The applicability of international frameworks, in general, depends initially on the status a given country gives to international instruments in its legal system. Its commitment begins with the clear statement it makes regarding the status and application of those ratified instruments. This is why usually States determine in their domestic legislations status related issues such as incorporation, hierarchy, implementation mechanisms, implementing institutions, etc of international instruments. This topic briefly discusses the status and applicability of juvenile justice related international instruments, particularly the ACRWC and the CRC, in Ethiopia.
International law does not recognize a specific mode of incorporation of international instruments leaving the room for States to choose their own way of incorporation. Because of this, modes of incorporation differs from one country to the other traditionally falling either in monism (mostly followed by civil law countries), where international law and domestic law are part of the same legal order by virtue of declaration made to that effect usually in the Constitution, and dualism (followed by common law countries), where international law is separate and not directly applicable in the domestic order unless incorporating/enabling legislation is passed to that effect.
Other modes of incorporation are also recognized by other scholars such as Cassese. One is, Automatic Standing Incorporation, whereby states declaring present or future international rules to apply without the need to pass statutes. This mode of incorporation resembles with the monist mode. The second, Legislative ad hoc incorporation requires the legislator to pass specific enabling statute regarding the treaty. The statute, commonly known as ratifying legislation usually include three or four provisions presenting ‘short title’, ‘ratification clause’, ‘scope of application’, and ‘effective date. The third mode of incorporation is called statutory ad hoc incorporation, which requires the legislature to convert every detail of treaty provisions in to national legislation.
The mode of incorporation in Ethiopia appears confusing seemingly utilizing all above discussed modes. Article 9(4) of the FDRE Constitution recognizes the monist mode or automatic standing incorporation mode by declaring every ratified treaty to form ‘an integral part of the law of the land’. Therefore, the Constitution enabled international treaties to apply directly as part of the laws of the land up on ratification.
The dualist or legislative ad hoc, or statutory ad hoc modes of incorporation also seem to exist in Ethiopia. The Federal Negarit Gazeta Establishment Proclamation (the Proclamation) requires publication of every law either duly enacted domestically or ratified to have legal effect. Based on this the practice developed incorporation of treaties in the form of statutory ad hoc mode
However, there are international instruments that were not published in the Negarit Gazeta such as the ICCPR. So, does this mean that the ICCPR and other international instruments lack legal effect? If so, doesn’t this contradict with the Constitution which makes ratified international treaties an integral part of the law of the land? The Constitution itself is proclaimed in the Negarit Gazetta in 1995, one year later after coming in to force. Does this also mean that the Constitution lacks legitimacy before its publication? Could the Proclamation serve as a source of legitimacy for the Constitution in the presence of the supremacy clause of the Constitution?
The tension is between legitimacy and publicity. If the Proclamation is considered as a source of legitimacy, then the mode of incorporation remains dualist irrespective of the Constitutional statement making ratified treaties integral part of the laws of the land. However, the Proclamation must be understood as having publicity effect. This is because if the Proclamation is the source of legitimacy it must be the supreme law of the land rather than the Constitution. Moreover, those unpublished instruments such as the ICCPR are applicable as it is evident from the conduct of the country such as reporting to the treaty body.
The publicity effect of the Proclamation has implication on the mode of incorporation. Since the Constitutional assertion making treaties an integral part of the law of the land is above all provisions and since non-publication does not entail illegitimacy, then the mode of incorporation in Ethiopia is monist or automatic standing incorporation. Fortunately the CRC was published in the Negarit Gazeta though not the ACRWC, but it doesn’t matter since their ratification guarantee their legitimacy.
As far as hierarchy of international human rights instruments in Ethiopia is concerned it is also debatable. However, the debate takes the Constitution as a parameter to determine where those instruments belong. Are they superior or subordinate or at equal position with the Constitution? For some scholars such as Takele, international instruments ratified by Ethiopia are subordinate to the Constitution. This assertion stems on Article 9(1) of the Constitution that provide for the supremacy of the Constitution.
Some others such as Ibrahim, on the other hand, confer treaties at least equal or superior position to the Constitution. Ibrahim forwards two reasons. First, treaties dealing with fundamental rights and freedoms stand at equal footing with Chapter Three (Articles 13 – 44) of the Constitution, which prescribe the same rights and freedoms. Second, treaties also have better position than the Constitution that the Constitution itself under Article 13(2) relies on principles of international instruments so as to interpret provisions of fundamental rights and freedoms.
It is not logical to treat provisions of the Constitution (Chapter III) which are similar with some international treaties subordinate to other provisions of the Constitution. Thus, the supremacy clause under Article 9(1) treats all the provisions of the Constitution at the same footing which confers indirectly equal status to similar treaties. Besides, international law also confer international instruments better position by stating that a claim made by States invoking domestic legislation to override international obligation is illegitimate. Therefore, hierarchically speaking the CRC and the ACRWC hold equal or better position to the Constitution. The implication is that implementation of the Constitution and other instruments to its position require high degree of concern and engagement. So does for the rules and principles provided in the CRC and ACRWC concerning juvenile justice.
The cumulative reading of Articles 10(2) & 13(1) of the FDRE Constitution imposes responsibility on the main branches of federal and regional governments to enforce chapter III. Enforcing this chapter indirectly entail enforcement of treaties with the same nature. Besides, Sub-Article 2 of Article 13 requires interpretation of part of the Constitution dealing with fundamental rights and freedoms to base on the principles laid down under international instruments. Therefore, application of instruments such as the CRC and ACRWC requires special attention like the Constitution does. However, to the researcher’s knowledge and experience no single instance is observed requiring special attention to apply the CRC and ACRWC with respect to juvenile justice related violations.
Different potential problems hindering application of the CRC and ACRWC were identified in one study. First, till to date any of other international instruments, except for the CRC, are not published on the Negarit Gazeta. So, it is believed that courts are ignorant to take judicial notice of these instruments since judicial notice is believed to depend on publication on the Negarit Gazeta. This is not however, a valid argument for the above mentioned reason that publication on the Negarit Gazetta does not give legitimacy except for publicity effect. Second, human rights standards enshrined under international instruments are more or less included in domestic legislations, such as in the Constitution and in the Criminal Procedure Code. So, no value is added to refer to international instruments. Third, lack of qualified practitioners so as to apply international instruments is also another factor. Besides, in addition to failure to make those instruments accessible by publishing on the Negarit Gazeta, no translation in the working language is made hindering practitioners to apply international instruments.
All the discussion in relation to the status and application of international instruments, particularly the CRC and the ACRWC, is aimed to magnify Ethiopia’s obligation in achieving juvenile justice standards. Among others the important part is aligning all the laws in line with Articles 37 & 40 of the CRC and Article 17 of the ACRWC. The critical evaluation of laws concerning juvenile justice in Ethiopia revealed that the transposition of relevant rules and principles of juvenile justice provided in the CRC and ACRWC is not sufficient.