On January 1, 2024, Ethiopia’s Prime Minister Abiy Ahmed signed a memorandum of understanding (MOU) with the Republic of Somaliland – an unrecognized secessionist region within the Federal Republic of Somalia. The MOU grants Ethiopia twenty kilometers of coastal land in the Awdal province for fifty years to build a navy, in exchange for Ethiopia recognizing Somaliland as a sovereign state. The Federal Government of Somalia, which is the internationally recognized government, has fiercely objected to the MOU, calling it “null and void.” The international community, including the United States, European Union, African Union, and Arab League have called for respecting Somalia’s sovereignty and territorial integrity.
The Republic of Somaliland is a secessionist entity that declared independence from Somalia on May 18, 1991. No sovereign state has recognized its independence, Somaliland is considered an autonomous region within Somalia. Somaliland bases its jurisdiction on the borders of the British Somaliland Protectorate. It was granted independence on June 26, 1960, and merged with the UN Trusteeship Territory of Somalia on July 1, 1960, to create the Republic of Somalia. This is an important detail. The Republic of Somaliland argues that its sovereignty was granted on June 26, 1960, after it gained independence from the United Kingdom and contends that it merely reasserted its independence in 1991.
We are currently living in an era where the rules-based order is in jeopardy. The Ethiopia-Somaliland naval base deal is a geopolitical problem for the Horn of Africa and Red Sea. International law encompasses legal procedures for the creation and transformation of states. Treaty law and international customary law are binding on sovereign states. The main issue we are faced with is whether the Federal Democratic Republic of Ethiopia can unilaterally recognize the Republic of Somaliland as a sovereign state. To answer this legal question, we must examine the Constitutive Act of the African Union (“Constitutive Act”) and analyze African customary law for admitting new member states.
1. WHAT ARE THE 1960 BORDERS?
On January 3, 2024, the U.S. State Department Spokesperson, Matthew Miller, said that “the United States recognizes the sovereignty and territorial integrity of the Federal Republic of Somalia within its 1960 borders.”[i] The 1960 borders refer to the borders of the Republic of Somalia, which was admitted into the United Nations on July 5, 1960.[ii] The Republic of Somalia was the first independent and post-colonial Somali state and existed from 1960 – 1969. The Republic of Somalia was a multiparty democratic state that held a constitutional referendum and four national elections during its existence.
The Republic of Somalia existed until 1969, after which a communist military coup d’état occurred. Following Marxist lexicon, the Republic of Somalia was renamed the Somali Democratic Republic. In 1991, the Somali Democratic Republic fell, and Somalia became stateless. Somaliland also declared independence from Somalia in 1991, but no nation has yet recognized it. In 2012, the Federal Government of Somalia became the first internationally recognized government.[iii] Somalia’s current constitution states that “The boundaries of the Federal Republic of Somalia shall be those described in the 1960 Constitution of Somalia.”[iv] It also states that “The territory of the Federal Republic of Somalia is inviolable and indivisible.”[v]
Since the Republic of Somalia was the only state admitted into the United Nations (and the African Union), it was the sole sovereign. Therefore, the Federal Republic of Somalia is the successor state to the Somali Democratic Republic and Republic of Somalia, just as the Federal Democratic Republic of Ethiopia is the successor state to the People’s Democratic Republic of Ethiopia and the Ethiopian Empire.
2. AFRICAN CUSTOMARY LAW FOR ADMITTING NEW MEMBER STATES.
Only states have the capacity to conclude treaties according to the Vienna Convention on the Law of Treaties.[vi] Treaties remain the “principal means by which international law is made.”[vii] Treaties “reflect the formal consent of the states that ratified them to be bound by their terms.”[viii] The Constitutive Act of the African Union, a multilateral treaty, states that “the Union shall function in accordance with the following principles:
(a) sovereign equality and interdependence among Member States of the Union;
(b) respect of borders existing on achievement of independence;
(g) non-interference by any Member State in the internal affairs of another;”[ix]
In 1963, the Republic of Somalia became a founding member state of the Organization of African Unity (OAU) and a signatory of the Constitutive Act. The African Union is the successor to the OAU, and the Federal Republic of Somalia has inherited its member state status.[x]
Customary international law “evolves from state practice” and “binds all states that have not objected to the rule while it is in the process of formation.”[xi] In Africa, state formation has come via two procedures: decolonization or secession. The two newest member states of the African Union are Eritrea (1993) and South Sudan (2011); they became states through secession and the Republic of Somaliland falls under this category. The original signatories of the Constitutive Act became states through decolonization. Decolonization is the “process by which states became independent from self-identified colonial empires.”[xii] Secession is when a “territory breaks off from a nonimperial state to form a new state.”[xiii]
Eritrea and South Sudan are territories that broke off from Ethiopia and Sudan, respectively, to form new states. Eritrea’s current borders were drawn during the Italian colonial era, it was then federated into Ethiopia in 1950. The Eritrean People’s Liberation Front (EPLF) waged a war until achieving independence for Eritrea in 1993. While being part of Anglo-Egyptian Sudan, South Sudan was treated as a distinctive region during the British colonial era. The Sudan People’s Liberation Army (SPLA) also waged a war until South Sudan became independent in 2011. In a similar fashion, Somaliland bases its current borders from the British colonial era and argues that the Somali National Movement (SNM) fought a war until achieving independence in 1991.
A three-prong test has emerged in African customary law for admitting new member states: (i) there is a defined territory within the initial sovereign that will be granted independence; (ii) referendum within the defined territory; and (iii) the initial sovereign must recognize the defined territory as a new state. Eritrea and South Sudan had defined territories which were acknowledged by Ethiopia and Sudan, respectively. Eritrea conducted its referendum between April 23 – 25, 1993, and Ethiopia recognized Eritrea as a new state on April 27, 1993. South Sudan conducted its referendum in January 2011, and Sudan recognized South Sudan as a new state on July 8, 2011.
In both instances, the mother country – not another member state of the African Union – first recognized the new state as a sovereign. The mother country must acquiesce to the formation of a new state that secedes from within it, because it must also answer the questions of what happens to the mother country as a state and its newfound territorial integrity. Therefore, Ethiopia is breaching the norms of African customary law by initially recognizing Somaliland as a sovereign state. It is Somalia, the mother country, that must first recognize Somaliland as a sovereign state. Moreover, Ethiopia is violating the Constitutive Act of the African Union, specifically the principles of domestic sovereignty (Art. 4(a)), respect for territorial integrity (Art. 4(b)), and noninterference in the internal affairs of another member state (Art. 4(g)). Thus, the Ethiopia-Somaliland naval base deal is a blatant violation of international law.
[i] U.S. Dept. State, Press Briefing (Jan. 3, 2024) https://www.state.gov/briefings/department-press-briefing-january-3-2024/.
[ii] G.A. Res. 141, Admissions of New Members to the UN: Republic of Somalia (July 5, 1960).
[iii] Bureau Of African Affairs Fact Sheet, U.S. Relations with Somalia (June 30, 2016), https://2009-2017.state.gov/r/pa/ei/bgn/2863.htm.
[iv] Provisional Fed. Const. June 12, 2012, art. 7, §4 (Som.).
[v] Id. at art. 7, §2.
[vi] Vienna Convention on the Law of Treaties art. 6, May 23, 1969, 1155 U.N.T.S. 331.
[vii] Jeffrey L. Dunoff et al., International Law: Norms, Actors, Process: A Problem-Oriented Approach 36 (3rd ed. 2010)
[viii] Id.
[ix] Constitutive Act of the African Union, art. 4, July 11, 2000, OAU Doc. CAB/LEG/23.15 (2001).
[x] Corinne A. A. Packer & Donald Rukare, The New African Union and Its Constitutive Act, 96 Am. J. Int’l L. 365 (2002).
[xi] Jeffrey L. Dunoff et al., International Law: Norms, Actors, Process: A Problem-Oriented Approach 36 (3rd ed. 2010)
[xii] Id. at 112
[xiii] Id.
