Mekelle፡Telaviv, Nairobi, Pretoria, London, (Tigray Herald)
Navigating Ethiopia’s Maritime Rights—Can Legal Doctrines Reclaim Assab?
By Asrat
Part two
Introduction
Ethiopia’s claim to the strategically critical Red Sea port of Assab relies on a comprehensive application of international legal doctrines, historical evidence, and diplomatic strategies. By examining doctrines of historic title, effective control, estoppel and acquiescence, and equity and vital interests, Ethiopia can persuasively articulate its legal rights and practical pathways to regaining maritime access through diplomatic means.
Historic Title and Continuous Claim
Ethiopia’s sovereignty claims over Assab rest on a longstanding historical connection predating colonial treaties. Historical maps by European cartographers in the 19th century explicitly depict Ethiopian sovereignty extending to the Red Sea, including Assab. Scholar Major Dawit Giorgis emphasizes that Ethiopia maintained uninterrupted historical ties until Italian colonization disrupted continuity.
This historic connection was internationally recognized post-World War II. Before the 1952 UN Resolution 390(V), Italy explicitly proposed maritime access guarantees for Ethiopia, including free zones at Assab and Massawa, affirming Ethiopia’s legitimate maritime claims.
Effective Control (Effectivités)
From 1952 until Eritrea’s de facto independence in 1991, Ethiopia exercised undisputed administrative and developmental authority over Assab. Substantial Ethiopian investments included constructing the country’s first oil refinery in 1967 (capacity: 500,000 tons annually), extensive port expansions, naval facilities, and transportation infrastructure directly linking Assab with Ethiopia’s interior.
By the 1970s, about 70% of Ethiopia’s international trade passed through Assab, illustrating its critical economic significance.
The International Court of Justice’s Pedra Branca ruling highlights the importance of sustained administrative governance, directly applicable to Ethiopia’s prolonged presence in Assab, thus bolstering Ethiopia’s sovereign claims.
Estoppel and Acquiescence
The doctrine of estoppel prevents states from retracting previously acknowledged commitments relied upon by other states. Ethiopia explicitly conditioned its 1993 recognition of Eritrean independence and subsequent agreements (Algiers Agreement, EEBC ruling) upon Eritrea’s assurances of continued economic cooperation, specifically maritime access to Assab, as clearly documented in diplomatic exchanges.
Eritrea’s unilateral expulsion of UN peacekeepers (UNMEE) in 2006 represented a clear material breach of these diplomatic commitments. This violation provides Ethiopia with a robust legal foundation to reconsider and potentially revise previous recognitions and obligations.
Equity and Vital Interests Ethiopia’s equitable claim emphasizes fairness, regional stability, and economic necessity. The World Bank indicates Ethiopia’s landlocked status incurs approximately 40% higher logistics costs compared to coastal neighbors, severely constraining economic growth and development potential.
Equitable solutions, such as joint administrative zones or economic lease agreements at Assab, align with African Union frameworks advocating regional economic integration, addressing Ethiopia’s economic and humanitarian needs, and offering substantial mutual benefits to Eritrea.
The 2000 Algiers Agreement and EEBC Ruling: Diplomatic Contestation
Although the Algiers Agreement (2000) and the EEBC decision (2002) placed Assab within Eritrea based on colonial treaties, Ethiopia retains diplomatic leverage due to Eritrea’s documented 2006 breach (expulsion of UN peacekeepers). The EEBC explicitly acknowledged ambiguities from the absence of physical demarcation, providing room for negotiated practical maritime solutions.
Rights of Landlocked States
Under Article 125 of UNCLOS, landlocked nations possess explicit rights to maritime access through negotiated transit agreements. Historical precedents like Bolivia-Chile transit arrangements offer clear diplomatic frameworks applicable to Ethiopia-Eritrea negotiations. Given Assab’s current underutilization and Eritrea’s economic stagnation, equitable transit arrangements present substantial mutual economic incentives.
Comparative International Disputes
International precedents strongly support Ethiopia’s diplomatic strategy:
1. Bolivia v. Chile: Demonstrates diplomatic persistence despite initial setbacks.
2. Singapore v. Malaysia (Pedra Branca): Highlights sustained administrative control’s decisive role.
3. Namibia’s reclamation of Walvis Bay: Illustrates successful diplomatic solutions for maritime disputes.
4. India-Bangladesh and Sudan-South Sudan: Offer practical models of negotiated economic cooperation.
International Legal Pathways
Strategic legal pathways available to Ethiopia include:
1. Seeking an ICJ Advisory Opinion via the UN General Assembly to enhance diplomatic leverage.
2. Arbitration or specialized tribunals mediated by neutral third parties, such as the African Union or Gulf states.
3. Diplomatic negotiations under African Union frameworks.
4. Establishing internationally guaranteed treaties that ensure practical maritime access without infringing on Eritrean sovereignty.
Anticipating and Addressing Eritrea’s Counter arguments
Eritrea may invoke doctrines such as uti possidetis (colonial boundaries), previous Ethiopian recognitions (estoppel), territorial integrity, and OAU principles. Ethiopia can effectively counter by emphasizing conditional recognitions, documented Eritrean breaches, and necessary equitable adjustments conducive to regional economic integration.
Strategic Recommendations for Ethiopia
Ethiopia should:
1. Diplomatically frame Assab as a mutually beneficial economic hub.
2. Advocate third-party mediated arrangements explicitly referencing successful international examples like Namibia-Walvis Bay and the Panama Canal.
3. Utilize international legal mechanisms strategically for diplomatic leverage.
4. Concurrently develop alternative ports (e.g., Djibouti, Somaliland’s Berbera) to strengthen negotiation positions.
5. Prioritize incremental strategies emphasizing practical access over immediate sovereignty reclamation.
6. Rigorously document historical, diplomatic, and legal evidence, supported by visual aids such as historical maps and economic data visualizations.
Conclusion
Ethiopia’s claim to Assab, grounded in robust historical documentation, economic evidence, sustained administrative control, explicit conditional recognitions, and equitable principles, presents viable diplomatic pathways to reclaim critical maritime access. Resolving this issue will rectify historical injustices, foster regional stability, and unlock significant economic growth and prosperity for both Ethiopia and Eritrea.
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References:
1.Giorgis, Dawit. Red Tears: War, Famine, and Revolution in Ethiopia. Red Sea Press, 1989.
(Details Ethiopia’s historical connections to the Red Sea and Assab specifically.)
2.Tekuya, Mahemud. “Ethiopia’s Quest for Access to the Red Sea.” Fordham International Law Journal, vol. 47, no. 1, 2024, pp. 1–52.
(Legal and historical analysis emphasizing Ethiopia’s maritime rights and claims.)
3.United Nations General Assembly Resolution 390(V), December 2, 1950. UN Digital Library. Available online: digitallibrary.un.org.
(Official UN resolution establishing Eritrea-Ethiopia federation, explicitly referencing Ethiopia’s need for maritime access.)
4.Eritrea-Ethiopia Boundary Commission (EEBC) Decision, April 13, 2002. Permanent Court of Arbitration, The Hague. Available online: pca-cpa.org.
(Final legal ruling defining territorial sovereignty, explicitly placing Assab within Eritrean territory.)
5.Algiers Agreement (Peace Agreement between Ethiopia and Eritrea), December 12, 2000. Available online: peaceagreements.org.
(Treaty marking the formal end of hostilities, establishing the EEBC.)
6.International Court of Justice (ICJ). Sovereignty over Pedra Branca/Pulau Batu Puteh (Malaysia v. Singapore), Judgment, May 23, 2008. ICJ Reports 2008, p. 12. Available online: icj-cij.org.
(Legal precedent for effective administrative control—“effectivités.”)
7.United Nations Convention on the Law of the Sea (UNCLOS), December 10, 1982. Article 125: Rights of Access to and from the Sea for Land-Locked States. UN Treaty Series. Available online: un.org.
(Defines rights and conditions for landlocked countries’ maritime access.)
8.World Bank. “The Challenges Facing Landlocked Developing Countries.” World Bank Report, 2022. Available online: worldbank.org.
(Statistical data on economic impacts of landlocked status.)
9.Organization of African Unity (OAU). “Resolution AHG/Res.16(I) on Border Disputes Among African States,” Cairo, July 1964. Available online: au.int.
(Establishes principle of respect for colonial-era borders—“uti possidetis juris.”)
10.Rothwell, Donald R., and Tim Stephens. The International Law of the Sea. 2nd ed., Hart Publishing, 2016.
(Provides comprehensive context on international maritime legal doctrines, especially transit rights.)
11.Shaw, Malcolm N. International Law. 9th ed., Cambridge University Press, 2021.
(General principles of international law relevant to estoppel, historic title, and treaty validity.)
