral agreements between the Empire of Ethiopia (under Emperor Menelik II) and the Kingdom of Italy.
These colonial treaties were intended to define the precise boundaries between the Ethiopian Empire and the Italian Colony of Eritrea. The colonial Treaty of 1908 defined the eastern sector of the border, but it did not extend far enough south to define the boundary containing the port of Assab. The Assab region was not the subject of a boundary-making treaty with Ethiopia. Accordingly, a treaty with Ethiopia did not define the entire Assab region, including the port of Assab.
Finally, the Algiers Peace Agreement Ratification Proclamation was an authorization to sign an international agreement, rather than approving a signed one. Notably, the Amharic version of Article 2 of the Algiers Peace Agreement Ratification Proclamation states that:
This provision indicates that it is an authorization rather than ratification under Articles 51 (8, 55 (12), 71 (2), 57, 43 (3) and 9 (4) of the FDRE Constitution.
However, the Executive has the constitutional authority to conclude an international agreement with a sovereign state without authorization to sign an international agreement.
Thus, based on the controlling or authoritative Amharic text, Proclamation No. 225/2000 functions as a political authorization for the Executive to sign the Algiers Agreement, not as an act of ratification under Article 55 (12) of the FDRE Constitution.
If it were considered as ratification, the ratification process of the Algiers Peace Agreement did not strictly adhere to the constitutional sequence set out in the FDRE Constitution, as it violated a rule of fundamental importance: the Ethiopian Parliament purported to ratify the Peace Agreement on December 8, 2000, while the Agreement itself was not signed by the Government of Ethiopia and the Government of Eritrea until December 12, 2000.
So, the Ethiopian Parliament purported to ratify the Agreement before the two governments signed it. This manifest constitutional irregularity and political manoeuvre, eroding checks and balances, casts serious doubt on the legal status of the Algiers Peace Agreement under Ethiopian constitutional law.
An international agreement that Parliament does not ratify in accordance with the constitutional procedure does not necessarily bind Ethiopia under public international law, as violating a fundamental internal law governing treaty-making can vitiate the state’s consent. Consequently, the Boundary Commission’s decision lacks binding force absent parliamentary ratification, as required by the supreme law of the land.
Based on the absence of a defining treaty, Ethiopia's long term effective control and administration of the entire Assab region and Eritrea as internal administrative units both before 1889 and from 1952 until 1991; the fact that Eritrea obtained independence through an agreement with an unelected Transitional government of Ethiopia; and the non-ratification and the constitutional invalidity of the Algiers Peace Agreement, Ethiopia's longstanding firm legal and historical claim to the area containing the port of Assab apparently carries significant weight.
Therefore, it is apparent that the status of the area containing the port of Assab is a complex and legally nuanced issue. Consequently, the Addis Ababa and Asmara authorities must be well aware of the need to reach a mutual agreement on their undelimited and undemarcated borders. A failure to find and get a lasting settlement could have ramifications far beyond the two countries.
Disputed Past: 1908 Colonial Treaty Didn’t Define Assab Region and the Port
By: Zeray Weldesenbet
The Entire Assab Region, including the Port of Assab, was not defined by the 1908 Colonial Treaty between Ethiopia and Italy.
The “colonial thesis” for determining the boundaries of a new state is governed by a fundamental principle of international law called Uti possidetis juris. This principle was adopted by the Organization of African Unity (OAU).
In the case of Ethiopia and Eritrea, however, the principle of Uti possidetis juris does not apply, since Eritrea gained its independence in 1993 from Ethiopia rather than from a colonial power such as Italy or the United Kingdom.
Moreover, the Eritrea and Assab regions had been self-governing administrative units within the Ethiopian state before 1889. This status was also maintained during the reign of Emperor Haile Selassie and later under the Derg regime.
The Ethiopia–Eritrea border has had a troubled history. Over the last century, it has frequently been disputed, never formally delimited and demarcated, and it has been effectively abolished on two occasions. Unlike most African boundaries, which were reaffirmed at independence from colonial power, Eritrea’s borders rested on an Italian colonial administration that had ended some sixty years earlier.
Eritrea’s most recent colonial status was under the temporary British Military Administration, which concluded in 1952.
With the reassertion of Ethiopian sovereignty over Eritrea in 1952 and its formal incorporation in 1962, the border ceased to exist as an international boundary and functioned instead as an internal administrative division. It remained so until Eritrea’s formal separation from Ethiopia in 1993. Accordingly, the principle of Uti possidetis juris should not be applicable in this context.
Additionally, Article 4(1)-(2) of the Agreement between the Government of the Federal Democratic Republic of Ethiopia and the Government of the State of Eritrea, Algiers, December 12, 2000 (commonly known as the Algiers Peace Agreement) provides that the Boundary Commission shall delimit and demarcate the colonial treaty border based on pertinent colonial treaties (1900, 1902 and 1908) and applicable international law. The 1900, 1902, and 1908 treaties were bilateral agreements between the Empire of Ethiopia (under Emperor Menelik II) and the Kingdom of Italy.
Finally, the Algiers Peace Agreement Ratification Proclamation was an authorization to sign an international agreement, rather than approving a signed one. Notably, the Amharic version of Article 2 of the Algiers Peace Agreement Ratification Proclamation states that:
“የኢትዮጽያ ፌደራላዊ ዲሞክራሳዊ ሪፐብሊክ መንግስት ይህንን ስምምነት ከኤርትራ መንግስት ጋር እንዲፈራረም የሕዝብ ተወካዮች ምክር ቤት ተስማምቶበታል።”
This provision indicates that it is an authorization rather than ratification under Articles 51 (8, 55 (12), 71 (2), 57, 43 (3) and 9 (4) of the FDRE Constitution.
However, the Executive has the constitutional authority to conclude an international agreement with a sovereign state without authorization to sign an international agreement.
Thus, based on the controlling or authoritative Amharic text, Proclamation No. 225/2000 functions as a political authorization for the Executive to sign the Algiers Agreement, not as an act of ratification under Article 55 (12) of the FDRE Constitution.
If it were considered as ratification, the ratification process of the Algiers Peace Agreement did not strictly adhere to the constitutional sequence set out in the FDRE Constitution, as it violated a rule of fundamental importance: the Ethiopian Parliament purported to ratify the Peace Agreement on December 8, 2000, while the Agreement itself was not signed by the Government of Ethiopia and the Government of Eritrea until December 12, 2000.
So, the Ethiopian Parliament purported to ratify the Agreement before the two governments signed it. This manifest constitutional irregularity and political manoeuvre, eroding checks and balances, casts serious doubt on the legal status of the Algiers Peace Agreement under Ethiopian constitutional law.
An international agreement that Parliament does not ratify in accordance with the constitutional procedure does not necessarily bind Ethiopia under public international law, as violating a fundamental internal law governing treaty-making can vitiate the state’s consent. Consequently, the Boundary Commission’s decision lacks binding force absent parliamentary ratification, as required by the supreme law of the land.
Therefore, it is apparent that the status of the area containing the port of Assab is a complex and legally nuanced issue. Consequently, the Addis Ababa and Asmara authorities must be well aware of the need to reach a mutual agreement on their undelimited and undemarcated borders. A failure to find and get a lasting settlement could have ramifications far beyond the two countries.
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