TESFALIDET BELAY
A recent article titled “Ethiopia’s Residual Rights to Negotiate Sovereign Sea Access with Eritrea” has attracted attention for its sweeping historical narrative and bold legal claims. It argues that Ethiopia retains “residual sovereignty” over Assab and other Red Sea territories because colonial treaties were coercive, the 1950 UN Federation Resolution “reaffirmed Ethiopian sovereignty,” Eritrea’s independence is “legally contestable,” and Ethiopia’s historical maritime rights can be revived today as sovereign entitlements. The history is compelling. The legal conclusions are not. A closer examination through international law, African Union norms, and UN Charter principles makes clear that the doctrine of “residual sovereignty” is historically emotional but legally indefensible. Moreover, if adopted as policy, it would carry significant diplomatic and strategic risks for Ethiopia.
1. Eritrea Is Not Ethiopia’s “Internal Affair” — It Is a Fully Sovereign UN Member
The article repeatedly implies that Eritrea’s sovereignty remains an unsettled matter and that controversies after 1950 are “Ethiopia’s internal affairs.” This framing cannot survive legal scrutiny. In April 1993, Eritrea held a United Nations–supervised referendum, which produced a 99.83% vote in favor of independence and a voter turnout of over 93%. The referendum was certified by the UN as free, fair, and legitimate, and Ethiopia formally accepted its outcome. Eritrea then declared independence on 24 May 1993 and was admitted as a whole Member State of the United Nations on 28 May 1993. From that moment, Eritrea became a sovereign equal under international law. Once a territory attains internationally recognized statehood, there is no such thing as “partial sovereignty” or “residual sovereignty” held by another state. Any doctrine that treats Eritrea as an internal Ethiopian matter contradicts Article 2(1) of the UN Charter, which enshrines the sovereign equality of all UN Member States.
2. UNGA Resolution 390 A(V) Did Not Freeze Ethiopia’s Red Sea Access Forever
The article relies heavily on a misinterpretation of UN General Assembly Resolution 390 A(V) (1950), claiming that the federation it created “reaffirmed Ethiopian sovereignty” in a manner that guarantees Ethiopia perpetual access to the Red Sea regardless of Eritrea’s later political evolution. The resolution’s actual language states: “Eritrea shall constitute an autonomous unit federated with Ethiopia under the sovereignty of the Ethiopian Crown.” This text establishes a federal arrangement between Ethiopia and Eritrea at that time; it does not create any future guarantee of territorial access for Ethiopia in the event Eritrea later chose independence through self-determination. The resolution was designed to address a post–World War II political situation, not to freeze territorial configurations indefinitely. Federations dissolve, political arrangements evolve, and borders at the moment of independence, not at the moment of federation, govern subsequent territorial entitlements. Resolution 390 A(V) never granted Ethiopia a permanent territorial claim to Assab or Massawa, and reading it that way imposes obligations on Eritrea that the resolution does not contain.
3. There Is No Such Thing as “Residual Sovereignty” Over Another State’s Port
The article’s central claim that Ethiopia retains “residual sovereign rights” over Assab is wholly unsupported in international law. Modern law recognizes only two relevant categories: (1) sovereignty over territory and (2) transit and access rights for landlocked states. Landlocked states like Ethiopia are granted important protections under UNCLOS Article 125, which guarantees the right of access to and from the sea, as well as freedom of transit through neighboring states by mutual agreement. The 1965 Convention on Transit Trade of Land-Locked States reinforces these rights. However, these instruments guarantee access, not ownership. Nothing in the UN Charter, UNCLOS, the Vienna Convention, or African regional law recognizes “historical title,” “dormant sovereignty,” or “residual ownership” of a port that lies within the sovereign territory of another UN Member State. Ethiopia has a strong case for demanding secure, fair, and predictable maritime access, but this does not translate into any legal claim to Assab as Ethiopian sovereign territory.
4. The Vienna Convention Does Not Void African Borders — It Protects Them
The article argues that because colonial-era treaties between Italy and Ethiopia were coercive or violated jus cogens, they are void. Therefore, modern treaties such as the Algiers Agreementare “null and void” if they reference those past instruments. This misreads the Vienna Convention on the Law of Treaties. While Articles 52 and 53 address treaties procured by force or conflicting with jus cogens, the Convention includes a critical safeguard in Article 62(2)(a): the doctrine of fundamental change of circumstances (rebus sic stantibus) may not be invoked to invalidate boundary treaties. This principle reflects the global consensus favoring boundary stability over the re-litigation of history, particularly in post-colonial regions. If African states could invalidate all colonial treaties on grounds of coercion, the continent would face unending territorial conflict. Moreover, the Algiers Agreement is a modern, post-colonial peace treaty negotiated voluntarily between two sovereign states and endorsed internationally. It does not depend on the moral purity of 19th-century Italian documents for its validity. It stands on its own legal weight.
5. African Legal Norms Clearly Protect Eritrea’s Borders as of 1993
The African system consciously chose to avoid territorial revisionism by codifying the principle that borders inherited at independence should remain intact. The OAU’s 1964 Cairo Resolution (AHG/Res 16(I)) commits African states to respecting the borders existing at the time they achieved independence. This foundational principle was carried forward into Article 4(b) of the African Union Constitutive Act. Eritrea’s borders, as defined on 24 May 1993, fall squarely within this protective framework. These same principles have protected Ethiopia in other contexts and are essential to continental stability. Ethiopia cannot selectively reject these norms when they are inconvenient while relying on them in other border disputes. The AU and OAU doctrines exist precisely to avoid the kind of historical re-openings and territorial claims that the article advocates.
6. The 2000 Algiers Agreement Remains Valid and Binding
The article asserts that the Algiers Agreement is legally “untenable” because it references colonial treaties. This interpretation is not supported by treaty law. The Algiers Agreement is a contemporary peace agreement negotiated by two sovereign states and endorsed by the UN Security Council and the OAU. It created the Eritrea–Ethiopia Boundary Commission (EEBC), which was empowered to delimit and demarcate the boundary. The fact that the EEBC used colonial-era treaties as historical sources does not render the Algiers Agreement void. Boundary arbitration routinely relies on historical documents, maps, and treaties as evidence. The legal validity of a modern treaty does not depend on the moral validity of old cartographic tools. If Ethiopia were to argue that Algiers is invalid solely because it references Italian-era maps, it would undermine its prior acceptance of EEBC decisions and weaken its credibility in future border processes.
7. Ethiopia Risks Diplomatic Isolation, Security Escalation, and Legal Vulnerability
Promoting a narrative of “residual sovereignty,” even rhetorically, carries serious risks. First, Ethiopia risks being perceived as a revisionist state intent on re-opening colonial borders, something the African Union is structurally designed to resist. This perception could lead to diplomatic pushback from AU Member States and the AU Peace and Security Council, which are deeply committed to border stability. Second, Eritrea could take the issue to the UN Security Council, framing it as a threat to its territorial integrity under UN Charter Article 2(4). Given that Eritrea is a UN Member State with recognized borders, the legal weight behind such a complaint would be substantial. Third, the Horn of Africa is a region prone to security miscalculations. Even academic arguments about historical sovereignty can amplify threat perceptions, fuel military mobilizations, and destabilize a region already beset by fragility. Fourth, advocating treaty invalidation on the grounds of colonial coercion would weaken Ethiopia’s long-term interests. If Ethiopia discredits boundary treaties, other states could use the same reasoning to challenge its borders or water agreements. Finally, even in theory, portraying territorial aspirations makes port negotiations with Djibouti, Somaliland, or Eritrea harder, not easier. Transit states will be more cautious if they suspect Ethiopia is developing a legal narrative for future territorial claims.
8. Ethiopia Has Powerful Legal Paths to Maritime Access Without Rewriting Borders
Ethiopia’s landlocked position is a real strategic vulnerability, but it does not require territorial revisionism to resolve. Modern international law gives Ethiopia strong tools. Under UNCLOS and the 1965 Transit Trade Convention, Ethiopia enjoys guaranteed rights of access to and from the sea, as well as freedom of transit, which must be implemented through good-faith agreements with coastal neighbors. Ethiopia can negotiate long-term port leases, logistics corridors, special economic zones, customs unions, joint port authorities, and trilateral mechanisms involving IGAD, the AU, and development partners. By framing access as a mutually beneficial development objective rather than a question of residual sovereignty, Ethiopia gains diplomatic credibility rather than loses it. Moreover, Ethiopia can separate legitimate criticism of Eritrea’s governance and human-rights record from territorial issues. UN human rights bodies have repeatedly described the human-rights situation in Eritrea as “dire.” Still,rights violations do not justify territorial claims, and conflating the two allows Eritrea to dismiss legitimate concerns as aggression.
Conclusion: Ethiopia’s Future Lies in Law, Diplomacy, and Integration — Not Border Revisionism
Ethiopia’s maritime constraints are strategic realities, and its historical grievances are understandable. But the doctrine of “residual sovereignty” over Assab is neither recognized by international law nor compatible with African regional norms, the UN Charter, the Vienna Convention, or Ethiopia’s own long-term interests. Reopening colonial borders would isolate Ethiopia diplomatically, destabilize the Horn of Africa, weaken Ethiopia’s broader treaty positions, and undermine the very legal order on which Ethiopia relies for regional stability. Ethiopia has far stronger, more legitimate tools at its disposal: international law protecting transit rights, African norms supporting negotiated integration, and the potential for long-term, mutually beneficial port arrangements with its neighbors. The path to the Red Sea lies through law, diplomacy, and economic partnership, not through doctrines the world will never accept.
