Berbera Port Agreement: Somaliland’s Boon

The New Arab UAE base in Somaliland soon to launch military operations
The Berbera port in Somaliland in 2015, before development began [AFP]

The 1933 Montevideo Convention on the Rights & Duties of States affirms that recognition of a state is unconditional and irrevocable. Somaliland, however, has been lobbying the international community to be recognised as a separate state from Somalia for more than a quarter of a century. Its quest for recognition seems to have come to fruition following the recent port development agreement it concluded with United Arab Emirate (UAE) and Ethiopia.

Somaliland received its independence in 1960 fro British colonial rule.   Within days of being recognised as a sovereign state by the United Nations, it declared its willingness to be united with its southern neighbour, Italian Somaliland, which led to the historical event of the formation of a united Somalia. However, following the demise of the dictatorial rule of Ziyad Bareh in 1991, Somalia’s territorial integrity fell apart.

Following the collapse of the central government, Somaliland withdrew from the union after three decades of unification.  Seceding itself unilateralley from Somalia, Somaliland formed its own government declaring Hargessa as its capital in 1991.

Upending regional politics, Ethiopia has become a partner of the Berbera Port Development Agreement along with DP World of UAE.

The agreement allocates 51pc of the company’s ownership to DP World, 30pc to Somaliland, and the remaining to Ethiopia, calling for almost half a billion dollars to be invested.

The Agreement has not found support from the Somalian government, which has since declared the deal null and void. This sets Somalia on a collision course with its regional ally, Ethiopia, which has its own interests to look after.

Following Eritrea’s split in 1993, Ethiopia became the most populated landlocked country on Earth. The situation necessitated Ethiopia’s dependence on Djibouti’s ports to access international markets. The port currently accounts for around 97pc of the nation’s imports and exports, hampering Ethiopia’s aspirations to emerge as an uncontested regional power.

Recently, however, the ground has been shifting. Ethiopia has successfully taken advantage of the recent involvement of various Arab Gulf States in the Horn of Africa’s coastal zone to reduce its dependency on Djibouti’s ports.

An article published in The Conversation, headlined “How an Ethiopia-backed port is changing power dynamics in the Horn of Africa,” states that Ethiopia has done asactively been trying to interest partners in the refurbishment and development of other ports in the region including Port Sudan in Sudan, Berbera in Somaliland and Mombasa in Kenya. There is merit to the argument.

But it is Berbera, in particular, that is radical in terms of challenging regional power dynamics and international law. This is because a port deal with Somaliland will challenge Djibouti’s virtual monopoly over maritime trades with Ethiopia in addition to cementing the de-facto Balkanization of Somalia.

Two problems have hampered Ethiopia’s ambitions for the Berbera port. Firstly, Somaliland has no international recognition as a state.  This creates for Ethiopia political and legal headaches with its engagement with Somaliland. Secondly, Ethiopia does not have the critical resources needed to invest and build a port.

As a result, Ethiopia needed to get Abu Dhabi and Dubai interested in the Berbera Port. A number of factors assisted its latest push. These included a shift in the UAE’s military focus in Yemen and Ethiopian assurances of more trade and some financing to upgrade the port.

Thus, Ethiopia’s diplomatic push which coincides with developments across the Gulf of Aden finally got the result it had been looking for such a long time.

The political ramifications of the agreement are perhaps more significant than the economic ones. This groundbreaking accord is going ahead despite efforts by Somalia to scuttle it. The fact that these attempts to sabotage the project have had little effect highlights Somalia’s lack of authority over its breakaway northern region.

Somaliland’s President, Muse Bihi Abdi, has been trying to capitalise on this weakness by further strengthening relations with the UAE. He recently visited Abu Dhabi where it was announced that the Gulf nation would train Somaliland forces as part of a separate deal to establish a military base in Berbera. The Arab country has even started accepting Somaliland visas.

The tacit acts by UAE constitute recognition. This is as a result of an article in the Montevideo Convention that states recognition of a state can merely come as a result of another accepting its personality with all rights and duties determined by international law. Another article confirms that the recognition of a state may be expressed or tacit  any act which implies with the intention of recognising the new state.

Concurrently, the Vienna Convention on the Law of Treaties of 1969, states that treaties are binding if the parties entering the agreement have given their consent, and the process is fair and just. Given the stance Somaliland has been projecting regarding the Berbera Port agreement, one can deduce that it has given its consent to the agreement. One can also judge that the process is fair and just since one cannot defend a deal it deems unfair and unjust.

Though facts in the convention and the tacit act of UAE are clear and plain, Somaliland has not been able to garner the recognition it has been looking for three decades. That is because recognition is more of a political decision than a legal one.

Both in concrete and symbolic terms, the Berbera port deal has firmly moved Somaliland one step closer to international recognition, a goal that has remained out of reach for the past 27 years.

The Montevideo Convention further lists four criteria for a state to be recognised internationally. It needs to have a permanent population, defined territory, government, and capacity to enter into treaties with other states. Another article affirms that the political existence of the state is independent of recognition by others. An objective look at Somaliland shows that the de facto state fulfils the criteria of the Montevideo Convention.

Even before recognition, the state has the right to defend its integrity and independence, to provide for its conservation and prosperity and consequently to organise itself as it sees fit, to legislate upon its interests, administer its services and to define the jurisdiction and competence of its courts. The exercise of this right has no other limitations than the exercise of the right of other states.

International law is largely silent regarding secession. Some have argued that in certain circumstances people do have a right to remedial secession. When a state does not respect the right of internal self-determination, external self-determination may be an option.

Helsinki Final Act is the bases for the inviolability of borders. The legal principle Uti Possidetis states that former colonies that achieved independence would have the same borders with the boundaries it had as a colony. International Courts of Justice noted that Uti Possidetis is a relevant principle in the interpretation of self-determination.

Taking in to account the spirit of the Montevideo Convention, the Law of Treaties and the evolving reality on the ground vis-a-vis Berbera Port development agreement, the Berbera Port Agreement is legal. The tripartite agreement is legal since it is signed and sealed with knowledge and designated representative of the three governments.

The bottom line is that Ethiopia has engineered access to another port and enhanced its security and strategic economic interests. And by signing a legally binding agreement between Somaliland and UAE, Ethiopia has potentially paved the way for eventual international recognition of Somaliland.