Looking back 17 years later, the question of Eritrea’s secession is a lingering issue and its legitimacy is still hounding us. Eritrea, despite its pseudo “independence”, has continued to be “a problem child” of Ethiopia. Because the EPLF failed to implement a democratic system of government and effective economic and social policies, we find Eritrea and her people in a worst predicament than the Mengistu era. Eritrea is led by politically dwarf and the most brutal dictator of the 21st century. The military might that has been written a lot about by the proponents of the EPLF is proven to be an impotent military machine that is only capable of flexing its muscles on its own innocent citizens.
Then, it is no wonder to witness that Eritreans disgusted with the direction of the country and the undemocratic political discourse are fleeing their country in record numbers. By all accounts, Eritrea is in the worst economic and political quagmire and in a confused and disoriented social state. The purpose of this piece is to examine the legality of the referendum itself that led to the secession of Eritrea and the legitimacy of Article 39 in EPRDF formulated “Ethiopian Constitution. It bears no fruit to dwell in the obvious political, economical and social problem that Eritrea is finding itself under a ruthless ruler only cheered by the privileged ardent supporters of the regime and those innocently hope that Issaias, by some heavenly miracle, would bring a desired democratic change in Eritrea.
The issue of secession is not unique to Africa. We learn from history that as colonization and colonialism have been practiced throughout recorded history, political self-determination, on an individual level, has been documented similarly and cherished highly by collective peoples despite them; ancient Mesopotamia and the later Greek city-states are early examples of its practice. The employment of imperialism, through the expansion of empires, and the concept of political sovereignty, as developed after the Treaty of Westphalia1 , also explain the emergence of self determination during the Modern Era. During, and after, the Industrial Revolution many groups of people recognized their shared history, geography, language, and customs. Nationalism emerged as a uniting ideology not only between competing powers, but also for groups that felt subordinated or disenfranchised inside larger states; in this situation self determination can be seen as a reaction to imperialism. Such groups often pursued independence and sovereignty over territory, but sometimes a different sense of autonomy has been pursued or achieved.
There are different eras that gave to the modern theory of Self Determination. Initially the theory emerged as a defiant by North America to British Rule. The American Revolution is seen as the first assertion of the right of national and democratic self-determination, because of the explicit invocation of natural law, the natural rights of man, as well as the consent of, and sovereignty by, the people governed; these ideas were inspired particularly by John Locke’s enlightened writings of the previous century. Thomas Jefferson further promoted the notion that the will of the people was supreme, especially through authorship of the Declaration of Independence which inspired Europeans throughout the 19th century. The French Revolution was motivated similarly and legitimatized the ideas of self-determination on that Old World continent2.
We also learn from history that the peril that caused the American civil war was the issue of secession. When the Southern States declared secession from the American Union, President Abraham Lincoln, contested the legality of their declaration and waged war to protect the territorial integrality of the United States. The war ended with the victory of the Unionists. Years before the Civil war, there was a great deal of debate regarding secession between the Jeffersonians and the Federalists like James Madison. Although Madison believed in Self Determination, he argued that in a Federal system, one State cannot declare secession unilaterally without the consent of the other States. According to Madison, Each States in the Union owes a duty to other States and for any State to declare unilateral secession defies the mere idea of Federalism.
Similarly, the issue of secession has been a hot issue in Canada. The Province of Quebec, in Canada has raised the issue of secession repeatedly and it held a referendum twice within the last 20 years. Despite the fact that referendum took place in Quebec did not give legitimacy to the idea of Quebec’s secession. The issue and its legitimacy was tenaciously debated in the political landscape of Canada and vehemently argued in the Supreme Court of Canada. Even if had Quebecans voted for secession, its legitimacy was in question because most scholars believed that in a Federal system one State cannot unilaterally decide to secede from a country. Both the United States of America and its counter parts in Canada did not only examine the issue of secession from the law of their respective countries but also examined it if it confirmed with the Intentional Law.
Since the modern issue of Self Determination is governed by the United Nation’s Charter signed in 1941 and laws that came after it, the writer will examine the legality of Eritrea’s secession from modern international law and will look at the legitimacy of Article 39 in the Ethiopian Constitution. Looking at the international law and the debate that took place in the United States and Canada, one can conclude that the Eritrean referendum was not only illegal from Ethiopian Law perspective but also dose not confirm with the international law of its time. Although the intention of this writer is to invoke debate on this issue, he hopes that legal scholars would do further study on the subject and that somehow we would find a way to legally challenge the thorny Eritrean issue in the international arena. If our scholars could find the legal remedy to this issue, may be, just may be, the Eritrean issue would be resolved for the last time not by the law of the jungle but by the rule of law peacefully without the guns and tanks.
For clarity sake, the writer will examine the secession of Eritrea and the legitimacy of Article 39 separately. The first question here is then, did the Ethiopian law allow for the secession of Eritrea? The obvious answer is no. Since Eritrea was not governed by Ethiopian law since May 1991, it is difficult to apply any law that gave legality to the secession of Eritrea. When the EPRDF took power on May 28, 1991, it convened its own version of “a peace conference” in July 1991, which excluded multi ethnic political groups and groups that were considered threats to the EPLF and EPRDF political agenda. It is this conference that gave birth for the Transitional Government of Ethiopia (TGE) which adopted the transitional charter. The Charter that was adopted by the participants made it a “legal document” by which the country would be governed for a two-year transitional period. Having established a legislative council, an executive body and a number of provisions that would guide the domestic and foreign policies of the TGE, the Charter also granted Ethiopia’s numerous nationalities the right to self-determination, including secession. The Charter was supposed to serve until a permanent constitution is drafted and popularly approved sometime in 1993. As we all know, the EPRDF extended the Transitional Period until 1995 without any legal authority.
Although the Charter “granted” the right to secede, the same Charter stated that it adheres to all International Laws. More over, Eritrea was not included in the framework of the TGE; thus, one can argue that the Charter was not applicable to Eritrea. Since May 1991, Eritrea had its own government called the “Provisional Government of Eritrea”; this was a government within a government of Ethiopia. The EPLF enjoyed such privilege not because of the rule of law allowed it; but because of the military muscle it exercised at the time. Scholars should scrutinize not only the legality of such an arrangement but also the scope of power that the TGE had at that particular period. Did the TGE have the legal authority to allow the Eritrean referendum to take place without having a permanent constitution or a government elected by the people? This question must be vigorously examined and answered by those who have the authority of knowledge on this issue.
What is obvious is that during that period, the TGE Charter did not apply for Eritrea and the TGE was not an elected body. In this writer’s opinion, the TGE had no legal authority to make a decision that violated the territorial integrity of Ethiopia. Since Ethiopia did not have a government that was derived from the people, the United Nations had no right to intervene in the internal affairs of Ethiopia and allow for the referendum to take place. Henceforth, the question is in such tainted environment and without any legitimate and legal authority that represented the interest of Ethiopia, how could Eritrea’s secession be legal? Since it would be an impossible task to find any law or domestic legal frame work that applied to Eritrea between 1991 and 1993, it would be meaningless to argue the validity of the Ethiopian law in context of Eritrean referendum. Though Eritrea was considered part of Ethiopia by all measures and had no “sovereignty” until May 1993, it functioned as sovereign country within a country.
Leaving aside the undemocratic nature of the referendum and the process that led to the April 27, 1993 Eritrean referendum, this writer does not believe that the TGE had the legal authority and legitimacy to hold the Eritrean referendum. Moreover, since the transitional charter clearly stated that it abide by all international laws, a close scrutiny of the issue clearly shows the secession was also a clear violation of the TGE’s own Charter because the secession of Eritrea violated the international law.
In 1941 Allies of World War II signed the Atlantic Charter and accepted the principle of self-determination. In January 1942 twenty-six states signed the Declaration by United Nations, which accepted those principles. The ratification of the United Nations Charter in 1945 at then end of World War II placed the right of self-determination into the framework of international law and diplomacy.
Chapter 1, Article 1, part 2 states that purpose of the UN Charter is: “To develop friendly relations among nations based on respect for the principle of equal rights and self-determination of peoples, and to take other appropriate measures to strengthen universal peace.”
Article 1 in both the International Covenant on Civil and Political Rights (ICCPR) and the International Covenant on Economic, Social and Cultural Rights (ICESCR). Both read: “All peoples have the right of self-determination. By virtue of that right they freely determine their political status and freely pursue their economic, social and cultural development.”
The United Nations Universal Declaration of Human Rights article 15 states that everyone has the right to a nationality and that no one should be arbitrarily deprived of a nationality or denied the right to change nationality.
However, the charter and other resolutions did not insist on full independence as the best way of obtaining self-government, nor did they include an enforcement mechanism. Moreover, new states were recognized by the legal doctrine of uti possidetis juris, meaning that old administrative boundaries would become international boundaries upon independence, even if they had little relevance to linguistic, ethnic, and cultural boundaries3. Nevertheless, justified by the language of self-determination, between 1946 and 1960, the peoples of thirty-seven new nations freed themselves from colonial status in Asia, Africa, and the Middle East. The territoriality issue inevitably would lead to more conflicts and independence movements within many states and challenges to the assumption that territorial integrity is as important as self-determination.
As far as the international community is concerned the purpose of the rule for “Self Determination” was to allow countries who lived under colonial rules to determine their own fate when they declare independence without the interference of their colonial masters. Eritrea, in any stretch of imagination does not fit those criteria. Of course, the EPLF and its allies have been feeding us an empty propaganda telling the world that Eritrea was colonized by “Amharas”. The historical accounts and the facts however clearly show that Eritreans through a democratic process and democratic referendum in 1960 with the observation of the United Nation and other neutral international organizations chose to be united with Ethiopia. (Read Y-ERTREA GUDAY by Ambassador Zewdie Retta for the 1960s referendum).
Notes 1 Betty Miller Unterberger, Self-Determination, Encyclopedia of American Foreign Policy, 2002. 2 Alex Mayer (July 25, 2008). “Secession: still a popular idea?” St. Louis Post-Dispatch. 3 Vita Gudeleviciute, Does the Principle of Self-determination Prevail over the Principle of Territorial Integrity?, International Journal of Baltic Law, Vytautas Magnus University School of Law, Volume 2, No. 2 (April, 2005).
