Our most recent “Power Lunch” was a discussion by our Foreign Law Specialist, Hanibal Goitom. He presented “Citizenship Issues Affecting Certain Ethiopians of Eritrean Origin.” His talk focused mainly on an international arbitration case that Eritrea and Ethiopia litigated regarding the citizenship of a group of Ethiopians of Eritrean origin who were denationalized by Ethiopia.
Hanibal began his presentation by providing a short historical background on Eritrea and Ethiopia. He noted that “before Europeans came and divided Africa, borders didn’t exist.” Eritrea, like other African States, is a colonial creation which came to exist after Italy occupied it and declared it Italian territory in 1889. After Italy was defeated in WWII, the British administered Eritrea for just over a decade. After that, the UN decided that Eritrea would be federated with Ethiopia. Ten years into the federation, on November 15, 1962, Ethiopia officially dissolved the federal arrangement through an imperial order (Order No. 27) and annexed Eritrea. Eritrea remained a part of Ethiopia until 1991 when it won de facto independence.
During the time of the Federation and the following Ethiopian occupation of Eritrea which totaled forty years, thousands of Eritreans moved to Ethiopia. The numbers are always contested but it has been estimated that 550,000 Eritreans went to Ethiopia. Eritrea held a referendum in April 1993 and gained formal UN recognition. Out of the 550,000, roughly 66,000 Ethiopians of Eritrean origin who lived in Ethiopia are thought to have participated in the referendum.
In 1998, Eritrea and Ethiopia went to war over a border dispute. Ethiopia deported an estimated 70,000 people to Eritrea. In December 2000, Ethiopia and Eritrea signed the Algiers peace agreement that created two International Arbitral Commissions: the Eritrea-Ethiopia Boundary Commission (EEBC) and the Eritrea-Ethiopia Claims Commission (EECC).
The EECC was mandated with the task of adjudicating losses caused by each government or its nationals as the result of “violations of international humanitarian law, including the 1949 Geneva Conventions, or other violations of international law.” One of the claims made by Eritrea included the denationalization of Ethiopian citizens of Eritrean origin. The EECC divided the proceedings in to two phases: liability and damages. It issued its ruling on the first phase in December 2004.
In terms of citizenship relating to the splitting of Ethiopia and Eritrea, “there was no national law on this particular issue.” The only applicable citizenship law was the 1930 Ethiopian Nationality Law, which didn’t address the issue. In addition, international law was rather undeveloped on this issue (certain guidelines existed) particularly in the context of state succession.
In his discussion of the EECC case, Hanibal focused on one of the highly contested issues, the participation of some of the Ethiopians of Eritrean origin in the popular referendum that led up to the creation of Eritrea in 1993. Eritrea’s claim was that Ethiopia’s act of denationalizing Ethiopian nationals of Eritrean origin violated international law. Ethiopia countered that “by the fact of voting in the Eritrean referendum, people lost their Ethiopian citizenship” under Article 11 of the 1930 Ethiopian Nationality Law.
Eritrea, having won its independence from Ethiopia in 1991, instead of seeking world recognition, decided to hold a popular referendum in which Eritreans were given a choice between independence or union with Ethiopia. In preparation for the referendum, Eritrea issued two laws: the Eritrean Nationality Proclamation which laid out a list of requirements for obtaining Eritrean citizenship and the Referendum Proclamation No. 22 of 1992 which made participation in the referendum conditional on qualifying for Eritrean citizenship under the Nationality Proclamation. Ethiopia’s position was that participating in the 1993 Eritrean referendum had resulted in the acquiring of a second citizenship and loss of Ethiopian citizenship under the Ethiopian Nationality law which categorically prohibited it.
Eritrea made a list of arguments to show that participation in the Eritrean referendum did not result in acquiring a second citizenship. Chief among them were:
- At the time the referendum took place, Eritrea was not a state under international law and thus lacked the capacity to confer citizenship;
- Ethiopian Constitution prohibited loss of citizenship without consent of the citizen and participants of the referendum were not warned that their participation in the referendum would result in the loss of their Ethiopian citizenship; and
- After having participated in the 1993 Eritrean referendum, Ethiopia continued to treat participants as Ethiopian citizens by continuing to issue them Ethiopian passports and allowing them to travel in and out of Ethiopia as Ethiopians, by allowing them to participate in national elections, and by extending other privileges restricted to citizens such as ownership of real property and participation in the Ethiopian army.
Ethiopia took exception to Eritrea’s argument that it was not a state at the time of the referendum. It argued that the Eritrean government exercised an effective authority over a defined territory and population, as well as entered into international agreements some of which were with Ethiopia and therefore qualified as a state under international law. Ethiopia defined treating Ethiopians of Eritrean origin as Ethiopians — after their participation in the Eritrean referendum — as a courtesy.
In the end, the EECC found that the individuals who participated in the 1993 Eritrean referendum acquired Eritrean citizenship but did not lose their Ethiopian citizenship.
Hanibal further discussed the current Ethiopian citizenship laws and the treatment of Ethiopians of Eritrean origin who were denationalized by Ethiopia for obtaining Eritrean citizenship. He noted that in 2002 Ethiopia introduced a new law allowing individuals who have lost their Ethiopian citizenship through acquiring a second citizenship to exercise certain citizenship rights in Ethiopia. This law specifically excludes individuals who have lost their Ethiopian citizenship through acquiring Eritrean citizenship.