Ethiopian Yearbook of International Law 2016

The Ethiopian Yearbook of International Law (EtYIL), like many others in the field, is a peer-reviewed academic journal that publishes scholarly works of the highest standard in the field of international law broadly defined. However, unlike most journals, EtYIL is dedicated to those issues of international law that are of particular interest to the African continent in general and Ethiopia and the Horn in particular. EtYIL’s point of departure is the fact that these countries do not just lack adequate representation at the table where international law is made and interpreted; their ability to contribute to the evolution of international law is also severely constrained owing, in part, to their absence from the scholarly debate in the field. A key mission of EtYIL is therefore to provide a platform for purpose-oriented scholarly analysis and debate on issues of particular significance for these countries so as to enhance their capacity to contribute to this evolution. More generally, the Yearbook aims to contribute towards the long-term goal of rebalancing the narrative of international law in a manner that better reflects the diversity of its actors and subjects.

The scholarly consensus is that jus cogens emerged from the work of the UN International Law Commission on invalidation of treaties, and the International Court of Justice developed the concept of obligations erga omnes in its wake.

This study challenges that perspective by demonstrating that these concepts were developed to accommodate Newly Independent States during the decolonisation process. It takes issue with the recognised starting point of the development of jus cogens in the literature: the deeply problematic piece written by Verdross; and demonstrates that leading jurists of the 1960s recognised that jus cogens was “a political concession to the New States” rather than a technical imperative of the law of treaties.

The study considered the evolution of the litigation regarding Namibia before the International Court of Justice, demonstrating the communal interest which Ethiopia and Liberia sought to engage, so as to end the racist regime which South Africa instituted within its Mandate for South West Africa. The ultimate outcome, manifest in the dicta of the Barcelona Traction case, was to escape that specific litigation and transform the very fabric of international law, embedding a communal interest beyond the bilateralism of jus publicum Europeaum.

The author invites scholars to look anew to the sources of this communitarian interest and points to the writing of Judge Alejandro Alvarez as one possible staring point.

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.

The Government of Ethiopia started the process of accession to the World Trade Organisation (WTO) in 2003. The Memorandum of the Foreign Trade Regime (MFTR) was prepared and submitted to the WTO Secretariat in December 2006. The goods offer as well as the various information documents were submitted to the WTO in 2011 and 2012, and the services offer has been prepared. Nevertheless, since 2012 no tangible progress has been made, although there are now indications that the accession process may resume. Meanwhile, developments in the WTO have been ambiguous. On the one hand, the organisation will soon have 164 members and is thus approaching universal membership. On the other hand, the failure to conclude the Doha Development Round has prompted members to redirect their policy attention to negotiate and conclude trade agreements with trading partners on a bilateral or regional basis. Some observers have indeed suggested that the WTO may have outlived itself. Ethiopia thus faces the decision of whether and to what extent to prioritise multilateral or regional trade integration.

This paper analyses the potential implications of these alternative policy directions. To do so, the anticipated benefits and challenges of acceding to the WTO and of staying outside of the WTO are compared. The paper concludes that Ethiopia should revive the accession process and develop a comprehensive trade policy in which WTO accession should be a core element.

Africa is abundantly endowed with natural resources, such as minerals, oil and gas. To exploit those resources and bring them to the market, it has been necessary to involve foreign multinational extractive companies that have the required technical and managerial expertise. While the terms on which these companies undertook such projects were determined for long by brute force, the instrument of choice today is the web of treaties, contracts, and institutions that may be collectively termed international investment law. This article examines the complex relationship between this body of international law, on the one hand, and the sovereignty of states over their natural resources, on the other, from the perspective of African countries. Adopting historical, theoretical and jurisprudential analyses, this contribution argues that the competition between developed countries and developing countries for control of extractive resources defined both the content and the evolution of international investment law. This article further finds that contemporary international investment law significantly erodes the state’s sovereignty over its natural resources by, at the minimum, (1) limiting its legislative jurisdiction through the doctrine of internationalisation of the investment contract and stabilisation clauses, and (2) virtually eliminating its judicial jurisdiction through the almost uniform adoption of international arbitration as the means to settle investment disputes. The article concludes by calling on African countries to work together through their regional and continental institutions, develop common positions, conduct a comprehensive review of their respective bilateral and other investment treaties and related national legislation and natural resources contracts, terminate those that undermine their national interests or renegotiate them based on regionally- and/or continentally-harmonised policy frameworks.

The article considers how the Paris climate change agreement of December 2015 alters the position of countries regarded as ‘developing’ under the international climate change regime. It does this by comparing their position (both as contributors to the global response to climate change and as recipients of support under the Framework Convention on Climate Change and the Kyoto Protocol) with that under the Paris Agreement in the main areas of action by the international community to combat climate change. The article finds that there has been little change in some respects with the obligations of developing states to mitigate climate change and of developed states for the provision of climate finance and technology transfer not having altered significantly. Where the position of developing countries has changed markedly is in the clear expectation, expressed in several non-binding statements, that they should contribute to mitigating climate change alongside their developed counterparts with their contribution increasing progressively in line with the aspirational collective mitigation goal of zero net emissions during the second half of this century; and in the imposition of more exacting obligations to report on their actions with greater potential for pressure from peers and civil society to improve on their contributions as a result. In addition, adaptation, loss and damage, and capacity building are all given a higher profile in line with developing country demands during climate change negotiations that they should be given more weight.

South Sudan, which gained independence in 2011, has been engulfed in violence and conflict periodically since that time. The Intergovernmental Authority on Development (IGAD) has played a major role in brokering peace talks between the respective parties. This role, as well as the role of the United Nations Mission in South Sudan (UNMISS), which recently authorised, through Security Council Resolution 2304, the deployment of a 4000-member Regional Protection Force (RPF) to Juba is discussed. This piece aims to provide an insight into some of the challenges and legal developments associated with ensuring lasting peace, addressing (and preventing) the allegations of widespread violations of international law, as well as the internal armed conflict affecting South Sudan, in light of the nature of responses from the international community.