From: Berhane Habtemariam (Berhane.Habtemariam@gmx.de)
Date: Mon May 25 2009 - 06:07:33 EDT
Ethiopia-Eritrea: Statelessness and State succession
by Katherine Southwick
(Sunday, May 24, 2009)
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There is a need to strengthen international law on nationality rights and
avoidance of statelessness in the context of state succession and
international conflict.
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The experiences of people of Eritrean origin in Ethiopia and of those
deported to Eritrea during the 1998-2000 border conflict illustrate the need
for an initiative that would help prevent arbitrary loss of nationality and
the resulting risks to other human rights in the Horn of Africa or
elsewhere. Border changes may then occur - reflecting evolving group
identities - without necessarily being precursors to statelessness.
While relations between Ethiopia and Eritrea are tense today, the two
countries' heads of government used to be great allies. Both led rebel
movements which joined forces to overthrow the brutal dictatorship of
Mengistu Haile Mariam. After Mengistu was deposed in 1991, the two leaders
established separate provisional governments in Addis Ababa and Asmara. In
1993, after 30 years of struggle, Eritrea peacefully seceded from Ethiopia
following a referendum. But the citizenship status of persons of Eritrean
origin, particularly of those living in Ethiopia, was unclear. Almost 16
years later, nationality rights of individuals in both countries remain
fragile.
Voting in the referendum was open to "any person having Eritrean
citizenship." The Eritrean nationality law provides that anyone who
qualifies for citizenship by birth or through naturalisation and who wishes
to be recognised as an Eritrean citizen must apply for a certificate of
nationality. Numerous people of Eritrean origin - living in Eritrea,
Ethiopia or elsewhere in the world - accordingly obtained Eritrean ID cards
and nearly all voters chose independence.
Ethiopian law does not permit dual citizenship but at the time of the
referendum and Eritrean independence, with the nationality laws of both
countries still unresolved, the two countries' ministries of internal
affairs declared that "until the issue of citizenship is settled in both
countries, the traditional right of citizens of one side to live in the
other's territory shall be respected." The Ethiopian government also
continued to issue passports and other identification documents to those who
had voted in the referendum. Eritrean officials later contended that people
holding Eritrean IDs at the time of the referendum were not Eritrean
citizens because the Eritrean state was 'provisional' and had not yet come
into existence.
The Ethiopian Constitution of 1995 also provides that "[n]o Ethiopian
national shall be deprived of his or her Ethiopian nationality against his
or her will." In 1996, both governments agreed that "Eritreans who have so
far been enjoying Ethiopian citizenship should be made to choose and abide
by their choice." Implementation was nonetheless postponed pending
resolution of trade and investment issues. Perhaps because both countries
initially felt much mutual goodwill, difficult subjects such as citizenship
and border demarcations were left unresolved. Finally in 2004, the
Eritrea-Ethiopia Claims Commission (EECC), which was established to decide,
through binding arbitration, claims brought by the two governments and their
nationals, determined that those who had qualified to participate in the
referendum had acquired dual nationality because both states continued to
treat them as nationals.
Denationalisation and deportations
Despite the amicable start, simmering tensions over port access, currency
exchange and border disputes erupted into armed conflict in May 1998. By the
end of the fighting in December 2000, both sides had lost tens of thousands
of soldiers and around one million people were displaced.
In 1998, an estimated 120,000 to over 500,000 persons of Eritrean origin
were living in Ethiopia. During the course of the war the Ethiopian
government sought to justify denationalising and deporting them on the basis
that they had acquired Eritrean citizenship by voting in the referendum.
Individuals had not been informed that participation in the referendum would
amount to renunciation of their Ethiopian citizenship. Around 70,000 people
were expelled, initially individuals deemed to be security threats
(including those prominent in business, politics, international
organisations - including the UN - and community organisations with links to
Eritrea). In July 1999, the Ethiopian government declared that all those who
had been expelled to Eritrea were Eritrean citizens, having acquired
citizenship by voting in the 1993 referendum. In August 1999, all those who
had voted in the referendum and remained in Ethiopia were ordered to
register for alien residence permits, which had to be renewed every six
months.
Those who were to be expelled were interrogated at police stations, where
their identification documents were destroyed. Their assets were frozen and
business licences revoked, and most of them were unable to dispose of their
property before being deported. They were detained for days, weeks or months
before they were bussed up to the Eritrean border or forced to flee through
Djibouti. The EECC determined that loss of nationality and expulsion of
individuals identified through Ethiopia's security review procedures were
lawful "even if harsh for the individuals affected." However, deprivation of
nationality and expulsion for any other reasons were deemed illegal.
Eritrea also deported around 70,000 Ethiopians during the conflict, although
the nationality status of persons of Ethiopian origin in Eritrea was never
in dispute. Most of them were resident aliens working in urban areas. They
too suffered discrimination, violence and harsh conditions during
deportation.[1]
Eight years after the war's end, relations still remain very tense. The
Eritrea-Ethiopia Boundary Commission's 2002 decision awarding disputed
territory to Eritrea has not been enforced and the UN peacekeeping mission
departed from the region months ago. Both governments appear to be fighting
by proxy in Somalia, and their leaders' entrenched personal animosity
afflicts thousands of lives in the region. Eritrean society remains highly
militarised and both sides have troops stationed along the border. In this
insecure environment, nationality rights - among others - remain vulnerable.
Today, the International Committee of the Red Cross estimates that 10,000 to
15,000 Ethiopian nationals still reside in Eritrea, most of whom have not
been given permanent status or citizenship in Eritrea.[2]
On the fate of people of Eritrean origin in Ethiopia, reports are mixed.
Between 2000 and 2004, individuals of Eritrean origin or from mixed families
were allegedly arrested, detained and sometimes beaten or raped by Ethiopian
authorities on suspicion of collaborating with or spying for Eritrea.[3] To
its credit, the Ethiopian government quietly introduced a new nationality
proclamation in 2003, which apparently enabled many Eritreans living in
Ethiopia to re-acquire Ethiopian citizenship. With a national ID card,
persons of Eritrean origin are presumably no longer restricted from work,
travel, education and other social services. However, many individuals still
conceal their Eritrean background for fear of discrimination and harassment.
Families of mixed heritage continue to suffer from prolonged separation as
the war ended all travel and communication between the two countries. In
2008 on a research trip for Refugees International, a colleague and I met
one woman in Addis Ababa who recently visited her father in a third country,
having not seen him in the ten years since his deportation. An elderly
Ethiopian widow cannot visit the grave of her husband in Asmara. We also met
Ethiopians who had lost touch with Eritrean friends and loved ones after the
deportations. A 2006 study of Ethiopian-Eritrean refugee families in Cairo
found that "people who are of mixed parentage have often found it impossible
to gain recognition of either nationality on account of their parentage or
administrative obstacles," concluding that such persons "are at least de
facto if not de jure stateless."[4]
Nationality rights
Beyond general efforts to strengthen the rule of law, fortifying the right
to nationality and avoidance of statelessness within the context of state
succession are essential. Violations of the right to nationality were (and
continue to be) at the root of other human rights issues in the Horn of
Africa. Other parts of Africa and the world are vulnerable to similar
problems. Lack of clarity on nationality status following Eritrea's
creation, along with weak norms against statelessness, enabled Ethiopia to
deprive thousands of persons of Eritrean origin and mixed families of
numerous human rights. Weak norms have also apparently emboldened Eritrea to
obstruct citizenship for Eritrean-Ethiopian families and certain deportees
now living in Eritrea are denied access to employment and social services
and are vulnerable to governmental and social harassment and abuse.
Constructing a framework
Although neither Ethiopia nor Eritrea is party to the two Statelessness
Conventions, key principles on statelessness and state succession can be
drawn from several sources and recently statelessness in the context of
state succession has gained further prominence. The breakup of the former
Soviet Union and Yugoslavia and the split of Czechoslovakia have highlighted
the need for a clear framework. Certain international instruments provide
guidance on how to handle nationality issues in state succession.
In 2001, the UN General Assembly adopted the International Law Commission's
(ILC) Articles on the Nationality of Natural Persons in relation to the
Succession of States. The Preamble "recognize[es] that in matters concerning
nationality, due account should be taken both of the legitimate interests of
States and those of individuals." States concerned are to "take all
appropriate measures to prevent persons who, on the date of succession of
States, had the nationality of the predecessor State from becoming stateless
. ." States should enact nationality legislation and "should take all
appropriate measures to ensure that persons concerned will be apprised . of
the effect of its legislation on their nationality, of any choices they may
have thereunder, as well as of the consequences that the exercise of such
choices will have on their status." The Articles emphasise respect for the
wishes of the persons concerned and for family unity. They prohibit
discrimination and arbitrariness in denying rights to retain, acquire or
choose a nationality. When a state separates from another, a predecessor
state cannot withdraw its nationality from persons who qualify to acquire
the nationality of the successor state if such persons have habitually
resided in or "have an appropriate legal connection with" the predecessor
state.[5]
The 2006 Council of Europe Convention on the Avoidance of Statelessness in
relation to State Succession is rooted in the notion that "the avoidance of
statelessness is one of the main concerns of the international community in
the field of nationality." The Convention obliges the successor state to
grant nationality to persons who would become stateless as a result of the
succession if they habitually resided or had "an appropriate connection with
the successor state." The predecessor state also "shall not withdraw its
nationality from its nationals who have not acquired the nationality of a
successor state and who would otherwise become stateless." Like the ILC
Articles, the European treaty underscores respect for the wishes of those
affected and stresses that states must take all steps necessary to "ensure
that persons concerned have sufficient information about rules and
procedures [regarding] the acquisition of their nationality."[6]
In the case of Ethiopia and Eritrea, the judgments of the EECC are binding
regarding international law violations in connection with the border war.
Significantly they do not derogate from the fundamental obligation to
prevent statelessness and for all decision-making processes to be reasonable
and to avoid arbitrariness. Even in cases where loss of nationality was
considered reasonable under the circumstances, those individuals who lost
Ethiopian nationality must still be assured Eritrean citizenship.
While the African Charter on Human and People's Rights does not explicitly
address avoidance of statelessness, it does prohibit mass expulsion of
non-nationals on discriminatory grounds and identifies the state's duty to
protect and assist the family, as "the natural unit and basis of
society."[7]
Guided by these principles, we can imagine a different scenario for
nationality rights in the course of Eritrea's secession. Resolution of
citizenship issues should have been a top priority when both countries
established provisional governments in 1991. Before the referendum, both
countries should have clarified and informed all who might qualify to vote
about the consequences voter registration could have on their citizenship.
Once conflict broke out, Ethiopia should have confined loss of nationality
and expulsion only to those individuals who had undergone a transparent
security review process. People, and their families, should have received
fair notice of their expulsion orders. Spouses and children of people being
deported should have had the option to stay in Ethiopia or accompany their
loved one to Eritrea and, along with other persons of Eritrean origin,
should not have lost Ethiopian citizenship without having acquired Eritrean
citizenship. Eritrean nationality laws should have facilitated speedy
acquisition of citizenship in such cases.
To strengthen nationality rights and avoidance of statelessness in state
succession, concrete steps should be taken. Ethiopia and Eritrea should:
* protect individuals and ethnically mixed families from
statelessness, by internalising standards set forth in the UN Statelessness
Conventions and by becoming party to them [8]
* promote full integration of Ethiopians of Eritrean origin in their
respective countries
* reunite families by reestablishing interstate travel and
communications
* devise plans to compensate victims of the 1998-2000 conflict,
consistent with the EECC decisions.
The international community should:
* collectively articulate clear standards for avoiding statelessness
in state succession, such as by creating an Optional Protocol to the 1961
Convention on the Reduction of Statelessness using as a basis the ILC
Articles and the Council of Europe Convention
* support UNHCR efforts to advise countries on developing nationality
laws which incorporate nationality rights principles in state succession
* promote overdue accession to UN Statelessness Conventions.
Notes:
[1]. See for example Eritrea-Ethiopia Claims Commission, Partial Award:
Civilian Claims, Ethiopia's Claim 5 (Dec. 17, 2004), pp. 30-31,
http://www.pca-cpa.org/upload/files/ET Partial Award Dec 04.pdf (stating
liability for violations of international law against Ethiopians in
Eritrea).
[2]. Human Rights Watch, The Horn of Africa War (2003), p47.
[3]. Louise Thomas, 'The Son of a Snake is a Snake: Refugees and
Asylum-Seekers from Mixed Eritrean-Ethiopian Families in Cairo', FMRS
Working Paper No 7 (2006), p31-32.
[4]. Thomas ibid, p22.
[5]. http://www.unhcr.org/refworld/type,INTINSTRUMENT,,,4512b6dd4,0.html
[6]. http://conventions.coe.int/Treaty/EN/Treaties/Html/200.htm
[7]. http://www1.umn.edu/humanrts/instree/z1afchar.htm
[8]. These recommendations are drawn in part from Refugees International,
'Ethiopia-Eritrea: Stalemate Takes Toll on Eritreans and Ethiopians of
Eritrean Origin', 30 May 2008, available at
http://www.refugeesinternational.org/content/article/detail/10668/
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