¹ These concepts are used interchangeably to denote a state in which several population groups with distinctive characteristics as to culture, ethnicity, religion and/or language live together.

² Events in the Horn of Africa and ex-Yugoslavia provide obvious examples but there are also less dramatic forms of secessionist movements in countries like Belgium and Canada.

³ See e.g. Capotorti, F., “Les développements possibles de la protection Internationale des minorits”, (1986) 27 Cahiers de Droit 247–248;Google ScholarGreen, L., “Internal minoritiés and their rights” in Kymlicka, W. (ed.), The Rights of Minority Cultures, Oxford, 1995, 261;Google ScholarSohn, L. B., “The rights minoritiés”, in Henkin, L. (ed.), The International Bill of Rights: The Covenant on Civil and Political Rights, New York, 1981, 271;Google ScholarTurk, D., “Le droit des minorités en Europe”, in Giordan, H. (ed.), Les minontes en Europe: droits linguistiques et droits de L'homme, Paris, 1992, 457.Google Scholar

⁴ See e.g. Capotorti, F., Study on the Rights of Persons Belonging to Ethnic, Religious and Linguistic Minorities, UN Doc. E/CN.4/Sub.2/384/Rev. 1, (1991), 12.Google Scholar The definition of the concept minority he proposes and which has an excellent reputation is formulated as follows: “[a] group numerically inferior to the rest of the population of a State, in a non-dominant position, whose members—being nationals of the State—possess ethnic, religious or linguistic characteristics different from those of the rest of the population and show, if only implicitly, a sense of solidarity, directed towards preserving their culture, religion or language.” See ibid., 96. It is obvious that according to him “the rest of the population” does not necessarily need to be a monolithic bloc. See also Adeno, A., “Individualism, communitarianism and the rights of ethnic minorities”, (1991) 67 Notre Dame Law Review 623;Google ScholarMurswiek, D., “The issue of a right of secession—reconsidered”, in Tomuschat, C. (ed.), Modem Law of Self-Determination, Dordrecht, 1993, 36.Google Scholar

⁵ See e.g. Gonidec, P. F., “Conflits internes et question nationale en Afrique: le droit á I'auto-détermination interne”, (1997) 9 Revue Africain de Droit International et Comparé 551 and the in the next note.Google Scholar

⁶ See e.g. Canefe, N., “Sovereignty without nationalism? A critical assessment of minority rights beyond the sovereign nation-state model”, in Sellers, M. (ed.), The New World Order. Sovereignty, Human Rights and the Self-Determination of Peoples, Oxford, 1991, 108;Google ScholarHannum, H., Autonomy. Sovereignty and Self-Determination, Philadelphia, 1990, 71; Sohn, op. cit., n. 3, 270;Google ScholarStavenhagen, R., “Human lights and peoples’ rights—the question of minorities”, (1987) Netherlands Journal of Human Rights 21;Google ScholarThornberry, P., “The UN Declaration on the Rights of Persons Belonging to National or Ethnic, Religious or Linguistic Minorities: background, analysis, observations and an update”, in Phillips, A. and Rosas, A. (eds.), Universal Minority Rights, Abo, 1995, 18;Google ScholarWoehrling, J. M., “Institutions européennes et droits linguistiques des minorités”, in Giordan, H. (ed.), Les minorités en Europe: droits Linguistiques et L'homme, Paris, 1992, 509.Google Scholar

⁷ See however Stavenhagen, op. cit., n. 6, 22 who states that the right to self-determination was initially also granted to “nations”.

⁸ Musgrave distinguishes for example between the “decolonization” definition of “people”, the “representative government” definition and the “ethnic” definition. We discuss the definition mainly from the angle of the relationship between “people” and “minority” and although similar issues are mentioned, we do not follow such a classification for our thesis. See Musgrave, T. D., Self-Determination and National Minorities, Oxford, 1997, 149–167.Google Scholar

⁹ Harhoff, F., “Self-determination, ethics and law”, in Alfredsson, G. and Macalister-Smith, P. (eds.), The Living Law of Nations: Essays on Refugees, Minorities. Indigenous Peoples and the Human Rights Other Vulnerable Groups In Memory of Atle Grahl-Madsen, Kehl, 1996, 174; Stavenhagen, op. cit., n. 6, 23.Google Scholar

¹⁰ Pomerance, M., Self-Determination in Law and Practice. The New Doctrine at the United Nations, The Hague, 1982, 14.Google Scholar

¹¹ Brownlie, I., “The rights of peoples in modern international law”, in Crawford, J. (ed.). The Rights of Peoples in Modern International Law, Oxford, 1988, 5. Harhoff argues in this respect “peoples is not a legal but rather a normative concept the definition of which relies mainly on ethnic, local and subjective parameters.” See Harhoff, op. cit., n. 9, 174.Google Scholar

¹² See e.g. the analysis in Turk, D., “Le droit des minorités en Europe”, in Giordan, H. (ed.). Les minorités en Europe. Droits linguistiques et droits de L'homme, Paris, 1992. 461–462. Nowak underlines in his evaluation of article I ICCPR that it is highly contested which ethnic or national groups would qualify as peoples.Google Scholar See Nowak, M., UN Covenant on Civil and Political Rights CCPR Commentary. Kehl. 1993, 22. See also below for further analysis and references.Google Scholar

¹³ Cristeseu, A.. The Right to Self-Determination, Historical and Current Developments on the Basis of UN Instruments, UN Doc, E/CN.4/Sub.2/404/Rev.I. 1983, 39. See alsoGoogle ScholarMcGoldrick, D.. The Human Rights Committee: Its Role in the Development of the ICCPR, Oxford, 1991, 15.Google Scholar

¹⁴ , McGoldrick, op. cit., n. 13, 15. Compare with A. Cassese, “The self-determination of peoples”, in Henkin, I. (ed.), The International Bill of Rights, New York, 1982, 95. Cassese argues that the travaux préparatoires of article I ICCPR would allow to conclude that “peoples” also include nations and ethnic groups. He adds however the double condition that an ethnic group would only have a right to self-determination if it assumes a dimension and importance comparable to the other components of the state and this in fact as well as in constitutional status. This, however, seems to jeopardize once more the possible recognition of a right of minorities to a (certain form of) self-determination since the constitutional status of a group is entirely dependent on the state of residence and its policy in this regard.Google Scholar

¹⁵ McGoldrick, , op. cit.. n. 13. 250.Google Scholar

¹⁶ For a judicial opinion acknowledging the possible overlap between minorities and peoples, see Supreme Court of Canada, In the Matter of s. 53 of the Supreme Court Act, RSC 1985, C. S-26; and in the matter of a reference by the Governor in Council concerning certain questions relating to the secession of Quebec from Canada, as set out in Order in Council PC 1996–1997, dated 30 September, 1996, para. 124.

¹⁷ Margalit, A. and Raz, J., “National self-determination”, in Kymlicka, W. (ed.), The Rights of Minority Cultures, Oxford, 1995, 81–85. See alsoGoogle ScholarMcCorquodale, R., “Self-determination: A human rights approach”, (1994) 43 International and Comparative Law Quarterly 866–867. The latter author expresses the preference not to limit the concept people to a purely territorial concept but to fill it in rather cultural-ethnically. The factors which he considers determining to decide whether or not a certain group is a people with a right to self-determination include the following: a common historical tradition, racial or ethnic identity, cultural homogeneity, linguistic unity, religious or ideological affinity, territorial concentration, a common economic life and finally a certain number of members.CrossRefGoogle Scholar

¹⁸ Thornberry, P., “Self-determination, minorities, human rights: a review of international instruments”. (1989) 38 International and Comparative Law Quarterly 882–883;CrossRefGoogle ScholarThornberry, P., “The democratic or internal aspect of self-determination with some remarks on federalism”, in Tomuschat, C. (ed.), Modern Law of Self-Determination, Dordrecht, 1993, 113.Google Scholar

¹⁹ Sellers, op. cit., n. 6, 6.

²⁰ See Pellet, A., “The opinions of the Badinter Arbitration Committee: a second breath for the self-determination of peoples”, (1992) 3 European Journal of International Law 178.CrossRefGoogle Scholar

²¹ Rouland, N. et al. , Droit des minorités et des peuples autochtones, Paris, 1996, 208. Musgrave states regarding Opinion No. 2 of the Badinter Commission of 11 January, 1992 regarding the Serbian minorities of Croatia and Bosnia-Herzegovina that “although the Badinter Arbitration Commission equated the concept of minorities to that of peoples, this did not mean that those groups thereby obtained the collective right freely to determine their own political status. They were certainly not entitled to determine their own political status through secession, which was precisely their political goal, the right of self-determination for such peoples was instead reduced by the Commission to little more than the protection already accorded to minorities by international law.” See Musgrave, op. cit., n. 8, 170–171.Google Scholar

²² See e.g on external and internal self-determination, Cassese, A., Self-Determination of Peoples Legal Reappraisal, Cambridge, 1995, 71–140; Cassese, op. cit., n. 14, 96–98;Google ScholarGusy, C., “Von der Selbstbestimmung durch den Staat zur Selbstbestimmung im Staat”, (1992) 30 Archiv des völkerrechts 397–409; Pomerance, op. cit., n. 10, 37;Google ScholarOeter, S., “Selbstbestimmung im Wandel. Überlegungen zur Debatte um Selbstbestimmung, Sezessionsrecht und ivorzeitigeî Anerkennung”, (1992) 52 Zeitschrift für ausläindisches öffentliches Recht und Volktrrecht 741 780;Google ScholarMoris, H., “Self-determination: an affirmative right or mere rhetoric”, (1997) 4 ILSA Journal of International and Comparative Law 201 – 220;Google ScholarRosas, A. “Internal self-determination”, in Tomuschat, C. (ed.), Modern Law of Self-Determination, Dordrecht 1993, 232–252;Google ScholarSalmon, J., “Internal aspects of the right to self-determination: towards a democratic legitimacy principle?”, in Tomuschat, C. (ed.), Modern Law of Self-Determination, Dordrecht,1993 253–282; Thornberry, “The democratic or internal aspect of self-determination with some remarks on federalism”, op. cit., n. 18, 101–138;Google ScholarHannum, H., “Rethinking self-determination”, (1993) 34 Virginia Journal of International Law 1–69.Google Scholar

²³ Daes, E. I., “Native peoples rights”, (1986) 27 Les Cahiers de Droit 126.CrossRefGoogle Scholar

²⁴ Thornberry, “The democratic or internal aspect of self-determination with some remarks on federalism”, op. cit., n. 18, 101.

²⁵ Pomerance, , op. cit., n. 10, 24.Google Scholar

²⁶ Cassese, Self-Determination of Peoples. A Legal Reappraisal, op. cit., n. 22, 98–100. See also Rosas op. cit., n. 22, 79.

²⁷ McCorquodale, , op. cit., n. 17, 863.Google Scholar

²⁸ Daes, , op. cit., n. 23, 126. See also Rosas, op. cit., n. 22, 80.Google Scholar

²⁹ Pomerance, , op. cit., n. 18, 37.Google Scholar

³⁰ Thornberry, “Self-determination, minorities, human rights: A review of international instruments”, op. cit., n. 18, 101.

³¹ Cassese, Self Determination of Peoples. A Legal Reappraisal, op. cit., n. 22, 97–98.

³² See e.g. Bachr, P. R., “Politieke en Politicologische Dimensies van een Mensenrecht: het Recht op Zelfbeschikking”, in Kuitenbrouwer, M. and Leenders, M. (eds.), Geschiedenis van de and Mensenrechten Bouwstenen voor een Interdisciplinaire Benadering, Hilversum, 1996, 84.Google Scholar

³³ See e.g. Adeno, , op. cit., n. 4, 624;Google ScholarMurswiek, , op. cit., n. 4, 36;Google ScholarHeraclides, A.. The Self-Determination of Minorities in International Law and Politics, London, 1991, 26;Google ScholarShaw, M. N., International Law, Cambridge, 1991, 276–277. See also Supreme Court of Canada, in the matter of a reference by the Governor in Council concerning certain questions relating to the secession of Quebec from Canada, as set out in order in council PC 1996–1997, dated 30 September, 1996, para. 113.Google Scholar

³⁴ See e.g. Buchanan, A., “The morality of secession”, in Kymlicka, W. (ed.), The Rights of Minority Cultures, Oxford, 1995, 350 374; Heraclides, op. cit., n. 33, 29–30; Murswiek, op. cit., n. 4, 22, 25–27, and 34. Contra Heraclides, op. cit., n. 33, 21–30.Google Scholar

³⁵ Buchanan, , op. cit., n. 34, 350–374.Google Scholar

³⁶ Adeno applies in his discussion of Buchanan's theory on secession this explicitly to the claims of secession by ethnic minorities. According to the former such claims would be mostly related to the ground of discriminatory dispensation but that ground would not give these minorities ipso facto a right to secede. See Adeno, op. cit., n. 4, 625.

³⁷ Buchanan, , op. cit., n. 34, 353, 358–359, 362, 365, and 369.Google Scholar

³⁸ Ibid., at 373. See also Galenkamp, M., “De Grenzen van Nationale Zelfbeschikking”, in Sybesma-Knol, N. and Van Bellingen, J. (eds.), Naar een Nieuwe Interpretatie van het Recht op Zelfbeschikking?, Brussel, 1995, 93.Google Scholar

³⁹ Supreme Court of Canada, in the matter of a reference by the Governor in Council concerning certain questions relating to the secession of Quebec from Canada, as set out in order in council PC 1996 1997, dated 30 September, 1996, para. 138.

⁴⁰ Murswiek, , op. cit., n. 4, 27.Google Scholar

⁴¹ Regarding the right to self-determination the restriction imposed by the principle of territorial integrity is explicitly mentioned inter alia in UN General Assembly Resolution 1514 (XV) (14 Dec, 1960), para. 6; Declaration on the Granting of Independence to Colonial Countries and Peoples; UN General Assembly Resolution 2625 (XXV), (24 Oct., 1970), Annex: Declaration on Principles of International Law concerning Friendly Relations and Co-operation among States in accordance with the Charter of the United Nations. Several documents concerning minority rights also contain provisions underlining that the rights as granted would not go counter the principle of territorial integrity of States, see UN Human Rights Committee, General Comment on article 27, para. 3.2; UN Declaration on Minorities, article 8, para. 4; CSCE Copenhagen Document, para. 37; European Charter on Regional and Minority Languages, article 5; Framework Convention for the Protection of National Minorities, article 21.

⁴² See e.g. Murswiek, , op. cit., n. 4, 37.Google Scholar

⁴³ Eide, A., “In search of constructive alternatives to secession”, in Tomuschat, C. (ed.), Modern Law of Self-Determination, Dordrecht, 1993, 161–174. In the part of the article indicated, Eide discusses several forms of internal self-determination which are also mentioned here. He makes an important distinction between “pluralism in togetherness” and “pluralism by territorial sub-division” and consequently discusses personal as well as territorial techniques of minority protection.Google Scholar

⁴⁴ Murswiek, , op. cit., n. 4, 38.Google Scholar

⁴⁵ Hannum, H., “The limits of sovereignty and majority rule: Minorities, indigenous peoples and the right to autonomy”, in Lutz, E. et al. (eds.), New Directions in Human Rights, Philadelphia, 1989, 22Google Scholar

⁴⁶ Hannum for example argues that already during the League of Nations era following World War I President Wilson and others would have acknowledged and favoured an internal dimension of the right to self-determination, namely a dimension related to democracy. See Hannum, “The limits of sovereignty and majority rule”, op. cit., n. 45, 8.

⁴⁷ See also Musgrave who distinguishes (inter alia) between the “decolonization” definition of “people”, the “representative government” definition and the “ethnic” definition. See Musgrave, op. cit., n. 8, 149–154.

⁴⁸ See e.g. Davenport, T. R. H., South Africa, A Modern History, Toronto, 1991, 519.Google Scholar See also Worden, N., The Making of Modern South Africa. Conquest, Segregation and Apartheid, Oxford, 1994, 87, who underlines that the NP had brought voters together by means of the apartheid slogan.Google Scholar

⁴⁹ Regarding apartheid, Davenport argues in any event that “[t]he new government also showed from the start that it intended to check and eliminate the trends towards inter-racial integration. One can distinguish here between legislation to establish distinct biological categories among the population groups and legislation to present their residential mixing when the biological sorting had been done.” See Davenport, op. cit., n. 48, 328.

⁵⁰ See interview with Johny De Lange, constitutional negotiator for the ANC, Cape Town, 12 April, 1996. See also Davenport, op. cit., n. 48, 518; RGN, Die Suid-Afrikaanse Samelewing Werklikhede en Toekomstmoontlikhede, Pretoria, 1985, 16–17.Google Scholar

⁵¹ See also Worden, , op. cit., n. 48, 95;Google ScholarRGN, , op. cit., n. 50, 18 and 59. See also Bennett who underlines that “exponents of apartheid were responsible for stressing and even creating cultural differences and then for systematically exploiting them in order to restructure the social and political order.” SeeGoogle ScholarBennett, T. W., Human Rights and African Customary Law under the South African Constitution, Cape Town, 1995, 7.Google Scholar Regarding the “formation” of a Coloured identity see Goldin, I., “Coloured identity and coloured politics in the Western Cape region of South Africa”, in Vail, L., The Creation of Tribalism in Southern Africa, Berkeley, 1989, 241: “[f]or over a hundred years, attempts have been made to foster and manipulate Coloured identity and to engineer socially a Coloured political alliance with the ruling white parties. A distinct Coloured identity … is the outcome of a history of “divide and rule” tactics.” (our emphasis)Google Scholar

⁵² See below the text accompanying note 63 where the Grand Apartheid scheme is explained.

⁵³ See e.g. Manby, B., “South Africa: minority conflict and the legacy of minority rule”, (1995) 19 Fletcher Forum of World Affairs 27;Google ScholarKotze, H., Culture, Ethnicity and Religion: South African Perceptions Social Identity, Occasional Papers, Johannesburg, 04 1997, 2;Google ScholarVan Wyk, D., “Introduction to the South African Constitution”, in Van Wyk, J. et al. (eds.), Rights and Constitutionalism. The New South African Legal Order, Kenwyn, 1994, 133.Google Scholar

⁵⁴ See e.g. Oomen, B.. “Group Rights in post-Apartheid South Africa: the Case of the Traditional Leaders”, Paper Presented at the IUAES Conference (26 July–1 August, 1998), 16–18.Google Scholar

⁵⁵ See e.g. Coetzee, T., Die Verrekening van die Etnisiteitsfaktor in Grondwetskrywing in Suid-Afrika—’N Politikologiese Analise, Bloemfontein, 1995, 90;Google Scholar Worden, op. cit., n. 48, 95; Harries, P., “Exclusion, classification and internal colonization; the emergence of ethnicity among the Tsonga-speakers of South Africa”, in Vail, L. (ed.), The Creation of Tribalism in Southern Africa, Berkeley, 1989, 110; op. cit., n. 50, 147.Google Scholar

⁵⁶ RGN, , op. cit., n. 50, 59.Google Scholar

⁵⁷ See also Manby, , op. cit., n. 53, 28: “[e]very South African was compulsorily registered at birth as a member of one race, on which depended all future rights and entitlements.”Google Scholar

⁵⁸ For a discussion of the strategy of forced removals used to realize this separate development and its intrinsic relation to apartheid, see Henrard, K., “The internally displaced in South Africa. The strategy of forced removals and apartheid”, (1996) 32 Jura Falconis 491–555. The distinctive areas were first called Bantustans, then Homelands and finally even National States.Google Scholar

⁵⁹ See also Harries, , op. cit., n. 55, 105: “ethnic bitterness reached a peak as politically arbitrary borders such as roads, railways and farm boundaries were defined in order to separate the different ‘homelands’. This immediately created disadvantaged ethnic minorities on both sides of the border.”Google Scholar

⁶⁰ See also Van Diepen, M., “Introduction”, in Van Diepen, M. (ed.), The National Question in Africa, London, 1988, 8; Van Wyk, op. cit., n. 53, 133.Google Scholar

⁶¹ Kwazulu, KwaNndebele, KaNgwane, Gazunkulu, Lebowa and Qwaqwa.

⁶² The Bantu Homelands Constitution Act of 1971 can be considered “enabling legislation to empower the State President to confer self-government on any of the … Territorial Authorities by proclamation” See Davenport, op. cit., n. 48, 374.

⁶³ Manby, , op. cit., n. 52, 29.Google Scholar

⁶⁴ For a balanced approach to issues of language and ethnicity, see X, Report of the Commission on the Demarcation/Delimitation of SPRs, Pretoria, 1993, 4 and 13. The Commission was asked to make up a report on the demarcation of the territorial sub-units of South Africa (states, provinces or regions thus SPRs). The Commission was instructed to take into account ten criteria among which were demographic considerations and cultural and language realities. See ibid., 4–5. The Commission makes the following remark on the basis of comparative research regarding language criteria: “it seems that regions should not be “gerrymandered” at the cost of geographical and economic cohesion merely for the sake of language homogeneity. The reorganization of homogeneous language and cultural regions may provide the opportunity for the exploitation of ethnic sentiments, claims and counter claims and constant new majorities and new minorities. On the other hand, regional boundaries should not cut across the spontaneously formed areas where particular language communities live.” See ibid., 13.

⁶⁵ Worden refers in this respect to a series of developments between 1979 and 1984 which collectively formulated the policy known as “total strategy” and he mentions the changes regarding segregation in education, the removal of many petty apartheid (as opposed to grand apartheid) restrictions like segregation of public amenities, and also the 1983 Constitution. See Worden, op. cit., n. 48, 122–124.

⁶⁶ Manby stresses regarding Grand Apartheid that “[i]n practice, the homeland system was impossible to implement fully. The designation of ethnic groups and the areas for their occupation was often arbitrary and illogical; thousands were allocated to homelands with which they had no real connection, although hundreds of thousands of black South Africans were forcibly uprooted from their homes and deported to the barren rural areas, millions remained legally or illegally resident in white South Africa, despite the constant threat of deportation. After more than three million people had been internally displaced, the government conceded that black South Africans would remain a reality. Mass forced removals were ceased by the mid-1980s …” See Manby, op. cit., n. 52, 29.

⁶⁷ Regarding segregated education reference can be made to the 1981 De Lange report on Education which advised that multi-racial private schools should be allowed.

⁶⁸ See e.g. Davenport, , op. cit., n. 48, 520.Google Scholar

⁶⁹ Van Wyk, , op. cit., n. 53, 135.Google Scholar

⁷⁰ See e.g. Dc Klerk, W., “The process of political negotiation: 1990–1993”, in De Villiers, B. (ed.). Birth of a Constitution, Kenwyn, 1994, 1 and 4–6;Google ScholarManby, , op. cit., n. 52, 35;Google ScholarVan Wyk, , op. cit., n. 53, 137 138.Google Scholar

⁷¹ See e.g. Corder, , “Towards a South African Constitution”, (1994) 57 Modern Law Review 500;CrossRefGoogle ScholarVan Wyk, , op. cit., n. 53, 143.Google Scholar

⁷² Section 71 IC. See also Lobban, M., “Un accord négocié. Ie processus constitutionnel en Afrique du Sud depuis 1991”, (1997) 107 Revue de Droit Public 81;Google ScholarVan Wyk, , op. cit., n. 53, 159–160.Google Scholar

⁷³ See above notes 53–58 and Oomen, , op. cit., n. 54, 1.Google Scholar

⁷⁴ See preamble of both the Interim and the Final Constitution. See also Kentridge, J., “Equality”, in Chaskalson, M. et al. (eds.), Constitutional Law of South Africa, loose leaf (including second revision), Kenwyn, 14.1; Van Wyk, op. cit., n. 53, 158.Google Scholar

⁷⁵ Kentridge, , op. cit., n. 74, 14.2 14.3. See alsoGoogle ScholarSmith, N., “Affirmative action under the new Constitution”, (1995) 11 South African Journal of Human Rights 94.CrossRefGoogle Scholar

⁷⁶ Currie, I., “Minority rights: culture, education and language”, in Chaskalson, M. et al. (eds.), Constitutional Law of South Africa, loose leaf (including second revision), Kenwyn, 35.2. See alsoGoogle ScholarDevenish, G., “Minority rights and cultural pluralism—the protection of language and culture in the 1996 Constitution”, to be published in a book on the 1996 Bill of Rights, on file with the author, 1: “[t]he acute problem of accommodating and protecting ethnic, religious and linguistic minorities in a democratic body politic operating according to the philosophy and practice of constitutionalism and a justiciable bill of rights eclipsed all other issues both in relation to the Interim and 1996 Constitutions.”Google Scholar

⁷⁷ See below text accompanying note 70.

⁷⁸ Currie, , op. cit., n. 76, 35.2;Google ScholarDevenish, . op. cit., n. 76, 1.Google Scholar

⁷⁹ For an indication that already during the negotiations around the exact formulation of the affirmative action clause, its sensitive nature as to appropriate implementation modes was apparent: “[t]he real bone of contention among the negotiation parties proved to be the subclause permitting measures designed to achieve affirmative action. Some libertarians insisted that these measures explicitly referred to as ‘reasonable’ measures. In the end, however, the Negotiating Council concluded that the requirement of reasonableness is inherent in the formulation of the proposed clause itself since it requires affirmative action measures to be ‘designed’ to achieve the adequate protection and advancement of persons or groups or categories of persons disadvantaged by discrimination in order to enable their full and equal enjoyment of all rights and freedoms.” It was acknowledged that the word “designed” required a rational scheme which would have to advance a particular purpose, namely that of “full and equal enjoyment of all rights and freedoms.” See also Smith, N., “Affirmative action under the new Constitution”, (1995) 17 South African Journal of Human Rights 92.Google Scholar

⁸⁰ Currie, , op. cit., n. 76, 35.10;Google ScholarKriel, R. R., “Education”, in Chaskalson, M. et al. (eds.) Constitutional Law of South Africa, loose leaf (including second revision), Kenwyn, 38.6; Lobban, op. cit., n. 75, 107.Google Scholar

⁸¹ Currie, I., “Official languages”, in Chaskalson, M. et al. (eds.), Constitutional Law of South Africa, loose leaf (including second revision), Kenwyn, 37.7.Google Scholar

⁸² African National Congress, A Bill of Rights for a New South Africa, Preliminary Revised Version, May 1992, Article 5.

⁸³ See e.g. X, “Constitutional Talk Number 1: 13–26 January 1995”, <http://www. con-stitution.org.za/talkl_95.html>, 3.

⁸⁴ Manby, , op. cit., n. 52, 28. Regarding the uncertainty surrounding customary law, see e.g.Google ScholarBennett, T. W., “The equality clause and customary law”, (1994) 10 South African Journal of Human Rights 123;CrossRefGoogle ScholarBekker, J. C., “How compatible is African customary law with human rights? Some preliminary-observations”, (1994) Tydskrif vir Hedendaagse Romeins Hollandse Reg 441. See alsoGoogle ScholarStrydom, H. A., “Minority rights issues in post-apartheid South Africa”, (1997) 19 Loyola of Los Angeles International Comparative Law Journal 897, who underscores the uncertain future for the institution of traditional leadership and for the Volkstaat Council and the proponents of the idea of a Volkstaat.Google Scholar

⁸⁵ Constitution of the Republic of South Africa, Act 200 of 1993.

⁸⁶ Eventually, the group split and only one faction registered for the 1994 elections and was the party representing volkstaat concerns during the elaboration of the Final Constitution, namely the Freedom Front.

⁸⁷ Manby, , op. cit., n. 52, 36.Google Scholar

⁸⁸ Currie, , op. cit., n. 76, 35.46.Google Scholar

⁸⁹ See also Strydom, H. A., “Self-determination and the South African Interim Constitution”, (1993–1994) South African Yearbook of International Law 48.Google Scholar

⁹⁰ Currie, , op. cit., n. 76, 35.46. See alsoGoogle ScholarEllman, S., ‘Federalism awry: The structure of government in the Kwazulu/Natal Constitution’, (1993) 9 South African Journal of Human Rights 165.CrossRefGoogle Scholar

⁹¹ Currie, , op. cit., n. 76, 35.46. See alsoGoogle ScholarOomen, , op. cit., n. 54, 6. Corder distinguishes the approach of both sides as he puts forward that “[t]he Inkatha Freedom Party clearly gambled on achieving more of its objectives by remaining outside the structures of the MPNP and adopting a threatening stance, while its fellow organisations on the white right openly and repeatedly threatened civil war if their key demand of a white (’Afrikaner’) state was not conceded.” See Corder, op. cit., n. 71, 503.Google Scholar

⁹² Corder, , op. cit., n. 71, 503;Google ScholarCurrie, , op. cit., n. 76, 35.46.Google Scholar

⁹³ See also Currie, , op. cit., n. 76, 35.46.Google Scholar

⁹⁴ Technical Committee on Constitutional Issues. “Fourth Supplementary Report on Constitutional Principles”, 26 July, 1993, 7. See also Hailbronner, K. and Kreuzer, C., Implementing Federalism in the Final Constitution of the Republic of South Africa, occasional papers, Johannesburg, 1995, 8: “minority rights for the white population and/or other groups may be implemented according to principles XI, XII and XIV meaning that even if the creation of a sovereign Afrikaner State with its own army, police, taxing power and nationality law is not possible, ethnic groups could reunite in smaller territorial units if the people living within its territory consent.” (our emphasis)Google Scholar

⁹⁵ Constitutional Principle XII, Schedule 4, IC: “Collective rights of self-determination in forming, joining and maintaining organs of civil society, including linguistic, cultural and religious associations, shall, on the basis of non-discrimination and free association, be recognised and protected.”

⁹⁶ The IFP claimed to represent the Zulu's (beating the drum of Zulu nationalism) whereas the right wing parties represented the concerns of a certain category of Afrikaners.

⁹⁷ See e.g. Corder, , op. cit., n. 71, 504;Google ScholarOomen, , op. cit., n. 54, 6.Google Scholar

⁹⁸ Corder, , op. cit., n. 71, 504;Google ScholarDe Klerk, , op. cit., n. 70, 9.Google Scholar

⁹⁹ See e.g. Corder, , op. cit., n. 71, 504;Google ScholarVan Wyk, , op. cit., n. 53, 157–158, 165–166.Google Scholar

¹⁰⁰ See also Corder, , op. cit., n. 71, 504–505.Google Scholar

¹⁰¹ See also Accord on Afrikaner Self-Determination between the Freedom Front, the African National Congress and the South African Government/National Party (23 Apr., 1994), at 12, where it sets out “Guidelines for the deliberations of the Volkstaat Council” and where it distinguishes different modes of self-determination including on a provincial and on a local community basis.

¹⁰² Constitutional Principle XXXIV (1), Schedule 4, IC (our emphasis).

¹⁰³ See IC, Chapter 11 A.

¹⁰⁴ IC, S. 184 B(1).

¹⁰⁵ See e.g. Strydom, , op. cit., n. 84, 897;Google ScholarVan Wyk, , op. cit., n. 53, 165, and 168. See also Accord on Afrikaner Sell-Determination between the Freedom Front, the Africaner National Congress and the South African Government/National Party (23 April, 1994), 5.Google Scholar

¹⁰⁶ SAIRR, “Race Relations Survey 1994–1995”, Johannesburg, South African Institute for Race Relations, (1995), 339.

¹⁰⁷ Ibid., 353.

¹⁰⁸ Currie, , op. cit., n. 76, 35.2;Google ScholarDevenish, , op. cit., n. 76, 1.Google Scholar

¹⁰⁹ X, “Constitutional Talk Number 3: 10 February. 1995”. <http://www.constitution.org.za/ talk/3Pg7–1.htm>. 1.

¹¹⁰ X, “Constitutional Talk Number 1: 13 February, 1995”. <http://www.constitution. org.za/ talkl_95.html>. 6 7; X, “Constitutional Talk Number 8: 29 June, 1995”, <http://www.con-stitution.org.za/talk8_95.html>. 10.

¹¹¹ See also Currie, , op. cit., n. 76, 35.48: “[a]greement on the interpretation and implementation of CP XXXIV proved elusive during the Constitutional Assembly process.Google Scholar

¹¹² X, “Constitutional Talk Number 13: 26 January, 1995”, <http://www.constitution.org.za/talkl_95.html>. 6–7.

¹¹³ Currie, , op. cit., n. 76, 35.48. See also X, “Constitutional Talk Number 8: 29 June, 1995”, <http://www.constitution.org.za/talk8_95.html>. 9–10..+9–10.>Google Scholar

¹¹⁴ X, “Constitutional Talk Number 3: 22 April, 1996”, <http://www.constitution.org.za/talk/3pg3–1.html>. 1. See also Currie, op. cit., n. 76, 35.8; Strydom, op. cit., n. 84, 900–901.

¹¹⁵ We were informed of this development by members of the Freedom Front.

¹¹⁶ It took a long time before the ANC decided how it envisaged that Commission and consequently the parliamentary debates on its effectuation only started August 4, 1998, see “Speech Delivered by the Minister for Provincial Affairs and Constitutional Development, Minister Valli Moosa, on the Occasion of the Launch of the Debate on the Culture, Religion, Language and Nation Building, National Assembly, 4 August, 1998, <http://www.anc.org.za/cgi-bin/shownews/August 4 1998>.

¹¹⁷ X, “Constitutional Talk Number 3”: 22 April, 1996, <http://www.constitution.org.za/talk/3pg3–1.html>, 1.

¹¹⁸ Person abservations at the session of the Constitutional Sub-Committee 18–19 April, 1996 where the political parties reported to after the conclusion of the tri-lateral negotiations on these issues.

¹¹⁹ Currie, , op. cit., n. 76, 35.18.Google Scholar

¹²⁰ Currie, , op. cit., n. 76, 35.23;Google ScholarDevenish, , op. cit., n. 76, 15;Google ScholarStrydom, , op. cit., n. 84, 899–900.Google Scholar

¹²¹ Currie, , op. cit., n. 76, 35.18.Google Scholar

¹²² Ibid., 35.48.

¹²³ FC, Section 235 (our emphasis).

¹²⁴ Currie, , op. cit., n. 76, 35.48.Google Scholar

¹²⁵ See also Alexander, N., “Linguistic Communities of South Africa: Some Questions and Attempts at Answers”, presentation at IDASA Conference on the “Commission for the Promotion and Protection of the Rights of Cultural, Religious and Linguistic Communities”, September 1996, unpublished manuscript, on file with the author): “[t]he amphibolous language of s 235 of the new constitution leaves the door ajar for a politics of cultural-national autonomy, and conceivably even for a politics of territorial self-determination … ”.Google Scholar

¹²⁶ Strydom, , op. cit., n. 84, 907.Google Scholar

¹²⁷ FC, Schedule 6 “Transitional Arrangements”, s. 20(5).

¹²⁸ See above text accompanying notes 28–32.

¹²⁹ See e.g. Sacks who argues regarding self-determination that “[w]hile still referred to in section 235 of the final constitution, this right has been transmuted into section 185 which provides for the establishment of a Commission for the promotion and protection of cultural, linguistic and religious communities.” See Sacks, V., “Multiculturalism, constitutionalism and the South African Constitution”, (winter 1997) Public Law 679.Google Scholar

¹³⁰ Sacks, , op. cit., n. 129, 679. See alsoGoogle ScholarDevenish, , op. cit., n. 76, 26.Google Scholar

¹³¹ See e.g. Coveliers, H. and Veys, M., “De Zuid-Afrikaanse Grondwet van 1996”, (1997) Tijdschrift voor Bestuurswetenschappen en Publiekrecht 238–239.Google Scholar

¹³² See e.g. Coetzee, , op. cit., n. 58, 73–74;Google ScholarSacks, , op. cit., n. 129, 676, n. 17.Google Scholar

¹³³ See also Sachs, A., Advancing Human Rights in South Africa, Cape Town, 1992, 44–45Google Scholar, who argues for the need of checks and balances contributing to the endurance of minority protection, including the political participation of the population groups concerned.

¹³⁴ FC, Sections 46(1)(d) and 105(1)(d) respectively.

¹³⁵ FC, Section 80(2) requiring at least one-third of the members of the National Assembly to support such an application and section 122(2) FC requiring at least 20 per cent of the members of the legislature concerned to support the application.

¹³⁶ X, “Constitutional Talk Number 5: 17 October, 1996”, <http://www.constitution, org.za/talk5_96.html>. 2.

¹³⁷ Ex Parte Chairperson of the Constitutional Assembly: In re Certification of the Constitution, 1996, CCT 23/96, 6 September, 1996, 1996 (4) SA 744 (CC)Google Scholar, 1996 (10) BCLR 1253 (CC), paras. 482–483.Google Scholar

¹³⁸ See X, “Constitutional Talk Number 5: 17 October, 1996”. <http://wwvv.constitution, org.za/talk5_96.html>. 1–6.

¹³⁹ Ex Parte Chairperson of the Constitutional Assembly: In re Certification of the Amended Text of the Constitution of the Republic of South Africa, 1996. CCT 37/96, 4 December, 1996, 1997 (2) SA 97 (CC)Google Scholar, 1997 (1) BCLR 1 (CC), paras. 204–205.Google Scholar

¹⁴⁰ Proclamation R 6 1997 by the President, “Commencement: Constitution of the Republic of South Africa, 1996 (Act No. 108 of 1996).”

¹⁴¹ The Freedom Front describes itself as “a party for Afrikaners which believe in self-determination and a Volkstaat. The aim of the party is to achieve freedom for the Afrikaner within their own state, while also taking care of the interest of those residing outside its borders.” See X, “Who and what is the Freedom Front”, <http://www.vryheidsfront.co.za/english/page 18.html>. 1. It should also be mentioned that the party distinguishes a short, medium and long term strategy. Short term they intend to establish Afrikaner Councils country-wide, to identify preferential settlement areas for Afrikaners and to draft the legislation regarding the implementation of s. 185 FC. On the medium term they strive for regional cultural autonomy and the development of the volkstaat. Finally and on the long term, the volkstaat should be formed while the necessary co-operation with the Afrikaner Councils outside the volkstaat should be developed and maintained. See X, “Short, Medium and Long Term Strategy”, <http://www.vryheidsfront.co.za/english/page8.html> 1–2.

¹⁴² See e.g. First Commentary of the Freedom Front on: Afrikaner Self-Determination and the Way Forward, a Facilitator's Proposal of 6 February, 1996, 9 February, 1996; Bi-Lateral Negotiations between the ANC and the Freedom Front—February, 1996, 22 February, 1996; A Freedom Front's View on The Possible Contents of a. New Accord between the Freedom Front and the ANC, 22 February, 1996.

¹⁴³ See e.g. “Afrikaner Volkstaat. Wagons rumbling through the Karoo”, <http://www.fm.co.za/98/0717/currents/volks.htm>. 17 July. 1998. 1–3.

¹⁴⁴ Doom, R., “Destabilisering in de Hoorn”, in Doom, R. (ed.), Stabiliteit, Ontwikkeling & Democratie. Conflictpreventie en Beheersing in het Zuiden, Brussels, 1994, 90–91.Google Scholar

¹⁴⁵ See Ali, M., “A historical necessity: The case for federalism”, (09 1994) Ethioscope 23.Google Scholar

¹⁴⁶ Doom, op. cit., n. 144, 89; Markakis, J., “Ethnic conflict and the State in the Horn of Africa”, in Fukui, K. and Markakis, J. (eds.), Ethnicity & Conflict in the Horn of Africa, London, 1994, 221 pointing out that “[m]any of the territories and peoples incorporated into the state domain, especially the pastorialist lowlands, were never fully integrated, due to the resistance of the population. It was not until the late 1950s that the imperial regime in Ethiopia attempted to make its presence felt in the lowland periphery of the state, where it immediately encountered violent resistance, and the rebellions of the 1960s in the Ogaden, Bale and southern Sidamo provinces were the result.”Google Scholar

¹⁴⁷ Doom, op. cit., n. 144, 93.

¹⁴⁸ Haile, M., “Legality of secessions: the case of Eritrea”, (1994) 8 Emory International Law Review 482–483.Google Scholar

¹⁴⁹ Encyclopaedia Britannica, 1964, 786.

¹⁵⁰ Peace Treaty with Italy, 49 U.N.T.S. 19.

¹⁵¹ Sureda, R., The Evolution of the Right of Self Determination. A Study of United Nations Practice, Leiden, 1973, 133; Cassese, Self Determination of Peoples. A Legal Reappraisal, op. cit., n. 22, 219.Google Scholar

¹⁵² The first Committee of the General Assembly proposed a draft resolution stating that “Eritrea, except for the Western Province, be incorporated into Ethiopia, under terms and conditions set forth below, to include the provision of appropriate guarantees for the protection of minorities and, without prejudice to the sovereignty of Ethiopia, appropriate municipal charters for the cities of Asmara and Massawa.” When the proposal of the first Committee could not be adopted by the General Assembly, because it had ignored the interest of the Eritreans themselves, the General Assembly decided to set up a five-member commission in order to “ascertain more fully the wishes and the best means of promoting the welfare of the inhabitants of Eritrea”. See General Assembly Res. 289-A(IV). It resulted in two memoranda containing three views. While the representatives of Burma and South Africa shared the view that Eritrea should federate with Ethiopia, the Norwegian member considered “complete and immediate reunion” of Eritrea with Ethiopia the most adequate solution. Finally, the representatives of Guatemala and Pakistan believed that Eritrea should become an independent state after being placed under trusteeship of the UN for a maximum period of 10 years. See Report of the United Nations Commission for Eritrea, UN Doc. A/1285 (1950). See also Cassese, Self Determination of Peoples. A Legal Reappraisal, op. cit., n. 22, 220; Sureda, op. cit., n. 151, 136–137. Thereupon the General Assembly decided in its Resolution 390-A(V) that “Eritrea shall constitute an autonomous unit federated with Ethiopia under the sovereignty of the Ethiopian crown.”

¹⁵³ General Assembly Resolution 390-A(V) (2 Dec, 1950). See also Erlich, H., “The Eritrean autonomy 1952/1962: Its failure and its contribution to further escalation”, in Dinstein, Y. (ed.), Models of Autonomy, New Brunswick, 1980, 174.Google Scholar

¹⁵⁴ Cassese, Self Determination of Peoples. A Legal Reappraisal, op. cit., n. 22. 220; Erlich, op. cit., n. 153, 175.

¹⁵⁵ Demissie, D., “Self-determination including secession vs. the territorial integrity of nation-states: A prima facie case for secession”, (1996) 20 Suffolk Transnational Law Review 180; Cassese. Self-Determination of Peoples. A Legal Reappraisal, op. cit., n. 22, 219.Google Scholar

¹⁵⁶ Demissie, op. cit., n. 155, 180; Cassese, Self-Determination of Peoples. A Legal Reappraisal, op. cit., n. 22, 220; Hannum, Autonomy, Sovereignty and Self-Determination, op. cit., n. 6, 337.

¹⁵⁷ Cassese, Self-Determination of Peoples. A legal Reappraisal, op. cit.. n. 22, 220; Erlich, op. cit.. n. 153, 179–180.

¹⁵⁸ See ¹⁹⁷⁵Britannica Book of the Year, Chicago, 1975, 289–290Google Scholar

¹⁵⁹ Keller, E. J., “The ethnogenesis of the Oromo nation”, (1995) 33 Journal of Modern African Studies 622–623.CrossRefGoogle Scholar

¹⁶⁰ See e.g. Human Rights Watch/Africa, “Ethiopia. Reckoning under the Law”, Dec. 1994.

¹⁶¹ Sec generally Young, J., “The Tigray and Eritrean Peoples Liberation Fronts: a history of tensions and pragmatism”, (1996) 34 Journal of Modern African Studies 105–120.CrossRefGoogle Scholar Young points out that the relationship between the EPLF and the TPLF “was based on the EPLF's recognition of the rights of the oppressed nationalities of Ethiopia and on the TPLF's recognition of the just right of the Eritrean people for self-determination.” See ibid., 112. See also ¹⁹⁹²Britannica Book of the Year, Chicago, 1992, 357; Keesing's Record of World Events, Reference Supplement, 1992, R10; Demissie, op. cit., n. 155, 181;Google ScholarDecraene, P., “La Come orientale de l'Afrique, une sous-région entiérement déstabilisée”, (1998) 63 Geopolitique 74.Google Scholar

¹⁶² Assefa, H., “Ethnic conflict in the Horn of Africa”, in Rupesinghe, K. and Tishkov, V. A. (eds.), Ethnicity and Power in the Contemporary World. New York, 1996, 35; Markakis, op. cit., n. 146, 230, who points out that after the TPLF's creation in 1975, it first opted for the secession of Tigray from Ethiopia but then advocated for remaining in a democratic, pluralistic and decentralized Ethiopia. Similarly the OLF's goal was to establish an independent Oromo state (Oromia). They, however, chose to participate in the new experiment of the ethnic federation when the military regime was defeated. Today it seems that the OLF has again espoused its first idea of striving for independence.Google Scholar

¹⁶³ See generally on the Eritrean independence, Pool, D., “Eritrean independence”, (1993) 92 African Again 389–402.CrossRefGoogle Scholar

¹⁶⁴ 1992 Britannica Book of the Year, op. cit., n. 158, 357; Keesing's Record of World Events. Reference Supplement 1992, op. cit., n. 161, R10.

¹⁶⁵ Keesing's Record of World Events, Reference Supplement 1992, op. cit., n. 161, R10. After the transition period, Meles Zenawi changed his position of president for that of executive prime minister. The new president became Negaso Gidada, the information minister during the transitional government.

¹⁶⁶ Ibid.

¹⁶⁷ 1992 Britannica Book of the Year. op. cit., n. 158, 357; Keesing's Record of World Events, Reference Supplement 1992, op. cit., n. 161. R10; Pool, op. cit., n. 163, 392.

¹⁶⁸ Ibid.

¹⁶⁹ Keesing's Record of World Events, 1993. 39308.

¹⁷⁰ Ibid.,39307.

¹⁷¹ Ibid., 39403.

¹⁷² Ibid., 39450.

¹⁷³ Ibid., 39451.

¹⁷⁴ Ibid., 39490 and 39451.

¹⁷⁵ Skeet, J., “Building myths”, (1995) BBC Focus on Africa, reprinted in (Sept./Oct. 1995) De Niewwe Hoorn van Afrika 30.Google Scholar

¹⁷⁶ See Abbink, J., “Ethnicity and constitutionalism in contemporary Ethiopia”, (1997) 41 J.A.L. 159–160, mentioning that unlike South Africa which in one way or another also gives ethnicity an official recognition, “Ethiopia is different in the sense that ethnic identity is the normative identity on the basis of which the new state prefers to deal with its citizens in many spheres of life, especially the political and economic.”CrossRefGoogle Scholar

¹⁷⁷ The 1992 elections were the first attempt aimed at holding multi-party elections in Ethiopia. The elections, however, encountered several administrative, logistic and political problems. Five political parties, including the Oromo Liberation Front (OLF), even withdrew their participation. See Abdisa, A., “Democratic elections held”, (Sept. 1994) Ethioscope 18.Google Scholar

¹⁷⁸ See Abdisa, , op. cit., n. 177, 19. Discussion forums were held in Cairo, Paris, New Delhi, Poona, Accra, Seoul, Vienna, Djibouti, Harare, Beijin, New York, Ottawa, Asmara Assab, Mendefera, Keren, Massawa and Deke Mehari. Moreover, other international NGOs, including the Inter-Africa Group, participated in the project of drafting the constitution to enrich the process by sharing their experience. SeeGoogle ScholarAbdisa, A., “The Ethiopian Constitution”, (Jan. 1995) Ethioscope 29.Google Scholar

¹⁷⁹ For the text of the Ethiopian Constitution, see VI the Constitution of the Federal Democratic Republic of Ethiopia, reprinted in Blaustein, A. P. and Flanz, G. H. (eds.), Constitutions of the Countries of the World, New York, 1996.Google Scholar The 1994 Constitution was the fourth Ethiopian Constitution. Prior constitutions have been adopted in 1931, 1955 and 1987. For an account of the drafting of the fundamental aspects of the 1994 Constitution, see Abdisa, , op. cit., n. 177, 28–31. Although the 1994 Constitution entered into force on 21 August, 1995, it was only officially published in the Federal Negarit Gazeta on 12 December, 1996.Google Scholar

¹⁸⁰ The right to self-determination including secession was an intensively debated issue by the Constitutional Assembly. Opponents of the right argued that the exercise of the right would lead to national fragmentation and disunity. Moreover, there was no democratic precedent accepting such right in their constitution. In addition, some members of the federation possessing rich natural resources would be inclined to secede leaving an impoverished state. In turn, those who favoured the right of self-determination including secession maintained that it constituted a fundamental human and democratic right because it would guarantee the freedom of nations and nationalities from oppression and exploitation. Not including the principle in the constitution would mean a lack of confidence in nations and nationalities and in a democratic process in general. At the end of the debate, the reference to self-determination was adopted with a vote of 508 in favour, seven against and one abstention. See Abdisa, , op. cit., n. 177, 30.Google Scholar Although the Constitution recognizes a broad right to self-determination based on ethnic affiliation, still many armed movements are not satisfied by the constitutional setting and the way it is implemented and are today fighting for independence. See Decraene, , op. cit., n. 161, 74.Google Scholar It is probably the paradox of the present Constitution that if no federal solution had been adopted with a such broad right to self-determination, not so many sub-nationalities or centrifugal forces would make claims for separation. See Ali, , op. cit., n. 145, 24.Google Scholar

¹⁸¹ “Meles Zenawi drops to the top”, (Oct. 1995) New African, reprinted in (Sept./Oct. 1995) De Niewwe Hoorn van Africa 27; Skeet, , op. cit., n. 175, 30.Google Scholar

¹⁸² Sec Hammer, J., “Power to the people”, (17 July, 1995) Newsweek, reprinted in (Sept./Oct. 1995) De Niewwe Hoorn van Africa 26.Google Scholar

¹⁸³ See also Abbink, , op. cit., n. 176, 170, who mentions that “[w]hen reading the Constitution it is also notable how far the proclaimed text is removed from the actual practice of the political culture and social relations in Ethiopia.”Google Scholar

¹⁸⁴ See Haile, M., “The new Ethiopian Constitution: Its impact upon unity, human rights and development”, (1996) 20 Suffolk Transnational Law Review 21–22.Google Scholar

¹⁸⁵ The International Covenant on Civil and Political Rights, General Assembly Resolution 2200 (XXI). Annex, (16 Dec, 1966), 999 U.X.T.S. 171;Google Scholar 6 I.L.M. 368 (1967).Google Scholar

¹⁸⁶ African [Banjul] Charter on Human and Peoples' Rights, 479 U.X.T.S. 39, 72 (1963).Google Scholar

¹⁸⁷ Constitution of Ethiopia, art. 13.

¹⁸⁸ See also Abbink, , op. cit., n. 176, 166.Google Scholar

¹⁸⁹ See above, n. 22.

¹⁹⁰ Constitution of Ethiopia, art. 39(2) which provides as follows: “Every Nation. Nationality and People in Ethiopia has the right to speak, to write and to develop its own language; to express, to develop and to promote its culture; and to preserve its history.”

¹⁹¹ See e.g. Dinstein, Y., “Collective human rights of peoples and minorities”, (1976) 25 International and Comparative Law Quarterly 103–105;CrossRefGoogle ScholarDriessen, B., “Self-determination: secession, autonomy and integration”, (1993) American Society of International Law Proceedings 57.Google Scholar

¹⁹² See Draft Declaration on Indigenous Peoples, UN Doc. E/CN.4/Sub. 2/1994/2/Add.l. Several articles of this draft declaration have a similar content as Article 39(1)–(3) of the Constitution of Ethiopia were it not that the draft declaration refers to the specific case of indigenous peoples. Article 2 of the draft declaration provides as follows: “Indigenous individuals and peoples are free and equal to all other individuals and peoples in dignity and rights, and have the right to be free from any kind of adverse discrimination, in particular that based on their indigenous origin or identity.”

Art. 3: “Indigenous peoples have the right of self-determination. By virtue of that right they freely determine their political status and freely pursue their economic, social and cultural development.”

Art. 4: “Indigenous peoples have the right to maintain and strengthen their distinct political, economic, social and cultural characteristics, as well as their legal systems, while retaining their rights to participate fully, if they so choose, in the political, economic, social and cultural life of the State.”

¹⁹³ To implement this right, so-called “special districts” or autonomous enclaves in a member State of the federation (liyyu woreda) have been established. They are created along ethnic lines. See Abbink, , op. cit., n. 176, 167.Google Scholar

¹⁹⁴ Constitution of Ethiopia, art. 47(3).

¹⁹⁵ see Franck, T., “The emerging right to democratic governance”, (1992) 86 American Journal of International Law 46 91.CrossRefGoogle Scholar

¹⁹⁶ Constitution of Ethiopia, art. 38 which provides as follows: “1. Every Ethiopian national, without any discrimination based on colour, race, nation, nationality, sex, language, religion, political or other opinion or other status, has the following rights: (a) To take part in the conduct of public affairs, directly and through freely chosen representatives; (b) On the attainment of 18 years of age, to vote in accordance with law; (c) To vote and to be elected at periodic elections to any office at any level of government; elections shall be by universal and equal suffrage and shall be held by secret ballot, guaranteeing the free expression of the will of the electors.

2. The right of everyone to be a member of his own will in a political organization, labour union, trade organization, or employers' or professional association shall be respected if he or she meets the special and general requirements stipulated by such organization.

3. Elections to positions of responsibility with any of the organizations referred to under sub-Article 2 of this Article shall be conducted in a free and democratic manner.

4. The provisions of Sub-Article 2 and 3 of this Article shall apply to civic organizations which significantly affect the public interest.”

¹⁹⁷ See Mekasha, G., “Election without opposition”, (05 1995) 31 Ethiopian Review 26, who writes that the leaders of the EPRDF in an “affirmation of their long-standing dedication to Stalinism … echo the defunct bogus constitution of the Stalin era with the words, ‘every nation, nationality and people in Ethiopia has the unconditional right to self-determination, including the right of secession.’” Quoted in Haile, op. cit., 32, n. 149.Google Scholar However, the Soviet Constitution, even the 1977 Constitution, never explained how this right had to be implemented. Only in 1990, when the Soviet Union was confronted with secessionary demands, it adopted the law “on the procedure to resolve matters relating to the separation of a federal republic from the USSR” (Izveslia, no. 97, 6 April, 1990). A good overview of the procedure of this law can be found in Lesage, M., “La crise du fédéralisme soviétique”, Notes et Etudes documentaires, Paris, 1990, 113 115 or in Cassese, Self-Determination of Peoples.Google ScholarA Legal Reappraisal, op. cit., n. 22, 265. Cassese summarized the procedure as follows: “[t]he law provided that a Republic could secede if a referendum was first requested by the Republic's Supreme Soviet or by at least one-tenth of the USSR citizens permanently resident on the Republic's territory and possessing the right to vote under USSR legislation (Art. 2(1)). The referendum was to be held by secret ballot no sooner than 6 and no later than 9 months later: Art. 2(3). Provision was made for observers from the USSR, or other Republics or from the United Nations (if the USSR Supreme Soviet deemed it necessary) (Art. 5). Secession required a two-thirds majority of the Republic's electorate: Art. 6(1). Complete independence could, however, only be obtained after a transition period of a maximum of five years, during which time ‘matters arising in connection with the Republic's secession from the USSR must be resolved’: Art. 9(1). Moreover, a confirmation referendum requiring a two-thirds majority could be requested at the end of the five-year period by the Republic's Supreme Soviet or by one-tenth of the USSR citizens permanently resident on the Republic's territory and possessing the right to vote under USSR legislation: Art. 19(1). If a two-thirds majority in favour of secession was not then reached, the decision on secession was to be regarded as ‘repealed’ and ‘the procedures envisaged by this Law terminated’: Art. 19(2).Google Scholar

Even if the required two-thirds majority for secession was reached, this was not the end of the story. Completion of the secession process was subject to ratification by the USSR Congress of People's Deputies, in that the Congress was to adopt ‘a resolution confirming the completion of the process for co-ordinating the interests and satisfying the claims of the seceding Republic, on the one hand, and of the USSR, union Republics or autonomous Republics, autonomous formations and ethnic groups referred to in Art. 3(2) of this law, on the other hand’: Art. 20(1). The Law also stipulated that if a referendum in a Republic failed to endorse secession, a new referendum could only be held ten years later (Art. 10).

Furthermore, the Law provided that an autonomous Republic or district within a Republic had the right, subject to referendum, to remain within the Soviet Union should the rest of the Republic choose to secede (Art. 3(1)). Similarly, areas within a seceding Republic populated predominantly by ethnic groups that formed the majority there, and a minority in the Republic, and which did not enjoy regional autonomy, were allowed, subject to a referendum and negotiations, to remain within the Soviet Union (Art. 3(2)).”

¹⁹⁸ Constitution of Ethiopia, art. 2.

¹⁹⁹ Press Conference Dakar, Senegal, 4 January, 1970, reprinted in UN Monthly Chronicle, Vol. 7 (02. 1970), 36.Google Scholar

²⁰⁰ Declaration on the Granting of Independence to Colonial Countries and Peoples, General Assembly Resolution 1514 (XV) (14 Dec., 1960) (adopted with a vote of 89 to none, and with 9 abstentions (Austria, Belgium, Dominican Republic, France, Portugal, Spain, Union of South Africa, United Kingdom and United States of America)).

²⁰¹ Other examples have a more historical value as they all belong to states or regimes that have collapsed since. Moreover, these few historical examples refer to a right to secession in the Constitution without providing a mechanism to implement it. Art. 72 of the 1977 Constitution of the Soviet Union stated that “[t]he right to free secession from the USSR shall be preserved for each republic.” For another example, one has to go as far as the 1947 Constitution of the Union of Burma. See Buchheit, L. C., Secession. The Legitimacy of Self-Determination, New Haven, 1978, 99–100.Google Scholar

²⁰² See Constitution of Ethiopia, art. 39(4).

²⁰³ A sceptical Ivor Jennings declared that “[n]early forty years ago a Professor of Political Science who was also President of the United States, President Wilson, enunciated a doctrine which was ridiculous, but which was widely accepted as a sensible proposition, the doctrine of self-determination. On the surface it seemed reasonable: let the people decide. It was in fact ridiculous because the people cannot decide, until somebody decides who are the people.” Quoted in M. Pomerance, “Self-determination today. Metamorphosis of an ideal”, (1984) 19 Israel Law Review 3 4.

²⁰⁴ Constitution of Ethiopia, art. 39(5).

²⁰⁵ See also Abbink, , op. cit., n. 176, 166.Google Scholar

²⁰⁶ Cassese, , Self-Determination of Peoples. A Legal Reappraisal, op. cit., n. 22, 347.Google Scholar

²⁰⁷ See Draft Declaration on Indigenous Peoples, UN Doc. E/CN.4/Sub. 2/1994/2/Add.l. Article 8 provides as follows: “Indigenous peoples have the collective and individual right to maintain and develop their distinct identities and characteristics, including the right to identify themselves as indigenous and to be recognized as such.”

²⁰⁸ With respect to the use of “self-determination” for indigenous peoples, states in which indigenous peoples live have defended the view that for them indigenous peoples could only be considered as “peoples” if self-determination would not lead to secession. For example in the report of the 10th session of the Working Group on Indigenous Populations it is noted that “[m]ost representatives of observer Governments put forward strong reservations with regard to the inclusion of references to ‘self-determination’. In particular, the representative of the observer Government of Canada affirmed that they were ready to favour the insertion of the principle of self-determination for indigenous people provided that it be understood that the right of self-determination was exercised (a) within the framework of existing nation-States, and (b) in a manner which recognized an interrelationship between the jurisdiction of the existing State and that of indigenous communities, where the parameters of jurisdiction were mutually agreed upon. The representative of the observer Government of Norway, speaking also on behalf of Denmark, Finland and Sweden, stressed that great caution was necessary in relation to the term ‘self-determination’ and urged for it to be qualified carefully, if included in the draft declaration. Like the previous representative, he also specified that any qualification should first of all clarify that the principle of self-determination as embodied in the draft declaration referred to self-determination within the framework of existing States.” See Report of the Working Group on Indigenous Populations on its Tenth Session, UN Doc. E/CN.4/Sub.2/ 1992/33, para. 64.

²⁰⁹ In accordance with art. 47(1), the nine member states of the federation are: the State of Tigray, the State of Afar, the State of Amhara, the State of Oromia, the State of Somalia, the State of Benshangul/Gumuz, the State of the Southern Nations, Nationalities and Peoples, the State of the Gambela Peoples, and the State of the Harari People.

²¹⁰ Constitution of Ethiopia, art. 46(2).Google Scholar

²¹¹ Haile, op. cit., n. 184, 24.Google Scholar

²¹² Abbink argues that this aspect makes the Ethiopian federation “not federal enough” because the member states of the federation “do not have a role in debating policies and in proposing legislation formulated at, or with an impact on, the federal level.” See Abbink, , op. cit., n. 176, 167. Indeed, the HF has only a legislative power limited to the concurrent competencies shared with the House of People's Representatives.Google Scholar

²¹³ Haile, , op. cit., n. 184, 24.Google Scholar But see Abbink, , op. cit., n. 176, 168, who finds that the HF has restricted powers limited to “‘settle disputes’ between member states, interpret and contibute to amending the Constitution.” He therefore, advocates that the HF should receive more powers especially relating to economic, infrastructural and development issues.Google Scholar

²¹⁴ Constitution of Ethiopia, art. 83(1).

²¹⁵ Anyangwe, C.. “Comments on the Draft Constitution of Ethiopia by international legal experts”, (1994) The Inter African Group 1, writes that “Article 84(1) purports to vest the ‘constitutional court’ with judicial powers. This is not borne out by the role assigned to the ‘Court’. Besides, why should a court exercising judicial powers be subjected to the political organ that the FC is? It is certainly incompatible with the dignity, stature, power and the independence of the judiciary that the ‘Constitutional Court’, presided over by the Chief Justice of the Federation, should be subordinated to the FC, a political institution.”Google Scholar

²¹⁶ Constitution of Ethiopia, arts. 83(2) and 84(1).Google Scholar

²¹⁷ Ibid., art. 62(3).

²¹⁸ Ibid., art. 62(4).

²¹⁹ Ibid., art. 62(6).

²²⁰ Ibid., art. 62(7).

²²¹ Ibid., art. 52(2)(a) and (f).

²²² Ibid., art. 52(2)(b).

²²³ Ibid., art. 52(2)(c).

²²⁴ Ibid., art. 52(2)(d) EC and art. 40.3 EC stating that “[t]he right to ownership of rural and urban land, as well as of all natural resources, is exclusively vested in the State and in all peoples of Ethiopia. Land is a common property of the Nations, Nationalities and Peoples of Ethiopia and shall not be subject to sale or to other means of exchange.”

²²⁵ Constitution of Ethiopia, art. 52(2)(e).

²²⁶ Ibid., art. 52(2)(g).

²²⁷ Ibid., art. 78(3) and (2).

²²⁸ Ibid., art. 39.

²²⁹ Ibid., art. 5(3).

²³⁰ Ibid., art. 5(1) and (2).

²³¹ Ibid., art. 93(1)(a).

²³² Ibid., art. 93(4)(c).