Legislative proposals and application of human right treaties in Ethiopia

Introduction

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,[4] 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.

Continue reading
  18318 Hits

Have you heard about the Budapest Memorandum? It’s Totally Worthless

Speaking of the current Russia-Ukraine crisis, here is an interesting but less visible international legal dimension to the story.

Ukraine used to be part of the Soviet Union, during which time it had possessed huge stockpile of nuclear weapons arsenal – actually the third largest stockpile in the world at the time. Russia would not have ventured into Crimea today had Ukraine maintained possession of those nuclear weapons. What happened in 1994 was dramatic, and a bit embarrassing for Ukraine. At the end of the Cold War Ukraine agreed to an international deal that would deprive it of the entire nuclear weapon stockpile in its territory, mostly being transferred to Russia. In exchange, Russia, the US, and UK signed a binding pledge, the so-called Budapest Memorandum, guaranteeing the security of Ukraine. Now, what is interesting about this Memorandum is that it actually contained zero added-value as it offered Ukraine nothing other than what general international law already provided. Let me walk you through all the five articles of this Memorandum (yes it contained only five articles).

Article one states that Russia, USA and UK reaffirm their commitment to ‘to respect the independence and sovereignty and the existing borders of Ukraine’. Why is this promise useless? Because article 2(4) of the UN Charter, which has since become customary international law and even arguably a peremptory norm, already prohibits states from using ‘the threat or use of force against the territorial integrity or political independence of any state.’ Respecting the territory, independence and sovereignty of Ukraine is a customary international rule, and no additional treaty is needed for that.

Article two of the Memorandum basically repeats the above point, stating that the three powerful states will ‘refrain from the threat or use of force against the territorial integrity or political independence of Ukraine’, and adds that ‘none of their weapons will ever be used against Ukraine except in self-defence or otherwise in accordance with the Charter of the United Nations.’ This article seems to waste two clauses to say one and the same thing: what is the difference between ‘refraining from threatening or attacking’ another country and promising one’s ‘weapons won’t be used against’ such other country?  Or the difference between saying ‘I will not attack you’ and ‘none of my equipment will be used to attack you’?  One may say the first formulation concerns the actions of the attacker only while the later formulation creates responsibility on such party for the consequences of its weapons, by whomever the weapons may be used. That is to say, the first clause guarantees Russia, USA, and UK wont attack Ukraine, while the subsequent clause guarantees that the nuclear weapons of these states won’t be used by themselves or any other state against Ukraine. In either case, in as long as the Memorandum only envisages scenarios where the three states would have some control over the use of their nuclear weapons, either by themselves or through proxies, the general international law prohibition on the treat or use of force adequately covers it. A state would be held through the rules of state responsibility even if it uses other states (or non-state actors for that matter) as its proxy to attack another state. In sum, in article two of the Memorandum, Russia, USA, and UK promised not to attack Ukraine – but international law would not have allowed them to even if they had not made that promise.

Article three of the Memorandum guarantees that Russia, USA, and UK would ‘refrain from economic coercion designed to subordinate to their own interest the exercise by Ukraine of the rights inherent in its sovereignty.’ This seems to offer something distinct. Although unacceptable, there is no concrete rule under international law that prohibits the use of economic coercion against states (during the preparation of the UN Charter economic coercion was proposed to be prohibited together with the threat or use of force, but the proposal was rejected). However, the 1975 Final Act of the Conference on Security and Cooperation in Europe (Helsinki Accords) to which Ukraine and the three powerful states are members already prohibits the use of economic coercion against states. Article three of the Budapest Memorandum, therefore, is simply redundant.

Continue reading
  10829 Hits

Briefing Notes on Human Rights Education

This ‘Briefing Notes’ have been prepared to serve as an introductory orientation and awareness raising material targeting members of the Ethiopian Human Rights Commission as well as sections of the general public. It is intended to introduce the conception and recognition of human rights education in the international and national human rights systems and the activities of the Commission in this important area forming part of its core mandate. Alas, it was never used (the fault being totally and wholly mine). Hopefully, someone could make some use of it.

Human Rights Education under the International Human Rights System

Human rights education has been recognized as an essential component of the international human rights system. The first such recognition in what has come to be called the modern international human rights system in the post WWII era is to be found in the Charter of the United Nations [1945] which called for cooperation "in promoting and encouraging respect for human rights and fundamental freedoms." This provision of the Charter is widely recognized as creating state responsibilities for educating and teaching human rights. The Universal Declaration of Human Rights adopted by the General Assembly in 1948, which proclaimed human rights as "a common standard of achievement for all peoples and all nations," also directed states as well as "every individual and every organ of society...."to "strive by teaching and education to promote respect for these rights and freedoms....". The UDHR further stressed "strengthening of respect for human rights and fundamental freedoms...." as one of the goals of education (Article 26, Section 2).

The dual aspects of human rights education were formalized into the international human rights framework through the provisions of the international covenants developed by the U.N. and coming into effect in 1976 to formalize the basis in international law of the rights declared in 1948. The Covenant on Economic, Social and Cultural Rights placed the educational objective of strengthening respect for human rights in a cluster of related learning objectives. For example, Article 13 of the Covenant says that "education shall be directed to the "full development of the human personality" and to the person's own "sense of dignity...."(Section 1). The Covenant also says the State Parties:

further agree that education shall enable all persons to participate effectively in a free society, promote understanding, tolerance and friendship among all nations and all racial, ethnic or religious groups, and further the activities of the United Nations for the maintenance of peace." (Article 13, Section 1)

Continue reading
  10985 Hits

Do institutions really matter?

This essay attempts to address the undue focus on the lessened role of institutions on security issues while ignoring their (institutions) achievements in many other issue-areas so as to let them be conceived as weak instruments of international relations.Thomson and Snidal (1999), in their article International Organization have cited a lot of authorities witnessing that the application of institution has been expanded to a wide variety of issue-areas, including international security, trade, finance, telecommunications, and the environment. International legal scholars have also increasingly used institutions to better understand issues such as international trade laws, arms control agreements, and the law of treaties.

Problem of defining ‘institution’

One of the problems in this area is that scholars do not agree on the definition of the term institution. A widely adhered ‘standard’ definition by S. Krasner (1983) presents regimes/institutions as sets of implicit principles, norms, rules and decision making procedures around which actors’ expectations converge in a given area of international relations. However, scholars like Mearsheimer, in his article entitled false promise of international institutions do not agree on this definition. Even he mocks that Krasner’s definition lacks analytical bite. Strange (1982) has also criticized it as vague. They have, instead, provided their own definitions. Nevertheless, the way Krasner defines institutions enables us to assess the role of institutions in almost all walks of life. The definition makes up Regime Theory that premises: international politics is highly interdependent (Keohane and Nye, 1977) implying mutual interests in cooperation and (b) international behavior is institutionalized in a variety of ways (Ruggie, 1975).

Main scholars and theories said on the score

Mearsheimer (p.8) derisively wrote that institutionalists consider institutions to be a powerful force for stability. R. Keohane, for example, declares that, avoiding military conflict in Europe after the Cold War depends greatly on whether period is characterized by a continuous pattern of institutionalized cooperation. Commenting on the aftermath of the Soviet collapse and the end of the Cold War, John Ruggie maintains that there seems little doubt that multilateral norms and institutions have helped stabilize their international consequences. Indeed, such norms and institutions appear to be playing a significant role in the management of a broad array of regional and global changes in the world system today.

Continue reading
  6057 Hits

Chinese in Ethiopia: Localization

Are Chinese aid, trade and investment considering regional and local political, economical and social situations? Or they are simply doing business in all areas in a similar fashion without considering varying local differences? Are they easily adaptive to existing environments? How about their life with he community they live? How about their aid to Africa – Ethiopia? Any conditions attached to their loans and aid?

Many argued that China was concerned not with disseminating ideologies rather it was determined to support Africa for the reason that they both belonged to the same group, colonized and of the third world entity.

China is not propagating the developing African countries to follow its ideology. This is one of the evidences not to say it is pursuing imperialism as imperialists want to see their values spread where ever they go. Rather, China is making business and establishing political, and cultural relationships taking respective nations values as it is and with out trying to impose its own but respecting its and others wide spread values, even it is not trying to sell developmental methods but leaving to respective countries to do so if they like and found it important to do so.

What is more, these developing countries believe they are benefiting. They are right as investment is more than aid and the former by far is advantaging than the latter. The imperialists were advancing their interest only.

As democracy and human rights require a reasonable degree of economic development, these African developing countries are as their infant stage of development. Naturally, one cannot expect human rights and democracies to spread easily. The decades long attempts are almost doomed to failure. So, may be China is right to ignore it and to follow its own route.

Continue reading
  6135 Hits

Big China: rising threat, rising peace?

Hegemonic Stability theorists such as Robert Gilpin (cited in Friedberg, P.1) note that rapid changes are dangerous. Periods of accelerated economic and technological development typically result in dramatic shifts in the international distribution of military power, and these can raise the risks of misperception, mutual fears, miscalculation and confrontation.

International systems in which one state in particular is rising very rapidly are especially prone to upheaval. Friedberg reasoned out that swiftly ascending powers like China invariably challenge the legitimacy of treaties, territorial settlements and hierarchies of prestige and deference put in place when they were relatively weak. Neighboring countries see the situation as disruptive and threatening.

For K.N Waltz (pp. 881-909) and J. Mearsheimer (pp.13-18) along with many Realists, China’s rise is a threat as it is joining the multipolar system in which there are many strong states that make the region prone to instability. The end of the Cold War accelerates the emergence of a truly multipolar system, with a cluster of ‘big powers (including Japan, China, India, Russia and, to the extent that it remains engaged, the US) and an assortment of others with substantial wealth, technological competence and potential military power. If the realists are right, commented Friedberg (p.2), it may be difficult to achieve a stable, lasting peace in a multipolar Asia.

Some American activities in the East Asia region and their misperception (hence constructivism) against China shows American’s see China’s rise as a threat. As per D. Shambaugh (pp.52-79) and A.S. Whiting (pp. 596-615), the US is taking steps that many Chinese perceive to be aimed at containing their country’s rising power. These include intervening in the 1996 Taiwan Straight crisis, strengthening the alliance with Japan and discussing the possibility of developing a wide-ranging-theatre-missile-defence system. American decision makers regard these measures as defensive, and as response to increasing Chinese power and assertiveness. Chinese strategists see American actions as aggressive, and may well respond in ways that serve only to heighten American anxieties. The reason behind America’s actions and misperceptions is they see China’s rise as a threat.

Even from Democratic Peace theory perspective, the undemocratic China’s rise is considered a threat. Liberal, Constructivist and Realist explanations all lead us to this conclusion. The culture, perceptions, and practices that permit compromise and the peaceful resolution of conflicts without the threat of violence within countries come to apply across national boundaries toward other democratic countries. (Russet, p.31) China does not fulfill this criterion. Democratic states, each with perfect information about the other’s constraints, will always settle their conflicts short of war. (B de Mesqita and Lalman, in Russet p….) But, China cannot. Therefore, from both sides explanations perspective, undemocraticChina’s rise with no democratic behavior, with no information about itself is a menace.

Continue reading
  6310 Hits