On the occasion of the third anniversary of Resolution 1907 - The right to
self-defense is one of the most basic rights of any state( Articles 2 and
51 of the U.N. Charter)
http://horn-africa.blogspot.de/2010/01/eritrea-deciphering-un-security-council.html
ERITREA: Deciphering UN Security Council Resolution 1907 (2009)
Sophia Tesfamariam
<
http://1.bp.blogspot.com/_zoW_elPDXOg/S1IHfSP_zGI/AAAAAAAAAqw/u-YJTatzZDY/s1600-h/mccarthy.jpg>Michael
Mandel, professor of law at Osgoode Hall Law School in Toronto, who
specializes in international criminal law, once wrote:
“…Without the law, there is no limit to international violence but the
power, ruthlessness and cunning of the perpetrators. Without the
international legality of the UN system, the people of the world are
sidelined in matters of our most vital interests…”
When the Security Council acts in accordance with Chapter VII of the
Charter, it acts on behalf of the international community and the
international community expects the Security Council to act in accordance
with international law and the UN Charter.
Today, I want to address Security Council Resolution 1907 (2009) adopted on
23 December 2009. Through that resolution, the UN Security Council (UNSC)
imposed an arms embargo on Eritrea for the ostensible purpose of promoting
peace and security in the Horn of Africa region. How can a resolution that
is itself a violation of international law and the UN Charter intend to
bring peace, stability and security to the Horn region in general and
Somalia in particular? The U.N. Charter provides that resolutions are only
valid so long as they are consistent with "the principles of justice and
international law."
On 23 December 2009, the US Ambassador to the United Nations, made these
comments to the press after the Security Council adopted Resolution 1907:
“…I want to talk about the resolution we just adopted imposing sanctions on
Eritrea. This was an African initiative. It was the consequence of a
decision taken by the African Union… From the United States’ point of view,
let me say that we have for many, many months sought a constructive
dialogue with the government of Eritrea. We have sought to encourage
quietly the government of Eritrea to take the steps that it claims it
intends to take, but it will not take, and has not taken. And we still hope
frankly that they will. We do not see this as the door closing on Eritrea,
but on the contrary, we view this as another opportunity for Eritrea to
play a more responsible and constructive role in the region. We did not
come to this decision with any joy – or with anything other than a desire
to support the stability of peace in the region…The United States stands
with the people of Eritrea who have fought long and hard for their
independence and to build a country in which we have great hope for the
future…”
I believe the good Ambassador has it backwards; only the Security Council
can determine if there is a threat to international peace and security. The
African Union neither has the capacity or the integrity to make such
determination and certainly not Ethiopia and its crime partners in the
Horn.
It is indeed sad to see US policy for Africa and the UN Security Council
reduced to the whims and dictates of petty dictators and genocidaires,
abhorred by the people of the Horn region, for the international crimes,
such as genocides, rapes, tortures, and extra judicial killings committed
against their own populations and that of their neighbors. It is even
sadder that Washington has chosen leaders such as Meles Zenawi, as its
preferred allies, as if there were no other leaders in Africa with better
records. Anyway, that is a subject for another day…today, the topic is the
legality of Resolution 1907 (2009).
Allow me to address the good Ambassador’s comments and more, by
highlighting the various UN Charter articles that Resolution 1907 violates,
especially Article 39, which should render Resolution 1907 (2009) void ab
initio…
Violation of Article 39- power of determination
The Security Council cannot delegate to Member States (or regional
organizations) the competence to make either an Article 39 determination or
a determination that such a situation has ceased to exist. The decision
that a threat to, or breach of, international peace and security has
occurred and then has ceased to exist, is the very raison d'être of Chapter
VII: an Article 39 determination is the gateway to action under Chapter
VII. UN member States delegated to the Council the competence to decide
that a threat to, or breach of, the peace had occurred or that such a
situation had ceased to exist on the condition that it would be the Council
which is the only entity exercising this power.
Accordingly, application of the delegatus potest non delegare doctrine
means the Council cannot delegate this power to any other entity. Moreover,
the institutional safeguard of the veto that attaches to the Council's
decision-making processes is an additional reason why the Council cannot
delegate its Article 39 power of determination.
Furthermore, as the paper trails and the records show, despite what the US
Ambassador to the United Nations claimed about Resolution 1907 (2009) being
an “African Initiative”, it was in fact, a decision made by a handful of
Africans, in violation of the African Union’s own rules which clearly state
that:
“….Any Member of the Peace and Security Council which is party to a
conflict or a situation under consideration by the Peace and Security
Council shall not participate either in the discussion or in the decision
making process relating to that conflict or situation. Such Member shall be
invited to present its case to the Peace and Security Council as
appropriate, and shall, thereafter, withdraw from the proceedings…”
Djibouti, Ethiopia, Kenya, Somalia and Uganda who are parties to the
conflict in Somalia participated in the meetings and pushed the resolutions
against Eritrea, the one nation that has no bone in this fight. These
illegal meetings and decisions were orchestrated by Ethiopia who served as
the Chair of the Peace and Security Council when the decision against
Eritrea was made. Not surprisingly, it was also Ethiopia that Chaired the
IGAD meeting when that entity decided to call for sanctions against
Eritrea. Both regional organizations acted at the behest of the United
States. I doubt that any UN member states or members of the African Union
and IGAD would, under any circumstances, accept and agree to be subjected
to such duplicitous processes.
Regardless of what these unscrupulous and embarrassing African leaders did
to one of their own member states, the buck stops with the Security
Council, which is the body of the UN that is mandated to make informed,
prudent decisions about potential “threats to international peace”. The
decisions must be able to withstand international legal and moral scrutiny.
Unfortunately, the United States was able to run shod of the entire process
once again, and get what it wants by employing its bullying tactics and
broad day light extortion. This is neither the first nor is it going to be
the last time that a small country will be punished for standing up to a
larger, more powerful one, but if the Security Council continues to allow
itself to be manhandled in this manner; it will soon make itself and the
entire UN system irrelevant.
Violation of Article 33 and Article 95-Resolution of Disputes
On 12 June 2008, the US State Department issued a statement in which it
“condemned Eritrea for military aggression”. Soon after, the Security
Council followed with its own condemnation, without carrying out any
investigation of the matter, or even trying to.
Through Resolution 1907 (2009)-the Security Council again overstepped its
boundaries by forcing Eritrea to accept recommendations which violated
Eritrea’s rights under the UN Charter which are enshrined in Article 33. It
says:
"…The parties to any dispute, the continuance of which is likely to
endanger the maintenance of international peace and security, shall, first
of all, seek a solution by negotiation, enquiry, mediation, conciliation,
arbitration, judicial settlement, resort to regional agencies or
arrangements, or other peaceful means of their own choice…"
In addition, Article 95 of the UN Charter says:
“…Nothing in the present Charter shall prevent Members of the United
Nations from entrusting the solution of their differences to other
tribunals by virtue of agreements already in existence or which may be
concluded in the future…”
This paragraph contains an affirmation of the general principle laid down
in the first paragraph of Article 33. The Members of the United Nations are
at complete liberty to solve their disputes as they deem fit so long as
they do so in a way that does not endanger the maintenance of international
peace and security. The Djibouti-Eritrea situation has been diffused and
contained because of Eritrea’s prudent decision to not allow a minor
dispute to be unnecessarily escalated by meddlesome third parties. Despite
the saber rattling and deliberate misinformation by certain quarters,
Eritrea is not occupying a single inch of Djiboutian territory and the
brotherly people of Djibouti and Eritrea will find mutually acceptable
forums to iron out their problems, without resorting to the use of force.
Furthermore, in light of the Security Council’s 12 year long impotence and
inability to enforce its own decisions and resolutions on the
Eritrea-Ethiopia issue, its reluctance to enforce international law and the
Eritrea Ethiopia Boundary Commission’s (EEBC) final and binding
delimitation and demarcation decisions, the Council does not have the moral
or legal high ground to force Eritrea to accept its recommendations, made
in haste and without due deliberations and investigations.
Violation of the UN Charter on Self Determination
Eritrea’s is not obliged under the UN Charter or international law to
“recognize the Transitional National Government of Somalia”. There is
nothing in international law or the UN Charter that says Eritrea has to
bless and “recognize” illegitimate governments, especially when they are
not recognized by their own peoples. Self-determination constitutes a limit
to SC Chapter VII action and implies that the Council does not have the
power to impose or introduce under Chapter VII any particular form of
government, rule or administration upon the entire or part of the
population of any State against its people’s will.
It is a pity that the UN itself was engaged in the end of year decision to
remove the Abdulahi Yusuf TNG and replace it with the Sheikh Sharif TNG,
without the consent of the Somali people. How can the Security Council
punish Eritrea for not bless an act which is a clear violation of the UN
Charter and goes against the Somali peoples dreams and aspirations, and is
a violation of the Somali peoples rights under the Charter.
Violation of Eritrea’s Right to Self Defense (Article 2 and Article 51)
The arms embargo violates Eritrea's inherent right to self-defense. The
right to self-defense is one of the most basic rights of any state. In
recognition of this, Articles 2 and 51 of the U.N. Charter codify that
right and affirm that every state is entitled to use self-defense to
protect its territorial integrity and political independence. When the
Security Council acts on matters affecting peace and security, it must do
so within the confines of both the U.N. Charter and the inherent rights of
its member states. Thus Security Council resolutions may coexist with
Eritrea's inherent right to self-defense, but they cannot abridge that
right. By imposing an arms embargo on Eritrea and thereby preventing it
from defending its territory and population from Ethiopia’s aggression and
occupation, the Security Council has clearly acted beyond its authority.
The Security Council has failed for the last 12 years to take "effective
action" to restore Eritrea’s sovereignty and territorial integrity. Eritrea
is under direct military attack by groups sponsored by the minority regime
in Ethiopia and also by the regime’s own forces who continue to occupy
sovereign Eritrean territories. Although the Security Council has spilled
much ink on the Eritrea-Ethiopia border issue and adopted over two dozen
resolutions calling on Ethiopia to abide by its international obligations,
Ethiopia continues to occupy sovereign Eritrean territories, including
Badme. Admittedly, I am no legal scholar… far from it… but from where I
sit, it seems to me that the act of denying Eritrea the right to self
defense, the right to liberate its sovereign territories which remain under
Ethiopian occupation, calls for the determination that the embargo is
illegal, and exceeds the authority of the Security Council. Correct me if I
am wrong.
Violation of Article 25
Members of the Security Council should not be allowed to willfully obstruct
the work of the Council and powerful countries on the Council should not
coerce countries into submitting either to its decisions taken in bad faith
or to its demands negating the fundamental purposes and principles of the
UN Charter, as Resolution 1907(2009) does. In the case of Eritrea and SC
Resolution 1907 (2009) the Security Council acted outside the Charter,
ultra vires, and states are not be obliged to abide by it. Article 25
obliges states to “carry out the decisions of the Security Council in
accordance with the present Charter.”
The Security Council has also failed to show any evidence of Eritrea’s
violation of the Somalia Arms Embargo and Ould Abdallah, the UN Special
Envoy for Somalia has clearly stated that there is no evidence to support
the allegations made against Eritrea. On the other hand, the Security
Council and the US have ample evidence that show Ethiopia, Kenya, and
Uganda as being the main suppliers of arms to Somalia. Allow me to present
a 23 May 2008 Reuters report which sheds light on this issue. The Reuters
report said:
“…South African Ambassador to the United Nations Dumisani Kumalo, chairman
of the U.N. Security Council's Somalia sanctions committee, also reported
to the 15-nation body that corruption in the lawless Horn of Africa country
was rampant…Kumalo said the committee had received worrying reports that
"elements" of the African Union peacekeeping mission in Somalia, known as
AMISOM, and Somalia's Transitional Federal Government (TFG) were involved
in arms trafficking activities, which have the potential to undermine the
peace process…Some Ethiopians are also creating problems, he said…"Eighty
percent of ammunition available at the Somali arms markets was supplied by
TFG and Ethiopian troops," Kumalo said in the written text of his remarks
to the Security Council. He said his committee viewed the "continued
presence of Ethiopian troops on Somali territory as a violation of the arms
embargo" on Somalia, where warlords, Islamist insurgents and
Ethiopian-backed Somali government forces clash almost daily…The monitoring
committee received details of some 25 military flights by Ethiopia into
Somalia and knew that Ethiopian troops had brought military equipment into
the country to arm "friendly clans," Kumalo said.
Arms and military hardware are mainly transported to Somalia by boat and
airplane, but traffickers also use horses and donkeys, making shipments
difficult to track, he said…”
The US-backed invasion and occupation of Somalia has resulted in the
greatest humanitarian emergency in Somalia, has cost the lives of thousands
of Somalis, has damaged Somali infrastructures such as schools, Mosques,
bridges, hospitals and markets and Ethiopian and TNG forces have committed
international crimes in Somalia. The mercenary minority regime in Ethiopia
led by Meles Zenawi, emboldened by the diplomatic, financial and military
shield and support it receives from its handlers, has flouted international
law and the UN Charter. For its part, the Security Council, dominated by
certain powers has proved, once again, that it is ineffective in matters of
international peace, stability and security.
This is not the first time that the Security Council’s weaknesses are being
exposed. In fact the United States had voiced its concerns about the power
that some nations on the Security Council wield and use to advance their
own interests. William W. Wade in his 1954 book "The UN" wrote about John
Foster Dulles, the then US Secretary of State and his strong criticism of
the UN and the powers that contributed to its weaknesses then. How
hypocritical coming from a man who just a year before in 1952 used US
powers and influence, to push through Resolution 390 (A) that forced the
federation of Eritrea with Ethiopia against the wishes and aspirations of
the people of Eritrea. In any case, here is an excerpt from that book and
Dulles' concerns:
“…In his address to the American Bar Association Mr. Dulles singled out
some "inadequacies" within the Charter of the UN, the principal one being
"the inadequacy of an organization whose effective functioning depends upon
cooperation with a nation which is dominated by an international party
seeking world domination." As a diplomat he carefully avoided mention of
the name Russia; otherwise he was forthright and realistic in recognizing
and commenting on this UN weakness…The primary inadequacy that Secretary
Dulles singled out has been and will continue to be the weightiest
millstone around the UN's neck…The demonstrated willingness of Russia and
its UN satellites to violate written agreements, sponsor aggression and
wage war is living testimony to the UN's unsoundness…”
Today, the same can be said about US ally Ethiopia, which continues to
violate international law, the UN charter and the Security Council’s own
resolutions and decisions with impunity. Ethiopia gets away with it,
because the US has effectively prevented the Security Council from taking
any punitive actions against the belligerent regime that is responsible for
the deaths and displacement of hundreds of thousands of people in the Horn
region.
It is with an excerpt from a 21 September 1953 editorial from The Freeman,
a weekly journal of politics and the arts, established in New York in the
early 1920s, in which the writer shares his concerns about the United
Nations, that I will end my piece and leave the readers to ponder and
really think about the UN’s relevance today, and prospects for its future.
What the writer wrote then still rings true today:
"…We have set up an organization for the alleged purpose of preventing war
and aggression, and we have included in its inner command the power that is
carrying on perpetual war and aggression. We have put the top criminal on
the Police Commission…"
Join our World-Wide E-SMART Movement
Eritrean Sanctions Must be Annulled and Repealed Today!
Received on Mon Dec 24 2012 - 00:01:06 EST
