The Monist-Dualist Divide and the Supremacy Clause: Revisiting the Status of Human Rights Treaties in Ethiopia
Journal of Ethiopian Law, Vol. 23, No. 1, 2009
16 Pages Posted: 23 May 2009 Last revised: 20 Feb 2015
Date Written: May 22, 2009
This paper argues that the prevailing scholarship that has put the Constitution at the apex of any law (domestic or international) and treaties on equal footing with proclamations is a consequence of the mistaken approach which allows domestic law to determine the position of treaties at the national level. The contention here is that, unless the status of human rights treaties is analysed outside the four corners of domestic law, the analysis continues to be a self-fulfilling prophesy. Owing to the customary principles of good faith and pacta sunt servanda, domestic law cannot sit in judgment of its hierarchical interactions with international law. Any other approach would lead to domestic legislatures issuing a normative regime that not only denigrates but also violates international standards, automatically giving rise to states' international responsibility for violations of international law through legislative means. The starting point of the present enquiry is, therefore, to cut domestic law to size (without abandoning it) in the determination of its status vis-a-vis international standards, and to transcend domestic legal and institutional hurdles and analyse the place of international human rights treaties from the international law standpoint. This approach, arguably supported by the text of the Constitution and Ethiopian legislative and judicial practices, makes it evident that international human rights treaties ratified by Ethiopia are superior to proclamations and share equality of status with the Constitution. It would thus become impossible for latter laws to prevail over ratified treaties which are presumably consistent with the letters and spirit of the Constitution's Bill of Rights.
Keywords: Monism, dualism, Ethiopia, human rights, Treaties, hierarchy of laws, constitution, incorporation, transformation, domestic application, national law, international law
JEL Classification: K10, K30, K33, K39, K40, K41, K49
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