Abstract
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. This article addresses these critical legal issues.
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Notes
- 1.
See <https://treaties.un.org/Pages/Treaties.aspx?id=4> (accessed 20 October 2016).
- 2.
Opened for signature 10 December 1984, 1465 UNTS 85 (entered into force 26 June 1987).
- 3.
Opened for signature 21 December 1965, 660 UNTS 195 (entered into force 4 January 1969).
- 4.
Opened for signature 18 December 1979, 1249 UNTS 13 (entered into force 3 December 1981).
- 5.
Opened for signature 20 November 1989, 1577 UNTS 3 (entered into force 2 September 1990).
- 6.
Opened for signature 18 December 1990, 2220 UNTS 3 (entered into force 1 July 2003).
- 7.
Opened for signature 13 December 2006, UN Doc A/61/611 (entered into force 3 May 2008).
- 8.
Opened for signature 28 June 1981, OAU Doc CAB/LEG/67/3, rev. 5, 21 ILM 58 (entered into force 21 October 1986).
- 9.
Opened for signature 11 July 1990, OAU Doc CAB/LEG/24.9/49 (entered into force 29 November 1999).
- 10.
Marcus (2002), pp. 7–8.
- 11.
- 12.
See Marcus (2002).
- 13.
See Wondimagegnehu (1989), p. 91.
- 14.
The Ethiopian Constitution uses the term “international agreement” and not “treaty”. But it is clear from the Constitution that the term “international agreement” refers to all kinds of treaties whatever the particular designation.
- 15.
Art. 38, Statute of the International Court of Justice. The Statute also recognizes judicial decisions and teachings of most highly qualified publicists as subsidiary means for the determination of rules of law: ibid.
- 16.
See, below, Sect. 4.
- 17.
Ibid, Art. 33(4).
- 18.
Negarit Gazeta is the official law gazette of the federal government first established in 1942. In 1995, it was re-established as “Federal Negarit Gazeta”. Each of the regional states has its own law gazette.
- 19.
It is interesting to note however that the Amharic (and governing) version of Article 13(2) does not make reference to the Universal Declaration of Human Rights. Instead, it contains in its place what can be roughly translated as “international human rights laws” creating redundancy with subsequent reference in the same Article to “international human rights treaties”.
- 20.
See below, Sect. 5.
- 21.
Article 74, 2004 Criminal Code of Ethiopia.
- 22.
Ibid, Articles 270, 279–280.
- 23.
I should like to mention here that genocide and crimes against humanity have been incorporated directly into the Criminal Code: see Articles 269–270.
- 24.
Shelton (2011), p. 13.
- 25.
Bulto (2009), p. 154.
- 26.
Shelton (2011), p. 13. Bulto’s view that all rights contained in the UDHR have obtained jus cogens status is not well supported. This at least is not borne out by the constitutional practices of nations. For example, Courts of nations like Hungary, Canada, US, Czech, Russia, UK and Argentina have recognized this norm in relation to few matters such as genocide and crimes against humanity: see Shelton (2011), p. 7. Some US federal courts of appeals have, under the Alien Tort Statute, recognized customary international human rights law prohibitions on torture, summary executions or murder, causing disappearances, prolonged arbitrary detention, and may be inhuman and degrading treatment, in addition to prohibitions on genocide and slavery. A violation of free speech, however, “does not rise to the level of such universally-recognized rights and so does not constitute a part of the ‘law of nations’”: Christenson (1995/96), p. 235.
- 27.
Shelton (2011), p. 5.
- 28.
Ibid, p. 13.
- 29.
Ibid, p. 7.
- 30.
Christenson (1995/96), p. 234.
- 31.
Shelton (2011), p. 7.
- 32.
Emperor Menelik II completed his expansion into the present-day Southern, South-Western and Eastern parts of Ethiopia by about 1907: Marcus (1975), pp. 64–76.
- 33.
Woldemeskel (1970), p. 52.
- 34.
A Parliamentary statute in Ethiopia is referred to (in English) as “proclamation”. This comes from the Amharic term “Awaj” which connotes the act of making an announcement. Before the advent of the print-media, laws and other announcements made by the king and his officials were communicated to the public by designated personnel who beat-up a traditional drum (called “Negarit”) and announced the terms of the law moving from place to place.
- 35.
Woldemeskel (1970), pp. 175–177.
- 36.
Ibid.
- 37.
Ibid.
- 38.
The notion ‘King of Kings’ connotes that the Emperor of Ethiopia is superior to the various regional rulers who were designated as Kings, such as the King of Gojjam Province, the King of Shewa, the King of Wollo, etc.
- 39.
See Marcus (2005).
- 40.
The Italian version of Article 17 of this treaty required that Ethiopia forge relations with other nations through Italy as an agent while the Amharic version stated that Ethiopia could use Italian services if it so wished: Zewde (2002), pp. 74–75.
- 41.
See Iadarola (1975).
- 42.
Ibid, p. 613.
- 43.
1931 Constitution of Ethiopia, Arts. 12, 14.
- 44.
Art. 30, 1955 Constitution of Ethiopia.
- 45.
The Constitution established a bicameral Parliament comprising the Senate and the Chamber of Deputies (Art. 76).
- 46.
Articles 88–90 dealt with the Parliamentary law-making process.
- 47.
<https://treaties.un.org/Pages/ViewDetailsIII.aspx?src=TREATY&mtdsg_no=XXIII-1&chapter=23&Temp=mtdsg3&clang=_en> (accessed 7 December 2016).
- 48.
See Article 3, Proclamation No. 2/1995.
- 49.
Shelton (2011), p. 8.
- 50.
Ibid.
- 51.
Ibid, p. 9.
- 52.
See, above, notes 45–46 and the accompanying text.
- 53.
Article 55(12), Ethiopian Constitution.
- 54.
Art. 59, German Basic Law.
- 55.
Section 231, South African Constitution.
- 56.
Article 2, Section 2.
- 57.
There are three types of legal executive agreements: (1) congressional-executive agreements, agreements entered into by the executive which Congress has previously or retroactively authorized; (2) executive agreements made pursuant to an earlier treaty, in which the agreement is authorized by a ratified treaty; and (3) sole executive agreements, in which an agreement is made pursuant to the President’s constitutional authority without further congressional authorization: see Garcia (2013).
- 58.
Article 74(12).
- 59.
Article 77(12).
- 60.
Article 10(1) (f), Proclamation No. 916/2015.
- 61.
Article 30, 1955 Constitution of Ethiopia.
- 62.
Ibid, Article 15(3).
- 63.
The process of consideration of the treaty for ratification by the HoPR follows its normal law making procedure: Arts. 49, 170-71, HoPR Rules of Procedure and Members’ Code of Conduct Regulations No. 3/2006.
- 64.
Article 15(3), Proclamation No. 916/2015.
- 65.
In simple terms “monism” assumes that international law and national law form part of the same legal system and holds that international law is “the law of the land” while “dualism” assumes, in contrast, that “international law and national law are entirely separate branches of law” and that the former must be incorporated or transformed into domestic law to have effect domestically: Wolfrum et al. (2015), p. 3; Hestermeyer (2015), p. 449.
- 66.
- 67.
de Wet (2015), pp. 31–32.
- 68.
Ibid, p. 32.
- 69.
Idris (2000), pp. 125–126. Idris in fact argues that publication can occur in three different ways: publication of the whole treaty content in the federal Negarit Gazeta, the law gazette; cross referencing the content of the treaty in proclamation that heralds the ratification of the treaty; or incorporating the content of the treaty in a domestic legislation: ibid.
- 70.
- 71.
Article 263.
- 72.
Section 243.
- 73.
Final Provision.
- 74.
Assefa (2009), p. 168.
- 75.
The most relevant domestic law, other than the Constitution, where such a requirement could have been set forth is the “Federal Negarit Gazeta” establishment Proclamation (No. 3/1995). Article 2(2) states: “All laws of the Federal Government shall be published in the Federal Negarit Gazeta” while Article 2(3) provides: “All Federal or Regional legislative, executive and judicial organs as well as any natural or juridical person shall take judicial notice of Laws published in the Federal Negarit Gazeta”. What the former signifies is that the Federal Negarit Gazeta is the only official law gazette of the federal government while the latter obligates state organs, as well as natural or juridical persons, to accept laws published in the Federal Negarit Gazeta as legally binding without requiring any further proof to that effect. In both cases, publication of a law has not been made a (pre)condition for the law’s entry into force.
- 76.
See, e.g., section 81, South African Constitution; Article 15(3), Russian Constitution; Article 116, Kenyan Constitution; Article 88, Dutch Constitution; Article 81(2), the German Basic Law.
- 77.
Above n 1 and accompanying text.
- 78.
Following ratification by the HoPR, in most cases (not in all cases) a one-page notice of ratification of any given treaty is published in the Federal Negarit Gazeta. The contents of the treaties are not published in any form. An example is Proclamation No. 10/1992 titled “the Convention on the Rights of the Child Ratification Proclamation” which as noted is a one-page proclamation that stated the fact of Ethiopia’s ratification of the said Convention on the date specified in the Proclamation. I should hasten to note here that even such notices of ratification have not been published in the case of treaties such as the two Covenants of 1966 and the Convention against Torture, and other Cruel, Inhuman or Degrading Treatment or Punishment.
- 79.
Shelton (2011), p. 11.
- 80.
Bradley and Goldsmith (2000), p. 399.
- 81.
Article 122.
- 82.
See n 15 above and accompanying text.
- 83.
- 84.
Ibid, p. 148.
- 85.
- 86.
Sloss (2011), p. 2.
- 87.
Bulto (2009), p. 135.
- 88.
Ibid, p. 133.
- 89.
In fact, as Professor Sloss succinctly explains, monism and dualism are not much about the hierarchical relations between national law and international law. According to him, “dualist states are states in which…all treaties require implementing legislation to have domestic legal force. Monist states are states in which some treaties have the status of law in the domestic legal system, even in the absence of implementing legislation”: Sloss (2011), pp. 2–3.
- 90.
Wolfrum et al. (2015), p. 3.
- 91.
Ibid.
- 92.
Ibid, p. 4.
- 93.
Dinokopila (2015), p. 476.
- 94.
- 95.
de Wet (2015), p. 33.
- 96.
Ibid.
- 97.
Sloss (2011), p. 8.
- 98.
Sweet and Keller (2008), p. 685.
- 99.
Sloss (2011), p. 8.
- 100.
Shelton (2011), p. 5.
- 101.
See, e.g., Bulto (2009).
- 102.
Shelton (2011), p. 19.
- 103.
Section 3, UK Human Rights Act (1998).
- 104.
Whitney v. Robertson, 124 U.S. 190 (1888).
- 105.
Press Release No. 92/2004, 19 October 2004, Press Office, Federal German Constitutional Court.
- 106.
Cited in Shelton (2011), p. 15, n 61.
- 107.
Shelton (2011), p. 19.
- 108.
Kirby (2010), p. 172.
- 109.
Sweet and Keller (2008), p. 684.
- 110.
Sandholtz (2015), p. 599.
- 111.
Ibid.
- 112.
Ibid, pp. 598–599.
- 113.
Article 9(1) of the Constitution in whole reads: “The Constitution is the supreme law of the land. Any law, customary practice or a decision of an organ of state or a public official which contravenes this Constitution shall be of no effect”.
- 114.
See, e.g., Haile (2005).
- 115.
Soriano (2008), p. 403.
- 116.
Ibid, p. 404.
- 117.
South African Constitution, Art. 39(1)(b).
- 118.
S v Makwanyane 1995 (3) SA 391 (CC), [36]-[37], cited in Currie and de Waal (2005), p. 159.
- 119.
Above, n 95 and accompanying text.
- 120.
See Minutes of the Ethiopian Constituent Assembly, vol. 2 (December 1994), pp. 65–70.
- 121.
Articles 62(1), 83–84 of the Constitution provide that the House of the Federation interprets the Constitution and settles all constitutional disputes aided by the Council of Constitutional Inquiry organized as per Article 82 of the Constitution.
- 122.
This is apparent from the reading of Article 2(2) of Proclamation No. 251/2001 in conjunction with other relevant provisions of the Constitution.
- 123.
Bulto (2009), p. 133.
- 124.
Articles 55(12), 71(2), Ethiopian Constitution.
- 125.
Above, n 63 and accompanying text.
- 126.
Article 71(2), Ethiopian Constitution.
- 127.
UN Doc HRI/CORE/ETH/2008 (6 February 2009).
- 128.
Ibid, [123].
- 129.
Article 13(2), Ethiopian Constitution. This constitutional requirement of “consistent interpretation” of course needs to consider other more specific requirements and principles in the Constitution like the ones in Article 43(3) (requiring that international agreements Ethiopia enters into protect its right to sustainable development) and Article 86(4) (declaring that Ethiopia observes international agreements that ensure its sovereignty and are not contrary to the interests of its people). I am grateful to Professor Melaku G. Desta for pointing this out to me.
- 130.
Abebe (2012), p. 66.
- 131.
Above n 21–23 and accompanying text.
- 132.
See Ethiopian Constitution, Art. 13(1). We find similar declarations in other federal systems like Germany, the USA and Switzerland: see Fercot (2008). Such a declaration of national applicability is also part of the Canadian Constitution: Canadian Charter of Rights and Freedoms, s 32.
- 133.
E.g., Art. 13(1) of Constitution of Amhara National Regional State (Ethiopia), reads: ‘All legislative, executive and judicial organs of the national regional state at all levels shall have the responsibility and duty to respect and enforce the provisions of [the State’s Bill of Rights]’.
- 134.
It is interesting to note that Ethiopia has shut off most avenues for individuals having access to human rights treaty bodies by failing to ratify optional protocols or making necessary declarations.
- 135.
Articles 3, 6, Proclamation No. 25/1995.
- 136.
Federal Cassation File No. 23632 (2006).
- 137.
Article 2(1), Proclamation No. 454/2005.
- 138.
Assefa (2009), pp. 162–163.
- 139.
Federal Cassation File No. 73514 (2013).
- 140.
As per Article 84(1) of the Constitution, the CCI has the power to investigate constitutional disputes based on cases submitted to it and should it find the need to interpret the Constitution, it makes recommendations on the same to the House of the Federation. See also Articles 84(2)-(3) of the Constitution.
- 141.
Unpublished opinion of the CCI, reproduced in the Journal of Ethiopian Law, vol. 23, No. 2 (2010), pp. 146–153.
- 142.
Proclamation No. 236/2001.
- 143.
Shelton (2011), p. 21.
- 144.
Ibid, p. 8; de Wet (2015), p.
- 145.
de Wet (2015), p. 30.
- 146.
252 U.S.416 (1920).
- 147.
However, this case law may be changing in the US where some are arguing for restricting the national government’s exclusive power of treaty-making to only matters falling under its constitutional competence: see: Bond v US 134 S. Ct. 2077 (2014).
- 148.
Article 16(2), Austrian Constitution. Article 16(2) states that the approval is deemed to have been given if the Federal Government has not within eight weeks from the day that the request for approval reaches the Federal Chancellery told the Governor that approval is withheld.
- 149.
Article 32, the Basic Law of Germany.
- 150.
Ibid.
- 151.
Wolfrum et al. (2015), p. 9.
- 152.
Friesen (1994), p. 1416.
- 153.
Canada (AG) v. Ontario (AG) [1937] UKPC 6, [1937] A.C. 326.
- 154.
Ibid, p. 1431.
- 155.
Ibid, pp. 1436–1437.
- 156.
Article 121, Belgian Constitution.
- 157.
Ibid, Article 167(3).
- 158.
- 159.
Articles 51(8), 55(12), 77 (4), 77(8).
- 160.
See, e.g., Fana Broadcasting Corporate News (2016). Here, it was reported that an agreement was signed between the Amhara Regional State’s representative and the Administrator of the adjacent Sudanese Gedaref State.
- 161.
See above, n 148 and accompanying text.
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I am grateful to the editors of the Yearbook and to the anonymous reviewers for their constructive comments. I am solely responsible for any remaining errors.
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Woldemariam, G.A. (2017). The Place of International Law in the Ethiopian Legal System. In: Yihdego, Z., Desta, M., Merso, F. (eds) Ethiopian Yearbook of International Law 2016. Ethiopian Yearbook of International Law, vol 2016. Springer, Cham. https://doi.org/10.1007/978-3-319-55898-1_4
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