It has often been considered that every addition of a new law in a statute book is amending a prior existing law. As a result, analyzing legislative proposal both in its relation and in its effect with rights and privileges under existing and established law continues to be an important subset of Legislative Drafting. A person engaged in analyzing the legislative proposal should either be familiar with the existing relevant law or know where it can be found. Existing laws, among other things, constitute human right treaties that a country has ratified and form part of its domestic law – either by way of ‘legislative’ or ‘automatic’ incorporation. Legislative and Automatic incorporation of human right treaties into domestic law is traditionally known as ‘Dualistic’ and ‘Monistic’ methods respectively. Regardless of whether a domestic law society is monist or dualist, one way of complying with human right treaties is through analyzing legislative proposals as to whether domestic draft laws accord with the values and principles enshrined under human right treaties.
The main focus of this essay is to examine the Ethiopian method of implementation of international Human right treaties with an emphasis on its impact on drafters’ analysis of legislative proposals.Although the implementation of human rights entails a wide array of activities, this essay briefly discusses incorporation of international standards into domestic laws as a main focus from the variety of activities that states are to take at national level.This essay argues that the method of implementation used by Ethiopia is ineffective and has deprived drafters from analyzing the consistency of legislative proposals with human right treaty provisions. In doing so, the essay proceeds as follows: section one offer the Ethiopian method of implementation of human right treaties. Section two explores Ethiopian drafters’ analysis of legislative proposals and the problem they face as a result of the method of implementation. The final section draws the threads together and concludes the essay.
I. Method of implementation of Human Right Treaties in Ethiopia
As there are no stipulations on how states should implement human rights standards at international level, the implementation of international human right treaties is dependent on domestic law and entirely left to the states to decide on how obligations will be implemented. Domestic legal system must provide favorable legislative and administrative frameworks if treaty based guarantees are to be translated into reality for domestic beneficiaries. In addition, human right treaties incorporate a set of values that have to be respected during interpretation, application and development of legislation and statutory laws. As a result, states must affirmatively incorporate international human right treaties into domestic laws as one method of implementation. Although there are a great variety of domestic methods for implementation of international human rights instruments, there are two common ways of constitutional method which determines the implementation of treaty provisions into domestic laws: legislative incorporation and automatic incorporation. In some countries with the ‘legislative incorporation’ method such as United Kingdom, there is a separate legislative Act enacting specific provisions of a treaty for the incorporation of treaty provision into domestic laws. This method is referred to as ‘dualist’ in that a strong distinction is maintained between domestic and international law, and the latter must be written into the former in order to carry substantial and enforceable weight. In other countries with the ‘automatic incorporation’ method like France, without the need to have separate legislative Act, ratification and publication in the official Gazette simply converts treaty provisions into domestic law. This method is referred to as ‘monist’, in that both domestic and international law are considered equal and as having the same effect.
The method of incorporation of international human right treaties in Ethiopia indicate that Ethiopia does not strictly adhere to one method of incorporation as the Ethiopian constitution provides for both methods.
One the one hand, article 9(4) of the Ethiopian Constitution declares that “All international agreements ratified by Ethiopia are integral parts of the law of the land.” From international law point of view, the wording of this provision tends to show international agreements need to be transformed as the word ‘…law of the land’ usually refers for international agreements to be transformed, rather than merely adopted, into municipal law. Transformation in dualistic state refers to a situation where relevant domestic laws are amended or repealed to comply with international agreements. International agreement in Ethiopia is concluded by the State’s Executive branch which must subsequently submit it for ratification to the House of Peoples Representatives (HPR hereafter). Under Article 55(12) of the Ethiopian constitution, the HPR ‘shall ratify international agreements concluded by the Executive.’ In addition, article 2(2) and (3) of the Proclamation of Federal Negarit Gazette requires that all Laws of the Federal Government shall be published and all Federal and Regional legislative, executive and judicial organs should take judicial notice of laws published under the Gazette. Once they are ratified, all international agreements, including human rights instruments, are integral parts of the law of the land (Art.9 (4) of the constitution). According to these provisions, Ethiopia could be classified as dualist as a national legislation needs to be promulgated in order for the provisions of international instruments to be implemented at the domestic level. However, all ratification proclamations contain only three and sometimes four provisions with short title, responsible organ (sometimes), ratification, and effective date. Although the dualist method is much known for its ‘transformative’ concept, the Ethiopian parliament only declares a mere pronouncement through ratification proclamation. There are neither laws which are amended as a result of ratification nor repeal with the ratification proclamation. In Ethiopian history of ratification proclamation, there is no single ratification proclamation with the actual ratified treaty and there are no translations of the actual treaty provisions.