Ethiopia's Maritime Legislation
The relevance of maritime law to land-locked countries like Ethiopia has frequently been misunderstood. Some think the Maritime Code of 1960 is no more important since Ethiopia became a country without sea ports in the early 1990s. The myth underlying this misconception is that land-locked countries could not possibly engage in maritime transaction of any sort. A highlight on some core principles of the law of the sea –a branch of public international law –is crucial to understand that it is still legally possible for landlocked states to engage in sea trade. The most serious limitation has been economic incapacity, not legal incapacity as such.
As a matter of principle of international law, every nation has freedom of the high seas (a bundle of freedoms including freedom of navigation, freedom of overflight, fishing, scientific research and freedom to construct artificial islands, lay submarine cables, and pipelines). Apparently, these freedoms are not limited to coastal states. Land-locked states like ours are equally entitled to these freedoms. The question is how could land-locked states, which are not in principle precluded from the enjoyment of rights pertaining to the use of sea and sea resources, practically benefit from the universally recognized freedoms without access to outlets?
Traditionally, states without access (SWA) have endeavored to obtain the right of free access to the sea in order to practically enjoy freedom of the high seas and most importantly to participate in international trade. With this aim, many multilateral and bilateral agreements have been signed guaranteeing the right of transit of SWA through neighboring territories. There are many documents of public and private international law which guarantee access rights to landlocked states. Such documents include the United Nations Convention on the Law of the Sea (UNICLOS III), of 1982 (entered into force in 1994). UNICLOS grants right of access of landlocked countries to and from the sea and the freedom of transit. Article 3 of UNCLOS, for example, provides as follows:
1. In order to enjoy the freedom of the seas on equal terms with coastal States, States having no seacoast should have free access to the sea. To this end States situated between the sea and a State having no seacoast shall by common agreement with the latter and in conformity with existing international conventions accord:
a. To the state having no seacoast, 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 ship of any other states, as regards access to seaports and the use of such ports.
In addition, the 1965 United Nations Convention on the Transit Trade of Land-Locked Countries and the General Agreement on Tariffs and Trade (in its Article V) and African Maritime Transport Charter of 1993, to which Ethiopia is a party, recognize the right of free access to the sea for landlocked Member States with, however, the proviso that they comply with the laws and regulations of the transit States.
Such international conventions have little effect on those nations that would have to grant the rights sought, i.e., transit right. As a result, the problem of access to sea has usually been solved through bilateral treaties between the individual nations concerned. Incidentally, it is also advisable for states without access to maintain smooth relations with neighbors over whose territory its goods must traverse.
As far as sea access to Ethiopian ships is concerned, Ethiopia has concluded Port Utilization Agreement with Djibouti and Sudan. Since road transport plays a significant role in the transit transport, Ethiopia has also concluded Road Transport Agreements with the above-mentioned neighboring states. However, currently Ethiopia mainly uses the Port of Djibouti.
Agreement on Port Utilization and the Transit of Goods towards Ethiopia, signed in April 2002, and subsequently ratified by both Ethiopian and Djiboutian parliaments, is based on the major United Nations conventions and the principles of free sea access (and transit) to the sea for landlocked countries. The agreement covers the various aspects of transit transport: port entry, customs, documentation, land transport, security along the corridor, facilities maintenance, approval procedures for public and private operators of both states that use the corridor, etc.
Djibouti International Autonomous Port (PAID) handles millions of tonnes annually, well over 50 per cent on behalf of Ethiopia. Since Djibouti does not have a merchant fleet, the PAID gives priority to berthing ships transporting goods to Ethiopia. Since 2000, the Ethiopian customs has had an office within the port of Djibouti in order to carry out formalities for goods in transit to Ethiopia. In addition, more favourable terms, for length of storage and rates, are granted to Ethiopians for operations in the port of Djibouti. Ethiopian Shipping Lines, the only national flag carrier established in 1964, has had a monopoly of transport of goods coming from or going to Ethiopia. For goods in transit to Ethiopia (an average of 100,000 containers each year), over 70 per cent of handling is carried out by the Maritime Transit Services Enterprise (MTSE). As to the road transport –connecting Ethiopia’s inland to the Port of Djibouti –it is almost all undertaken by Ethiopian operators. Some 100,000 vehicles use the corridor from the port of Djibouti to Ethiopia annually since Ethiopia’s traffic moved from Eritrea to Djibouti in 1998.
The major piece of Ethiopia’s maritime legislation is the 1960 Maritime Code. With 371 articles, the code deals with many aspects of maritime affairs including contract of carriage under (1) charterparty and (2) bill of lading, maritime labour law, nationality and registration of ships, limitation of liability, marine insurance, general average, collisions, salvage and assistance, and also ship mortgage and maritime lien. The material sources of the law, according to Tsehai Wada, is “less known.” But, he remarks that the Code is substantially drawn from international conventions of maritime importance. Another writer, however, is of the opinion that the code is inspired by Continental (Civil Law) sources. In his article the Civil Law and Common Law Influences on the Developing Law of Ethiopia, J. Vanderlinden incidentally mentions the following: “The Commercial and Maritime Codes were drafted by …French Professors, Professor Escarra, and after his death, Professor Jauffret. They [the codes] are representative of the most recent developments in French commercial legal thought.” Despite divergent views, one can safely argue that the Maritime Code’s provisions bear similarity, in many instances, with the provisions of the then prominent conventions, including the Hague Rules on Bill of Lading of 1924, and hence, the later are the likely major material sources of the former.
In sum, the unavailability of a seaport – though the most evident disadvantage for inland countries – has not completely dissuaded landlocked nations from taking to the sea. This is particularly the case with Ethiopia. Though land-locked, Ethiopia continues to own ships and engage in international maritime commerce. Hence, it is not odd for land-locked states to legislate a body of law concerning ships flying their flag and transactions involving them. Undeniably, however, there is some decline in importance of some of the provisions of our maritime legislation, particularly those provisions which assume the existence of sea port. None the less, this area of law has still a major role to play in the land-locked state owning merchant ships and handling 90 per cent of its import-export trade through sea transport.