Unpacking the Illegality of the Ethiopia-Somaliland Naval Base Agreement in a Dynamic International Arena

On the 1st of January in 2024, the Prime Minister of Ethiopia, Abiy Ahmed, signed an agreement with the Republic of Somaliland. In this deal, Ethiopia would gain access to a piece of coastal land in Awdal province to construct a naval base for a period of fifty years. In return, Ethiopia would acknowledge the sovereignty of Somaliland. However, the Federal Government of Somalia, the recognized governing body, strongly opposed this deal, referring to it as invalid. The global community, including entities like the United States, European Union, African Union, and Arab League, have called for the upholding of Somalia’s independence and territorial integrity.

The Republic of Somaliland declared its independence from Somalia on the 18th of May, 1991. Although no other country has officially recognized this independence, Somaliland acts as an autonomous region within Somalia. Somaliland draws its borders from the former British Somaliland Protectorate and claims that its sovereignty was established on the 26th of June, 1960, after it broke free from the United Kingdom. The Republic of Somaliland insists that its 1991 declaration of independence was a reaffirmation of its sovereignty.

We are currently witnessing a period where the established order is under threat. The naval base agreement between Ethiopia and Somaliland poses a significant geopolitical challenge to the region of the Horn of Africa and the Red Sea. Various legal frameworks govern the creation and alteration of states on an international level, including treaty laws and customary practices. The primary concern at hand is whether Ethiopia, as a member state, can independently grant recognition to Somaliland as a sovereign entity. To address this issue, a thorough examination of the African Union’s Constitutive Act is required to understand the procedures for admitting new member states.

1. Clarifying the Boundaries from 1960

By January 3, 2024, the U.S. State Department spokesperson, Matthew Miller, affirmed that the United States acknowledged the territorial integrity of the Federal Republic of Somalia within the boundaries established in 1960. The 1960 borders pertain to the limits of the Republic of Somalia, which gained UN membership on July 5, 1960. The Republic of Somalia was the first modern Somali state, independent from colonial rule, lasting from 1960 to 1969. It operated as a democratic multiparty system, running constitutional referendums and national elections during its tenure.

Following a communist-led military coup in 1969, the Republic of Somalia transformed into the Somali Democratic Republic. Subsequently, in 1991, Somalia plunged into statelessness due to internal conflicts. During the same year, Somaliland declared itself independent from Somalia, though this declaration has not been internationally recognized. The Federal Government of Somalia obtained recognition as the legitimate governing body in 2012. The current Somali constitution explicitly states the inviolable and indivisible nature of its territorial integrity, based on the boundaries outlined in 1960.

Given that the Republic of Somalia was the sole state admitted to the UN and African Union, it holds the ultimate sovereignty. Therefore, the Federal Republic of Somalia is the official successor to the previous Somali Democratic Republic and Republic of Somalia phases, just as the Federal Democratic Republic of Ethiopia succeeded the People’s Democratic Republic of Ethiopia and the Ethiopian Empire.

2. Criteria based on African Customary Law for Accepting New Memberships

According to the Vienna Convention on the Law of Treaties, only states possess the authority to engage in treaty agreements. Treaties serve as the fundamental means of establishing international laws, requiring formal consent from ratifying states to be enforceable. The Constitutive Act of the African Union, serving as a multilateral treaty, lays down principles emphasizing sovereignty equality, respect for post-independence borders, and non-interference in other member states’ internal affairs.

In 1963, the Republic of Somalia became a founding member state of the Organization of African Unity (OAU) and a signatory to the Constitutive Act. Following the transition to the African Union, the Federal Republic of Somalia inherited its member state status. Established through state practices, customary international law binds states that do not object during its formation. New member additions to the African Union traditionally occur through either decolonization or secession. Eritrea (1993) and South Sudan (2011) joined through secession, mirroring Somaliland’s case. The original Constitutive Act signatories emerged from the decolonization process, where states gained independence from colonial powers. Secession is defined as a region breaking away from a mother state to form a new independent entity.

Both Eritrea and South Sudan successfully broke off from Ethiopia and Sudan, respectively, to establish independent states. Eritrea’s borders were delineated during the Italian colonial era, later federated into Ethiopia before gaining independence in 1993. Similarly, South Sudan, recognized as a distinct territory during the British colonial rule over Anglo-Egyptian Sudan, underwent a struggle for national autonomy until its eventual independence in 2011. Somaliland, harking back to its British colonial past, aligns itself with these secessionist movements.

In African customary law, a three-part examination verifies the admission of new member states: defining territorial boundaries within the initial sovereign, conducting a referendum within this defined territory, and securing recognition from the original sovereign state. Eritrea held its referendum over three days in April 1993 and received recognition from Ethiopia promptly. In the case of South Sudan, the referendum occurred in January 2011, with Sudan acknowledging its new state status later that year. The acceptance of a new state by the original sovereign is a critical aspect, as it reflects the relationship between the old and the new state. By acknowledging Somaliland’s sovereignty before Somalia does, Ethiopia breaches African customary norms. Moreover, this breaches the African Union’s principles of national sovereignty, territorial integrity, and non-interference, highlighting the unlawful nature of the Ethiopia-Somaliland naval arrangement.