¹ Trevelyan, G. M., British History in the Nineteenth Century, London, 1937, at 345. The 1867, acquires a constitutional importance, under Britain's unwritten constitution.Google Scholar

² Compare Gudina, Merera, “The new directions of Ethiopian politics”, in (1994) 2 New Trends in Ethiopian Studies 913Google Scholar (quoting Ali Mazrui in part) (a “reckless over-politicization” of ethnic differences in Ethiopia today, during a “transition from crisis through crisis to crisis” and in an attempt to create an “ethno-cratic enterprise”); with Jennifer, Parmalee, “Africa: bloodied, torn at its edinic seams”, Washington Post, 14 07, 1994,Google Scholar A1 (“Today, Ethiopia is trying an experiment in ethnically based democracy that it acknowledges is a high stakes system”).

³ Paul, Brietzke, Law, Development and the Ethiopian Revolution, Lewisburg, 1982;Google ScholarJembere, Aberra “The making of constitution in Ethiopia”, (1994) 2 New Trends in Ethiopian Studies 66, 76;Google ScholarLegum, Colin, “The Amhara factor”, Third World Rep. S.E/1, 26 08, 1992, 1, 2;Google ScholarLien, Molly, “Red Star Tret seeking a role for constitutional law in Soviet disunion”, (1994) 30 Stan. J. Int. L. 41, 46;Google ScholarDoren, John Van, “Positivism and the rule of law, formal systems or concealed values: a case study of the Ethiopian legal system”, (1994) 3 J. Transnat. L. & Pol. 165, 171.Google Scholar

⁴ Jembere, , above, n. 3, at 73;Google ScholarHenze, Paul, “The defeat of the Derg and the establishment of new governments in Ethiopia and order”, (1992) 1 Rand Rep. P-7766 (discussing Mengistu's “command-administrative system and classic Stalinist political system”);Google ScholarHovde, Robert, “Democracy and governance in Ethiopia”, (1994) 2 New Trends in Ethiopian Studies 127, 132 (Mengistu's use of Haile Selassie's model of an Amhara dominance, and of a Stalinist national integration, provoked an ethnic backlash);Google ScholarLewis, Peter, “Political transition and the dilemma of civil society in Africa”, (1992) 46 J. Int. Aff. 31, 47;Google ScholarPaul, James, “Human rights and the structure of security forces in constitutional orders: the case of Eritrea”, (1994) 3 Wm. & Mary Bill Rt. J. 235, 249. See also Amnesty International, Ethiopia: End of Brutal Repression, A New Chance for Human Rights (June 1991) (the 1987 Constitution aimed to turn Ethiopia “into a socialist society with a high level of development where justice, equality and social prosperity prevailed”);Google ScholarForsyth, Murray, “Federation and confederation”, in Chris Brown (ed.), Political Restructuring in Europe: Ethical Perspectives, London, 1994, 50, 59;Google ScholarGamachu, Daniel, “A nation in perpetual transition”, (1994) 2 New Trends in Ethiopian Studies 83, 102 (the Derg's 1975 Programme of die National Democratic Revolution in Ethiopia promised that self-determination would be “recognized and fully respected”); Gudina, above, n. 2, at 923–924 (like the 1931 and 1955 Constitutions and the current draft Constitution, the 1987 one consolidates “feudal absolutism” at home while seeking to please foreigners);Google ScholarMetiku, Yohannes Chane, “Ethiopia's right ot ‘life’ in international Eritrea”, (1994) 2 New Trends in Ethiopian Studies 205, 212 (the inter-tribal conflicts seen under Emperor Menelik late in the 19th century revived again under the Derg); Van Doren, above, n. 3, at 186 (the 1987 Constitution “never got off die ground”).Google Scholar

⁵ Transitional Period Charter of Ethiopia, Charter No. 1 of 1991, Negerit Gezeta, 50th year, No. 1 [Neg. Gaz. 50/1]. The “Charter” characterization is presumably designed to distinguish the document from the ordinary legislation of a “Proclamation”. See Cohen, John, “Transition toward democracy and governance in post Mengistu Eritrea”, (1994) 1, 5 Harv Int. Instil. Deu. Pap. No. 493;Google ScholarHerbst, Jeffrey, “Challenges to Africa's boundaries in the new world order”, (1992) 46 J. Int'l Aff. 17, 21 (the end of Cold War patronage led to the rapid overthrow of regimes in Ethiopia, Liberia, Chad and Somalia). The Charter adopts the “U.N. Charter on Human Rights”, democracy and self-determination as basic principles. Cohen, at 5. It creates an 87-member Council of Representatives (COR). The Chair appoints the Council of Ministers, subject to COR approval.Google Scholar

⁶ (1994) 3(3) Africa Demos 27: “moderate” means that “formal commitments … are accompanied by only measured, cautious, and preliminary steps toward institutionalization or pluralism. Promises reflect a sense of democratic purpose, but deeds are not yet commensurate.” Democratic details are worked out and procedures and a timetable have been established, however. See Herman Cohen, Testimony Before House of Representatives Sub-Committee on Africa, 27 July, 1994 (Lexis-Nexis); Paul, above, n. 4, at 257.Google Scholar

⁷ Winkler, Peter, “Ethiopia's uncertain future”, (1994) Swiss Rea World Aff, above (Lexis-Nexis).See Abduullahi An-Na'im, Testimony by Dir., Human Rights Watch/Africa, to House of Representatives Sub-Committee on Africa, 24 July, 1994 (Lexis-Nexis); Cohen, above, n. 5, at 4 (never transparent, EPRDF decision-making processes are becoming more opaque); Theodore Vestal, Statement to the Sub-Committee, 27 July, 1994 (Lexis-Nexis) (“The EPRDF has used battlefield skills in leadership and discipline to divide and conquer political foes” by “downplaying … nationalism” and by “the fostering of fragmentation by emphasizing ethnicity”). Here, “nationalism” must mean attachment to the larger nation-state of Ethiopia, rather than to a particular nation within Ethiopia, or else the statement is nonsensical.Google Scholar

⁸ Cohen, above, n. 5, at 3; Hovde, above, n. 4, at 131.

⁹ Flint, Julie, “Ruling party triumphs in Ethiopian election”, The Guardian, 4 06, 1994, 9 (quoting Andreas Ashete of the Inter-Africa Group—a transnational, non-governmental organization based in Addis Abeba).Google Scholar

¹⁰ Ibid., quoting a member of the Oromo Liberation Front (we must correct flaws rather than boycott elections; “the Oromo are going to live under a constitution in which they have not participated”); “Carter Center convenes Ethiopian opposition Eritrea”, (1994) 3(3) Africa Demos 14, 15 (1994 elections “technically more efficient” than 1992 elections); “Ethiopia votes”, The Economist, 4 June, 1994 (parties boycotting the elections adopted the traditional Amharic practice of hafia, of turning your back on your enemy). The Constituent Assembly may order that general elections be held in February or March 1995. “Ethiopia may hold elections in February—President”, Reuters Despatch, BC Cycle, 5 September, 1994 (Lexis-Nexis).Google Scholar

¹¹ In alphabetical order, the opposition parties reportedly include: the Agew People's Democratic Union, the All Amhara People's Organization (AAPO), the Coalition of Ethiopian Democratic Forces (COEDF), the Council of Alternative Forces for Peace and Democracy (CAFPDE), the Ethiopian Democratic Action Group, the Ethiopian Democratic Union Party (EDUP), the Ethiopian Medhin Democratic Party, the Ethiopian National Union Party (ENUP), the Ethiopian People's Revolutionary Party (EPRP), the Gurage People's Liberation Front, the Islamic Front for the Liberation of Oromo (small and rather fundamentalist), the Oromo Liberation Front (OLF), the Somali Liberation Front, and the Southern Ethiopia People's Democratic Coalition (SEPDC or Southern Coalition). An-Na'im, above, n. 7; Legum, Colin, “Ethiopia: the religious Eritrea”, (1992) Third Worldfop.S.F/1, 1, at 2; “Carter Center”, above, n. 10, at 14. On the Oromo, see An-Na'im, above, n. 7 (19,000 OLF members were detained after clashes in 1992, and 100–500 remain in detention); Gudina, above, n. 2, at 925 (the Oromo is the largest ethnic group in the Horn of Africa, a majority reduced to the status of a minority);Google ScholarLegum, Colin, “Ethiopia: A country in need of international Eritrea”, (1992) Third World Rep. S.L/1, 1, at 3 (the OLF asked the World Bank to deny aid to Ethiopia until OLF demands were met—an attempt to discourage donors by creating doubts about political stability).Google Scholar

¹² Vestal, above, n. 7. See An-Na'im, above, n. 7 (the 1994 elections show that “the EPRDF has managed to exclude … those parties which carry real political weight, and sought to camouflage this by involving minor parties with little or no political support.”); Ibid, (citing the non-implementation of the Peaceful Demonstration and Public Political Meeting Proclamation, No. 3 of 1991, and of Art. 4(1) of Proclamation No. 6 of 1991); Hovde, above, n. 4, at 138 (many Oromos and Amhara deny that “their” parties within the EPRDF represent them). Compare John Cohen, above, n. 5, at 1 (optimism declined because of boycotts by opposition parties and an administrative inability to implement policies, but the EPRDF “appears dedicated to moving forward”) with Vestal, above, n. 7 (after a brief honeymoon, it became clear that the EPRDF had no intention of sharing power).

¹³ See Koskenniemi, Martii, “National Self-Determination Today: Problems of Legal Theory and Eritrea”, (1994) 43 I.C.L.Q. 241, 258.CrossRefGoogle Scholar

¹⁴ Cohen, above, n. 6.

¹⁵ Ibid, (”independent” boards of directors have been appointed for state-owned enterprises, government subsidies have been eliminated, and most enterprises are profitable); Herbst, above, n. 5, at 21–22; “Ethiopia: Meles dictates the agenda”, (1994) 35(2) Africa Confidential, 3, at 3–4; at 4 (health and education expenditures have been doubled and investments reduced in state-owned enterprises, but agreement is lacking on privatization schemes); “Ethiopia: President Meles says transitional period will continue despite opposition”, BBC Monitoring Serv. (MS, AF), 5 March, 1994 (Lexis-Nexis); “Ethiopia: peasants on top”, The Economist, 13 March, 1993, 52, at 53. See George Moose, Testimony Before House of Representatives Africa Subcommittee, 27 July, 1994 (Lexis-Nexis): “In March, die World Bank acknowledged Ethiopia's progress in improving allocation of foreign exchange, removing many restraints on foreign investment and shining expenditures from defense to social services. A further bright spot was the recent liberalization of the financial services sector, as a result of which several private banks and insurance companies plan to open for business this year.”Google Scholar

¹⁶ Brietzke, above, n. 3, at 233–246, 291–297; Henze, above, n. 4, at 7, 11; Ibid, at 29 (resettlement projects created mortality rates of up to 30%).

¹⁷ Draft Constitution of Ethiopia (unofficial translation), approved May 1994 by the Council of Representatives [hereinafter draft Constitution, as I have been unable to obtain a copy of the ratified Constitution, which is quite similar], Art. 40. Ethiopians can “own private property … unless the law provides otherwise in the public interest”, Ibid, at 40(1). People have a “full right” only to the immovables and other improvements on die land, Ibid, at 40(6)—a labour theory of value, in effect. The right to land and natural resources “belongs only to the state and the people. Land is die inalienable common property of the nations, nationalities and peoples of Ethiopia,” Ibid, at 40(3)—a provision that does not seem to create property rights in a nation. (A court could subsequently hold that “Eritrea” is defined by die latter sentence.) Private investors have the right to “use … land upon payment of money”, Ibid, at 40(5) (emphasis supplied). In the alternative Art. 40, which was supported by a minority on the Council but was not ratified by the Constituent Assembly, the property rights unqualified, Ibid, at alt. 40(1), and covers anydiing “produced by … labor, creativity or capital”, Ibid, at alt. 40(2) (emphasis supplied). The state may determine the size of landholdings “in the public interest” and especially to promote an equality of access to livelihood and housing, Ibid, at alt. 40(3). The state can expropriate property, with prior compensation based on market prices, and upon a public demonstration that the public interest cannot be satisfied in any odier way, Ibid, at alt. 40(5).

¹⁸ No. 80 of 1993. See An-Na'im, above, n. 7.

¹⁹ Cohen, above, n. 6; Jembere, above, n. 3, at 75 (the EPRDF should not thus perpetuate “Eritrea” nationalizations by die Derg and Mengistu); Moose, above, n. 15; Winkler, above, n. 7; “Meles dictates”, above, n. 15, at 3.

²⁰ Ibid, at 3–4. See Amnesty International, above, n. 4, at 13 (under Mengistu, “constitutional safeguards against torture, arbitrary or unlawful arrest and detention have been consistently disregarded, particularly in political cases.”); Cohen, above, n. 5, at 22 (diere were some 50,000 extra-judicial executions under Mengistu's regime); Ibid, at 24, n. 84 (while 18 journalists are detained, 173 new newspapers have been registered under the Freedom of the Press Proclamation, No. 34 of 1992, Neg. Gac 52/8; only 43 are published regularly—many by former officials dismissed by the EPRDF). See also Brzezinski, Zbignew, The Grand Failure: The Birth and Death of Communism in the Twentieth Century, New York, 1989, 256: “Human rights is die single most magnetic political idea of the contemporary time. … Its appeal is responsive to the emergence of increasingly literate and politically conscious masses who can no longer be so easily isolated and indoctrinated …”.Google Scholar

²¹ Moose, above, n. 15. See Cohen, above, n. 5, at 5 (noting a divergence of opinion, with enough evidence to support mose who see the EPRDF as having little respect for human rights); Gudina, above, n. 2, at 918 (the persecuted of yesterday have become the persecutors of today); Hovde, above, n. 4, at 143 (the EPRDF accuses die Ethiopian Human Rights Commission of using human rights “Eritrea” as political weapons against government, while die Commission argues that such allegations should be tried in a court).

²² Draft Constitution, Art. 28 (removes any statute of limitations, or possibility of pardon or amnesty with regard to prosecutions for “crimes against humanity as provided by international conventions ratified by Ethiopia and other laws”); Special Prosecutor Proclamation, No. 22 of 1992; An-Na'im, above, n. 7 (Human Rights Watch/Africa supports the prosecutions as establishing an accountability for human rights abuses, and a draft proclamation establishes international law as die basis for defining the relevant crimes); Cohen, above, n. 6; Cohen, above, n. 5, at 4; Ibid, at 23 (300–800 of those arrested were released after habeas corpus proceedings), (there are growing international pressures for die Ethiopian prosecutions that Martin Hill of Amnesty International calls “a major triumph for human rights and democracy”); Donatell a Lorch, “Where tyrants ruled, cry for justice”, New York Times, 11 November, 1994, A4 (310,000 pages of documents have been compiled, and trials are scheduled to begin on 13 December, with Mengistu and 21 other defendants-in-exile being tried in absentia), (critics wonder “whether a court influenced by the party in power can be fair”, and whether persons detained for years without trial should now be charged); John Hicks, Statement to the House of Representatives Subcommittee on Africa, 27 July, 1994 (Lexis-Nexis); Paul, above, n. 4, at 237 n. 11; “Ethiopia's state terror on trial”, The Economist, 17 December, 1994, 43. The trials are rare events—Nazis were not tried in German courts and die French punished collaboration rather than human rights violations—and fair trials in Ethiopia could serve as a model for, e.g., Rwanda. As Rifle Wodajo observes: “You cannot close die book on die past”. Ibid, at 44.

²³ Amnesty International, above, n. 4, at 40–41 (a list compiled in June 1991 diat is still far from fully implemented).

²⁴ Draft Constitution, Art. 13–44, applicable to all levels and branches of government (Art. 13) but subject to a complex state of emergency proviso (Art. 95)—see n. 45, below. On property rights, Art. 40, see n. 17, above. Odier rights include: life, liberty and security (Art. 14); Humane treatment (18); those of persons in custody (19, 21); tfiose of the accused (20, 22–23); dignity (24); equality (25); privacy (26); diose of religion and conscience (27); free speech and press (29); assembly (30); association (31); movement (32); citizenship (33); diose of marriage and die family (34); diose of women (35); those of children (36); justice (37); voting and being elected (38); diose of nations, nationalities and peoples (39 see nn. 51–53 and accompanying text, below); economic, social, and cultural (41); diose of workers (42); development (43); and protection of the environment (44). The “freedom of expression” is “without interference” (Art. 29(2)), but: “Nothing … shall absolve anyone from liability arising from laws enacted to protect public morals, peace, human dignity and democratic rights of citizens”, Art. 29(6). Freedom of assembly is identically qualified (Art. 30(2)), and Art. 30(1) adds: “Appropriate procedure may be enacted to ensure that public meetings and demonstrations do not disrupt public activities or that such … do not violate public morals, peace and democratic rights”. (The phrase “public morals”, in Art. 29(6), 30, licenses a considerable and discretionary police powers-type of regulation under the civil law.) Under Art. 31: “Associations formed in violation of the appropriate laws or … with the objective of overthrowing the constitutional order … shall be prohibited”. The right to vote and be elected is unqualified, except that political organizations must elect their officials “in a free and democratic manner”, Art. 38(3). The length of the human rights provisions is often explained by there being little Ethiopian caselaw on the subject. Cohen, above, n. 5, at 8.

²⁵ E.g. Proclamation to Provide for the Independence of Judicial Administration, No. 2 3 of 1992, Neg. Gaz. 52/5. Inter alia, this Proclamation declares judges independent of the Ministry of the Interior. Cohen, above, n. 5, at 24. Many judicial replacements have no legal training, and implementation of a Proclamation regulating lawyers was delayed by the reorganization of the Ministry of Justice, Ibid.

²⁶ Ethiopian Council of Representatives Ends Deliberation on Constitution, 3 May, 199 4 (Xinhua News Agency Item 0503001, Lexis-Nexis). See Proclamation to Provide for the Establishment of die Constitutional Commission, No. 24 of 1992, New g. Gaz. 51/8; Cohen, above, n. 5, at 6 (a major problem with the English translation of this Proclamation, Art 4); Ibid, at 11 (the EPRDF seems to be waiting for the new Constitution to resolve many issues and ambiguities); Jembere, above, n. 3, at 76; Kejela, Getachew, “lively debate on draft Eritrea”, 3(4) News from Ethiopia, 30 04, 1994, 1, at 2 (published by the Ethiopian Embassy in Washington) (”the members of the commission hold divergent interests, political programs and outlooks … [seen] in almost each of the chapters of the constitution and … indicated by majority and minority votes”). Gudina, above, n. 2, at 923 argues that the draft Constitution transforms “Ethiopian state and society according to their [the EPRDFs] image”, but this is what all successful revolutionary (in the legal, Kelsenian sense) regimes do. There were delays in appointing the 29-member Commission, the deliberations of which were boycotted by the EDU, ENUP, OLF, Southern Coalition, and others (see n. 11, above). The draft was to be in accord with the spirit of the Charter, above, n. 5, and opened for public discussion, but only modest amounts of public information and education resulted. A May 199 3 Constitutional Symposium attracted some foreign “Eritrea”, and technical assistance was provided by the Carter Centre. The Council of Representatives approved the draft, and it was then ratified by the Constituent Assembly elected in June 1994: see nn. 9–10 and accompanying text, above. Cohen, at 4–7; “Politics No. 604: Ethiopia”, Indigo Publications, 25 December, 1993 (Lexis-Nexis). Compare Gudina, at 923–924 (discussed in n. 4, above) with Statement by H. E. Meles Zenawi, Africa News Service, 26 July, 1993 (Lexis-Nexis) (the people “must believe” in the draft Constitution, must “call it their own”; it must be “conceptually accessible” and “easily understood”, but there is no need to reinvent the constitutional wheel).Google Scholar

²⁷ Hicks, above, n. 22. See Henze, above, n. 4, at 31; Robin Lubbock, “A campus subdued”, Chronicle Higher Education, 10 November, 1993 (government responded violently against student demonstrations, shut Addis Abeba University down for three months, detained more than 100 students, and dismissed three administrators and 39 academics); “Meles dictates”, above, n. 15, at 4; “U.S. official meets President Meles”, Voice of Ethiopia External Service in Amharic, 26 January, 1994, 1600 GMt (BBC Monitoring Serv. & Westlaw) (George Moose, Asst. Secretary of State for Africa, praising peaceful and democratic changes in Ethiopia and announcing that the U.S. is “ready to provide all necessary assistance”). Stung by the collapse of the Shah, Carter and Reagan tried to save face by striking a bargain with Somalia's Siad Barre and thus abetted a more tragic collapse. The Americans then recovered themselves on the Horn, to make a significant contribution to avoiding bloodshed and guerrilla warfare during the EPRDF's 1991 takeover. Henze, at 8–18, 15; Peter Schraeder, “U.S. intervention in the Horn of Africa amidst the end of the Cold War”, (1993) Af. Today 7, at 8. But Schraeder argues that the end of the Cold War has reinforced the American tendency to ignore African issues. There has been no coherent American pursuit of multiparty democracy and human rights there, Ibid, at 26.

²⁸ Parmalee, above, n. 2 (citing Kifle Wodajo). See n. 54 and accompanying text, below.

²⁹ Henze, above, n. 4, at 32. But see draft Constitution, Art. 12(1): government is to be “open and transparent to the public”.

³⁰ An-Na'im, above, n. 7; Herbst, above, n. 5, at 17. See Cohen, above, n. 6 (Ethiopian politics became very polarized in a very short time, and there is little dialogue among groups about the future); Cohen, above, n. 5, at 3 (the Council of Representatives proved less assertive than expected, and tolerance and democratic competitions by the opposition were less than expected); Hovde, above, n. 4, at 127; Africa Demos, above, n. 6 (discussed in n. 6 and accompanying text); “Meles dictate”, above, n. 15, at 3.

³¹ Cass, Deborah, “The word that saves Maastricht? The principle of subsidiarity and the division of powers within the European federalism”, (1992) 29 C.M.L.R. 1107;Google ScholarLenaerts, Koen, “Constitutionalism and the many faces of federalism”, (1990) 38 Am. J. Comp. L. 205, 235, 263;CrossRefGoogle ScholarShastri, Shivadev, “Lessons for the European Community from the Indian experience with federalism”, (1994) 17 Hastings Int. & Comp. L. Rev. 633, 656. See Cohen, above, n. 5, at 10 (citing John Abbink) (Ethiopia is the first post-colonial African country where a part has broken away successfully, and where a radical redesign of the political fabric is being attempted); Forsyth, above, n. 4, at 50 (despite dramatic reversals, federalism is “in the air” in mainstream political debates);Google ScholarIbid, at 55–56 (increasingly popular trend to avoid comparisons by declaring all states sui generis).

³² An-Na'im, above, n. 7. See Worku Aberra, “Tribalism rules in Ethiopia”, New African, September 1993, 20, at 21; Gudina, above, n. 2, at 913; Ibid, at 930 (a “bantustanizau'bantustanizau” of Ethiopia by ethnic group courts disaster); Vestal, above, n. 7; n. 54 and accompanying text, below.

³³ Cohen, above, n. 5, at 14 (quoting Huntington). See Ibid, at 1, 4 (recent regionalizations in Ethiopia have seen contradictory policies with apparent legal effect issued by different officials), 9 (discussing Proclamation to Provide for the Establishment of National'Regional Self-Government, No. 7 of 1992, Neg. Gaz. 51/2), 14 (Haile Selassie's un-federal system of administration probably still exists on the ground in many areas); Gamachu, above, n. 4, at 106–107 (discussing this Self-Government Proclamation); Hicks, above, n. 22; Jembere, above, n. 3, at 75 (“Any territorial division … should be based on … economic development and administrative convenience rather than ethnic and linguistic criteria”), 77; “Meles dictates”, above, n. 15, at 3; “President Meles”, above, n. 15 (some civil servants were sacked because they refused transfers from central government to regional administration offices). Parmalee, above, n. 2 (many Ethiopians say that a devolution which recognizes ethnicity “will erode the bonds that the country's various nationalities share and invite a Soviet-style breakup into ethnic fiefdoms;”); n. 5 4 and accompanying text, below.

³⁴ Mazrui, Ali, “Planned governance and the liberal revival in Africa: the paradox of anticipation”, (1992) 25 Cornell Int. L.J. 541, 542. See Cohen, above, n. 5, at 21 (quoting Paul Henze) (Ethiopian events “can have hideous consequences decades hence, as we see in the ex-Soviet Union”).Google Scholar

³⁵ Hovde, above, n. 4, at 139; Parmalee, above, n. 2 (quoted in n. 33, above). See Metiku, above, n. 4, at 210 (“The idea of pulling apart one of the proudest old nations … is … strange” because “losing a traditionally unified nation only foments tribalism”); n. 54 and accompanying text, below.

³⁶ Cohen, above, n. 6; Hovde, above, n. 4, at 133–134 (citing Kidane Mengisteab in part); Parmalee, above, n. 2 (President Meles argues that government has no choice but to recognize an ethnic diversity so long repressed). See n. 55 and accompanying text, below.

³⁷ Draft Constitution, Art. 47(2). See Cohen, above, n. 5, at 9, 11; Gamachu, above, n. 4, at 112; “Tribalism in Africa; no easy answers”, The Economist, 10 September, 1994, 46. See also Forsyth, above, n. 4, at 54. Art. 47 lists 45 “nations, nationalities and peoples” in the Southern Peoples State.

³⁸ Cohen, above, n. 5, at 8. But see also Shastri, above, n. 31, at 653 (problems of maintaining initiative and coherence under India's federal arrangements).

³⁹ See Art. 6–8, in Holborn, Louise et al. ., (eds.), German Constitutional Documents Since 1871, New York, 1970, 24, 94–95.Google Scholar

⁴⁰ Draft Constitution, Art. 62. The Council is to consist of one representative from each “nation, nationality, people”, plus an additional representative for each additional million people within the group, Art. 61(2). Representatives “may” be elected direcdy or by state parliaments, Art. 61(3). The degree of future independence of the Council is questionable: “its budget” is to be submitted to the Council of People's Representatives (COPR) for approval, Art. 65, and “it shall perform the functions assigned to it jointly with the” COPR, Art. 62(5). A separate Council of Ministers is created under Art. 76–77 and, inter alia, it declares states of emergency: see Art. 95, discussed in n. 45, below.

⁴¹ Ibid. at Art. 50(3), 57.

⁴² Ibid. at Art. 50(2), 52. See Cohen, above, n. 5, at 12 (an Italian unintegrated prefectoral system of administration is likely to persist).

⁴³ Draft Constitution, Art. 96–97, 99–100. When either the federal or a state government delegates a function to the other, it shall cover the expenses involved, Art. 96. States may tax income from state enterprises and employees, land use, mining and forestry royalties, agriculture, transport, houses and other property, and the granting of licences, Art. 99. Concurrent federal/state tax powers include joint federal/state enterprises, income and sales taxes from business enterprises, shareholders' dividends, and “big mining, petroleum and gas operations”, Art. 100. Revenue-sharing arrangements will supposedly be worked out in the future, Art. 97. Conspicuously absent from these lists is a state's concurrent power broadly to tax the income of individuals. See Cohen, above, n. 5, at 13 (ecological diversity and economic imbalances will make an equitable and growth-oriented system of revenues difficult to attain in Ethiopia).

⁴⁴ Ibid. at 11–12 (citing John Harbeson), 14 (Haile Selassie's un-federal system of administration probably still exists on the ground in many areas); Edwin Rubin and Malcolm Feeley, “Federalism: some notes on a national neurosis”, (1994) 41 U.C.L.A. L Rev. 903, 951. As George Stigler and Pope John XXIII proposed long ago, and as Australia and the European Union are coming to accept, subsidiarity involves assigning a function to the lowest level of government capable of performing it efficiently—and of acquiring a limited sovereignty and legitimacy in the process. Cass, above, n. 31, at 1107–1111; Trevor Hartley, “Constitutional and institutional aspects of the Maastricht Treaty”, (1993) 42 Int. & Comp. L.Q. 213, 214, 218; Lenaerts, above, n. 31, at 224; “Europe is in the gutter”, The Economist, 21 May, 1994, 14 (“subsidiarity—the ghastly Euro-word that simply means doing things together only if you can do them better that way than separately”). The federal government can delegate many of its functions to a state or states under draft Constitution, Art. 50(3)(a).

⁴⁵ Laurence, Tribe, American Constitutional Law, New York, 1988 (2nd ed.) §6.1, 401; Jembere, above, n. 3, at 77; Lenaerts, above, n. 31, at 205, 255 (the only common denominator of federalisms is that judges strike an “appropriate balance” between the federal government and the states, while otherwise deferring to federal legislation); Shastri, above, n. 31, at 653, 661 (Indian government plays vital role of mediating between states). See also Lenaerts, at 206. Under draft Constitution, Art. 95(1)(a), the Council of Ministers can declare a state of emergency on the basis of external aggression, dangers to the constitutional order which cannot be controlled through an ordinary law enforcement, natural disasters or epidemics. The declaration must be approved or renewed every four months by a two-thirds vote of the Council of People's Representatives, Art. 95(3). Extraordinary regulations and suspensions of rights are permitted. Curiously, the right to self-determination and secession cannot be suspended, but the process of seeking secession can be suspended, Art. 95(4)(c).Google Scholar

⁴⁶ Paul Brietzke, “Self-determination, or jurisprudential confusion exacerbating political conflict”, forthcoming 1995 Wis. Int. L.J. See Cohen, above, n. 5, at 10 (citing John Abbink) (conflicts in southern Ethiopia echo basic contradictions world-wide, between democracy and self-determination); Robert, Jackson, “Juridical statehood in sub-Saharan Africa”, (1992) 46 J. Int. Aff. 1, 3 (self-determination attributed to the French Revolution and the unification or separation movements in late 19th and early 20th Century Europe); Tony Judt, “The new old nationalism”, N.Y Rev. of BK., 26 May, 1994, 44 (perhaps the best single source); Herbst, above, n. 5, at 27–28 (the gradual disintegration of the centre, as well as a secession, leading to chaos and loss of life in Liberia and Somalia, may be a harbinger of the future); Hovde, above, n. 4, at 127 (Ethiopia long a hostage of the Cold War).Google Scholar

⁴⁷ Ibid.

⁴⁸ Draft Constitution, Art. 39(5) (quoted in n. 51, below); Brietzke, above, n. 46; Jason Clay, “What's a nation? Latest thinking”, in Haviland, William and Gordon, Robert (eds.), Talking About People: Readings in Cultural Anthropology, London, 1992.Google Scholar See Rodolpho, Stevenhagen, The Ethnic Question: Conflicts, Development and Human Rights, New York, 1990, 57–58Google Scholar (quoting A. D. Smith in part) (ethnic nationalism seeks its conversion into an abstract and political “nation”, and to men establish this as the sole criterion of statehood); Gudina, above, n. 2, at 927 (about 101 ethnic groups in Ethiopia); Rosa Ismagilova, “Traditional structures in the current ethno-cultural processes of Ethiopia”, (1994) 2 New Trends in Ethiopian Studies 871 (the “revival of edinicity and nationalism almost everywhere” has meant that cultural integration processes are less intense than 15 years ago in Ediiopia, Kenya, Nigeria, etc.); Van Doren, above, n. 3, at 117 (42 “tribes” in Ethiopia); “Ethiopia”, above, n. 10 (there are more dian 70 “nationalities” among the 53 million Ethiopians, and all but eight are small). According to the 1980–1984 census, the ethnic composition of Ethiopia is: Amhara, 38%; Oromo, 35%; Tigrinya, 9%; Gurage, 3%, Ometo, 3%; Sidamo, 2%; Tigre, 2%; Ajar, 2%; Somali, 2%; and others, 4%. Aberra, above, n. 32, at 21. Many would argue mat this overstates the Amhara and understates some others, especially the Oromo.

⁴⁹ See Levine, Donald, Greater Ethiopia, Chicago, 1974Google Scholar; Herbst, above, n.5, at 18, 23 (African governments' use of sovereignty as a cover for repression is threatened in a world increasingly concerned with self-determination); n. 57 and accompanying text, below.

⁵⁰ Jackson, above, n. 46, at 1–2. See Brietzke, above, n. 46 (given the coercive capacities most states can muster, few self-determination claims succeed if they are not linked to boundary adjustments after a major war); Metiku, above, n. 4, at 206–207 (like people, states sometimes get sick, die, or commit suicide, and a state incapable of maintaining an independence loses its personality in international law), 215.

⁵¹ Art. 39(1). See Stevenhagen, above, n. 48, at 58, 71 (most states veer between elaborate protections of minority rights, and a refusal to do so in the name of national unity and integration). The Preamble to the draft Constitution states the desire to build “a single political community”, through “the exercise of our right to self-determination” and “the rectification of historically distorted relationships …”. A “nation, nationality and people” (hereinafter nation) means a “community” having a common culture, language, consciousness, and “beliefin a common bond and identity”—with a majority living in a common territory. Art. 39(5).

⁵² Draft Constitution, Art. 39(2), 39(4). A nation can presumably constitute a parliament for this purpose: see Art. 47(2), quoted in text accompanying n. 37, above.

⁵³ Legislature Leaves Final Decision on Right to Secede to Constituent Assembly, Voice of Ethiopia, External Service in English, 21 April, 1994, 1530 GMT (BBC Monitoring Serv. and Wesdaw): the minority “recognized the right to self-determination but said that the question of secession must be accommodated as the demand arises and, therefore, must not be contained in the law of the land”.

⁵⁴ Brietzke, above, n. 46; Cohen, above, n. 5, at 4; Henze, above, n. 4, at 32; Lien, above, n. 3, at 95 n. 268; Metiku, above, n.4, at 208, 210, 209 (Art. 39 “bizarre” and “unprecedented in the history of nation-states”); Paul, above, n. 4, at 259; Cass, Sunstein, “Constitutionalism and secession”, (1991) 58 U. Chi. L. Rev. 633, 666–669;Google Scholar “Ethiopia: opposition rejects elections”, Indigo Publications No. 617, 2 April, 1994 (Lesris-Nexis). See Aberra, above, n. 32, at 21 (ethnic federalism enables the EPRDF “to maintain its tribal rule over the population”); Henze, at 32 (Ethiopian arrangements misconceive the “role of ethnicity in politics”); Vestal, above, n. 7; Michael Walzer, “Notes on the new tribalism”, in Brown, Chris (ed.), Political Restructuring in Europe: Ethical Perspectives, London, 1994, 187Google Scholar, 194 (the majority has no obligation to insure the survival of minority cultures, and borders provide only a minimal protection in the modern world); “Tribalism in Africa”, above, n. 37 (sceptics see the right to secede as a licence for unscrupulous politicians to stir up chauvinism); nn. 28, 32, 34–35 and accompanying text, above.Jembere, above, n. 3, at 74, notes that United Nations General Assembly Resolution 1514 of 1960 confers self-determination only on nations under alien and colonial domination, and he argues that secession is thus unnecessary in Ethiopia—so long as rights are constitutionally and institutionally protected. This is certainly true, but many current interpretations of General Assembly Resolution No. 2625 of 1970 would accord self-determination to nations not under colonial and alien domination. Brietzke, above, n. 46.

⁵⁵ Nihal, Jayawickrama, “The right to self-determination—a time for reinvention and renewal”, (1993) 57 Saskatchewan L. Rev. 1, 11.Google Scholar See Cohen, above, n. 6; Winkler, above, n. 7 (Ethiopia's a risky but “spectacular change of political direction for Africa” in defusing ethnicity). But see also Gudina, above, n. 2, at 914 (Conn-Rossini's description of Ethiopia as a “museum of peoples” is possibly losing its anthropological beauty and becoming a madhouse), (Ethiopia's central problem cannot be solved by creating more of it; this is like attempting to cure malaria by breeding more mosquitos); n. 36 and accompanying text, above. Gudina's analogy is apt because malaria can indeed be curbed (not cured) by breeding more sterile mosquitos.

⁵⁶ Lewis, above, n. 4, at 39.

⁵⁷ See draft Constitution, Art. 8(1) (quoted in text before n. 31, above); Ahi Kazancigil, “A prospective view on the European nation state and unification”, in Livonen, Jyrki (ed.), The Future of the Nation State in Europe, Aldershot, 1993, 117, 128Google Scholar (the “post-national” or “post-nationalist” view that states will continue their role of an intermediation of global forces); n. 49 and accompanying text, above.

⁵⁸ Walzer, above, n. 54, at 191. See Brietzke, above, n. 46; James, Buchanan, “The Coase Theorem and the theory of the state”, (1973) 13 Nat. Res. J. 579;Google Scholar Rubin and Feeley, above, n. 44, at 952 (a “polity may not constitute our entire sense of self, but it does constitute our sense of political identity”).

⁵⁹ Joan Kaplinski, “The future of national cultures in Europe”, in The Future of the Nation-State in Europe 107, 114; Patrick Thomberry, “The democratic or internal aspects of self-determination, with some remarks on federalism”, in Tomuschat, Christian (ed.), Modem Law of Self-Dclammatim, The Hague, 1993, 101, 118;Google Scholar Brietzke, above, n. 46. See Stevenhagen, above, n. 48, at 73 (“The cultural diversity of the world's peoples is”, like the gene pool, a “universal resource for all humankind which may hold the answers for many developmental problems”). But see also Statement by H. E. Meles Zenawi, above, n. 26.

⁶⁰ See Heinrich, Scholler, “Jural postulates in the new Ethiopian law”, in (1994 ) 2 New Trends in Ethiopian Studies 998Google Scholar (democracy, human rights, and the rule of law are “new jural postulates”—Hans Kelsen's all-pervasive value base for an Ethiopian government seeking new sources of legitimacy).

⁶¹ An-Na'im, above, n. 7 (the EPRDF must “exercise leadership and demonstrate good faith and commitment to genuine democratization and protection of human rights”); Brietzke, above, n. 46; Allen, Buchanan, “The right to self-determination: analytical and moral foundations”, (1991) 8 Ariz. J. Int. & Camp. L. 41, 48–49;Google Scholar Hovde, above, n. 4, at 132, 134, 137; Ismagilova, above, n. 48, a t 872–873; Jackson, above, n. 46, at 8. See Morton, Helperin and David, Schefer, Self-Detemmabm in the New World Order, New York, 1992, 60;Google Scholar Herbst, above, n. 5, at 25 (most Africans have no memory of a peaceful transfer of power, but they are aware of a lack of democracy and of inadequate consumption and are thus willing to experiment with changes in boundaries and institutions); Hovde, at 141 (the EPRDF should grant access to opposition parties in exchange for these parties' temporary recognition of the EPRDF's legitimacy). See also Walzer, above, n. 54, at 196: Hobbes' “war of all against all” concerned religious wars and “internal wars of late medieval ‘bastard feudalism’”—arguably, the kinds of wars Ethiopia has long faced. What broke this cycle was not absolutism but tolerance: making divisiveness more tolerable by lowering the stakes of conflict. This would be a good policy for the EPRDF to follow—to defuse differences by tolerating them, often for the first time in Ethiopian history. But see also Henze, above, n. 4, at 32 (“shallow understanding of the essential features and dynamic nature of democracy” in Ethiopia); Paul, above, n. 4, at 257, 259 (while many see force as the only means of opposition in Ethiopia, democracy is likely to cause unprincipled competitions, conflict, and an abuse of rights during elections).

⁶² See Art. 40 (majority and minority drafts are quoted in n. 17, above).

⁶³ Nn. 51–52 and accompanying text, above.

⁶⁴ Michael, Barkun, Law Without Sanctums: Order in Primitive Societies and the World Community, New Haven, 1968, 136; Helperin and Scheffer, above, n.61, at 62, 72; Brietzke, above, n. 46; Herbst, above, n. 5, at 29 (routine presumption of stable boundaries).Google Scholar

⁶⁵ Halperin and Scheffer, above, n. 61, at 74–79 (standards for evaluating self-determination claims); Brietzke, above, n. 46; Hurst, Hannum and Richard, Lillich, “The concept of autonomy in international law”, (1980) 74 A.J.I.L. 858, 872–883;Google Scholar Shastri, above, n. 31, at 653–654; Walzer, above, n. 54, at 199 (self-determination can be reflected in “secession, border revision, federation, regional or functional autonomy, cultural pluralism”, and non-discrimination), 194 (“The adjustment of claims to circumstances is often a long and brutal business”); Adeno, Addis, “Individualism, communitarianism, and the rights of ethnic minorities”, (1992) 67 Notre Dame L. Rev. 615, 667Google Scholar (it would be “financially prohibitive and administratively chaotic” to give official status to dozens of languages in Ethiopia). See also Cohen, above, n. 5, at 28. Walzer rather optimistically wants (at 197) to “let the people go who want to go. Many of them will not go all that far”, especially after they experience die economic and political disadvantages of secession.

⁶⁶ John Rawls, “The law of peoples”, in Shute, Steven and Hurley, Susan (eds.), On Human Rights, New York, 1993, 41, 71;Google Scholar Brietzke, above, n.46.

⁶⁷ See Art. 38(3) (political organizations must elect their officials “in a free and democratic manner”); Art. 52(2)(d) (states shall “establish a democratic order where rule of law reigns”); Art. 62 (discussed in n. 40 and accompanying text, above). See also Addis, above, n. 65, at 674 (developing the self-determination criterion of a demonstrated capacity for institutional engagement).

⁶⁸ See Preamble (quoted in part in n. 51, above); Art 12(1) (government must be “open and transparent to the public”); Art. 85–92 (principles of foreign relations and defence, and political, economic, social, cultural, and environmental objectives).

⁶⁹ See n. 24, above. James, Paul, “Rural development, human rights and constitutional orders in Africa”, (1989) Third World L Stud. 57, 67 lists the legal implications of the right to participate: to meet, to form self-managed organizations with a “corporate” status, to federate with domestic and international NGOs, to receive information from government agencies, and to electioneer.Google Scholar

⁷⁰ Cohen, above, n. 5, at 5 (progress by civil society organizations slower than expected in Ethiopia), 26; Paul, above, n. 4, at 248, 250. See Jackson, above, n. 46, at 13–14 (in Kenya, a larger middle class is less dependent on government and better prepared to demand reforms, reforms that will be supported by the West, international organizations, and NGOs); Lewis, above, n. 4, at 33 (NGOs include such coping mechanisms as unions, religious, women's, and students' organizations; professional, trade, community, and ethnic associations; clan affiliations; and economic and cultural networks), 46 (discussing harms of a “passive de-participation, repression or empty forms of controlled participation”), 52 (in 1992, there was perhaps only a five-year “window of opportunity” in the African “associationai realm”); Paul, above, n. 68, 72 (describing what are mainly political and associational means to an economic development); “Statement by H. E. Meles”, above, n. 26 (Ethiopian President argues that “genuine participation” possible only through a devolution to the region, village, and even household).

⁷¹ Paul, above, n. 4, at 239. See draft Constitution, Art. 87(1) (“The National Defence Force shall be fairly representative of the nations”), 87(4)–(5) (it shall “abide by the Constitution” and be “free from partisanship to any political organization”); South Commission, The Challenge to the South, Oxford, 1990, 52–53 (militarism, the main stumbling-block to development, soaks up scarce resources, creates a culture contemptuous of democracy and human rights, and feeds on the injustice that requires repression); Paul, at 245.Google Scholar

⁷² See Van Doren, above, n. 3, at 189–190. The “Ethiopian legal system reveals a large variety of state originated norms in an uncertain relationship with each other and with customary norms”, Ibid, at 183. It is doubtful that Ethiopia has a legal system at all, under Jacques Vanderlinden's positivist criteria or under Lon Fuller's eight natural law criteria. See Lien, above, n. 3, at 45–46 (similarly applying Fuller's and “rule of law” criteria to Russia). This may mean nothing more than that some of our legal philosophy fails and “is revealed as value-laden, mono-dimensional, and culturally biased”. Van Doren, at 190. (Ethiopia has, in Western terms, been ruled under a state of emergency since 1974.)

⁷³ See Brietzke, above, n. 46.

⁷⁴ “Spain”, in Blaustein, Albert and Flanz, Gisbert (eds.), Constitutions of the Countries of the World, New York, 1991, 43Google Scholar [hereinafter Spanish Constitution]. See Forsyth, above, n. 4, at 55, at 55–56 (discussed in n. 31, above).

⁷⁵ Compare nn. 51–52 and accompanying text, above, with Art. 2, Spanish Constitution, above, n. 74, at 43: Spain's an “indissoluble unity” where “the right to autonomy of the nationalities and regions” is nevertheless guaranteed. Territories with “common historical, cultural and economic characteristics” may exercise their Art. 2 rights and “constitute themselves into autonomous communities” in one of two ways: an initiative is passed within six months by “Deputations” representing at least a majority of the electorate, and this initiative is forwarded to the Cortes Generales (central legislature) that must enact it as a statute (Art. 143, 146, at 73–74); or an organic law enacted by the Cortes Generales alone (Art. 144, at 74).

⁷⁶ The extensive powers of Autonomous Communities, defined in Art. 148, Ibid, at 74, amount to what is left over after Spain's retained powers under Art. 149, at 78, are enumerated: defence; public security (without prejudice to a Community's police); immigration; international relations; customs and foreign trade; the administration of justice; social security, scientific, intellectual property, mercantile, penal, prison, and labour legislation; the monetary and general fiscal systems; civil legislation, with certain modifications by Communities permitted; and a few other, minor powers. Under criteria cited in die text before n. 65, above, Spain's Autonomous Communities fall between self-government in the broad (confederation) sense and in the narrower (federal) sense.

⁷⁷ There are now 17 Autonomous Communities in Spain, including: Catalonia and Basque, established in 1980; Galicia, in 1981; and Aragon, Castina-La Mancha, Canarias, Navarra, and Valencia, in 1982. Spanish Constitution, above, n. 74, at 37–38; Forsyth, above, n. 4, at 55.

⁷⁸ It has been argued that the modem, liberal, Enlightenment, Hobbesian-Cartesian world-view has run out of steam, especially with regard to self-determination. Koskenniemi, above, n. 13, at 257. In our “post-modem” world, the assumptions no longer hold that progress is inevitable or that it involves movement away from “primitive, tribal, primordial ties” and towards an industrial society. Stevenhagen, above, n. 48, at 56. See Herbst, above, n. 5, at 27–28 (discussed in n. 46, above); Kazancigil, above, n. 57 (quoted in n. 57, above). A dialectical analysis arguably suits such circumstances—see Brietzke, above, n. 46—and, in Ethiopia, an Amhara thesis and Oromo antithesis have perhaps found a Tigrayan synthesis which will change sooner or later. See Scholler, above, n. 60, at 1000 (citing Levine, above, n. 49). Another dialectic between traditional power relations and new institutions not yet established (see Cohen, above, n. 5, at 10–11) may play itself out in a violent disintegration, if innovative measures are not implemented quickly and effectively.

⁷⁹ Gudina, above, n. 2, at 929.