Wednesday, June 6, 2007
A conversation with Attorney Senai Wolde-Ab.
In February 2007, I posted a conversation that I had with a twenty three year old Eritrean Environmentalist, Hiyoba Ghirmay. In this conversation,I would like to introduce to readers a young Eritrean attorney, Senai Wolde-Ab. He resides in Asmara, Eritrea.
Here are the excerpts:
Issayas Tesfamariam: Can you briefly tell us about yourself?
Senai Wolde-Ab: My name is Senai Wolde-Ab Andemariam. I am 28 years old. I earned my LL.B. degree in law from the University of Asmara in 2001.After teaching for a couple of years, I went to Georgetown University as a Fulbright Scholar for my LL.M. which I earned with an emphasis on international trade law and international transportation law. I have,thus, been teaching law for the last six years and I often assist legal practitioners and other institutions in legal matters. The courses I regularly teach include international business transactions law which includes international trade law, aviation law, maritime and law of evidence but have also taught labor law, penal law and criminal procedure.
Issayas: You have an impressive CV (Education: LL.M with Distinction from George Town University in Washington, D.C., LL.B with 1st class rank from the University of Asmara. Professional Experience: Lecturer-at-Law at the University of Asmara, former judge with Ministry of Justice, Law Firm associate with Berhane Gila-Michael and Associates, etc.) Keeping in mind that you are twenty eight years old, what kinds of ideas (suggestions) would you share with young Eritrean men and women so that they can achieve their greatest potential?
Senai: Though I must emphasize that I am only a toddler in my profession, I can nevertheless share my experience with my fellow citizens. What we only need to know is that we have what it takes to be big. We should not dwell on our previous successes; we need to always look one step forward.
Issayas: How many students do you have?
Senai: We have an average of 35 students in each year of study.
Issayas: Your LL.B. thesis (University of Asmara) is entitled "The Surrender of State Sovereignty". Can you briefly describe to us what it means?
Senai: In a nutshell, the thesis, submitted in April 2000, argued that the sovereignty of states will continue to be eroded as events of global impact and concern continue to emerge and, in the eyes of the traditional concept of sovereignty, states will steadily ‘surrender’ parts of their sovereignty for reasons of global concern. In that paper I, for instance, had predicted that terrorism being one of these factors, Taliban’s Afghanistan would be invaded.
Issayas: Would you please elaborate as to how you could have predicted in 2000 that Taliban’s Afghanistan would be invaded?
Senai: My undergraduate thesis held that there are a number of factors that are compelling states, willingly or otherwise, to coordinate their activities at a supranational level. As the world is getting 'smaller and smaller', it becomes reasonable to assume that there will develop supranational principles that link states the deviation from which carries consequences. One of these factors is terrorism. As the world rallied behind the United States in the morrow of the bombing of US embassies in Kenya and Tanzania, terrorism was the golden word binding the international community for a unified action. As Taliban's Afghanistan harbored Osama bin Laden, I argued that this would give the United States the green light to harness support for attacking Afghanistan. The UN had warned the Taliban sometime before the 9-11 attacks and the US invaded Afghanistan. I held that an action against terrorism would override Afghanistan's sovereignty to admit any person into its territory. The paper had also discussed global warming, international trade rules (led by the WTO) and other factors which contribute towards the 'surrender' of state sovereignty.
Issayas: What must states do so that parts of their sovereignty are not surrendered in the name of globalization, etc.?
Senai: As to what states need to do in order not to surrender their sovereignty in the name of globalization, the key instrument is to develop a deep understanding of the concept of globalization. This will avoid extremist ideas regarding globalization for some think it is the best tool ever created for the betterment of human life and others are convinced it is the West's newly invented neo-colonialist cliché. Globalization, as any other international phenomena, has its good and bad sides. We, thus, need to understand the concept in its totality to save ourselves from its evil. This is what, for instance, the Third World Group has done in the recently stalled Doha Development Agenda negotiations of the WTO; they united themselves in protecting their interests against the pressures of the West.
Issayas: As your specialization is in International Trade Law, what is globalization? Is globalization good for countries such as Eritrea? Even though countries that are at the forefront of globalization were at one point in their history the most protective of their products.
Senai: Globalization is the integration of various aspects of strategies, policies, norms, laws etc. of nations into the international arena. It includes the less-restricted flow of ideas, markets, technology, goods and services, expertise etc. within the global economy. The issue of the advantages and disadvantages of globalization has been and continues to be a very controversial idea. One need only read the books Discontents with Globalization by the world-famous Nobel laureate Joseph Stieglitz of Columbia University and In Defense of Globalization by the equally erudite Jagdish Bhagwati of the same university to get taste of the controversy.
In a nutshell, globalization is hailed for the openness it has created as well as the access and options it has made available to the world citizenry. Specifically mentioned is the explosion in easiness of access to information which is becoming the most important factor in success in trade. Globalization has, however, been blamed for causing the poor to be poorer and making the rich to be richer by allowing the markets of the North to flood the markets in the developing world and thus cripple domestic producers in the latter. The dozens of market problems faced by poor Indian wheat farmers and African cotton producers is a good example. Invasion and dilution of indigenous social values has also been identified as an ill-effect in the socially-conservative societies. It is within this context that one needs to discuss whether globalization is good for countries like Eritrea. Eritrea has an advantage to learn from the experiences of other poor countries that have played in the court of globalization and to prepare itself for the inevitable march alongside globalization.
Issayas: By the way, congratulations on your latest article, which was recently, published by Journal of Intellectual Property Law & Practice: The status of WTO non-members:A review in light of the 6 December 2005 proposed amendment to the TRIPs Agreement. You have also written an article that was published by Oxford University Journal. For the benefit of our readers, what is the WTO and the importance of the proposed amendment that you alluded to in the aforementioned article? Also, can you briefly describe the other articles that you have written in the ivy-tower journals?
Senai: Thank you. The joy with publication is that your intellectual ideas have been appreciated by the people you think are giants in the field and they have presented it to the millions of legal professionals in that field. As the saying in the academic circles goes: “publish or perish!” My first publication was with the Journal of Air Law and Commerce. The substance of the article is related to the legal ramifications of the notice written on airline passengers’ tickets which states that if any damage arises, a convention called the Warsaw Convention (or now Montreal Convention) would apply.
The second publication was with the Geneva-based Journal of World Investment and Trade. The article discusses a very complex idea regarding the interplay between three of the numerous instruments that are part of the Agreement that established the World Trade Organization (WTO). A provision called GATT Article XX (b) states that for reasons necessitating the protection of the life or health of humans, plants, and animals, Members of the WTO can deviate from their substantive obligations under the WTO. Two other WTO agreements called the Sanitary and Phytosanitary (SPS) Agreement and the Agreement on Technical Barriers to Trade (TBT) were made part of the substance of the WTO obligations in order to elaborate GATT Article XX(b). The article asks the question: if Article XX (b) is supposed to be an exception to the substantive obligations under the WTO can it also be an exception to the substantive SPS and TBT Agreements which sprouted out of it? Regarding the amendment mentioned in my Oxford article, Members of the WTO have proposed to amend one of the agreements of the WTO called the Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS) in order to make it easy for the developing and least-developed countries to import cheap drugs to combat public health crises like HIV-AIDS, malaria and tuberculosis.
Issayas: Is Eritrea a member of the WTO?
Senai: Eritrea is not a member of the WTO.
Issayas: What are the advantages and disadvantages of joining or not joining the WTO?
Senai: The advantages and disadvantages depend on which side one is looking at the WTO. I would say the best way to ask should be what are the benefits and drawbacks of joining the WTO. Although volumes upon volumes have been written on this very issue I will mention only the most highlighted points. The greatest benefit of joining the WTO is finding almost unrestricted access in the goods and services markets of other countries without discrimination.
This in turn leads to competition, increase in quality of services, transfer of technology and preferential treatment to poor countries. The drawbacks include increased inability of domestic producers (in the developing and least developed members) to compete with the flood of goods and services imported from the developed world. Remember the scores of farmers demonstrating in front of the building in Hong Kong where the WTO’s Ministerial Conference was held in late 2005. There had also been difficulties for the poor in the developing world in
getting easier access to life-saving drugs which are heavily protected by patents as enforced by the TRIPS.
Issayas: You have worked on the preparation of a consultative work on the establishment of an Eritrean Conservation Fund. Can you elaborate?
Senai: The phasing out of the Cultural Assets Rehabilitation Project which was active in conservation activities necessitated the establishment of an Eritrean Conservation Fund (ECF) for Eritrea. I was involved in the consultative team that proposed how the ECF should be established.We prepared a presentable work.
Issayas: Senai, you also teach aviation law. What does an aviation lawyer do?
Senai: Except for the fact that his expertise is related to aviation law, an aviation lawyer basically undertakes all the activities of lawyers in other professions. He is primary function is consultancy service to his clients and this depends on the type of clients. If his client is the government (aviation authorities), his services may focus on advices related to international aviation instruments and organizations, airport-related legal affairs, drafting of aviation legislation etc. If the client is an airline, an aviation lawyer’s services may lean towards the ‘private’ part of aviation viz. transport of passengers, cargo and mail, crew employment issues etc. An aviation lawyer’s client may also be an aircraft manufacturer where his services primarily involve sale and/or lease of aircraft. An aviation lawyer’s services also include client representation before judicial institutions and related tribunals.
Issayas: How many aviation lawyers does Eritrea have?
Senai: I can’t say we have reached a stage where we can say some one is an expert in aviation law or another is an expert in criminal law. Based on my judgment, I can only say that there are some lawyers in the government and private practice who attend aviation matters - not in the highly specialized sense of the term as is understood in the developed world.
Issayas: What does it take to have a national airline?
Senai: Of all assets, an effective management seems to stand high in the requirements for a national airline. Very technical and specialized as the aviation industry is, it demands maintaining a pool of highly skilled professionals. Also related are the need to constantly update the airline with the new developments in international aviation and a fostering a sense of belongingness by nationals to make use of the national airline.
Issayas: In the commercial aircraft leasing industry, returning an aircraft from lease is as difficult as acquiring the unit. How difficult was it for Eritrean Airlines to return the 767-300ER to Boeing Holdings at the end of the lease term?
Senai: Returning a leased aircraft can be difficult. From a lawyer’s point of view in general and by reference to the return of the Queen Bee in particular, I would hold that it all depends on the aircraft return clauses in the lease document. The Boeing-Eritrean Airlines lease agreement (at least on paper) did not make it difficult for Eritrean Airlines to return the Queen Bee since the agreement contained unambiguous return procedures even under circumstances where the leasee would be in default of its obligations.
Issayas: Most of the Eritrean public felt that Queen Bee was the property of Eritrean Airlines. Was it leased? For how long? Did Eritrea have other options during the negotiations?
Senai: Queen Bee was a Boeing aircraft on lease for a duration expiring in March 2006 with a preferred option left for Eritrean Airlines to purchase it during the time of the lease. I was not involved during the negotiations for the lease and cannot say if Eritrean Airlines had other options.
Issayas: You were part of the return team. How did you feel to be part of the aircraft return team?
Senai: I was part of the team working on Boeing’s side. I am grateful to the senior Boeing consultant who invited me to join his group. Although I had to work on the return of our beloved Queen Bee, the experience of working in contact with Boeing’s highly skilled lawyers was one of my most cherished experiences.
Issayas: Did Eritrean Airlines have sufficient legal support to with stand Boeing’s high profile attorneys?
Senai: From the documents we had exchanged with Boeing, I can say that Eritrean Airlines was assisted by Eritrean lawyers of high standing.
Issayas: What is dry leased contract? Are there other kinds of leased contracts?
Senai: In a single sentence, a dry lease is a contract whereby a company leases only an aircraft. The contrasting type of lease would be a wet lease whereby the lessor provides an aircraft and at least one pilot and adds more obligations – leading to various forms of wet lease including one called damp lease where the lessor does not provide fuel or a less than an entire crew for the lessee.
Issayas: To some Eritrean pilots, the formation of Eritrean Airlines was the realization of a life long dream. Some of the proponents of the airline express: “Our passion for aviation is not just a motto or a vision statement, it’s our credo.” In your view is that sentiment still alive or has it diminished over time and why?
Senai: I have a friend who is a co-pilot with Eritrean Airlines; I also have e-contacts with other Eritrean Airlines pilots. From my contacts with them I can state that the sentiment is still holding fire.
Issayas: What do you think the near future and long term vision of Eritrean Airlines as a national flag carrier should be?
Senai: As a citizen, I would say ‘efficient and competitive service’.
Issayas: Is there a difference between intellectual property rights and copyright?
Senai: No. Copyright is just one of the many forms of intellectual property rights (patents, trademarks, trade secrets etc)
Issayas: Does Eritrea have a copyright law?
Senai: It depends on the scope of copyrights that one is referring to.We have provisions for ‘Literary and Artistic Rights’ in the Civil Code and they incorporate provisions of copyrights. Intellectual property experts agree that they need to be made up-to-date.
Issayas: Copyright laws have been debated on Eritrean websites, what advice can you give to the Eritrean public?
Senai: I don’t profess to have deep knowledge on copyrights. As in many other areas of law, I witness serious lack of understanding of the notion of copyrights in the Eritrean community which ignorance is an understandable reason. There are a number of instances of copyright infringements particularly in musical and dramatic works. The only advice I can give the public is to have the will and humility to approach the legal professionals in this respect since the issue of copyrights has more to do with the legal dimension than others.
Issayas: Thank you for taking time from your busy schedule to answer my questions.
Senai: You are welcome.