Introduction

On May 12, 1998, Eritrea invaded and occupied the Badme and part of Shiraro areas of Ethiopia thus giving a damaging blow to the Ethio-Eritrean relations that had been warm since 1991. In response to the Eritrean military action which Ethiopia insisted is a violation of international law and many agreements between the two countries, Ethiopia mobilized its armed forces to protect the country's sovereignty and territorial integrity. From 31 May to 6 June 1998, Eritrean forces were also reported to have made invasion attempts in such border areas as Zalambassa, Aletena and Aiga, in the hope of creating new facts on the ground.

In the deterioration of relations between the two countries, Eritrean Air Force conducted a series of separate air raids on 5 and 11 June of 1998 in Mekele and Adigrat respectively. The target of the attacks happened to be civilians and civilian objects. On 5 June, in an Eritrean air raid which targeted an elementary school at Mekele, about 51 persons including elementary school students were killed and 136 students and parents were wounded. On 5 and 6 June of 1998, in what is said to be a move in self-defence, Ethiopia was reported to have air raided the Asmara Air Force base. On the ground, there were also engagements by armed forces of the two countries on different border areas.

Despite a series of endeavours on the part of different states1 and international organizations,2 launched since the beginning of hostilities, the confrontation continued to be so tense that Eritrea and then Ethiopia took measures of deportation of one another nationals. Since 9 June of 1998 over 30,246 Ethiopians have been expelled from Eritrea in what is believed to be a continuation of deportation measures the Eritrean Government has undertaken since immediately following the Eritrean separation from Ethiopia in 1991. On the Ethiopian side, a precautionary measure was taken to safeguard the country and public order . This pertains to requiring those Eritreans regarded to be as undesirables to leave the country. To date, the total number of undesirable Eritreans estimated to have been subject to deportation is about 9000.

In this short article, it would be the interest of the author to examine the legal aspect of the deportation of those undesirable Eritreans undertaken by Ethiopia. The author intends to look into this exercise of deportation in light of the Ethiopian Immigration Proclamation 270/1969, a legislation that has been in force since 1965 and includes provisions on the basis of which undesirable foreign nationals are deported from the country. The article consists of three sections. The first section examines the principles of deportation under international law. The second section highlights the categories of foreign nationals that may be subject to deportation under the Ethiopian immigration law. And section three deals with the deportation of undesirable Eritreans from Ethiopia.

Deportation of Foreign Nationals under International Law In international law, it is within the competence of state to deport a foreign national as also it is true that it is within its competence to grant him an admission.3 While in the state, every foreign national is duty bound to observe the laws of the country. A grant of admission extended to a foreign national should in no way be construed as though the person has an absolute guarantee to stay in the country. He should not do anything subversive to the interests of the state or threatens its security. A foreign national, resident or on transit, found to be in activities prejudicial to the interests and safety of the state can be made subject to deportation at any moment.

The right to deport foreign nationals is the right inherent in all sovereign powers. As an attribute of its sovereignty, a state has the inherent power to deport any foreign national as it may deem proper for the protection of public interest. The internationally recognized right of a state to deport foreign national is based on assertions made by jurists who in turn relied on international laws. For instance, the assertion expounded by Blackstone is a case in point. Blackstone maintained that, as a state is not duty bound to admit foreign nationals, it is at liberty to deport them from its territory at any time. It was also on the right to deny admission that such jurists as Vattel asserted of the state's right of deportation of a foreign national.

In the practice of states and international tribunals, the power to deport foreign nationals has also been fully accepted as an expression of sovereignty of a state. In the United States, for instance, numerous Supreme Court decisions have asserted the Congres's power to deport foreign national which is an absolute power to exclude them.4 In Tiaco V. Forbes, the Supreme Court admitted that sovereign states have inherent power to deport foreign nationals. In Fong Yue Timy v. United States, the Supreme Court also confirmed that foreign nationals are subject to the absolute power of Congress to expel them.

The deportation of foreign national is recoginzed as a matter of administrative and executive action. The power to expel in many states' constitutions is conferred on the executive. As a rule the executive is the sole judge of the expediency of the exercise of this power. In the United States, the executive is responsible for the deportation of foreign nationals. Its decision can not be reviewed by the courts unless it acted on insufficient evidence or was guilty of an abuse of discretion.

Deportation is indeed a measure applied to rid the state of statutorily defined categories of deportable foreign nationals. f a foreign national has entered the state without a legal passport or a valid visa or other relevant documents, it is within the state's absolute discretion to deport him. In the case of a resident foreign national, a state has also a discretion of the executive to deport him. A state may deport a foreign national if, for instance, it has reason that the foreign national acted prejudicial to the interest of the state, or on mere suspicion that he is likely to act or is acting prejudicially to the interest and security of the state.

In this connection, it is worth while to take note of distinction to be made between deportation undertaken in time of war and in time of peace.5 International law and practice reveal that a belligerent may find it appropriate to deport foreign national belonging to the country with which it is at war. In the opinion of jurists such deportation may be justifiable. Although not commonly employed these days, states in war time may resort to mass deportation as reprisals. As regards deportation carried out in time of peace, a deporting state may however be expected to invoke a just cause for deportation.6 In other words, in time of peace, a foreign national may be deported in the interest of public order or welfare, or for reason of state security.7

In determining which foreign national should be subject to deportation, a state may list in its law the grounds for deportation.8 As practices of states could reveal there are no uniform grounds for deportations applicable to all states. Each state can provide its own criteria. There is however a common guiding principle in any decision on the deportation of foreign nationals. International law justifies deportation in the case where the interest of state's security or welfare outweigh the interest of the foreign national.

International law does not provide the direction to where a foreign national should be deported. But what it ordains is that the foreign national would not be permitted to stay and must leave the country. Provided the deportee is treated in a manner consistent with international human rights law guaranteeing minimum standards of treatment, the process of deportation is at the full discretion of the deporting state.9 The determination of destination of the deportee is also a matter within the discretion of such state.

If the foreign national subject to deportation refuses to leave the territory of the deporting state or has no place to go as in the case of stateless person, such person may be arrested and forcibly taken to the border, or may also be imprisoned.10 A state whose national is deported is under obligation to receive its national deported from a foreign state. In time of war, for instance where the deporting state and the state of the deportees are at war, the deportees might find themselves in a very precarious situation. In such a case, the accepted international practice is that the foreign nationals may, depending on circumstances, be deported or imprisoned.11 Ethiopian Immigration Law on Deportation

Under Ethiopian Immigration law, the right to deport foreign nationals is regarded as an inherent right of the country. The country has an incontestable discretion to determine whom to deport, and for what reasons. As a look into the relatively early diplomatic and legal history of Ethiopia could reveal, Ethiopia has indeed endeavoured to assert the right to deport undesirable foreign nationals from the early days.

In Ethiopia, the issue of state's sovereignty to deport foreign nationals emerged when the Ethiopian Government rendered a deportation order against a certain Polish national on 18 April 1932.12 Since Polish nationals were then the beneficiaries of the Franco-Ethiopian Treaty of 10 January 1908, the French Legation in Addis Ababa protested that the deportation order violated the treaty.13 In the argument of the French Legation, Article. 7 of the Treaty would not entitle the Ethiopian Government to exercise the right to deport foreign nationals covered by the Treaty.14

In two notes dated 24 April and 4 July 1932 respectively, the Ministry of Foreign Affairs of Ethiopia dismissed the French protest,15 maintaining that deporting a foreign national was a sovereign right of Ethiopia. It further argued that, since the Ethiopian state had the right and duty to maintain public order in its territory, its sovereign rights, including that of deporting an undesirable foreign national were not subject to negotiation. In adopting the Ethiopian Immigration Proclamation No. 271/1969, one of the objectives was no doubt the assertion of the right to deport foreign nationals where circumstances dictate to do so.

The Ethiopian Immigration Proclamation No. 271/1969 which was adopted in the desire to bring the movements of foreign nationals to, within and from Ethiopia under control contains few provisions dealing with two major aspects pertinent to the issue addressed in this paper. These pertains to categories of deportable foreign nationals and procedure for deporting them.

As regards the classes of deportable foreign nationals, the Proclamation provides two major categories. The first category refers to those foreign nationals who are deportable for entering Ethiopia in violation of the county's immigration rules and regulation. Foreign nationals who, for instance, are established to have entered Ethiopia without proper travel documents, immunisation certificate or other essentials, or who have entered despite belonging to a class of persons to whom entry are not permitted or who have obtained entry through fraud or misrepresentation, are regarded as deportable persons. 16

Foreign nationals who were lawfully admitted, but whose visas or residence permits have expired and have not been renewed all fall under this category.17 Under Ethiopian law, visas are classified on the basis of the nature of entrance into, and duration of stay in Ethiopia, and comprise transit visas, tourist visas and entry visas.18 The duration for which a visa and also a residence permit remains valid is clearly defined and expiry of the permitted period or non-renewal of the visa may entail the deportation of a foreign national.

The second major category of deportable foreign nationals are those who are qualified as undesirable foreign nationals.19 In practice, this refers to persons whose undesirability, if it had been established prior to the grant of admission, would have undoubtedly caused them to be refused entry. Under Ethiopian Immigration Proclamation, there are six district categories of undesirable foreign nationals who are subject to deportation. These include a foreign national:

"(a) who has no visible means of support or is likely to become a public burden;

(b) has been convicted of a crime involving moral turpitude in a foreign country or in Ethiopia;

(c) has been declared a chronic alcoholic;

(d) has been found guilty of disturbing or endangering the Security of the State;

(e) has been found guilty of promoting immorality in Ethiopia; or

(f) has been found guilty of violating any provision hereof or of any Regulations issued hereunder."20

The Ethiopian Immigration Proclamation also contains provision on dependants of foreign nationals who are ordered to leave Ethiopia. According to Article 10(5) of the Proclamation, the dependants of deportees may also be subject to deportation if an order is given to that effect by the Immigration Department.21 Indeed, dependants such as children, if deprived of the family bread-winner, are likely to become public charges, and thus are classified as undesirables .

Procedurally, as is the practice in many other countries,22 deportation of foreign nationals under Ethiopian law is regarded as an administrative act, and it is in the Ethiopian Immigration Department that the Proclamation has vested the power to order the deportation of a foreign national on any of the aforementioned grounds. Moreover, in Ethiopian law, courts have the power to order the deportation of a foreign national convicted of a criminal offence. Pursuant to Art. 154(1) of the Ethiopian Penal Code of 1949, courts may issue a deportation order. Nevertheless, prior to giving the order, the court is obliged to consult the competent public authority on the matter.23

If the court has passed a sentence entailing loss of liberty, the deportation order would be executed after the sentence has been served or remitted.24 However, if the responsibility of the person becomes limited, or, in the case of a person who has been acquitted or against whom a charge has been dismissed, the deportation order may be substituted for the ordinary measures of treatment of offenders.25

In case a deportation order is issued, the Immigration Department is required to inform the reason for such deportation, as well as the date and the route by which the deportee is required to leave Ethiopia.26 The property of the deportee may be applied to cover the transportation, expenses of the deportation.27

Regarding the issue of deportation order by the Immigration Department, the question could be asked whether a deportation order rendered by the Department is subject to review by the court. As far as Ethiopian law is concerned, there is neither a rule of law nor a court decision on whether or not a court may review such an administrative decision.

This writer submits that there is no doubt that it is in the interest of preserving security that Ethiopia may deport foreign nationals whose presence constitutes a menace. And certainly, no body other than the Immigration Department is fit to undertake the task of deporting out foreign nationals who may pose a threat to Ethiopia's interest. In the exercise of such an act, therefore, the Department should be empowered to use its discretion to determine who should be deported and who should not, on the basis of facts it may have at its disposal. Indeed, its determination of the facts must de regarded as final, and should not become the subject of judicial review unless of course there is error of law.28

The Deportation of Undesirable Eritreans

In the past few months, Ethiopia, has, as a measure of safeguarding its national security, applied deportation measures on selected few categories of Eritreans who were involved in espionage, conspiracy and other clandestine activities to support and finance the war of aggression by Eritrea. In this section, issues that deserve close examination include the following: Who are these Eritreans subjected to deportation? What is the nationality of these deportees? What is the legal basis for deporting them? What is the nature of the deportation measures undertaken by Ethiopia? On 12 June 1998, Ethiopia announced that it has decided to deport those Eritreans who were considered a threat to national security. In same announcement, it reaffirmed its position that, there was no change to the policy on Eritreans living and working peacefully in Ethiopia, and that peaceful Eritreans should feel safe. According to the announcement, the Eritreans subject to deportation concerned three categories. These included:

" a. Ex-combatants of the E.P.L.F. and conscripts of the Eritrean regime suspected of posing a threat to national security on account of their training have been detained at temporary camps, while they make a choice of the country where they wish to go. They have been visited at the temporary camp by the International bodies interested in the issue.

b. Functionaries and officials of the EPLF office and other party interests in Addis Ababa; and

c. Individual Eritreans who were found engaged in spying activities and mobilizing financial and other resources to support the Eritrean aggression"

Ethiopia decided to deport these Eritreans because they are ascertained to be security risk. In view of the conflict between Ethiopia and Eritrea, Ethiopia insisted that these Eritreans have been engaged in subversive activities against the interest and safety of the country and its peoples.29

In Ethiopian law, and this is also the position of international law, persons who may be subject to deportation are only foreign nationals.30 Ethiopians would therefore in no way be subject to deportation. As is true with other persons, persons of Eritrean origin may be deported from Ethiopia if only they have lost Ethiopian nationality, following circumstances surrounding the Eritrean separation from Ethiopia in 1991.

In international jurisprudence, every state has a right to sovereignly decide who are its nationals. In accordance with Article 1 of the 1930 Hague Convention on the Conflict of Nationality Laws it is for each state to determine under its own law who are its nationals. A state may provide in its law the conditions for the grant as well as for the loss of nationality. The Ethiopian Nationality Act of 1930 which was extensively influenced by the 1930 Hague Convention includes principles which are consistent with international law.

To determine whether or not the Eritreans who were subjected to deportation have lost Ethiopian nationality, it would therefore be necessary to examine the Ethiopian Nationality Act.

In connection with grounds for the loss of Ethiopian nationality, Article 11 of the Act states that the loss of Ethiopian nationality would result if an Ethiopian subject acquires another nationality or an Ethiopian woman concludes marriage with a foreign national.

Of the above two grounds the one that is relevant for our purpose is the first ground: loss by acquisition of foreign nationality.

Under the Ethiopian Nationality Act, the loss of Ethiopian nationality by acquisition of foreign nationality pertains to voluntary loss of Ethiopian nationality. Here, the acquisition of foreign nationality depends on the nationality law of foreign state conferring its nationality. In the case of the deported Eritreans, the retention or loss of Ethiopian nationality depends on Eritrean law. In order to establish this fact, it may be necessary to look into two Eritrean legislations: Eritrean Nationality Proclamation No. 21/1992 and the Eritrean Referendum Proclamation of April 1992.

Under Eritrean Nationality Proclamation, a person who is an Eritrean by origin or by birth may acquire Eritrean nationality, if he applies and is issued with a certificate to this effect. Article 1(4) of the Proclamation provides to this effect.

In Eritrean law, the registration for the purpose of voting in the referendum on Eritrea's status was only open for those Eritreans who were in possession of identity cards. Article 27 of the Referendum Proclamation states:

" When a person presents himself for registration, he must submit his Identity card as proof that he meets the qualification set forth in Article 24 of this Proclamation".

In stating these qualifications, Article 24 provides:

"Any person having Eritrean citizenship pursuant to Proclamation No. 21/1992 on the date of his application and who was of the age of 18 years or older or would attain such age at any time during the registration period and who further possessed an Indentification Card issued by the Department of Internal Affairs, shall be qualified for registration."

Hence, under Eritrean law, acquisition of Eritrean nationality, expressed by possession of identity card was the pre-condition for participation in the Referendum. Thus, for the purpose of the Ethiopian Nationality Act, deportees confirmed to have taken part in the Referendum have voluntarily lost Ethiopian nationality and should be considered as Eritrean nationals. The Ethiopian nationality is automatically lost as soon as Eritrean nationality is acquired.

Indubitably, the Eritrean deportees have been subjected to deportation not because they are foreign nationals, but because they are declared to be undesirable foreigners within the meaning of the Ethiopian immigration legislation. In Ethiopian law, foreign nationals found guilty of disturbing or endangering the security of Ethiopia can be qualified as undesirables. The Ethiopian Immigration Department is empowered to issue deportation order to any foreign national whom it has reason to believe that he is a security threat.

As was stated by the Ethiopian Government, many of these deportees were involved in anti-Ethiopian activities. These deportees were found to be individuals who were connected with or working for the Eritrean Government and the Eritrean Peoples Liberation Front. Others were instrumental in raising funds and other resources for Eritrea or believed to be spying for Eritrea. The uncovering of Eritrean governing party networks within which the deportees were members may no doubt justify Ethiopia's suspicion that they are threat to national security and public safety.31 In view of war situation currently existing between Ethiopia and Eritrea, there is every reason on the part of Ethiopia to believe of the potential threat of the deportees.

Moreover, President Isayas Afeworki's statement concerning the possibility of creating a sense of insecurity any where in Ethiopia may serve as ground of suspicion to the potential threat of those undesirable Eritreans by Ethiopia.32

Indeed, Ethiopia owes itself, its owns institutions, its own security and its own people the necessary protection. It should guard its established order not only from persons acting in their individual capacity, but, having regard to the incident in recent time of aggression waged by Eritrea, mass infiltration of Eritreans under their government's inspiration for political ends, it must guard also against collective action. To this end, it has the right under international law to decide for itself the kind of Eritreans whom it considers dangerous .

In emergency time, a state such as Ethiopia has by all means a stronger reason to deport foreign nationals of the other state with which it is at war, even on mere suspicion that such foreign nationals are threats to national security. For instance, in the deportation case of Chase involving the United State and Mexico, the Umpire who was appointed to look into the legality of the deportation measure undertaken by Mexico had said that, in time of national danger, a state can order deportation on mere suspicion of hostile activity.33

Regarding the nature of the deportation measure undertaken by Ethiopia, the allegation made by few individuals such as Natalie S. Klien seems to have no foundation. Klien's attempt to draw similarities between the deportation of undesirable Eritreans and other mass deportation measures undertaken by other countries appear to have emanated from his failure to understand the realities within Ethiopia.

As stated above, so far the total number of Eritreans already affected by the deportation approximates about 9000 persons. At present, several hundred thousands Eritreans are believed to be living in Ethiopia. According to a statement recently disclosed by Eritrean Embassy in Addis Ababa, about 130,000 Eritreans are known to reside in Ethiopia. These Eritreans still continue to live and work in peace. Ethiopia has reaffirmed that its policy has not changed towards Eritreans residing in Ethiopia. In his letter addressed to the President of the Security Council, Ambassador Duri Mohammed, Ethiopia's Permanent Representative to the United Nations has expressed Ethiopia's policy towards Eritreans in the following way: " the policy of the Ethiopian Government towards Eritreans residing in Ethiopia is based on the solid principle of friendship and a bond of common destiny. Even in the face of naked aggression and contin ous provocation by the Eritrean regime, the Ethiopian Government is totally committed to respect the rights of Eritreans living in its territory and fully guarantees them to live and work in peace. Under no circumstances will the Ethiopian Government succumb to a tit-for-tat exercise with the Eritrean regime in the treatment of civilians in conflict situations." 34

Two reasons may be forwarded to support the argument that the number of the undesirable Eriteans deported does not suggest that the deportees are victims of "mass deportation".35

Firstly, the percentage of the deportees is only a fraction of large number of Eritreans in Ethiopia. The deportees were those identified as undesirables. These Eritreans were deported on grounds of their individual hostile activities towards Ethiopia. The deportees have indeed provoked Ethiopia to exercise its power of deportation. They have collaborated with the Eritrean Government which has waged war against Ethiopia in violation of international law and principles.36

Secondly, in administering the deportation , discrimination was not employed as a criterion. These deportees have not been targeted because of their ethnic, religious, racial identity or national origin. It has also been reported that the deportation of these undesirable Eritreans were carried out as humanely as possible and consistent with fundamental principles of justice.

Indeed, no prejudicial or discriminatory grounds such as ethnicity or race was employed to undertake the deportation of these undesirable Eritreans.

In the absence of prejudicial grounds, and in view of sufficient reasons forwarded by Ethiopia, in no way would the number of deportees imply that there is 'mass deportation.'37

Conclusion

As has been explained above, the deportation of foreign nationals is an attribute of sovereignty of the Ethiopian state, and the country is at liberty to determine in its municipal law the criteria under which foreign nationals may be subject to such measures. Undesirable Eritreans determined to be a threat to national security and public interest are subject to deportation in accordance with Ethiopian immigration law. The Ethiopian immigration law provisions on deportation are consistent with the general principles of international law.