written by Eritrean Views in FB
The recent intensification of claims by Ethiopian elites and government-affiliated media, such as Horn Review, questioning the legitimacy of Eritrea’s 1993 independence referendum and demanding the “reclamation” of port ownership, particularly Asseb, is a profound misreading of both international law and the distinct history of Eritrea.
These arguments, while presented as legal and historical reasoning, are fundamentally rooted in the deceptive and fallacious myths that Ethiopian intellectuals continue to propagate on Ethiopia’s history and magnanimity. John Sorensen has succinctly captured the projected fantasies that Ethiopian political class promote as a “discourse that is proposed to foster a particular version of history in which the boundaries of the contemporary state were projected backwards into a distant historical period.
The image of Ethiopia contained within this discourse is one of African grandeur, liberty, modernization, and stability.” It was this version of Ethiopian history which External powers, including both the United States and the Soviet Union, had used to extend their own influence over the region during the cold war period. And it was this constructed image of Ethiopia that had denied Eritrea and its people the inalienable right for self-determination in the immediate post world war-II period.
The aim here isn’t to deeply deconstruct this invented image that Ethiopia has been. Indeed, Holcomb and Sisai (1990) had succinctly demonstrated that Ethiopia was created as a dependent colonial state that could serve the interests of super powers; especially the transatlantic.
The aim of this article is to challenge the futile attempt that Ethiopian political class affiliated to the Prosperity Party (PP) or Potemkin Party to borrow @hawelti’s apt description, continue to spew on Eritrea’s independence and sovereignty. The arguments that the PP cadres continue to push, fundamentally disregard Eritrea’s decades-long armed struggle for self-determination and the established realities of statehood; especially in Africa.
Eritrea’s independence was not a gift from Ethiopia or any other party, but the formalization of a right long deferred and finally won.
The Ethiopian Transitional Government and International Obligation
The claim that the Ethiopian Transitional Government (1991-1995) lacked the mandate to consent to Eritrea’s referendum due to its “unelected” status is legally baseless. Under international law, a state’s continuity, rights, and obligations are generally unaffected by changes in its government. The Tigray People’s Liberation Front (TPLF)-led transitional government had effective control of the state and was internationally recognized as the legitimate authority representing Ethiopia at the time.
The government, despite its “transitional” nature, possessed de facto and de jure authority to conduct foreign relations and enter into international agreements or, in this case, respect Eritrea’s inherent right to self-determination. The principle of state continuity ensures that the acts of a recognized government, even transitional ones, bind the state.
Ethiopia’s recognition of Eritrea’s right to the referendum, formalized by its participation and subsequent acceptance of the outcome, became an irreversible act under international legal and political principles. The absence of a prior election does not invalidate a state’s international obligations or commitments.
Indeed, the transitional government of Ethiopia has hosted a peace conference in July 1991 involving all Ethiopian political parties and organizations in Addis Ababa. This five-day conference, where Eritrea was represented by a high-level delegation with an observer status, indeed debated the Eritrean issue in depth and finally accepted the right of the Eritrean people to decide the political future of their country in a referendum.
President Isaias was on record forewarning at the conference anything less than the full acceptance of Eritrean right to self-determination would have a catastrophic consequence. Note that Eritrean commando and elite security units were helping consolidate peace in Ethiopia at the time.
Anyone can imagine where Ethiopia would be today had it attempted to sabotage Eritrea’s right for self-determination. Hence, it was only natural that Meles Zenawi as President of Ethiopia’s transitional government wrote a letter to UN Secretary General Boutros Boutros-Ghali (November, 1992), affirming the people of Eritrea [to] have the right to determine their own future by themselves . . . in a referendum.
Crucially, Eritrea’s own leadership made it clear that the referendum was not contingent on Ethiopian “permission.” As President Isaias Afwerki (then Secretary General of the Provisional Government of Eritrea) stated in his pivotal September 1992 letter to UN Secretary-General Boutros Boutros-Ghali:
“The right of self-determination of the Eritrean people and its exercise is not predicated on the good will, authority, or permission of the Transitional Government or any other government in Ethiopia.”
The referendum was merely the formal, internationally supervised confirmation of a sovereignty already won on the battlefield in 1991. It was an extension of the commitment that the Eritrean People’s Liberation Front has made when it released the proposal on referendum in 1980.
The overwhelming 99.8% vote for independence, announced on April 27, 1993, unequivocally reflected the aspiration and unity of the Eritrean population. Eritrea’s 1993 referendum was observed and declared free and fair by representatives of the United Nations, the Organization of African Unity, the League of Arab States, the Non-Aligned Movement and thirty-two countries including Ethiopia.
The Eritrea’s referendum is often cited as probably the most affirmative referendum in the history of democracy, in terms of both the yes-percentage (99.8%) and the turnout of registered voters. The Government of Eritrea also made a huge concession for the sake of durable peace and stability in the region, deciding not to pursue any claim it might had under international law for the atrocities committed by the Ethiopians against the people of Eritrea during their forceful and brutal rule over Eritrea.
The Right to Self-Determination vs. Ethiopia’s Maritime Ambition
The argument that the 1952 UN-mandated federation had in one of its aims to satisfy Ethiopia’s need for sea access, and therefore, Ethiopia should have negotiated its interests before the referendum, twists the principle of self-determination. In the first place the federation was a global compromise, not an Ethiopian right.
Eritrea’s post-World War II fate was determined not by the wishes of the Eritrean people or to satisfy Ethiopia’s desires, but by the geopolitical interests of the Allied Powers, particularly the United States. The 1952 federation was imposed by the UN, largely against the wishes of a significant portion of the Eritrean population who favored immediate independence, as demonstrated by the earlier Four-Power Commission findings and subsequent political movements. The borders of this territory, which define the independent state, are those established during the colonial era through treaties between Italy and Ethiopia: the 1900, 1902, and 1908 border treaties.
The right to self-determination is a foundational principle of modern international law, recognized as a jus cogens (compelling law) norm. No state’s economic or geostrategic interest, like a wish for port access, can supersede this fundamental human right. Eritrea’s referendum merely formalized its inherent right, suppressed since the federation’s-imposed dissolution and subsequent annexation by Emperor Haile Selassie in 1962, which led to the solidification of resistance against Ethiopia’s breach of the federation’s constitution and reinforced the justification for an armed struggle for Independence; which had already started a year before the abrogation of the federation.
Eritrea’s Sovereignty is nonnegotiable
The assertion that Eritrea’s referendum violates fundamental international law or that its departure was not supported by constitutional law is a flawed understanding of decolonization. Eritrea’s case is historically rooted in decolonization, as recognized by the UN’s role in its initial federation and subsequent annexation.
Eritrea’s quest and struggle for independence is an anti-colonial struggle rooted in decolonization context than a simple internal secession. Indeed, Eritrea was illegally united with Ethiopia in clear violation of the 390 A(V) UN Resolution and the Eritrean Constitution, and as such the Eritrean armed struggle was a struggle for the decolonization of the country (Abdu Mohammed-ali Osman, 2018).
The African Charter on Human and Peoples’ Rights strongly upholds the principle of uti possidetis juris, which mandates the inviolability of colonial-era borders; the very borders defined by the 1900, 1902, and 1908 treaties that delineate Eritrea’s territory. Eritrea’s status as a former colonial state is central to its right to independence.
The claims that rebus sic stantibus (fundamental change of circumstances) or the “parent state consent” doctrine apply are misapplications of legal principles and, more importantly, are directly contradicted by Ethiopia’s own subsequent, binding agreements. Rebus Sic Stantibus (Change of Circumstances) is a doctrine, codified in the Vienna Convention on the Law of Treaties (VCLT), that permits a state to terminate or withdraw from a treaty if an essential basis for its consent has fundamentally changed. However, this primarily applies to treaties, not to the recognition of an independent state’s sovereignty, which is a matter of fact and international recognition. Far from maintaining a right to rescind consent, Ethiopia has reaffirmed Eritrea’s sovereignty through major international agreements:
a) The Algiers Agreement (2000): This peace treaty committed both parties to the “delimitation and demarcation of the colonial treaty border based on pertinent colonial treaties (1900, 1902 and 1908) and applicable international law.” This explicitly confirmed the legal basis of Eritrea’s boundaries.
b) The EEBC Final and Binding Verdict (2002): The subsequent Eritrea-Ethiopia Boundary Commission (EEBC) rendered a final and binding decision, which Ethiopia was legally obliged to accept, solidifying the international border as defined by the colonial treaties.
c) The 2018 Peace and Friendship Agreement: Signed in Asmara and Jeddah, this agreement formally ended the state of war and committed both nations to respecting the sovereignty and territorial integrity of the other, confirming the finality of the EEBC decision.
The core issue is that Eritrea’s independence was achieved on the battlefield in 1991. The 1993 referendum was a formal, internationally supervised, and overwhelmingly affirmative exercise of an already effective sovereignty.
Ethiopian consent, while viewed with respect at the time, was essentially an acknowledgement of an irreversible political and military reality. The Eritrean referendum was not a political transaction subject to Ethiopia’s later buyer’s remorse, but the legitimate conclusion of a protracted national liberation struggle.
The only viable path forward for Ethiopia to secure reliable port access is through cooperation, bilateral agreement and the adherence to international law, not through the unlawful, aggressive re-litigation of history and international law.