Safe Guard Mechanisms Against Human Right. Violation in the Implementation of State of Emergence Power in Ethiopia


Academic Paper, 2012

18 Pages


Free online reading

Tables of contents

I. Abbreviation

II. Introduction

1. Conceptual and historical overview of state of emergency
1.1. Definition and Development
1.2. Salient Features of State of Emergency

2. Justification for Declaration of State of Emergency

3. Impacts of State of Emergency
3.1. Positive Impacts
3.2 Adverse Effects of State of Emergency
3.2.1. Derogation and Limitation of Fundamental Rights
3.2.2. Taking Informal Measures during Emergency Period

4. Safe Guarding Mechanisms against Human Rights Violation
4.1. Stringencies of Substantive requirements
4.2. Procedural Requirements
4.3. Institutional Set up and Their Roles
4.3.1. Judicial Review Power of the Courts
4.3.2 Parliamentary oversight and State of Emergency Inquiry board
4.3.3. House of Federation and Council of Constitutional Inquiry
4.4. Sustaining Non- derogable Rights
4.5. Precautionary Measures during state of emergency
4.5.1. Principles of proportionality
4.5.2. Principle of Non- discrimination
4.5.3. Principle of Consistency

III. Conclusion

IV. References

Abbreviations

Art.Article

ConstConstitution

CCI..Council of Constitutional Inquiry

FDRE...Federal Democratic Republic of Ethiopia

HOF...House of Federation

HPR...House of People representatives

ICCPR..International Covenant on civil &Political Rights

UDHRUniversal Declaration on Human Right

I. Introduction

The issue of human security and human right are mostly in a direct tension with each other's even though guarantying human Security is indirectly protecting Human rights. The case in which the proponent of human rights and security community come to intense tension is in the time of declaration of states of Emergency. This is mainly due to the concentration of power in the hands of executive and entitlement of the security officer to take the necessary measure to restore and normalize peace, order and sovereignty of the nation in waiving the fundamental rights recognized under the domestic laws and international covenants as well. Hence, unless some mechanism that can regulate and counter balance both interests come into being their inconsistency overwhelmingly come into being than their complementariness.

Therefore, among other this paper has the objective of finding out and analysing how the declaration of state of emergency adversely affects human rights. It also intends to analyse the way and modalities by which human right violation is safe guarded against the executive power. Beside this, the paper goes to the extent of exploring the mechanism of counter balancing the need to guarantee human security and violation of human rights during state of emergency in Ethiopia.

Accordingly, this paper is divided in to four sections of which the first one introduces the conceptual frame work, historical evolution, and the salient feature of state of Emergency.

The second section uncovers the justification for the employments declaration of states of emergency. Likewise, the third one deals with the positive and adverse effects of state of emergency.

The last section is devoted to analyse the legal and institutional frame works that intend to safeguard against human right violation. Some of these frame works are:-imposition of stringent procedural and substantive requirements, empowering some institution to regulate the declaration i.e. courts, emergency board, HOF, CCI, HPR etc., making some rights non-derogable and obligation to pursue some general guide lines to be taken into accounts to safe guard arbitrary overriding of human rights.

1. Conceptual and historical overview of state of emergency 1.1. Definition and Development

The term "state of emergency" has different synonyms in different legal systems. For instance, state of war in Italy and Netherlands; state of siege in France, Belgium, Argentina, Brazil, and Chile; state of public danger in Italy (Northern Ireland Review, vol 28, No.1:163). Despite its difference in saying these designations convey more or less similar idea.

The term "Martial Law" is also an equivalent designation for state of emergency under most common law countries. State of siege is recognized in almost all civil law countries of continental Europe and Latin America. State of siege and martial law are two edges of the same sword and in action they cannot be hardly distinguished (Human Right Law vol.5, no.l: 4).

It is expedient to define what martial law and state of siege mean before directly defining what state of emergency mean. Martial law is a law which governs action of the military in order to deal with an emergency amounting to the state of war; they impose restrictions and regulations upon the civilian in their own territory (Northern Ireland review, vol 28, no.1:165). There are four elements which are incorporated under this definition. First, there should be a state of war. Second, the action is made by military. Thirdly, the action is targeted to restrict or regulate the rights of the civilian. Fourthly, the action should be within the territory of the state.

Martial law differs from military law in that military law governs and regulates members of armed forces while martial law extends military jurisdiction to civilian population. Besides this, military law may govern military rules outside ones jurisdiction while martial law confines to its own jurisdiction.

State of siege, as defined in 1791 in French, is a situation in which the civilian authorities were dominated by the military as a result of blockade or encirclement and can no longer send or receive communication. There are three elements included in this definition. First, there should be encirclement as a result of war. Second, there is no way to send or receive communication).Thirdly, all posts are transferred from civilian to military. The demarcation between martial law and state of siege lies as to the gravity of danger that will justify the declaration. In case of state of siege, the threat is graver than the condition in which martial law is declared (Rosthel, 1990: 18) When it comes to the definition of state of emergency, different legal scholars define it differently. State of emergency is defined as those cases in which a government suspends certain rights of the population based on the actual or alleged occurrence of extraordinary circumstances such as war or domestic disturbances endangering the state (Rosthel, 1990:176). This definition has two main elements. First, there should be actual or alleged occurrences of extraordinary circumstances such as war or domestic disturbances endangering the state. The allegation as to the occurrence of extraordinary circumstances should be imminent as to its happening but not such speculation of preventive nature. As to the description of circumstances which justify declaration of emergency, war and domestic disturbances are only mentioned. Besides these mentioned, other circumstances such as natural climates, economic crisis, etc. should be mentioned. Secondly, the government may suspend certain rights due to these circumstances. The measure taken should be proportional to the necessity of the case. This qualification is absent in this definition (Ibid).

The second definition of state of emergency is given by the Paris minimum standard of human right. They define it as:- "an exceptional situation of crisis or public danger, actual or imminent, which affects the whole population of the area to which the declaration applies and constitutes threat to the organized life of the community of which the state is composed (American Journal of International Law vol.79:1073). This definition is more comprehensive and reflects modern democratic state idea as to what state of emergency means. This definition constitutes four major elements. First, there should be an exceptional situation of crisis or public danger. Secondly, this should be either actual or imminent. Thirdly, it affects the whole population or the whole population of the area to which the declaration applies. Fourthly, the threat should be to the organized life of the community of which the state is composed.

An issue of state of emergency comes up with the evolution of state centric approach of security agendas. As stated here in above it came up with some different conception but similar purposes. But in the earliest period it has no clear specifity.it intertwined with martial and military laws but gradually it began incorporating the civilian, too (Rosthel, 1990:176).The concepts which intends to keep the survival of the state gradually devolved to the protection of human security from eminent dangers (Ibid)

1.2. Salient Features of State of Emergency

There are variations as to what constitutes state of emergency under different legal systems. This fact makes difficult, if not impossible, to arrive at the common feature of state of emergency which is applicable to all legal systems. But any modern democratic state will not deny the following as typical feature of state of emergency. First, state of emergency presupposes the existence of imminent or actual danger threatening the life of the nation. Secondly, emergency lasts only temporarily not permanently. Thirdly, during emergency period, there is concentration of power on the executive branch. Fourthly, the danger threatening the life of the nation should directly or indirectly affect the whole community. Fifthly, emergency measure is taken as last resort (American Journal of International law vol.79: 1073).

2. Justification for Declaration of State of Emergency

Justification for declaring state of emergency is to mean the rationale behind declaring emergency. There is no unique and water tight grounds for declaration of states of emergency in the world. Different states and international legal documents employ divergent justification for declaration of state of emergency. However, the most common kinds of justification for declaration of state of emergency are public interest, public safety, public order, public morality, national security and protection of others (J.O rely, 1993:173).when we analyses these all grounds it seems a reflection of state, public and individual interests. Therefore, the justification for declaration of states of emergency is to protect the general interest which is common to all people of the respective states and individual interest in some instances.

When we analyze the justification for incorporation of the state of emergency under the Ethiopian legal regime one has to analyze the ground for declaration of states of emergency under the Ethiopian laws, particularly the FDRE constitution.

According to article 93(1) (a) of FDRE constitution, there are four grounds in order to declare state of emergency. They are: a) when there is external invasion; b)when a breakdown of law and order exists in which the regular law enforcement agencies and personnel cannot control; c) when there is a natural disaster; d) when there exist amount break of epidemics that endangers the lives of the population. Unless one of the above grounds occurs, the council of Minister cannot declare state of emergency. They serve as a condition precedent for declaring emergency.

Therefore, from this one can conclude that the reasons for which the declaration of states of emergency required is to enable the states to overcome eminent threat that affects the sovereignty and constitutional order of the states. Beyond this, it has also the intention of guarantying human security.

3. Impacts of State of Emergency

As stated here in above the declaration of states of emergency has various impacts: positive or negative impacts. The impacts of state of emergency become positive or negative based whether you consider yourself as security community or human right proponent. This is to mean that the positive impacts for the security community are negative impacts for the human right activist and vise verse. This section tries to assess the positive impacts of states of emergency from the perspective of human rights activist and the adverse one from the perspective of security community.

3.1. Positive Impacts

Declaring state of emergency has its own merits and demerits. The merits we see are considered as positive impacts of declaration of state of emergency. The merit is it may to some extent avoid abusement. It also resulted in securing public peace and order. This in turn brings a condition that assures the normal function of institution based on coherent system of values and principles (M.F.Forest, 1987:271). Moreover, it helps the states to extra ordinarily measures that secure national sovereignty.

3.2 Adverse Effects of State of Emergency 3.2.1. Derogation and Limitation of Fundamental Rights

Derogation of human rights is a temporary deviation in the way of detracting from many of the rights provided in the law, international or domestic law (Steiner, 2000:144).Conde defines derogation as 'the act of a state suspending the application and enjoyment of certain human rights upon its declaration of a state of public emergency affecting the life of a whole nation' (Conde, 1999:34-35). Derogation allows a state to take necessary measures to deal with the emergency without fear of violating human rights norms during the derogation period.

Hence, when we look these acts from the perspective of human rights community, derogation affects the temporary freedom and legal rights of these people adversely.

3.2.2. Taking Informal Measures During Emergency Period

As stated here in above, one of the adverse effects of the state of emergency the concentration of power in the hands executive and the shrinking of the formal law enforcing procedures. The council of ministers has the power to take measures to avert the danger during state of emergency period (FDRE Constitution, 1995: Article 93(4)).

This power is exercised even with some encroachments of fundamental individual rights. The suspension of democratic and political rights may not be legitimate in normal course of time. The procedural and the substantive due process of law will be waived and all measures necessary to remove or restore the conditions that had required the proclamation of state emergency will be implemented (Pizard, 1966: 583).

Primarily, the measures are targeted to attain its objective, to restore peace and order, even in some violation of human rights exists. When a nation is at war many thing that might be said in time of peace are such a hindrance to its efforts that their utterance will not be endured so long as men fought (Pizard ,1966:583).Therefore, the irregularity and informality of measures and procedures are some of the negative effects of declaration of states of emergency.

4. Safe Guarding Mechanisms against Human Rights Violation

As stated here in above during state of emergency there is a tension between guarantying human security and protecting individual rights. The executive consider itself as states of exigencies and resorted to informal measurements that enable it to secure the livelihood of the nation. However, this resulted in violation of the fundamental rights of the people. Unless there is counter balance mechanism between the two, the survival of the nation will not be rescued. Hence, different countries set different safeguarding mechanisms to counter balance the tension between human right and security communities. Some of these are imposition of stringent substantive and procedural conditions, setting different institutional and legal frame work for check and balance, making some right legally non-derogable, setting standard for some Precautionary measures during state of emergency and others. Therefore, under this section the existing Ethiopian scenario will be assessed as follow

4.1. Stringencies of Substantive requirements

State of emergency is not something that can loosely and arbitrarily proclaimed rather it requires stringent preconditions to be fulfilled. The conditions required for declaration of state of emergency & derogation from fundamental human rights exists only if prescribed under international or national laws. Accordingly, art 4 of the ICCPR set conditions i.e. strict exigencies that threaten the life of the nations, the official proclamation of emergent situations and proximate threat that affect the existence of the nation. Likewise the substantive requirements under the FDRE constitution for declaration of states of emergency are also stringent and restricted. This in turn prohibits arbitrary and unjustifiable suspension of human rights by the executive organs. These requirements are also intentionally made as mechanism to safe guard the violation of fundamental human rights by the security community. The preconditions for declaration of state of emergency in Ethiopia as enshrined under Art.93 (1) are: - the existence of external invasion, breakdown of law and order which affects the constitutional order that cannot be averted by normal law enforcing instruments and personnels. Beside this, state of emergency is declared by the federal government and state administration in a situation where there is natural disaster and epidemics. According to this provision of FDRE constitution the mere existence of external invasion or break down of law and order is not sufficient to declare state of emergency. This situation is expected to affect the constitutional order of the country and can note be regulated by the normal legal process and security officer. The problem still sustained is that there is no clear definition and elements that show the extent and scope of these requirements. By the same token, the personal and institution to determine the fulfilments of these pre-condition is not independently set. But art.93 (1) a &b empower the council of minster of the federal government and the state executive to declare state of emergency upon the fulfilment of prescribed pre conditions. This indirectly shows that so long as empowered to do so the council of minster and state executive vested with the power to assess the existence of the requirements set ahead. The natural disaster and epidemic which become grounds for declaration of states of emergency by the state and federal government are not cumulated with breakdown of constitutional order and difficulties to avert it by normal law enforcing agencies and personnel. Hence, does this mean that in cases of natural disaster and epidemic the government can declare state of emergency even though it is avertable in normal circumstances? This does not seem true. In one case declaration of state of emergency resulted in derogation of fundamental rights which can be politicized. Even if the FDRE Constitution silent as to the cumulating of this with constitutional disorder and unregulated by normal proceeding and institution, the international legal document Ethiopia is a party can fill this gap.

In genera,l from this one can comprehend that the constitution tries to counter balance guarantying human security with human right protection by imposing stringent requirements, reducing the grounds of derogation, and specifying the grounds for declaration of state of emergency to for non-political reason such as natural phenomena.

4.2. Procedural Requirements

The procedures through which the state of emergency will be proclaimed, undergone and regulated has also used as a mechanism to safe guard human rights against violation. When we analyse the procedure set under art.93 (2) (a) the FDRE constitution. Upon the fulfilment of the substantive conditions the declaration of state of emergency in the form of decree is a pre-request, this decree is expected to be submitted to the HPR if the house is on session for approval without any delay within 48 hours. If the HPR is not in session the decree will have to be approved within 15 days of its adoption. The period for the state of emergency is up to six months, with the possibility of renewal every four months by the HPR (FDRE Const,1995:Art.93(2 a & b).But the constitution is not clear as to the grounds on which the HPR approve or repeal the decree. However, from the close reading art.93 one can comprehend that the constitutions set the substantive requirements and the fulfilment and unfulfillments of these elements that enable the HPR to approve or repeal the decree of emergency. Similarly, there is also a controversial view as to whether the FDRE constitution implies notification or not? Some said the FDRE constitutions contradict the ICCPR provision that call for notification of the declaration of emergency and entails defacto one (Minassie, 1996:49). But as to the writers of this paper, since there is no provision that clearly avoid notification so that we cannot say the constitutional provision contradict international obligation. Secondly, the constitution entails the declaration of the emergency decree. Declaration constitutes the announcement of some things. This declaration on the other hand means what we call as notification under the ICCPR. However, the Constitution does not state the contents of the decree. Decree is a by law that can be passed by the minsters. Even if the constitution is not clear as to its content one can deduce from the international obligation Ethiopia owe to the covenants and optional protocol there to and some of the non-binding international guide line i.e. sircusa & Paris minimum standard to get further illustration as to the types and contents of notification. From these documents one can notice that notification can be made for domestic and international community to take care itself and its interest. It can also show the beginning of the emergency situation and its termination (Chatterje, 1996: 120).

4.3. Institutional Set up and Their Roles

To balance the need of states to guarantee human security & protection of human right violation different countries use different governmental institutions. There is no consensus among legal scholars as to suitability of single organ during state of emergency period. The three kinds of thought as to the suitability of different organs to see cases involving the emergency power at issue during emergency period. The first school propounds that there should be judicial control during state emergency period as the grounds for declaration of emergency. The second school contends that the emergency power should be controlled parliaments or executives. The final category contends that there should be some specialized agencies to oversee and control state of emergency (Oraa, 1991: 41)

In this section, the writers will analyse the roles of various institutions i.e. the HPR, HOF, CCI, Court and emergency inquiry board in in counter balancing the need to guarantee human security and protection of human rights.

4.3.1. Judicial Review Power of the Courts

As stated here in above, some country empowers the court to regulate state of emergency through judicial review. The definition of judicial review differs from systems to systems. Judicial review may refer to assessing the constitutionality of the acts of different administrative organs or legality of administrative actions or reviewing the correctness of judicial organs' decisions (W.T.Mayton, 1993:435).From this, one can comprehend that the court can play paramount roles in regulating states of emergency issues in two ways. On one hand, in some country the court can check the constitutionality of declaration and actions taken by executives during state of emergency. On the other hand, the court can persecute the perpetrator of human rights violation to remedy human right violation.

In cases of Ethiopia as per art.37 the courts are vested with the power to litigate justiciable subject matters. It is also duty bound to observe and implement the constitutionally recognized rights (FDRE Const, 1995:Art.9 (2), 13(2)). However, as enshrined under art.62 (1) of FDRE constitution the Ethiopian courts are excluded from checking the constitutionality of the actions and laws of government officials so long as the power to interpret the constitution is vested in the HOF. This means the Ethiopian court has no power to assess the constitutionality of the grounds for declaration of state of emergency and measures taken by the federal council of ministers and state administrative in state of emergency. But this doesn't mean that the court has no any role to safe guard human right violation during state of emergency. As stated here in above the court is duty bound to litigate justiciable subject matters. Art.93 (6) (d) of FDRE constitution also shows as the perpetrators who in humanely treated people during the emergency situations should be prosecuted before courts of laws. Hence, the courts can rectify and deter others from violation of human rights during state of emergency by rendering proper decision to perpetrators.

4.3.2 Parliamentary oversight and State of Emergency Inquiry Board

Parliamentary oversight is the process by which the parliament oversees the legitimacy of the action of the executive organs and takes corrective measures to rectify the improper acts (P.G Kopteya, 1973:68). In some country this power also extends to regulation of state of emergency. Most legal scholars argue that parliament is an appropriate body to check and control the discretion of the executive during emergency period because the members of the parliament is deemed as if they represent majority people interest (Human Right Journal Vol5.No:4)

With this background, when we assess the roles of the Ethiopian HPR in states of emergency, the HPR can safe guard and protect human rights violation in different mechanisms in controlling the declaration and checking the legality of the action taken during that period. These are through approving, repealing and renewing the decree of state of emergency, establishing the emergency inquiry board to assess the measures taken during state of emergency (FDRE Const,1995: Art.93 (2a,5,6). As one noticed from these provisions the highest authority to control the grounds for declaration and the measures to be taken by the executive organ is vested on the HPR. The provision states as the HPR approve or repeal the decree. Even if the grounds for approval and repeal are not clearly stated one can notice that the parliaments can approve if confirm the existence of conditions set under art.93(la) and international instruments Ethiopia is a party and repeal in case where the house confirm these pre-conditions are not available. The grounds for renewal of the decree is not also clearly stated but from the close reading of FDRE constitution we can deduce that the house renew it if it confirms as the substantive elements which become a ground for approval are not still lifted .

Therefore, through the above mentioned mechanism, the HPR control the legitimacy of the decree of states of emergency declared by the council of ministers. Beside this, the HPR can also oversee the legality of the measures which are taken during state of emergency through the emergency inquiry boards. So that the inquiry board sort out the name of arrestee, inspects the in human treatment by the security officers, recommend corrective measures to the prime minster and ensure the prosecution of the perpetrators(FDREConst,1995: Art.93 (6).

4.3.3. House of Federation and Council of Constitutional Inquiry

As stated here in above, the HOF is the representative of each nation and nationality in Ethiopia which vested among other with the power to interpret the constitution or to adjudicate constitutional litigation (FDRE Const, 1995: Art.61 (1) &62(l).The main tension between the human security and human rights in state of emergency is the constitutionality of the decree of states of emergency and derogation of fundamental rights recognized by the FDRE constitution. Therefore, the HOF as none-judicial constitutional review organ checks the constitutionality of the emergency declaration and action which are taken by the security officers depending on the inquiry and recommendation proposed by the CCI. The roles of this institution is further evidenced by the 2005 general election and subsequent declaration of state of emergency and application of suit before Federal First instance Courts by which the court refers to the HOF for interpretation to check its constitutionality where the HOF ruled as the acts of the prime minster is constitutional and proper to the overcome the potential threat threatening the state at that moments (Chi Mgbak, 2008:72)

4.4. Sustaining Non- derogable rights

The other mechanisms by which the human right violation by the security community will be safe guarded is by protecting some essential rights from being suspended even during state of emergency. This absolutely bares the executive from derogating these fundamental rights under the banner of state of emergency and guarantying human security. However the rights which become non-derogable differ from country to country and from domestic to international legal regimes. The FDRE constitution in its art. 93(4) (C) also lists few rights from which the council of minster may not derogate in time of emergency. These are prohibition against inhuman treatment, rights to equality, rights of nation and nationality pertaining to self-determination, the rights to speak, to write, to develop its own language, to express, to develop and to promote his own culture and preserve its history. Likewise, the numen culture of the FDRE government is among the right reserved intact during state of emergency.

The FDRE Constitution does not recognize the right to life, prohibition of torture, freedom of religion, the non-imprisonment for contractual obligation, non- retroactivity of criminal law and recognition as a person before the law as non-derogable rights. Despite this, the Constitution adds to the list a set of rights that are not embodied in the ICCPR, the right to equality, self-determination and prohibition of trafficking in person. As to those area not listed under FDRE constitution since Ethiopia is a signatory to the ICCPR covenant and this law become part and parcel of Ethiopian laws it is presumed that those ICCPR lists are parts of non derogable rights to Ethiopia.

Therefore, as to these afore mentioned rights the FDRE constitution set a legal frame works by which the executive is deterred from suspending these rights even during state of emergency and used as a mechanism to regulate the power of executive during state of emergency.

4.5. Precautionary Measures during state of emergency

The violation of rights during state of emergency to attain public order and safety is also regulated by setting some standards or principle in taking measure by the security officer to sustain constitutional order and to avoid arbitrariness. Some of these guidelines are: - . Principles of proportionality, non- discrimination, and Consistency. In this section we will analyse the place and implication of these standards in counter balancing human rights protection and guarantying human security in Ethiopia.

4.5.1. Principles of proportionality

As stated here in above, the main purposes of the declaration of state of emergency is to avert the potential threat to the sovereign nation and to guaranty human security. Hence, the security community freed from pursuing normal legal proceeding to tackle the threat and to take measures. But the measures to be taken should have the qualification of necessity and proportionality. This aims at deterring the executive organs from taking arbitrary and disproportionate measures that grossly violate human rights. When we analyse art.93 (4b) of FDRE constitution it states that "...the executive can suspend rights to the extent necessary to avert the dangers" From this one can comprehend that the rights suspended should be proportional to the threat at hand. On the other hand the measures to be taken should also be proportional to the threat to be averted. In augmenting this position Nowak points out that "The degree of interference and the scope of measures.must Stand in reasonable relation to what is actually necessary to combat An emergency threatening the life of the nations" (Nowak, 1993:84) Proportionality constitutes various factors i.e. Severity, duration and geographic scope. This to mean that the measures should be equal with the danger, it should also stay only for the time the danger exists and should cover only the area where the potential threat is prevalent. Therefore, the proportionality principle regulates human right violation and counter balances it with the public security agenda.

4.5.2. Principle of Non- discrimination

The other guidelines that regulate the arbitrariness of administrative action during state of emergency are the obligation imposed on the security officers to protect all people indiscriminately. Art. 4(1) of the ICCPR prohibits discrimination on the bases of six grounds namely:-race, colour, sex, language, religion and social origins. When we assess the FDRE constitution in light with the above mentioned principle art 25 clearly prohibits discrimination on the bases of race, nation, nationality, or other social origin, colour, sex, Language, religion, political or other opinion, property, birth or other status. Accordingly, the law guarantees equal protection to all persons on these grounds indiscriminately. Beyond all, art 93(4c) of the FDRE constitution make this provision non derogable and un limitable.

As a result, the security community cannot suspend and discriminate people in giving protection and taking measures. But this does not mean that discrimination in treatment is totally impossible during state of emergency since, discrimination other than grounds mentioned under art.25 is not prohibited. But this shows the FDRE constitution set a mechanism that safe guard in obliging the security community to treat people indiscriminately during state of emergency on these parameters.

4.5.3. Principle of Consistency

This principle obliges as state parties should not be inconsistent with their other obligation under international laws (Brownlie, 1992:128).If state consistently committed to the regional and international commitments all action and relation can be performed properly so as not hidden from the international community. Ethiopia is a party to majority of the international obligation dealing with human right issues. As per art 9 Of FDRE constitution the international laws ratified by Ethiopia become part and parcel of the domestic laws of Ethiopia despite controversy as to its status with our constitution. With regard to the application and interpretation of the fundamental human rights, the FDRE constitution clearly set that the organ empowered to interpret it should make it in a way that it is consistent with the international obligation i.e. UDHR, ICCPR and other international documents adopted by Ethiopia.

From this one can conclude that as the Ethiopian security community is duty bound to act in conformity with the international obligation, it will be curtailed from taking arbitrary measures domestically so that the human right violation will be curtailed.

Conclusion

States of emergency can be conceptually defined differently. But the constituent elements of these all definitions convey an exceptional mechanism used to avert actual and eminent threat which devolved from the state centric approach to the extent of guarantying human security in extra-ordinary manners. It has the characteristics features of being designed for treating imminent or actual danger lasts only temporarily not permanently, concentration of power on the executive branch, the danger threatening the life of the nation should directly or indirectly affect the whole community and the measure to be taken is as last resort.

The grounds for declaration of state of emergency are different depending on legal system, ideology and other factors. But the most common of them are public interest, public safety, public order, public morality, national security and protection of others.

State of emergency has both negative and positive impacts if one assesses its effects from the perspective of security community and human right proponents. As to the security community states of emergency give them an extra ordinary power that enables them to control everything as much as possible to restore peace and order. But for the human right activist the concentration of power in the hands of executive is considered as demise of human rights. They say this derogates, limit human rights and pave the way for irregular proceeding so that human right is easily violated by state of emergency.

The balance between human right and human security protection is safeguarded by different mechanisms. It begun from the imposition of stringent procedure and substantive requirements .It is also safe guarded by various institutions like Court, HOF, HPR,CCI and emergency board. Beyond all some special rights are absolutely protected from being derogated at any circumstances. The last not the list Safe guard mechanisms against human right violation in the Implementation of State of emergence Power in Ethiopia is setting some standard on which action will be taken by the executive during state of emergency i.e. Proportionality, no-discrimination and principle of consistency.

Iv. References Books

Brownlie.l.(1992). Basic Documents on Human Rights (3rd ed) Oxford: Clareandon press

Chatterje,N.C.(1966) Emergency and Law.Asia publishing house :London

Conde HV (1999) A handbook of International Human Rights Terminology (NP)

Daes(1990).Freedom of the Individual under the Law (an analysis of The article 29 UDHR)(UN):Newyork

...Declaration of 1994, American Journal of International law, vol.79

Forest M.F(1987). International Human rights and Laws(NP)

J. Oraa (1992).Human Rights in State of Emergency in International Laws,Oxford: Clareandon press

Kopteya P.J.G, (1973).Introduction of Laws EC laws.London: sweat &Maxwell

Mayton W.T. (1993). Administrative laws (NP)

..Northern Ireland law review (1977) .vol 28, London: oxford university press

Nowak Manfred (1993) UN Covenent on Civil and Political Rights: CCPR ommentary,Kehlem Rheing Straus Berge: arlingtone

Pizard (1966).Fundamental Rights and Constitutional Remedies in Pakistan:all Pakistan legal decision:Lahore

Rosthel Led (1990) Constitutionalism and Rights ,Columbia university press:new York Steiner, HJ & Alston, P (eds) (2000) International human rights in Context: Law, politics and Morals Oxford:Oxford University Press.

Journals &others Documents

Chi Mgbako. (2008). Silencing the Ethiopian Courts: Non-Judicial Constitutional Review and Its Impact on Human Rights. Fordham International Law Journal Vol. 32

...Declaration of 1994, American Journal of International law, vol.79

Haile Minassie.(1996).The New Ethiopian Constitution :lts Impacts on Unity, Human Rights and Developments Sufflllk International law Review vol 20

International Covenant on Civil and Political Rights (ICCPR) (1966)

..Northern Ireland Law Review (1977) .vol 28, London: Oxford university press

Nowak D.R (1993) UN covenants on civil and political Rights (ICCPR Commentary). Strasbourg: Arlington

The Federal Democratic Republic of Ethiopia Constitution (1995).

The Paris Minimum Standards of Human Rights Norms in States of Emergency, 1984 (Unofficial documents)

The Siracusa Principle on the Limitation and Derogation of provision of International Covenant on Civil and Political Rights, 1984 (UN official)

[...]

18 of 18 pages

Details

Title
Safe Guard Mechanisms Against Human Right. Violation in the Implementation of State of Emergence Power in Ethiopia
Author
Year
2012
Pages
18
Catalog Number
V906272
Language
English
Tags
safe, guard, mechanisms, against, human, right, violation, implementation, state, emergence, power, ethiopia
Quote paper
Natoli Feyissa (Author), 2012, Safe Guard Mechanisms Against Human Right. Violation in the Implementation of State of Emergence Power in Ethiopia, Munich, GRIN Verlag, https://www.grin.com/document/906272

Comments

  • No comments yet.
Read the ebook
Title: Safe Guard Mechanisms Against Human Right. Violation in the Implementation of State of Emergence Power in Ethiopia



Upload papers

Your term paper / thesis:

- Publication as eBook and book
- High royalties for the sales
- Completely free - with ISBN
- It only takes five minutes
- Every paper finds readers

Publish now - it's free