Now that the war in Liberia is perceived to be over and disarmament is presumed to be comprehensive and complete, there are seemingly some discomforting and disturbing voices coming out of this tiny West African Country. For instance, there are disturbing and discomforting voices that are demanding and declaring that unless Liberians take the courage and seize the strength now to immediate go to the polls and vote in their new leaders come October 2005, the political goodwill and economic doors of the international community will certainly be forever shut before us and in our faces. In short, Liberians must make haste and vote now, or choose to perhaps lose our future.
In clear and uncertain terms the international community led by Washington has clearly told Liberia and Liberians that unless the heartless and small-minded officials of the Bryant-led government halt their senseless and endless games that are designed and intended to forever keep themselves in power, the United States will turn its financial aids and goodwill contributions to countries that need them the most. In other words, the international community has unequivocally and distinctly reminded Liberia and Liberians that come October 2005, elections must be held in Liberia , if peace and stability must be sustained and guaranteed. The message is unequivocal and clear: vote now or lose your future!
Notwithstanding and on the other hand, there are some Liberians who are proclaiming and propagating the view that because Liberians senselessly fought for a little over 14 years of civil war and virtually destroyed themselves and their values, at this critical stage of our national life, Liberians need to just shut-up, hold their peace, and go to elections come October 2005, or risk been left on the streets and abandoned by the international community forever.
Supporting this reasoning, the proponents of this thinking, hold the view that Liberia is a failed state, therefore, it reserves no right to assert any issue(s) that pertains to its sovereignty or statehood. In their fervent belief and reasoning, Liberians must leave the international community alone to proceed and complete the final stage of its mandate, if peace and stability need to be guaranteed.
That is, proceed and continue with the completion of the awesome task of demobilization, disarmament, reintegration, and finally, the holding of free and fair elections in Liberia; a heart-to-heart covenant that Liberia swore and promised to upkeep. In other words, the holding of elections in Liberia come October 2005, is indeed the last pillar on the checklist of our partners, the international community, and therefore, it has to and must be completed on time if durable peace and stability is to come to Liberia. Hence, Liberians must and have to leave our partners alone, for the sake of lasting peace and stability in our country.
Notwithstanding and while some Liberians might be ready to accord the needed respect to this thinking and lend some credibility to its legitimacy, nevertheless, this breed of Liberian thinkers, think that this type of reasoning is obviously problematic and elusive when it comes to sustaining stability and peace in Liberia. In this vein, this group believes that the holding of immediate elections now in Liberia is not in and of itself judicious and/or a SINE QUA NONE to lasting peace and stability in Liberia . But rather, sustained and lasting peace will come to Liberia , if Liberians were encouraged and given the chance to come together to discuss the root cause of the problems in Liberia . In their sense, a sovereign national conference is indeed the necessary and compelling way forward for lasting peace and stability in Liberia .
Further, this community of people are rather advocating that the displaced and war-affected Liberians need to be firmly resettled and reintegrated first into their respective communities, a nation-wide census be accordingly conducted next, Liberians need be encouraged and permitted to congregate at the table of a sovereign national conference relative to discussing and reaching the root cause of our problems, with the view to de-construct and re-construct the heavy-handed political structure of Liberia, and then lastly, free and fair elections can be held in Liberia. Contending further, these individuals think that there is an obvious and compelling need to have Liberians to come together to de-construct and clearly re-construct the economic and power structure of Liberia to allow for equitable and conscious economic and political power sharing in Liberia, if Liberians were to see as well as live up to sustained peace and stability.
Moreover and for the most part this same idealistic and distinguished group of Liberian thinkers think that rushing to hold immediate elections now in Liberia is not the immediate and real answer to the cause of the Liberian conflict. But rather, a politically centralized governmental structure that has for the past years has so far consciously neglected and overwhelmingly failed to selflessly and meaning-fully share power and the resources of Liberia with the population of grater Liberia. Thus, unless the Constitution of Liberia is amended, national referendum conducted, and political and economic powers are shared even-handedly and equitably with the interior population of Liberia, elections now, whether it be intended to ensure that the international community be allowed to complete the final task contained on its checklist, there are real and well-founded fears that Liberia might again slip into the climate of a no-war-no-peace situation. In short, Liberia is a sovereign state, and therefore, it will best serve the interests of the international community and Liberians to allow for the holding of a sovereign national conference, prior to elections. Obviously, this is the appropriate way forward.
As a consequence of the above conflicting positions and contentions, the foregoing compelling and competing issues have arisen and thus need to be discussed and determined for the sake of sustained peace and stability.
1. Whether Liberia as a nation-state, lost its statehood and sovereignty because its citizens senselessly fought amongst themselves and destroyed the fabric of their society and institutions for a little over14 years?
2.Whetherthe conducting of a sovereign national conference to allow for power and economic sharing in Liberia , constitutes a SINE QUA NONE for lasting peace and stability in Liberia ?And,
3.Is the holding of immediate free and fair elections now in Liberia necessary to guarantee lasting peace and stability in Liberia ?
To accordingly and appropriately discuss and resolve the foregoing issues, it is necessary and imperative to define what, is a statehood and when might such sovereignty be lost or forfeited?
What is a Statehood and When Might such Status be lost or Forfeited?
Under customary international law, states are usually and internationally believe to come in different sizes, shapes and forms. They might also have variations amongst themselves in populations, economic strengths and perhaps development. More over, national sovereign statehood, might also very well vary tremendously in their cultures, political systems, educational levels, natural resources and perhaps many other attributes.
Nevertheless, to be considered and treated as a sovereign state, customary international law provides and demands:
(1) That such would-be state must have a permanent population.
(2) That such to-be recognized state must have a defined territory.
(3) That such to-be considered and recognized state must have a government that is willing and capable to protect its citizens and residents.
And lastly, such a would-be-state must have the capacity to enter into relations with other sovereign states. Carter and Trimble, International Law, 3 rd edition, pp.462-463 (1999).
When Might a State lose its Sovereignty?
Accordingly, to discuss and determine when might a sovereign statehood be lost or forfeited, there is a great need to draw a clear line of distinction between what constitutes recognizing a sovereign state as compared what constitutes to according recognition to a government of a state.
What is Meant by Recognizing a State?
Under international law, recognition of a state is a formal acknowledgment by other states that the entity seeking recognition, has a permanent population, a defined territory, a government that is capable and willing to protect its citizens and residents, and at-most, has the capacity to enter into relations with other sovereign and equal states. Thus, this is the necessary international test and legal standard that such entity must meet if other sovereign states will need to extend to it recognition.
What is Recognizing a government?
While under international law and international relations, recognition of a state is the formal acknowledgment by other states that such state qualifies to be a sovereign state, the recognizing of the government of a state, sometimes might be extended either consistent with the Traditional approach, or recognition might be accorded as provided for under the Estrada concept.
Under the Traditional approach, a state which seeks to extend recognition to the government of another state, will first seek to determine:
(1) Whether the government seeking recognition, is in de facto control of the territory of the state and in possession of the machinery of that state.
(2) Whether the government has the consent of its people, without substantial resistance to its administration; that is, whether there is public acquiescence to its authority or rule. And lastly,
(3) Whether the government has indicated its willingness to comply with its international obligations as provided for under international relations.
L.T. Galloway, Recognizing Foreign Government .PP 5-10 (1978) and Carter and Trimble, PP 470-474 (1999).
If the above foregoing legal requirements are met, then and in that case, other equal sovereign states, may then make the political determination whether they need to extend formal recognition to, or withhold same from the government of that nation-state. While recognition is necessary for international relations and interactions, recognizing a state or its government, is not a prescribed legal duty or obligation that sovereign states must undertake. Nonetheless, recognition is necessary, but not legally mandatory.
Whereas under the Estrada doctrine, states that usually extend recognition to a government seeking recognition, will usually do so by arguing that they have extended recognition under the principle of unfettered national sovereignty and therefore reject any interference with the domestic affairs of that state by an outside power, by either extending or withholding recognition.
Since July 26, 1847, when Liberia declared itself as a sovereign state and was accordingly so recognized by other states, whether recognition was extended based on the Traditional or Estrada approach, can it now be correctly argued and very well concluded that because its citizens fought amongst themselves for a little over 14 years and senselessly destroyed the fabric of their society and institutions, therefore, Liberia lost or forfeited its statehood or sovereignty?
Clearly and unequivocally, under international law or international relations, for a state to lose or forfeit its statehood or sovereignty, it must have then been completely absorbed or succeeded by another state. That is, such a state must have lost or forfeited its defined territory, permanent population, its recognition as a state, and its capacity to enter into relations with other states. Even in such a case and under such a condition, for a sovereign state to lose or forfeit its state-hood or sovereignty, its entire territory, rights to conduct international relations, must have been completely and permanently taken over, absorbed and replaced by another state. Thus, this has to be so because, any entity that is recognized as a state in fact, certainly, remains a state in law. Once a state in fact, always a state in law. L. Henkin, International Law: Politics And Values, 15-16 (1995).
Much more, since Liberia declared and attained its independence, its territory has never temporarily or permanently been absorbed by another sovereign state, neither has its rights and duties to enter into relations with other sovereign states ever been absolutely or completely taken over or absorbed by, or at the conquest of another state. Moreover the national sovereignty of a state is much more and for the most part determined by its ability to enter into international relations with other states; as well as transact business internationally with other states. Liberia has always fought for and consciously maintained this national sovereign status.
For record, since Liberia gained its independence, it has acted and continues to represent itself and people before acclaimed and renowned international bodies or organizations. Liberia, to-date, is and remains a legally recognized member of United Nations, (UN), the Organization of African Unity, (OAU), now known as the African Union, (AU), the Economic Community of West African States, (ECOWAS), and the Minor River Union, just to name a few of these international entities of which our country is and remains a legal and an active member of. In this light, it is unfair and unrealistic to argue and conclude that because Liberians fought for a little over 14 years of senseless and unprincipled civil war, Liberia, as a sovereign state, lost or forfeited its statehood or sovereignty.
Thus, the contention that because Liberia is a failed state therefore it reserves no right to assert its statehood or sovereignty as assumed by the proponents of the failed and collapsed statehood doctrine, carries no international support and has no legitimacy under international law. Again, without overstating this point or concept, once a state in fact, always a state in law. Therefore, the over 14 years of bitter civil war in Liberia , did not cause our nation to lose or forfeit its statehood or national sovereignty. Liberia is and remains a state and moreover, a sovereign international instrument for all intents and purposes.
The next contention that has been argued and overly argued, is, whether the conducting of a sovereign national conference to allow for power and economic sharing in Liberia , constitutes a sine qua none for lasting peace and stability in Liberia . This issue finds much support and legitimacy under the acclaimed and scholarly work of Mr. Yarsuo Weh-Dorliae.
In fact, as a matter of fact and owing to this excellent writing and presentation, Liberia , as a state has apparently been divided into two competing camps. Those who support and are preaching the concept of a sovereign national conference prior to national elections, vis-à-vis, Liberians who think that a sovereign national conference is totally unrealistic and unnecessary to sustain the peace and stability in Liberia . Thus, this idea this group contends is imaginary and therefore must be abandoned, and the international community must be left alone to conduct free and fair elections in Liberia , Oct 2005. Thus, this is an obvious checklist most needed to evaluate and measure outcome and success in Liberia.
But, will the holding of a sovereign national conference first, national census next and followed by elections lastly in our country necessarily to guarantee sustained peace and stability?
Nationalistically, Mr. Weh-Dorliae and others firmly agree, and thus, he writes:
“I propose that the Accra Peace Agreement should be revisited with the view of extending the term of office for the National Transitional Government of Liberia (NTGL) by one additional year. This additional year should be used by the NTGL to put in motion a process that would lead to a constitutional amendment and a referendum to institute the decentralization of governance in Liberia. I propose that the constitutional amendment should precede the holding of general and residential elections.
I also propose that a Special Commission on Government Operations (SCOGO) should be set up to develop the formal structure of our national and local government under the decentralized system of governance I have proposed”. Yarsuo Weh-Dorliae, Proposition 12 For Decentralized Governance In Liberia : Power Sharing For Peace And Progress, p 92 (2004).
To this thorough and thoughtful foregoing position of Mr. Weh-Dorliae and those who side with him, vis-à-vis, those who believe and think that the idea of the holding a sovereign national conference prior to residential and general elections now in Liberia is needles and unnecessary, these anti-national- conference-prior-to-elections thinkers, think and hold the view that Liberia’s economic and power structure certainly needs to be restructured and decentralized. But, restructured and decentralized by whom, under whose administration, and according to what law?
If the sovereign national conference advocates are arguing that the Constitution of Liberia needs to be amended to allow for the holding of a referendum in Liberia, does the National Transactional Government of Liberia, (NTGL) have the legal or necessary constitutional standing to institute such amendment, and left alone, effect a national referendum in Liberia to provide for good governance?
If the current agreement on Liberia were to be revisited with the view to extend the life of the present Transitional government, by whom and under whose power or authority should this extension be undertaken?
By the way, since the Accra Peace Agreement on Liberia was instigated and initiated by the warlords of Liberia , can Liberians continue to afford and accept to be ruled and administered by this heartless and corrupt unconstitutional body?
Why, why do Liberians need to rush this thorough and comprehensive roadmap necessary for sustained peace and stability provided to us by Mr. Weh-Dorliae?
Or, do we needs to unrealistically and inappropriately tempered with or rush to ensure that this excellent roadmap be implemented prior to elections? If so, at what cause, and for whose interest?
By the way, can true and realistic good governance and power sharing in Liberia be achieved in the course of one year, if it could not possibly be achieved over the past 157 years?
Soberly and mindfully, Liberians need to thoroughly and selflessly look at and consider the cause and effect of rushing to ensure that this roadmap to sustained peace and stability on Liberia must be implemented prior to elections. We need to pretty much focus and take a conscious look at the bigger picture.
In other words, what will it cost our country if our international partners should conclusively pack their bags and depart from the shores of Liberia . Would the warlords, those internationally known murderers and acclaimed human rights abusers allow us and our country to be at peace, or would they split Liberia into bits and pieces as they fight to unconstitutionally become our president? I am sure that this is not the intention of well intentioned Liberians.
Better still, would Liberia and Liberians be better of if we should yield to holding elections come October 2005, and conscientiously strive to implement this roadmap to sustained peace and stability later, though elections in and of themselves may not find answers to all of our problems? Again, I am very much sure that the immediate holding of elections now in Liberia will not get to the root cause of our problems, but elections now, is what we have and can get from the international community. Liberians need to remember that presently, there is no tsunami occurring in our backyard. So our cancerous problems might not for now gain the most recognition and treatment.
If I may borrow from the text and context of U.S. Secretary of Defense, “you go to war with the army that you have, and not with the army that you want”. In our case, the case of Liberians, since the root cause of our problems was in fact caused by us, and not by a tsunami killing our people, we need to go elections now because elections now, is certainly what we have.
Certainly, we do need to de-structure and re-structure our political system to allow for economic and political power sharing in Liberia . But realistically, the calendarof events proposed by Mr. Weh-Dorliae were intended to run from Oct 2004-Jan 2007. But notwithstanding, this part of this scholarly roadmap has totally become disadvantaged and overrun by time. So, we need to go elections. Yasuo Weh-Dorlaie, pp 93-95.
Moreover and because the need to institute good governance in Liberia is a matter that is most needed but much complex, we need to commit much more valuable time and resources to this process and not rush.
The most we can do now, is to go to elections and at the same time entreat our international partners to stay the course by committing more time and resources to our cause later.
Other articles by Counsellor Frederick A.B. Jayweh, LL.M
About the Author:
Counselor Frederick A.B. Jayweh holds a Bachelor of Arts (BA degree in Biblical Studies) from African Bible College, Bachelor of Laws, (LL.B degree in general law)from the Louis Arthur Grimes School of Law, University of Liberia, and Master of Laws (LL.M degree in American And Comparative Law) from the University of Denver College of Law, Denver, Colorado.
Also, Counselor Jayweh is a member of the Grand Bassa County and the Supreme Courts Bars, Republic of Liberia, a registered member of the Liberian National Bar Association, and former Executive Director of the Civil Rights Association of Liberian Lawyers, Inc. Presently, Counselor Jayweh lives in Denver, Colorado, and can be reached at; 303-884-2652, or email@example.com.