The author of this article has been monitoring and carefully observing a number of polarized polemics on the issues of statehood and access to sea and ports which is in fact triggered by the recent MoU inked between Ethiopia and Somaliland regarding access to sea port and related issues. A lot of dust has continued to blow up on a genuine and legally valid demand for ports. It is therefore important to clear out some of the confusions and opinions that do not hold water by any standard. The purpose of this article is therefore to analyze the basic elements and principles from the perspectives of international law.
The Montevideo Convention, adopted in 1933 in Montevideo, Uruguay, defines a state as possessing the following qualifications: a permanent population, a defined territory, a government, and the capacity to enter into relations with other states.
According to the convention, a political entity must meet the criteria of having a permanent population, defined territory, government, and capacity to engage in international relations in order to be considered a sovereign state under international law.
The convention does not explicitly address the issue of how statehood is recognized but rather sets out the criteria that entities must fulfill to be considered states. Recognition of statehood is often a matter of political decision-making by other states and international organizations. This is therefore left to the political decision of states.
The Montevideo Convention has had a significant impact on the development of international law, particularly in defining the legal attributes and rights of sovereign states in the international system.
Despite being adopted in the early 20th century, the Montevideo Convention remains an important reference point for discussions about statehood, sovereignty, and the rights and duties of states under international law.
Overall, the Montevideo Convention provides a foundational framework for understanding the concept of statehood and has contributed to the codification of principles related to international relations and the conduct of states in the international community.
According to international law, both Ethiopia and Somaliland qualify for statehood and can therefore intern into agreement that is valid by international law.
International law regarding accession to ports primarily involves agreements, treaties, and customary practices governing the rights and obligations of states concerning access to ports and related maritime activities. Several key principles and legal instruments shape the framework for access to ports:
The United Nations Convention on the Law of the Sea (UNCLOS) is the primary international legal framework governing maritime rights and responsibilities, including access to ports. UNCLOS establishes rules regarding the territorial sea, exclusive economic zones, and the rights of ships to innocent passage through international waters.
Article3.1 of UNCLOS provides “In order to enjoy the freedom of the seas on equal terms with coastal States, States having no sea coast should have free access to the sea. To this end States situated between the sea and a State having no sea coast shall by common agreement with the latter, and in conformity with existing international conventions, accord:
(a) To the State having no sea coast, on a basis of reciprocity, free transit through their territory; and
(b) To ships flying the flag of that State treatment equal to that accorded to their own ships, or to the ships of any other States, as regards access to seaports and the use of such ports.
2.States situated between the sea and a State having no sea coast shall settle, by mutual agreement with the latter, and taking into account the rights of the coastal State or State of transit and the special conditions of the State having no sea coast, all matters relating to freedom of transit and equal treatment in ports, in case such States are not already parties to existing international conventions.
UNCLOS enshrines the principle of freedom of navigation, ensuring that ships of all states enjoy the right to navigate through international waters, including access to ports, subject to certain limitations and regulations.
Port states have the sovereign authority to regulate activities within their ports, including inspection, enforcement of laws and regulations, and collection of fees and charges. However, port states are generally required to treat foreign vessels in a non-discriminatory manner consistent with international law.
States may enter into bilateral or multilateral agreements to govern access to ports, establish port facilities, regulate port operations, and facilitate international maritime trade and transportation. These agreements often address issues such as port fees, customs procedures, security arrangements, and environmental protection.
International Maritime Organization (IMO) Regulations: The IMO, a specialized agency of the United Nations, develops international regulations and standards for maritime safety, security, and environmental protection. IMO regulations may include provisions related to port access, port facilities, and port state control measures.
Customary International Law: Customary international law, based on consistent state practice and opinion juris (belief in legal obligation), also plays a significant role in shaping norms and practices related to access to ports and maritime activities. International human rights law and refugee law impose obligations on states to ensure access to ports for asylum seekers and refugees fleeing persecution or violence. States are generally prohibited from returning individuals to a territory where they face serious threats to their life or freedom.
Overall, international law on accession to ports is multifaceted, reflecting the complex legal, economic, security, and environmental considerations associated with maritime transportation and trade. States are expected to adhere to their legal obligations under relevant international instruments and customary practices while promoting the safe, efficient, and environmentally sustainable operation of ports and maritime activities.
BY SOLOMON DIBABA
THE ETHIOPIAN HERALD THURSDAY 15 FEBRUARY 2024
