Geopolitical dynamics in the Horn of Africa: An analysis of the Ethiopia-Somaliland Memorandum of Understanding

Introduction

This article focuses on the alarming recent developments in the Horn of Africa, a region already enmeshed in and for a long time been unstable and embroiled in conflict. On 1st January 2024, following the intent for the resumption of talks and reconciliatory talks between Somalia and the northern secessionist region of Somalia, an eerie development ensued. The Federal Democratic Republic of Ethiopia and the aforementioned northern region of Somalia, Somaliland engaged in a Memorandum of Understanding for Partnership and Cooperation herein, MoU. The details of the MoU which the Somaliland leader claims contains a total of 11 points are not yet fully available to the public but the major focus of this piece and for the region at large is the territorial lease of Somali territory, Berbera Port, to Ethiopia for 50 years and the subsequent agreed upon placing of Ethiopian troops at said port, stretching an area of 20 km in every direction.

Based on the above development, this article will commence with a brief introduction and background into the MoU signed between the parties involved before critically delving into the legal status of the MoU. A discussion on the relevant international laws on territorial integrity and sovereignty and the subsequent violation of such laws of the international order by Ethiopia on Somalia’s territorial integrity and sovereignty will ensue. Ethiopia has also indicated that it will be the first country to formally recognize Somaliland as a de jure independent state stemming from the MoU signed. However, this will not be of focus in this article. This article will in conclusion investigate how Somalia may react to the violations on its territory to provide possible solutions and pathways for Somalia with regards to the recent MoU.

 

  1. Background

The communique from the office of the Prime Minister of Ethiopia regarding the MoU indicates that the MoU represents a “historic” development between the northern region of Somalia and Ethiopia. However, as will be shown in the course of this article, the MoU is neither historic nor a development for both parties involved as it is null and void ab initio. Ethiopia has long been after a seaport since the independence of Eritrea and the subsequent loss of access to the Red Sea.

The Horn of Africa and its coastline have been at the center of big-power showdowns and maneuver diplomacy going back centuries.2 Ethiopia in its many forms over the centuries i.e. kingdom of Axum etc. has remained over the centuries at the center of it all. From the days of Ethiopian historical figures such as Yohannis, Menelik and Haile Selassie to now PM Abiy Ahmed, Ethiopia’s conquest for an outlet to the sea and a commercial port seems never-ending and has now taken a drastic turn.

Such relentless pursuit for access to the Red Sea was evident in the rhetoric used by Ethiopia’s Prime minister last year saying that a country of 120 million people shall not remain in a geographic prison. The PM also added, albeit erroneously, one would say, that access to the sea or lack thereof will bring about the advancement and development of Ethiopia or bring about its demise. Specifically, as mentioned in the MoU communique, Ethiopia’s interest in the Somali port of Berbera has long been ongoing. It is also worth noting that Ethiopia, needless to say, is not the only global player interested in Somali ports. The UAE, Turkey and Qatar have remained the other players with cooperation agreements involving port developments and other similar agreements.

The UAE in particular has continued to violate Somalia’s territorial integrity. This area will not be the focus of this paper but warrants further research as UAE despite angry protests from Somalia’s federal government in Mogadishu as well UN notifications of arms embargo violation penned a deal with Somaliland when the arms embargo was in full swing in 2017. Ethiopia’s current MoU with the northern region of Somalia stems from this deal penned in 2016 when UAE’s DP World was granted port concession at the port of Berbera that year.

The above deal between Somaliland, the northern region of the Federal Republic of Somalia was part of a seven-point economic and military pact. This deal also included a major highway, cargo airport, dams, a series of development projects, and security guarantees for Somaliland. UAE invested as part of the deal a whopping $442 million over three phases with a 30-year concession with the option for extension. UAE continues to make such deals across the Gulf of Aden and in the Horn of Africa having little or no regard for the territorial integrity of the relevant authorities. UAE’s involvement with Somaliland and the deal above is relevant for this article as Ethiopia was poised to gain a 19% stake in the port of Berbera providing the invested DP World with the Ethiopian market and the 120 million people that call Ethiopia home.

It was supposed to present a win-win for all parties involved with Ethiopia reducing its over reliance on the port of Djibouti. For UAE, it was to gain access to the Ethiopian market presenting a return on its investment and Somaliland benefitting with the aforementioned perks in the deal. Ethiopia at the time was reluctant to go through with the deal especially with the tripartite relationship between Abiy Ahmed of Ethiopia, Mohammed Abdullahi Farmajo of Somalia and Isaias Afwerki of Eritrea hence turning their attention to other Somali ports. However, Ethiopia has now turned its attention back to the port of Berbera and is set to realize this 19% stake offered to them by Somaliland in 2016.4

III. Illegality of the MoU

This section will cover the legality of the MoU. This is whether Somaliland possesses the legal capacity to enter into territorial lease agreements with Ethiopia and the UAE. Somaliland albeit a breakaway region of Somalia for over three decades remains a region of Somalia, nonetheless. To this end, it cannot enter into territorial lease agreements with any other country as the relevant authority is the Federal government in Mogadishu. It is the head of state stationed in the capital of Somalia that retains the sole legal capacity to enter into such deals as this is the highest authority in the country and the internationally recognized government.

Before further delving into the legality of the MoU, it is important to determine the nature of the MoU concluded by the respective leaders. It was the initial intention of both parties to conclude a treaty however due to the intricacies of the deal involved settled for an MoU which can be described as an agreement that is in essence “less than a treaty”. There are key differences between an MoU and treaties, however, as will be shown later in this section, the MoU in question was concluded with the intention to create a binding agreement.

A treaty as defined in international law pursuant to Article 2 of the Vienna Convention is an international agreement concluded between states in written form and governed by international law.5 An MoU on the other hand is an instrument used to record international commitments in a manner and form that expresses an intention that is not binding in international law. Additionally, the formalities and procedure attributable to treaties are not so for MoUs. Another difference between MoUs and treaties is the intention to create legally binding relations. It also worth noting for the purposes of this paper, that both parties to the MoU in question have expressed their interest to further conclude a treaty in connection to this MoU.

The Vienna Convention on the law of treaties pursuant to Article 6 of the convention provides that every state possesses the capacity to conclude treaties. The keyword in this article is the usage of the term “state”.6 Article 7(1) of the provisional Constitution of Somalia also states that the sovereignty of the Federal Republic of Somalia extends over all the territory of the Republic including the land, the air space, the continental shelf etc.7 Additionally, Article 7(5)(a) of the Constitution also states that the boundaries of the Federal Republic of Somalia are to the North: The Gulf of Aden encompassing the northern region of Somalia, Somaliland into the territory of the country.8

For the purposes of this discussion, an MoU specifically with regards to the signed MoU between Ethiopia and the aforementioned Northern Region of Somalia may qualify as an agreement within the meaning of agreements in the Vienna Convention as the said MoU was signed in connection with the conclusion of a future treaty for the further collaboration intended between the two parties of the MoU. Therefore, Article 6 of the convention is of key application with regards to the MoU and when read in conjuncture with the provisional Constitution of Somalia, the MoU in question is null and void ab initio as the agreement to create an MoU has to be concluded by the state government and not a region of a country.

The legal path for the said MoU ought to have been through the highest authorities of the Federal Republic of Somalia i.e. the federal government in Mogadishu. The provisional Constitution under Article 53 as read with Article 54 is very clear as to the exclusive and legitimate right of the federal government in Mogadishu to enter into international agreements especially in matters related to foreign affairs, economy, national defense, and security.10 Such agreements also require the approval of the Federal Parliament of Somalia, the process of accession.

Moreover, Article 7(2) of the Vienna Convention on the Law of Treaties states that only Heads of States, Head of Government and Ministers of Foreign Affairs for the purposes of performing acts relating to the conclusion of a treaty.11 The second proviso of the same Article adds heads of diplomatic mentions, for the purpose of adopting the text of a treaty between the acceding state and the other state. The leader of the northern region of Somaliland does not fall under any of those categories mentioned in the article. To reiterate, Somaliland is not a de jure state rather a region of Somalia and Muse Bihi, the leader of said region does not and cannot represent Somalia in the conclusion of international agreements.

 

In any case, since Muse Bihi does not fall within the persons so mentioned in Article 7(2) of aforementioned convention, any action committed by the leader in connection to the conclusion of a treaty such as the MoU in question has no legal effect whatsoever until confirmed by the government in Mogadishu. On this, the federal government has vehemently denied the legality of said MoU and has deemed the actions of Muse Bihi to be in violation of Article 51 of the provisional Constitution which necessitates that all levels of government must comply with the national Constitution.

Article 51 of the Constitution also adds that any regional government which the northern region of Somalia is, must not assume more powers than the Constitution allocates for it.12 The signing of the MoU in question by Somaliland and Muse Bihi was at the very least ultra vires and contrary to the provisions of the Constitution of Somalia. Even worse, socio-politically, this follows as the leader’s actions have deteriorated the position of Somaliland especially with his military approach and handling of Laascaanod which has led to the alienation of a major populous of the northern region of Somalia.

To this end, the Vienna Convention provides the following avenue applicable to the MoU signed on 1st January 2024. On absolute grounds, the MoU which was signed in connection to a future treaty between the Federal Democratic Republic of Ethiopia and Somalia’s northern region is void ab initio. This is pursuant to Article 46 of said convention concerning the failure to comply with internal law regarding competence to conclude a treaty.13 As shown above in this paper, neither Somaliland nor Muse Bihi possess the requisite competence to engage in such an MoU.

 

  1. Ethiopian violation of the territorial integrity and sovereignty of Somalia

Having focused thus far on the very illegality of the signed MoU between Ethiopia and Somalia’s northern region, Somaliland, this section will analyze Ethiopia’s violation of Somalia’s territorial integrity. PM Abiy Ahmed Ali has been described by many to be the most destabilizing factor and leader in the Horn of Africa region. As one US-based firm put it, the PM after massacring his people including the Tigrayans, the Somalis, the Oromos, the Amharas and basically anyone who stands in his way of power has now embarked on violating the territorial integrity of Somalia.

Ethiopia and its PM are very well versed with the laws of the international order and a member of several multilateral treaties including the UN and AU charters that deem the MoU null and void ab initio. The secessionist region of Somaliland has been a region of Somalia seeking independence and state recognition for over three decades. Nonetheless, under international law and national law, the region remains a region of Somalia. Despite the prevailing laws, Ethiopia has opted to commit to recognizing Somaliland as a de jure state in return for the concessions contained in the MoU.

Moreover, the predecessor of the Constitutive Act of the African Union, the Organization of the African Union Charter affirms the protection of sovereignty, territorial integrity, and independence of member states given the historical context of post-independent African Nations. Ironically, Ethiopia which in 2024 is violating the territorial integrity of a neighboring state was a founding member of the African Union and its successor. It is, therefore, tactless, and infelicitous that it is now on the wrong side of history.

The juridical and empirical sovereignty of Somalia barres any other nation from interfering with its territorial integrity. The principle of non-intervention is a natural consequence of state sovereignty. Any action by a member state of the African Union against the state without its consent directed at the political independence, territorial integrity or sovereignty of the nation is considered a violation of the principle. Echoing this principle in the UN Charter, Article 2(4) of the Charter dictates that all members of the UN Charter must refrain in their international relations from the threat or use of force against the territorial integrity or political independence of any state. Article 4(g) of the Constitutive Act of the African Union on a similar tangent also condemns the interfering of in the internal affairs of another state.14

Article 2(4) of the UN Charter was further interpreted in the UNGA Resolution No. 2625 on the Declaration of the Principles of International Law concerning Friendly Relations and Cooperation among States in accordance with the Charter of the United Nations.15 Pursuant to this interpretation, no state or group of states has the right to intervene directly or indirectly, for any reason whatever, in the internal or external affairs of any other state. For Ethiopia and Abiy Ahmed to leverage Somaliland’s quest for statehood to gain access to Somali ports is a violation of the inviolable territorial integrity and sovereignty of Somalia.

It is vital to note that the terms threat or force do not necessarily connote only to the physical exertion of force in the conduct of international affairs by states. Although what constitutes as intervention has many grey areas, Ethiopia’s plans to set up a military base in the agreed Port of Berbera is prima facie case of coerciveness and intervention. Additionally, said terms also includes political and economic coercion which the actions of Ethiopia with regards to the MoU falls under.

Having said that on Ethiopia’s plans to station a navy force in Somalia’s sovereign territory, it is also apparent the political pressure exerted by Ethiopia to gain access to the port. The case of the northern region of Somalia and the Somali federal government in Mogadishu is an internal matter. One that is only to be handled internally without external political pressure and intervention. Instead of engaging in diplomatic means i.e. the legal path with the federal government in Mogadishu, Ethiopia has opted to exert political and economic pressure on Somalia by engaging with a region of its sovereign territory to gain said access to the Port of Berbera.

It is clear from the communique provided from the said MoU that Ethiopia intends to station its own military in Somalia’s sovereign territory. It has been the rhetoric of Ethiopia PM to imply the threat of force in procuring an outlet to the red sea and the Gulf of Aden. It has long been Ethiopia’s regional strategy as the MoU entails to establish a naval military presence along the Red Sea’s long coast. This strategy which would enable Ethiopia to project power and presence in the Nile, Red Sea and Indian Ocean is corollary to the right of territorial sovereignty possessed by each nation.16

On the other hand, Ethiopia has also engaged in following the illegal MoU, subversive intervention through propaganda campaigns. Correspondingly, as explained in the 1986 judgement of the Nicaragua case, the principle of non-intervention could extend to indirect interference through means such economic and political pressure. On the other hand, Ethiopia has also engaged in following the illegal MoU, subversive intervention through propaganda campaigns. The summary of the 1986 judgment is lucid and transpicuous with regards to the principle of non-intervention:17

“The principle of non-intervention involves the right of every sovereign State to conduct its affairs without outside interference …. As to the content of the principle in customary law, the Court defines the constitutive elements which appear relevant in this case: a prohibited intervention must be one bearing on matters in which each State is permitted, by the principle of State sovereignty, to decide freely (for example the choice of a political, economic, social and cultural system, and formulation of foreign policy). Intervention is wrongful when it uses, in regard to such choices, methods of coercion, particularly force, either in the direct form of military action or in the indirect form of support for subversive activities in another State.”

Following the illegal MoU, Ethiopia in attempt to justify the said MoU has continuously through persons in high offices of the Ethiopian government, illicit campaigning through propaganda and false claims. The federal government of Ethiopia has erroneously and intentionally engaged in historical revision and inciting the northern region of Somalia to civil unrest. An example of dangerous rhetoric employed by Ethiopia include the claim that following the cessation of Somaliland as a British Protectorate, it violently and through battle was united with Southern Somalia during Siad Barre’s rule.18 A claim that is at the very least historical revision and subversive intervention with the internal affairs of Somalia through propaganda. History and legal basis indeed show the Act of Union signed between the leaders of Somaliland and Somalia in 1960 culminating in the 1960 Act of Union.19

Ethiopia’s propaganda and intentional misleading of the Somaliland peoples are intended to be coercive by intentionally instigating or aggravating civil unrest in Somalia. Directly following the illegal MoU, constant propaganda on Ethiopia’s supposed historical claims to the red sea exacerbated by PM Abiy Ahmed’s past rhetoric that Ethiopia cannot live in a geographic prison have resulted in such civil unrest in Somalia. Ethiopia has engaged in directly supporting an internal opposition of a neighboring state, contrary to international law.

The rules of International Law are clear in the prohibition of the direct and indirect interference on Somalia’s territorial integrity waged by Ethiopia’s actions since 1st January 2024. Such protection is elucidated in the International Law Commission’s 1949 Draft Declaration on Rights and Duties of States, the 1965 UN General Assembly Declaration on the Inadmissibility of Intervention in the Domestic Affairs of States and the Protection of their Independence and Sovereignty.

  1. Possible reactions to the violation of Somalia’s territorial integrity

Having looked into the legality of the MoU signed between the Federal Republic of Somalia and the secessionist northern region of Somalia, the ultimate question remains on how Somalia may react to violations of its territorial integrity and sovereignty in accordance with international law. To this end, this article will first consider the approaches available for the federal government in Mogadishu concerning the regional government in Somaliland, especially in connection to the recent MoU. Consideration of the approaches of the avenues about Ethiopia’s encroachment on the territorial integrity of Somalia will then follow.

The regional political party of Kulmiye Peace, Unity and Development Party and its leader Muse Bihi engaged in unconstitutional discussions and negotiations with Ethiopia culminating in the signing of the MoU. This development as shown in this article is unconstitutional and contrary to international law. Notwithstanding the rights and freedoms in the provisional Constitution of Somalia in Articles 16 and 22, the right to freedom of association and the right of political participation respectively, there are constitutional limitations as such rights are not absolute. Article 38 of the Constitution provides the legal basis for the limitation of such rights based on reasonableness and justified grounds.

Political parties have a vital role in cementing the foundations of democracy and ought to refrain from the pursuit of the destruction of the constitutional order and the violation of a country’s independence and territorial integrity. Additionally, there lies in the relationship between political parties and the Constitution a vital interplay. This important interplay is best observed in the following quote:20

 

“The role of the party has a fundamental bearing on the constitutional legal set-up. It is clear that the very raison d’être of the party is to gain ascendancy into the regular executive and legislative machinery of the State, and thus to take charge of the implementation of the vital legal instrument which is the state’s Constitution. Attainment of this end will inevitably place the party in a strategic position which allows influence (to varying degrees) over the Executive, and Legislature and the Judiciary.”

This article proposes a repressive dissolution of the Kulmiye Political Party and overall preventive measures in place in the Somali Constitution and Federal Member State (FMS) Constitutions. For instance, the Constitution of Georgia prohibits the formation of political parties with the end goal of destroying the constitutional order and violating the country’s independence or territorial integrity. Such repressive dissolution of the Kulimiye political party ought to be in accordance with the provisional Constitution and international law. Therefore, upon the application of the principle of proportionality, such finding of the violation of territorial integrity and independence of the Somali state by the Kulimiye political party and its leader must be the finding of the Federal Supreme Court in Mogadishu.

It is important however to note that, in the court, it must be shown by the federal government in Mogadishu in order to dissolve the Kulmiye political party and to set precedent for the prohibition of such parties with similar purposes in the future to establish that it is the party itself and not the individual leader that is pursuing the unconstitutional objectives which this article contends it is. As for preventative measures, the final Constitution of Somalia ought to include provisions for the banning of political parties that undermine the political independence and the territorial integrity of the state given the particular regional politics of Somalia to safeguard the sovereignty and territorial integrity of the country.

Thus far, Somalia has resorted to the Security council, the AU and IGAD on the matter in pursuant to the respective Charters. With that said, if Ethiopia forcefully attempts to enforce the illegal MoU, Somalia will be entitled to defend itself pursuant to Article 51 of the UN Charter. As a starting point, Article 51 of the UN Charter preserves the right to use force in self-defense until the Council has taken necessary measures.21 In this regard, the Council has condemned the violation of the territorial integrity of Somalia.

On a similar note, the African Union Peace and Security council (AUPSC) met to consider the situation between Ethiopia and Somalia on 17th January. Pursuant to the Constitutive act of the Charter, the members reaffirmed their strong commitment and support for preserving the unity, territorial integrity, independence of and sovereignty of all member states including Somalia.22 The Intergovernmental Authority on Development (IGAD) 42nd extraordinary summit in Uganda reiterated the above by reaffirming respect for the sovereignty, unity and territorial integrity of Somalia while also noting that any agreement entered into should be with the consent of Somalia.

With this said, given Ethiopia’s intention to station a permanent navy presence on Somalia’s territorial waters at the Port of Berbera without the consent of Somalia, Article 51 of the UN charter will be triggered. The moment that Ethiopian forces enter into Somalia’s territory without Somalia’s consent, this will constitute an armed attack.23 As such, Somalia will invoke self-defense and defend its territorial integrity. Finally, the position of the Somalia’s federal government has been transpicuous, not one inch of Somalia’s territory will be ceded to Ethiopia. As shown in this article, it well within Somalia’s legal means to realize such a position and defend its ter