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Would ‘reception’ look different in Ethiopia if we considered international law a custom rather than a treaty?

Until this day, no scholarly research has squarely dealt with the process of reception of international law into Ethiopia’s domestic legal system and its status and relationship with domestic laws. Some works have addressed the position of international human rights treaties in the Ethiopian legal order. However, the vexing issues that need clarification are: the process of reception of treaties and non-treaty sources of international law into the Ethiopian legal system; whether there are requirements to be met for the direct application of ratified treaties by Ethiopian courts and other state organs; the hierarchical relations between international law applicable to Ethiopia and its national laws; and the division of treaty-making power within the country’s federal legal system.

As there are no stipulations on how states should implement human rights standards at the international level, the implementation of international human rights treaties is dependent on domestic law and entirely left to the states to decide on how obligations will be implemented. The 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 rights treaties incorporate a set of values that have to be respected during the interpretation, application, and development of legislation and statutory laws. As a result, states must affirmatively incorporate international human rights treaties into domestic laws as one method of implementation. Although there are a great variety of domestic methods for the implementation of international human rights instruments, there are two common ways of constitutional method that determines the implementation of treaty provisions into domestic laws: legislative incorporation and automatic incorporation.

In some countries with the ‘legislative incorporation’ method such as the United Kingdom, there is a separate legislative Act enacting specific provisions of a treaty for the incorporation of treaty provisions 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 indicates that Ethiopia does not strictly adhere to one method of incorporation as the Ethiopian constitution provides for both methods.

On 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 an 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 to international agreements to be transformed, rather than merely adopted, into municipal law. Transformation in a 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.

On the other hand, from a hierarchical point of view the Ethiopian constitution tends to prefer the monistic method of implementation of international human right treaties. In most monistic approach countries, international treaty norms have a higher rank than a domestic legislation or equal to constitution and sometimes higher than the constitution. In Ethiopia’s pyramid of law the normative hierarchy of ratified treaties is controversial. There are two-tiered dimensions to the status of ratified human right treaties. On one hand, the provision of Article 9(1) of the constitution which establishes the supremacy of the constitution and declares any inconsistent law with the constitution as null and void has led to the assertion that the constitution is superior to all ratified international agreements. A literal reading of Articles 9(1) and 9(4) of the constitution clearly indicate that international agreements, which under Article 9(4), are made an integral part of the laws of the land upon ratification, are subordinate to the constitution. On the other hand, ratified agreements are ‘integral parts of the law of the land’ and ‘the constitution

(Chapter Three) must be interpreted in conformity with international Instruments adopted by Ethiopia’ under Articles 9(4) and 13(2) of the constitution respectively led to the conclusion that international human rights instruments adopted have a status higher than, or at least equal to, Chapter three of Constitution itself. While an exhaustive treatment of these issues is beyond the scope of this essay, the wording of Article 13(2) of the constitution at least makes it apparent that Ethiopia cannot issue legislation that contravenes any of the fundamental rights and freedoms stipulated under chapter three of the constitution. The fundamental rights and freedoms provided in the constitution are subject to a special interpretative regime which should comply with principles of international human rights treaties adopted by Ethiopia. This special feature gives international human rights instruments at least equal hierarchical status to the constitution. Therefore, as the constitution under article 13(2) stipulates Ethiopia cannot lawfully issue domestic proclamations that contradict its treaty obligations, which is purely a monistic approach. But again the major human rights treaties that the constitution is referring for authoritative interpretation are not yet translated and published in the official Gazette as the monistic approach so requires.

Moreover, recent trends of judicial practice also support the conclusion that a proclamation that contradicts ratified treaties should be disregarded. In the case between Federal Police Criminal Investigation and Department v Naod Misale and others, the court has decided that the law amending the Federal Anticorruption Proclamation and the provision ‘A person who is arrested on suspicion of having committed a corruption offence shall not be released on bail’ has led to the violations, inter alia, of Ethiopian’s international human rights obligations, particularly those guaranteed by the ICCPR. The court has ruled out this ‘prohibition of bail’ disallows the right to bail and it does not empower the police to keep suspects in its custody indefinitely. Thus, the Ethiopian legal system employs both a ‘dualistic and monistic’ method for implementation of human right treaties into domestic law. Once Ethiopia has ratified an international agreement and decided to incorporate it into domestic law that incorporation seems to be done through a mere ratification proclamation adopting the treaty provisions entirely. They have neither been transformed into Ethiopian laws by separate legislation nor have so far been published in any other main vernacular languages.       This method of implementation of human right treaties has confused and deprived legislative drafters from taking due care in analyzing legislative proposals against international human right treaties that form part of Ethiopian laws. Now let us consider how officer and draft person check the relation and effect of legislative proposals with human rights treaties in Ethiopia.

The process of legislative drafting comprises various stages through which the drafter converts a government’s often broadly defined policy objectives into clear and precise statutory language that accomplishes the legislator’s goal. As Thornton has identified one way of achieving the goals of the legislator is through a complete and thorough analysis of proposed legislation. The relation and effect of legislative proposals must be carefully analyzed with existing laws which among other things compromises International human right treaties. Both the drafter and those who instruct must be involved to consider whether every element of the proposed legislation adheres to with basic principles of the legal and constitutional system. This also holds true for Ethiopian legislative drafting process. The Ethiopian legislative drafting manual provides that legislative proposals should be checked against existing law(s) and existing legal structures. Particularly a drafter is required to make sure that legislative proposals are consistent with international agreements ratified by Ethiopia and other international instruments adopted by Ethiopia. Here the question is -are drafters in Ethiopia in a position to check the consistency of legislative proposals with international instruments as set out in drafting manual? The answer for me is No. Drafters are not in the position to check and ascertain the consistency of legislative proposals with human right treaties. As noted earlier, the Ethiopian constitution seems to favor both a dualistic and monistic approach. But this method has a number of purely practical problems both for the drafter and for those involved in drafting process.

In summary, although the Ethiopian constitution favors for both dualistic and monistic methods of implementation of human right treaties, there are neither transformation into domestic laws including amendments and repeals as dualistic approach so demands nor any single translation and publication of the actual treaty provisions as the monistic approach so requires. This in result produced lack of human right treaty texts into one of the main vernaculars of the local languages, lack of access to international human right treaties and decisions, and led drafters and other officials in drafting process to focus only on constitution and other domestic laws. Lack of sufficient training, federal system with more local languages, decentralized drafting method including drafting in different ministries and drafting through working groups and special committees from different civil service, are the aggravating circumstance for the poor analysis of legislative proposals. This has diminished the quality of legislation and contributes for ineffective legislation which results with international condemnation including from International Human Rights Watch and Amnesty International. Further steps need to be taken to enhance the accessibility of international agreements, including local language versions of international human right treaties. Furthermore, the training of draft persons on the relation and effect of human right treaties with drafting process is an important contribution to the application of human right treaties in Ethiopia.

On the other hand with respect to the acceptance of custom in to the domestic legal system there is no unique mechanism and framework set for it. As Ethiopia is part of the world, customary international laws applying else are accepted the same way as they are accepted there and have the same legal effects on the national legislations of the country.

There are custom that give rights and obligations to all states.  All states around the world are entitled and bound to these rights and obligations. Unless countries oppose that custom during the formation, they will be bound by that custom. Once custom is formed all countries are bound by that custom except those countries who opposed the formation of that custom. It doesn’t need ratification. States that object to customary international law may not be bound by them unless these laws are deemed to be jus cogens. That means unless Ethiopia oppose during the formation of certain custom which is not jus cogens, it is presumed as she gave her consent to be bound without any reservation or ratification. Thus, unlike treaties, custom doesn't need to be ratified.

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Thursday, 25 July 2024