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The essence of sustainable development has been described as a process of change in which the exploitation of resources, the direction of investment, the orientation of technological development and institutional change are all in harmony and enhance both current and further potential to meet human needs and aspirations. Sustainable development means in essence the human endeavor to meet the needs of the present without compromising the resources, opportunities of future generations to meet their own needs with due regard to essential needs of the present; without compromising the ability of the future generations to meet their own needs – with due regard to essential needs of the world’s poor, consideration of existing social, organizational, environmental, technological, etc. limitations influencing the needs of present and future generations.
Sustainable development consists of a chain of minor and major events which are supposed to characterize and direct a process of gradually merging developmental considerations and environmental concerns in the long term perspective of re-constituting the World Order to the effect that humankind in all its parts will be given a lasting opportunity to survive in justice and peace. This raises fundamental questions of the constitutional order and its development or evolution both on national and international levels. Good governance means qualification of constitutional order as being conducive to sustainable development.
Bridging the glaring gap in terms of economic performance between the developed and the developing states, measured by whatever criteria, was considered to be an economic affair of transfer of financial and technical resources from North to South. Economic growth was identified with development.
But, a key word introduced not long ago, namely NIEO (New International Economic Order), began to be institutionalized in UNCTAD since 1964 (U.N. Conference on Trade and Development).
The NIEO process follows development strategy is applied from top-down, without questioning the stage of development and social structures of the states concerned and its available capacities. Little or no attention at all was paid to the involvement of the non-state sector – the civil society and to the increasing relevance of the informal sector with its record of self-organization and spontaneous institution building. The NIEO process was largely governed by a development strategy following the modernization theory, in its western or eastern version. Development was understood as a linear process of replicating modernity; i.e. European statehood on a world wide scale.
However, the belief in the simple export of European, N. American, history and experiences of modernization to the Third World appears today as one major cause for the failure of the development strategy pursued in the NIEO process. Top-down social and legal engineering, according to a preconceived blueprint of development, was not sufficient to allow for sustainable development, as it did not reach down to the development of the so-called hidden resources, hidden in the socio-political heritage and normative culture of the developing states themselves.
Developing hidden resources means human centered development. It means developing locally available skills, in particular, in the sense of social, political and economic capacity building, including decentralization of government and strengthening local authorities and the so-called third dimension; bottom-up development of the informal sector. It embraces promoting the private sector and letting the informal and non-governmental sectors of the civil society to have their optimal social role in developing and sustaining a genuinely democratic system. It means developing favorable social and legal means of instituting good governance as on element of sustainable development to the sector.
So, to achieve a sustainable development, a bottom-up-approach involving the people at the grass-roots and the so-called hidden resources, support the top-down governmental and state-centered strategies. The question is not either/or, but how to accommodate both within the legal structures of constitutional orders.
The transition from the concept of development, underlying the NIEO-process creates expectations in an all-embracing development strategy, addressing itself as much to governments as to people; at times depending on the support of both – national and, where relevant, international.
Constitutional Orders for Sustainable Development
Constitutional Order should help address the State’s Constitution and the existing social reality. The latter is especially relevant in respect to constitution and institution building in developmental context and should allow to capture and to understand better the evolutionary potential inherent in its socio-political sub-stratum.
Sustainable development requires an interaction between government and its people; for that matter, it requires a sufficient degree of clarification and identification of the civic and interest group leaders and active promoters, service providers of the private and governmental civil services, representatives, the elite and the polity.
Developing societies usually lack properly structured social organization just as they suffer from weak statehood. Under structured means that there is a gap of communication and interaction between government and people, due to, among other things, lack of sufficiently developed mediational organization i.e. a properly organized civil populace.
As Ethiopia is and still will remain to be a country of traditional people, lack of such properly organized civil societies significantly hinders orderly and secure good governance. Thus, it seems there is a public concern on the issue of ‘developing constitutional order’ – especially on the national level, but also on the international.
In developing national constitutional order and promotion of good governance the issue of participatory development matters. So, entitlement of civil organization in the process of developing the constitutional order is much sought for. In case popular organizations or so-called intermediary groups cannot claim a legal status under their national legal order, they might resort to seek other avenues to legitimatize their claim. (Like, assistance under international law from other parts of the international community?)
On the national level, the question seems to be whether there is any law that governs all others beyond the actual sovereignty of the country itself? Some might resort to question whether the order to be set admits participation, ensures legal pluralism and in the final stage, when it becomes practical, will be founded to a reasonable degree on the concepts of law.
On the level of international constitutional order the problem constantly addressed is how to reduce, what is usually denounced as high transaction costs of law making and implementing them in newly emerging fields, demanding an immediate regulation. The need to overcome the rigidities inherent in an international legal order, the logic of which derives from the doctrine of state sovereignty, reciprocity and consent, is responded to by the increasing recourse to the so-called soft law in order to come to terms with newly emerging threats and developmental demands. New constellations and forms of the interaction between state, society and law, international and national, will need support also on the level of the international constitutional order, so as to allow for the optimal promotion of good governance through a well structured interaction between the governmental and the non state sector.
A concept of law, embracing both national and international law, which derives its intrinsic information from the notion of sovereignty of states can hardly suffice in the face of the existing under structuredness of constitutional orders of the greater number of the states and in view of the fact that weak statehood still is a common feature of the international community. However, as long as the international constitutional orders of the greater number of the states and in view of the fact that weak statehood still is a common feature of the international community. However, as long as the international constitutional order still is perceived in theory and practice in light of the doctrine of state sovereignty, reciprocity and consent, the international legal order and the potential for evolutionary legal order lacks the openness and the cotangential for evolutionary change, which is ever more needed in the face of increasing environmental threats and developmental domains. Therefore, the important question is how to re-conceive the relations between society, law and states so as to secure the interaction between national and international constitutional orders, necessary for appositive evolution in terms of sustainable development.
At this stage strengthening the basis, legal and theoretical, for promoting the self-organization of peoples becomes topical in the larger context of the international legal structures and their evolution toward a higher state of social organization. An effective policy of sustainable development requires that good governance will be institutionalized in constitutional orders both on national and international levels.
Good Governance as an Element of Sustainable Development
Governance means the management of the relations between government and its populace within a given constitutional order. Good governance is the opposite of poor or bad governance, which reaches from denial of political and civil as well as economic, social and cultural rights, administrative inefficiency and corruption, to deficient legal protection and political repression, and ultimately to mass violations of human rights and tyranny. It entails waste of human power and natural resources; it leads to environmental degradation and prevents sustainable development. Good governance is called for to de-legitimize and to overcome governmental and administrative malpractices and non-democratic structures withstanding the realization of sustainable development.
The practical meaning of good governance will vary according to the socio-economic and political particularities and the concrete state of development of the constitutional order involved. As a matter of principle it means promoting limited government through string thinning public accountability inter alia by way of promoting popular participation in development and resource management. In substantive terms, ensuring good governance requires that the working of the political system is made transparent, that the political leaders are held publicly accountable, that fairness and equality before the law prevail and that access to and distribution of assets, mainly land, are regulated in an equitable manner. In operational terms the realization of good governance requires that key sectors of society and the people participate, as much as possible in cooperation with the government, in shaping governance. Intermediary group’s i.e. popular movements, non-governmental and community/ grass-roots based organizations often were and still are the most significant elements in promoting political freedoms and democracy as elements of sustainable development. Through popular participation the promotion of democracy will thus occur on the basis of the interaction among states, key sectors of society and people i.e. in a new partnership between government and people.
The promotion of good governance as a process of democratization from bottom-up on the level of national constitutional orders can be frustrated or supported on the level of the international constitutional order, i.e. in the context of bilateral and multilateral development diplomacy, conducted now-a-days under the name of constructive policy dialogues between governments. However, it will need above all the support of the community of the non-governmental developmental organizations.
The realization of good governance calls for action and raises questions both on the level of national and international constitutional orders. According to the Charter of Arusha, the realization of popular participation will take place on four levels: the level of the people, of governments, of the international community and of the NGOs, with the primordial objective of governments yielding space to the people. Promoting popular participation as a matter of promoting good governance implies in the first place limiting governmental powers.
Democratic theory is based on a notion of human dignity; dignity taking the central and highest value worthy of respect. And adults ought to be endowed with a large degree of political autonomy – a status principally attainable by being able to share in the governance of the state they belong to. Because direct rule is not feasible, people can engage themselves in self-government only by delegating authority to freely chosen representatives. Thus, what justice – Hugo L. Black expressed – is a critical tenet of democratic theory is very much true:
“[n]o right is more precious in a free country than that of having a voice in the election of those who make the laws under which [the]…must live.”
Constitutionalism enshrines respect for human worth and dignity as its central principle, too. To protect that value, citizens must have a right to political participation, and their government must be hedged in by substantive limits on what it can do, even when perfectly mirroring the popular will. What constitutionalism insists on is having limited government. Predictability of governmental actions is also a characteristic feature of its typology. Its opposite is capriciousness or unpredictability – the hall-mark of tyranny. Hence, the 1st paragraph above postulates democracy as majoritarian politics, whereas the 2nd paragraph relates to counter-majoritarianism. The one pertinent question that has to be dealt with is whether the marriage between them is oxymoron?
The social and economic conditions supporting a viable representative democracy are complex. The following institutional conditions need obtain: a) popular election of representatives; by universal adult suffrage in districts of approximately equal population for limited terms, to institutions that allow those representatives to govern; b) free entry of citizens to candidacy for electoral office; and c)freedom of political communication and association. These, of course, require a plethora of ancillary rights. All of them create a nearly open market to political ideas to allow the people to form groups (parties) to express common interests, and to choose candidates.
It is this process that makes governmental action morally binding - i.e. the people’s freely choosing representatives, those representatives’ debating and enacting policy and later standing for reelection, and administrators’ enforcing that policy. Democracy, therefore, tends to embrace both positivism and moral relativism. “The claim (representative democracy) becomes persuasive not in terms of what the people know, but in terms of who they are. They are the subjects of the law, and if the law is to bind them as free men and women, they must also be its makers.”
Here, reliance on Aristotlian simple claim is clearly viable i.e. that the people’s collective wisdom will exceed that of any simple person or small group. Few democratic theorists assume citizens possess equal capacity to understand the options or, as a whole, will always understand the issues. A coherent theory of reprehensive democracy must, however, posit that most sane adults can usually cope with political problems to the extent of being able to recognize their own self-interest join with others who share those interests, and choose among candidate. There is a good deal of faith at work, here, as well.
The chief democratic theorists posit against tyranny is that the people will not tyrannize themselves. As Jefferson asserted, it is the “mass of citizens” who are the safest depository of their own rights.
Thus, democratic theory stems from popular participation not only for its positive effect of expressing individual autonomy, but also for its negative effect of deterring governmental incursions into individual rights.
Because voters need to be informed to protect their interests, democrats advocate freedom of communication, as the U.S. Supreme Court reiterated.
“the basic right of free expression is one of the principal human rights … For a free, democratic order it is a constituent element, for it is free speech that permits continuous intellectual discussion, the battle of opinions [sic] that is its vital element… In a certain sense, it is the basis of any freedom… the matrix, the indispensable condition of nearly every other form of freedom.”
Yet, communication and voting are not sufficient for forming and expressing “the will of the people.” Democratic theory also demands a right to act in concert with others. Although the U.S. Constitutional text does not specifically protect a general right of association, the Supreme Court has held it “beyond debate that “the freedom to engage in association for the advancement of belief and ideas is an inseparable aspect of the liberty assured by the Due Process Clause.”
FDRE Constitution explicitly states that “[e]veryone has the right to freedom of expression without any interference…” In respect of freedom of association, Ethiopia’s constitution declares that “[e]very person has the right to freedom of association for any cause or purpose. ..”
The constitutional texts of Canada, India, Italy, and Japan contain similar provisions specifically protecting association alone with speech and peaceful assembly. And these countries all have well developed bodies of case law interpreting this provision to protect the specific rights involved.
Many theorists find an effective second check in the way democratic politics operates in a large, diverse nation. They contend that most people have small concern for most political issues. This low level of involvement allows coalitions of minorities to form temporary alliances, trading support among themselves on different issues. These theorists claim that political cleavages are not often cumulative. Hence an interest group is not likely to be continually allied with one set of group against another in permanent coalition.
Democratic theorists do not assert that these checks always protect liberty or even prevent public officials from acting independently to create public policy mounting slowly to tyranny. Rather, they argue that, overall, such cheeks push public officials to mediate among interests, broker, not adjudicate public officials to mediate among interests, to broker, or involve in-winner-take-all struggles. In sum, officials will be wary of oppressing any group; for such group may become part of tomorrow’s winning coalition. At a deeper level, democracy may cause people to accept and respect for competing interests not only because it is lawful but more importantly, as it itself [is] a form of accepted norm of doing things in politics.
Other proponents perceive Rousseauian as limitation; i.e. the popular will its representatives reflect, will generally be overwhelming. A valid law cannot simply reflect prejudices against minorities by imposing burdens only on them or principally on them. Such a limiting principle flows from the premise that the people as a whole are sovereign and majority rule is no more than a decision- making arrangement. This principle raises interesting questions about how to determine when a law makes distinctions and discriminations; and who shall make such determinations – the people, their elected representatives or non elected officials? An inquiry into any or all of this or these questions will lead us to the appreciation of the nation of constitutionalism.
Despite some basic agreements, the two theories – i.e. democracy and constitutionalism differ significantly. Constitutionalists tend to be more pessimistic about human nature, fearing that people are sufficiently clever to oppress without hurting themselves. Constitutional theorists do not deny the importance of institutional checks but see those as insufficient. They are constantly concerned with the human propensity to act selfishly and abuse power. Instead of taking the [presumed/pre-supposed] element of human innate behavior as yardstick in the determination of the qualities of democracy, it is much better to characterize democracy as a system in a large array of political culture, as modeled by the developers at the beginning of this Chapter. Constitutionalism, too, is a political system. If it presupposes the existence of some sort of constitution at all, then it must be in the sense where constitution is taken as a political institution. In either of its aspects, the concept of constitutionalism must first be dealt with before one does that to the constitution.
To delineate constitutionalism, one has to recognize that it has two connotations, closely connected, though. In one of its senses it indicates the striving of codification of the organization of state and power. On the other hand, constitutionalism may refer equally as well to the ideals, particularly political ideals regarding the organization of the state. The first sense inclines more to the organization of the state and functions by legal means, which is the essence of constitution. The second pertains to Political Science; one of its achievements or end products is democracy, which is majoritarianism.
Democracy is taken as essentially referring to being governed by duly elected representatives, of which the group which won the majority becomes the ruling party, and wherein decisions are normally made by majority vote. Does Rule by Majority guarantee the security and wellbeing of minorities and that of the individual? is the question that democracy and theories of democracy have not yet fully answered. The whole question seems to revolve around putting-up of restraint on governmental actions. The restraints may aim at protecting the individual’s or group rights and freedoms against governmental interference. This is the substantive and actually the substantial aspect of constitutionalism. In contradistinction to this, the formal constraints pertain to the organizational aspects of constitutionalism.
Constitutionalism, therefore, pertains to two kinds of relationships. The relationship between government and nationals/citizens, residents/ is the first category – the substantive. The second (the formal) refers to the appraisal of one branch of government vis-à-vis the other; and to their inter-relationship. It is these two aspects of constitutionalism which are the quit-essentials of a constitution, be that written, rigid, flexible, etc…
Constitutionalism and democratic theory raise questions about the concept of a constitution and the relationship of any particular constitution to those theories
The Concept of “Constitution”
To constitute means to make up, order, or form. Thus a nation’s constitution should pattern a political system. Some texts implicitly proclaim themselves to be supreme law and many do so explicitly. Still, a document’s bearing the title, a constitution and declaring its own control over all other political acts may not mean very much. We need to distinguish between the authorities a text asserts.
Constitutional texts may reflect spectra of qualities. At one extreme there have been a number of sham constitutions. At the other end there are those whose provisions are fully operative; but no constitutional text operates with complete authority. Its description of processes may be misleading. For example, the British North America Act of 1867, which served for more than a century as Canada’s principal constitutional document, asserted that the British Queen, not a Canadian cabinet and Prime Minister responsible to Canadian parliament, in turn responsible to a Canadian electorate, governed. Seemingly conscientious officials may ignore or skew express commands, and prohibitions; U.S. presidents and legislators have never taken seriously their document’s requirement that “a regular statement and account of the receipts and Expenditures of all public money shall be published from time.” So, too, for almost a hundred years, legislators, presidents, judges, and the mass of voters pretended that states were fulfilling their obligation under the fourteenth amendment to accord equal protection of the laws to blacks and women.
The prevalence of deviations from the text indicates the complex nature of a state (of conditions) the society thereof; the allocation and the management of same. Thus, when we speak of authoritative constitutions, we are talking about those that are only reasonably authoritative.
A constitution as sham/cosmetic or real, has a principal function. A sham constitutional text is there, may be to deceive. Yet, even reasonably authoritative texts may have to play a cosmetic role, allowing a nation to hide its failures behind ideals. But, in so far as a text is authoritative, it renews nationals/citizens/ as better selves.
A Constitution as a Charter for Governments: At minimum, an authoritative constitutional text would more often sketch the fundamental modes of legitimate governmental operations. Who its officials are, how they are chosen, what their terms of office are, how authority is divided among them, what processes they must follow, and what rights, if any, are reserved to citizens. Such a text need not proclaim any substantive values, beyond obedience to itself; if it does proclaim values, they might be those of Nazism or Stalinism – anathema to constitutional democracy.
A constitution as a guardian of fundamental rights: If a text is authoritative, for it embodies democratic theory, it must protect rights to political participation; and if it is authoritative and embodies constitutionalism, it must protect substantive rights by limiting the power of those even freely chosen representatives.
The constitution as covenant, symbol, and aspiration: In so far as a constitution is a covenant by which a group of people agree to (re) transform themselves from mere state into a nation, it may function for the founding generation like a marriage consummated through the pledging partners; consenting to remain a nation – for better or worse, through prosperity and poverty, in peace and war.
If that is not so, say, for later generations, a constitution may operate more as an arranged marriage in which consent is passive, for the degree of choice had been limited. Even where cancellation of a contract is a recognized right, exit from a membership of such an association is unlikely to offer viable alternative. Revolution becomes a legal right only if it succeeds and transforms revolutionaries into founders. Otherwise, a system usually endures only by bringing into and then binding many groups into its forms.
The myth that peoples’ forming themselves into a nation presents a problem not unlike that between chicken and egg. To agree in their collective name to a political covenant, individuals must have already had some meaningful corporate identity as are “a” people. Thus the notion of constitution as covenant should, therefore, be one which formalizes or solidifies rather than invents an entity anew. Such Constitutions should rather solemnize a previous alliance into a more perfect union.
The engine behind a formative constitution, like the one we tried to show varies from country to country and time to time. One can plausibly argue that if the French have been under monarchies, military dictatorship, and assorted republics, then they must have been under different people at different times. In like manner, Germans have been under the Kaiser, the Weimar Republic, the Third Reich, as well as West and East German states and finally as a reunited Federal Republic of Germany. In polyglotted societies such as Canada, India, and the United States, there may be no other basis for union as nation particularly where there are of so many disparate groups. A constitution may, thus function as a uniting force the only principle of order, for there may be no (other) shared moral or social vision that might bind together a nation. It is difficult to imagine what has united the supposedly united states more than the political ideas of the declaration of Independence and the text of 1787 Constitution.
Reverence for the constitution may transform itself into a holy symbol of the people themselves. The created “Tabot” may become (the people’s) own mythical creator. This symbolism may help show how, sometimes, constitutional text transforms itself into a semi-sacred covenant, serving the unifying function of a civil relation. In America, that is exactly what happened to the verbal inspiration which gave the constitution of unquestionable authority.
In a related fashion, a constitution may serve as a binding statement of people’s aspirations for themselves as a nation. A text may silhouette the sort of community its member would like to become: not only their governmental structures, procedures, and basic rights, but also their goals, ideals, and the moral standards by which they want others, including their own posterity. In short, a constitutional text may guide as well as express hopes for peoples themselves as a society. The ideals, the words enshrined in their constitutions, the processes they describe and the actions they legitimize must either help to change the citizenry or, at least, reflect their current values.
What does “the constitution” include?
Almost every nation now has a document labeled a constitution. But to have a constitution, a nation need not have a social, economic and political text. Nor does the existence of a constitutional document mean that any particular nation’s constitution is coextensive with that socio-economic-political reality. What a constitution includes is a problem, not a datum.
The most obvious candidate is the whole text and nothing but the text. The late Justice Hugo Black and former Attorney General Edwin Meese III were among the most notable Americans to take that position. Such people stressed the “writtenness” of the U.S. Constitution qualified their textualism with a commitment to “original intent” or “understanding” - additions to the text.
Anything less than the full text would sound a less attractive option, but every constitutional document drawn up in a free society is likely to reflect a bundle of compromises, necessary to obtain approval from the drafters and ratifiers, that, perhaps, are not mutually compatible. As one solution, the German Constitutional Court has proposed reconciliation through structural interpretation:
An individual constitutional provision cannot be considered as an isolated clause and interpreted alone. A constitution has an inner unity, and the meaning of any one part is liked to that of other provisions. Taken as a unit, a constitution reflects certain overarching principles and fundamental decisions to which individual provisions are subordinate.
On another occasion, the constitutional court divided 4-4 on the validity of an amendment; the Supreme Court in India has several times voided constitutional amendments; and the California Supreme Court has once done so. Moreover, many U.S. Presidents, legislators, judges, and commentators have tried to exclude portions of their constitutional text from the canon. Many commentators who assert that the text’s principal function is to serve as a charter for government may undermine, as an empty rhetoric, the preamble’s statement of purposes, especially its dedication to the establishment of “Justice.”
A quest for original understanding or intent raises enormous mythological, theoretical, and practical problems. After a few years have gone by, interpreters can pursue originalism only through documents, which are fraught with all the hermeneutic problems of the text itself.
In the United States, the most robust would be the second paragraph of the Declaration of Independence and The Federalist. The Declaration justified the creation of a new nation and set out its founding principles:
We hold these truths to be self-evident, that all men are created equal; that they are endowed by their creator with certain unalienable rights that among these are life, Liberty and the pursuit of Happiness. That to secure these rights, Governments are instituted among men, deriving their just powers from the consent of the governed. That whenever any form of Government becomes destructive of these ends, it is the Rights of the people to alter or abolish it ….
The case for the Federalist, essays by John Jay, James Madison, and Alexander Hamilton urging ratification of the newly drafted constitutional text, would be that those who ratified that document accepted these views as authoritative and, therefore, they form part of the original understanding.
Some practices might become so settled as to be fused into the constitution. One would expect common-law systems, with their sensitivity to prescription, the doctrine that long and unchallenged usage confers legal title, would be hospitable to such a concept.
Most fundamentally, governmental practice often violates the basic text or its underlying principles. Does a long violation effect a constitutional change? If the constitution is devoid of normative content beyond obedience to specified procedures, the answer might well be yes. If, however, the constitution entails normative political theory, the issue becomes far more complex. The minimum standard he would use to test a practice’s legitimacy is congruence with both the document and tradition.
Interpretations trigger similar disputes. Although not every interpretation has a serious claim to be part of the canon, some interpretation mold into the larger constitution. The U.S. Supreme Court’s jurisprudence of judicial review provides the most striking example. As one of the courts opponents asked at the time, “Is it not extraordinary that the high power was in intended, it should where appear (in the text)?
Culture forms the second element in (a country’s) political chemistry. A constitutional text that requires that its officials support it can forge a moral bond. Much of the text may thus become part of the nation’s custom. Children may learn about it in school as the “proper” way of politics, and later on, as prescribing rules for a just society.
To enjoy reasonably effective, but still limited governance, many countries have adopted a mix of constitutionalism and democratic theory. Most so-called democratic systems, such as those of Australia, Austria, Canada, Germany, India, Italy, Japan, Spain and the United States, would be more accurately classified as constitutional democracies. Each of these polities have provided for a wide measure of political participation and simultaneously restricted the peoples’ over-governance by putting in place a variety of institutional means. Each of them, again, has distributed the power to the Legislative, Executive, .. and adjudicate among the three departments of government; everyone of them has a version of bi-cameralism and includes a Bill of Rights. In addition to these, Austria, Canada Germany, India, and the United States use federalism to further diffuse power. To splinter this diffused power of majorities, the United States employs stiffened elections for its legislature and indirectly elects its president. Each also authorizes politically independent judges to invalidate legislative and executive actions they believe violate “the constitution”.
To constrain power by means of a paper (word) – that is what a constitution really is – may sound foolish. Yet a political chemistry may turn sheets of paper into hoops of steel.
First, by prescribing institutional structures and deregulating power among different offices, a document can push officials to co-relate their interest with those of their office, and jealously guard those interests against punitive incursions by other officials. Further, by drawing vague divisions of authority, a document can make it likely that no set of officials can do much that is politically important not without arousing the jurisdictional imperative of other officials. Thus, a constitutional text can dispense/disperse power and protect liberty by putting an ambition against another and one power against another power.
In so far as a constitution is a collection of rules, establishing and regulating the system of government in a state, we can, as shown above, discern a formal and substantive aspect of a constitution.
These are the quit-essentials of modern constitutions, to which may, of recently, be added sustainable development and good governance with their entire corollary.
Herein above, we have defined constitution as a collection of rules. Here, the term “Rule” requires to be appreciated in terms of “Institution of Law” – institution, understood as an idea of an undertaking, which persistently exists in the social environment.
Hence “rule...” as an “Institution of Law”:
“.. are first precepts attaching definite consequences to definite factual situations. Secondly, there are principles, which are authoritative points of departure for legal reasoning in cases not covered by rules. Thirdly, there are conceptions, which are categories to which types or classes of transactions and situations can be referred and on the basis of which a set of rules, principles or standards becomes applicable. Fourthly, there are doctrines, which are the union of rules, principles and conception with regard to particular situations or types of cases in logically interdependent schemes so that reasoning may proceed on the basis of the basic scheme and its logical implications. Finally, there are standards prescribing the limits of permeable conducts, which are to be applied according to the circumstances of each case,”
For all practical reasons “rule” means standard, on the basis of which conduct, transaction (relations), situations are judged. The realness of principles, concepts and doctrines is self-evident. What is not clear is the function of principles, concepts and doctrines. In short, their primary pursuits is the provision of rationale for rules or standards As the rule quality of every provision or even improvisers such are savings and excepting clauses, of any provision’s law, let alone those of a constitution is a legal propositions of rule (standard) which again is self-evident.
If these propositions are found acceptable, the following exposition is an attempt to identify and explain some pertinent provisions of the 1995 FDRE constitution, behind which basic concepts principles and doctrines of modern constitution have been embodied.
First of all, we have said earlier that constitutionalism presupposes the existence of a higher law; not in a sense of “Grund norm” as Kelsey has envisaged, but constitution, written or unwritten-constitution, as “a collection of rules (standards), establish and regulate” the system of government in a state.
Rule of Law
The same have been designated as the substantive, the formal aspects of constitution. Of the formal/elements aspects of constitutive aspects, rule of law stand out as the most comprehensive and vital doctrine, principle and/or concept (hereinafter referred to as principle) of modern constitutions.
In the sense of Lon Fuller’s view of the “inner morality” of law, Rule of Law is not treated in its general sense of government under law, but in much more specific, comprehensive manner. According to Fuller yet
“… a comparison can be made between the internal morality of law and the natural law of carpentry; which the carpenter has to follow whether his aim is to build a hideout for thieves or an orphanage. The internal morality is to be distinguished from the external morality or the substantive aims or values that particular legal rules (standards) seek to promote. In other world (he] developed a conception of the Rule of Law, not by appealing to moral values drawn from the external morality, (which will, of course, vary with different legal rules and systems and from natural school perspective to other schools of jurisprudence), but by spelling out the values that underlie the concept of law itself.”
These values are characterized as the eight desiderata. These identified eight elements of law, recognized as necessary for a society aspiring to institute the Rule of law state as follows:-
- Laws must exist and those laws should be able to win obedience.
- Laws must be published.
- Laws must be prospective in nature so that the effect of the law may only take place after the law has been passed. Laws should be written with reasonable clarity to avoid unfair enforcement.
- Law must avoid contradictions. (intelligibility)
- Law must not command the impossible. ( Non self-contradictoriness)
- Law must be general.
- Laws must stay constant through time to allow the formalization of rules; however; law also must allow for timely revision when the underlying and political circumstances have changed.
- Official action should be consistent with the declared rule. (Congruency)
Standing alone, these eight elements may seem clear and understandable. But they are actually difficult to implement in the real world because governments are often compelled to prioritize one goal over another to resolve conflicts in a way that reflects society’s political choice. For example, making too many laws that are too detailed and specific may make the legal system too rigid. Inflexibility could cause the particular case. Additionally, instead of only applying prospectively, few laws, under limited circumstances are meant to apply retroactively, or to past conduct, because they were passed with the specific intent of correcting the conduct in question. Fuller recognized these conflicts and suggested that societies should prepare to balance the different objectives listed above.
Fuller’s Criteria is helpful in understanding rule of law, because it outlines the types of rules; of formal constraints that societies should develop in order to approach legal problems in a way that minimizes the abuse of the legal process and political power.
Rule of law, however, extends beyond mere regulation and is also shaped by the so-called institutional constraints on government implied in Fuller’s elements. One such institutional constraint is the existence of an independent judiciary; another is developing ways of promoting transparent governance. Informal constraints, such as local culture or traditions that may encourage citizens to organize their behavior around the law, also help constrain the government, prompt library and, therefore, define the rule of law.
Although still seemingly vague, rule of law may be most concretely defined as a theory of governance relying upon a series of law, which may be most concretely designed to encourage order and to prevent arbitrary and unreasonable exercise of government power. Multilateral institutions such as the World Bank and many policymakers throughout the world believe that the rule promotes economic development.
Modern economic development often comes with the introduction of a market economy; or, an economy based on private enterprise that does not rely on government-planned production. Max Weber, a famous sociologist and economist, has commented that the capitalistic order, upon which a market economy is based, is organized upon a rationale of law-bound state. Market economy brings buyers and sellers to the market for complex transaction from many, different parts of the world and on international scale.
Law is important to the market economy because it is the common basis on which parties can make agreements; it provides parties with confidence that disputes can be resolved efficiently and fairly. For this reason, the predictability and order that the rule of law promotes in substantive laws is viewed as the stabilizing force behind much economic developments. Rule of law helps set the rule of the game in critical areas such as investment, property, and contract.
Rule of law also serves as an important assurance of social rights and government accountability. Government restraint is especially critical for many transitioning economies where a previously planned economy is to be transformed into one that is market base. When the government is no longer the sole owner of land, capital, and labor, rule of law guarantees that the crucial elements of the economy will be free from arbitrary government will, adopt a hands-off approach to investment and production, allowing those participating to fully exercise their rights in relations to land, labor and capital.
Important Components of Rule of Law Reforms
I. Court Reforms
The efficiency of the courts is an important component in rule of law reforms as the existence of a judiciary is a fundamental aspect of downfall of law. for the newly independent states established after aspect of the downfall of the U.S.S.R., for example. Providing an efficient means of dispute resolution was crucial to meeting the demands of an increasingly privatized economy. At the most basic level, this simply meant that courts needed to be available to adjudicate disputes and enforce resolutions. For countries that are further along in the reform process, more complex structural reforms that strengthen court capacity “(i.e., training judges), independence, and transparency are needed.
To increase accountability and transparency, information technology systems may be installed to provide greater public access. To increase independence of the courts, the government can provide them with funding that will allow them to make there own financial and administrative decisions. Furthermore, for countries that have already established these structural reforms to encourage the adoption of the rule of law, court performance should be evaluated on a periodic basis.
Independence, accountability, efficiency, access, affordability, alternative dispute resolution mechanisms, and the quality of professionals are some of the characteristics that may provide an accurate measurement of the system’s success.
An example of success in this area of rule of law reform is the arbitress courts in Russia. Established to hear solely economic disputes, the arbitress courts underwent legislative reforms in 1991/1992, and 1995. Those reforms led to personnel and procedural safeguards, as well as the establishment of a higher-level appellate court. The immediate result of the reforms was an increase in the number of cases filed in the arbitress court system. Moreover, it was shown that despite Russia’s corruption and localism problems, the ability of the arbitress courts were able to resolve basic commercial disputes in a timely manner.
II. Developing Legal Rules and Legal Systems
Another important goal for rule of law reform is to develop the legal rules first and fore- most as Fuller stated, “law must exist”, before one begins to talk about rule of law. Economic reforms have generated a large number of new economic laws in developing countries. Between 1990 and1995, 45 developing and former socialist countries enacted new investment laws which were passed to liberalize the existing investment regime in their countries, by offering clear and broad legal protection for all types of investments.
To encourage additional country-specific development, in the early 1990s, the World Bank and the International Monetary Fund(IMF) began conditioning financial assistance on the implementation of the rule of law in recipient countries. These organizations provided aid to support initiatives in legislative drafting, legal information, public and legal education, and judicial reforms, including alternative dispute resolution.
The very term Rule of Law suggests that the law itself is the sovereign, or the ruler, in a society. As an idea, the rule of law stands for the proposition that no person or particular branch of government may rise above rules made by selected political officials. These laws reflect the morals of a society, and in a Western Democracy they are supposed to be pre-established, formalized, neutral, and objective. Everyone is subject to their dictates in the same way. The rule of law, therefore, is supposed to promote equality under the law. Thus, rule of law should be clearly differentiated from rule by law; i.e. the latter does not necessarily mean that the law is legitimate for it might not satisfy most of the desederatas.
The term legal transplantation describes the phenomena of importation of legal rules from other countries. Academic debates often center on the moral and practical implications and, by extension, the imposition as rule by law. Many Developing Countries, including Turkey, Ethiopia and Japan had incorporated a good number of laws of foreign essence since World War II, despite having a variety of legal traditions of their own. When developing countries such as these adapt laws from other countries, the rules borrowed may not fit the underlying tradition, culture, and social context. Thus, in legal transplantation, countries should strive to adopt rather than simply adapt laws so as the newly introduced law fully complements and is reflective of their respective legal, economic, and social systems.
The content and range of matters which are within the sovereignty of a state are determined by the functions attributed to state sovereignty in a specific period of time and by principles imposed by International Law.
The principle of sovereignty has long served as the backbone of Public International Law. Its prominent status was established with the Treaty of Augsburg (1555) and the peace of Westphalia (1648) which, in the wake of wars of religion, gave birth to the system of sovereign states. Often, it is referred to as the Westphalia State System and which no longer recognized the supreme authority of the Pope (Emperor) of Rome over the states.
Initially, in Europe, state sovereignty was often associated with the absoluteness of a state’s political power, which, at the time was vested in a king, emperor or tsar, which were allocated with almost unlimited powers and freed from the observance of the law (prince’s legibus solutus).
The French philosopher Jean Bodin (1530-1596) was the first to present a comprehensive concept of sovereignty. He rejected claims of superiority by the Pope and Emperor and advocated a general theory of the responsibility of exercising public power, under the title republica.30 In his doctrine of sovereignty, written against the backdrop of civil wars, the sovereign ruler was still the highest absolute authority (summa potesta) within a given territory; one, who could decide and legislate, unrestrained by law and without appeal, on behalf of the state, community.
Grotius was one of the first international lawyers who linked the notion of sovereignty to certain principles of Natural Law. In his De Jure Belli ac Pacis (1625), he acknowledged the absolute powers of the king as a sovereign ruler, but argued that the king should be guided by principles of Natural Law in exercising them. In his view, the state was built upon a universal human society which exists already in nature: the state is an association of free men, joined together for the enjoyment of rights and for their common interest. According to Grotius, the law of nations should, as far as it’s appropriate, maintain and supplement the Law of Nature in matters of mutual interest of nations, either through observance of customs common to many nations or through particular treaties and contracts. His concept of sovereignty was very much a Eurocentric one – a concept considered to be applicable to Christian States only, not covering the newly discovered territories.
Emerich de Vattel elaborated Grotius’ notion of sovereignty in his treatise – Droit des Gens (1758). He based it on positive law, as exemplified in treaties and state practices, rather than on natural law. He emphasized the principles of sovereign equality, the independence of all sovereign nation states and on the consent of nations as the determining criterion for what is the rule of International Law. Thus, he introduced a new concept of International Law in which the sovereign state is the sole and only subject of the law of nations i.e. the individual being only its object, even that, indirectly.
Various writers, in particular French philosophers, have elaborated on these ideas. They gave rise to a wide variety of theories, which inspired and were in turn influenced by the revolutions spreading over Europe in the 18th and 19th Centuries. Locke, in his Two Treaties on Government (1689), was the first writer to introduce the doctrine that state itself is the original sovereign, and that all supreme powers of the government are derived from the sovereignty of the state.
In contrast, Rousseau stated in his Du Contrat Social (1762) that the only legitimate sovereign are the people, while the state is the result of a revocable contract concluded between the people and those who exert power in the state. The basis of this ideology has had an important influence on modern state formation, both in developed and developing economies. It is also echoed in such popular slogans as the state should serve the people and not the other way around and the state is for man, not man for the state.
Marx and Engels also focused their political ideas on the nature of state and sovereignty. On the one hand they further developed the notion of the independent state on the idea of sovereignty of the people. As regards the latter, they stressed that one should first identify different classes of people; at a certain stage of its development, the state should exclusively identify itself with the interests of a certain class, i.e. those of the proletariat. They introduced the concept of Proletariat State as opposed to Bourgeois State. Thus, the proletariat becomes the class representative of the nation. So, internally, sovereignty thus meant proletarian supremacy. Externally, it meant independence from capitalism. Consequently, in the soviet perspective, only socialist states could be truly sovereign. In order to maintain this status all socialist states could be truly sovereign. Moreover, in order to maintain this status, all socialist states should have a close alliance with the then USSR (even if, at times, this amounted to forcefully compelling a sister country to limit its sovereignty).
No matter whether we deal with the Western Bourgeoise State, the Socialist/Proletarian State or with that of the Third World or newly independent states, sovereignty of states has evolved as the grand rule of Public International Law and is the dominant feature of the organization of the international system. It is now commonly understood that the sovereignty of the state does not arise from any divine power, status strength, but from delegation of power by the people to the state. In modern political systems, state power is balanced by separation of powers, increasingly in the form of a constitutional state along the line of Montesquieu’s doctrine. An interesting debate is currently underway about whether or not the right and duty to democracy is emerging under International Law.
Forms of Sovereignty in International Law
Sovereignty is a multifaceted concept. Schwarzenberger discussed six main forms of sovereignty:
Internal or Territorial Sovereignty
At present, (apart from some international areas, such as the high seas, the deep sea-bed and perhaps Antarctica) our planet is legally divided into approximately 200 sovereign states. Within its own territory, each of these states is exclusively sovereign, in the sense that it has “exclusive competence” or “domestic jurisdiction” and the monopoly of power over its territory and nationals. It was observed that sovereignty, in regard to a portion of the globe, is the right to exercise therein the functions of state, to the exclusion of any other state i.e. territorial sovereignty involves the exclusive right to display the activities of state.
The state is externally sovereign, in the sense that it is not subjected (against its will) to another state or to any higher authority. International Law, however, imposes certain limits to both the internal and external aspects of sovereignty of states. The most important ones are formulated in the UN Charter and the 1970 Declaration on Principles of International Relations. They include the obligation that states, in their international relations, shall refrain from threatening or using force, oblige to co-operate with one another, abide by the principles of equal rights and self-determination of peoples.
All states are juridically equal, in the sense that, formally they have identical rights at the international level. Both the League of Nations and the United Nations have been established as inter-governmental organizations based on the sovereignty of the member states. The main aims of these two organizations were, in fact, the protection of political independence of their members and, thus, maintain the status quo. In the U.N. Charter, this is enshrined as its very first principle, despite the fact that the U.N. Security Council, acting under Chapter VII, can impose binding decisions on member states even against their will.
In the 19th Century, some Asian and African states were forced to sign capitulation treaties with European states, whereby European nationals and their property were made immune from local authority and jurisdiction. In this way, the European states could directly protect the lives and properties of their nationals abroad. Thus, European states deprived African states of accomplishing one of their international functions; which is that of protecting the life and the property of nationals of other states within their territories.
Whereas the days of this kind of capitulation are definitely over, some African states have tried in recent years to impose their home policies on foreigners and their properties. Reference can be made to Anti-Trust Laws and Export Administration Regulations. Through these laws, the U.S., for instance, seeks to extend its jurisdiction to foreign subsidiaries of U.S. companies. This has seldom caused friction with other (sovereign) states. An example is the so called Russian pipeline affaire, [the 2003 French fries affaire. After the invasion of Afghanistan by the former U.S.S.R. in December 1980, the U.S.A. sought to prevent subsidiaries of American companies in a number of European countries, including the Federal Republic of Germany, and the Netherlands took a different stand, which led to conflicts of jurisdiction.
Permanent Sovereignty over Natural Resources
It is a well-established principle of International Law that every state can freely dispose of the natural wealth and resources within its territory a principle which is commonly known as permanent sovereignty over natural resources. From this principle some important state rights arise, including the right to regulate entry and operations of foreign investors and the right of the state to pursue its own social-economic and environmental policies. Yet, it is increasingly recognized by the principles of international law that these rights have duties as their corollaries. These entail, among wealth and resources, due care for the environment, and equitable use and management of trans-boundary resources.
In comparison with the 1919 Covenant of the League of Nations, the UN Charter gave rise to a dilution of some aspects of sovereignty. Reference can be made to:
a) decision-making by a qualified majority in both the General Assembly and the Security Council (Arts. 18 and 27 of the Charter) as opposed to the Unanimity Rule of the League (cf. Art. 5 of the Covenant);
b) the allocation of permanent seats and the right of veto to the five Great Powers in the Security Council;
c) the collective security system, by which the UN Security Council, acting under Chapter VII, can impose binding decisions on member states, even against their will; and
d) the duty of states to co-operate for the achievement of respect for human rights, social-economic development, etc. (cf. Chapter IX) notwithstanding the domestic jurisdiction clause as included in Article 2, Paragraph 7.
To sum up, more attributes of states can be and is, more often than not, supplied with further designating attributes such as national flag, national anthem, national emblem, national currency and other national symbols. The whole purpose is designation of a state in the international community and signifying the creation of nation-statehood in the heart and minds of people. It is as well a mechanism of reaction enhancement and/or assertion of the feeling of nationalism, the significance of which the lowest denomination is the individual, be that physical or juridical.
Sovereignty as a Dynamic Concept
The changes in the theory and practice of sovereignty, as they evolved in the past, are a reflection of the changing functions attributed to sovereignty and the state in a given period. Historically, for example, attempts to impose order on Western Europe led to assertive interpretations of sovereignty. They altered during periods of peace, allowing more democratic versions of state sovereignty to take root. In the same vein, the United Nations was established in 1945 as an organization based on sovereign equality of all states, albeit some states were ‘more equal’ than others.
However, soon efforts were made to promote a gradual evolution of the United Nations from an organization based on sovereignty of states towards an organization representing the common interests of all states and peoples, as exemplified in among other things the human rights codification movement. However, as a result of Cold War rivalry and the decolonization process, sovereignty maintained its predominant place in international relations.
For the socialist countries sovereignty served in their relations with the non-socialist world as the underlying principle of sovereign equality and non-intereference. In socialist international relations it provided the legitimization for close alliance with and support to USSR, and for maintaining, if necessary by armed force (Hungary, Czechoslovakia, Afghanistan), a cordon sanitaria of communist regimes on the USSR border. For colonial peoples and newly independent states it served as the legitimization of their struggle against metropolitan states and as a legal shield behind which they could develop their societies as they wished. Glory calls this particular function of sovereignty ‘son role protector’ and ‘un instrument de defense’. Western States also cherish their sovereignty and prove to be anxious to maintain essential parts of it in integration processes such as the European Union (E.U.). Especially illustrative is the search for a balance of power between the EU and its member states on the basis of the ‘principle of subsidiary’, according to which the factions are complementary to those of lower levels.
At normative and practical levels states have accepted many restrictions. By ratifying or acceding to the Non-proliferation Treaty or the chemical weapons convention, states have accepted certain limitations to their freedom of armament and obligations relating to arms control and disarmament. The human rights covenants and related human rights instruments, as well as customary international law, prescribe for states a certain standard of treatment of their citizens. Compliance with such human rights standards is no longer a matter within the domestic jurisdiction of a state but widely recognized as an obligation erga omnes. In the field of international environmental regulation, law-making has progressively developed, as may be illustrated by the number of treaties concluded in recent decades. A central principle, embodied in the well-known principle 21 of the Stockholm Declaration, is the sovereign right of states to exploit their own environmental policies. However, it is qualified by the obligation not to cause any extraterritorial environmental harm (sic utere tuo ut alienum non leadas). In nearly identical words this is repeated in principle 2 of 1992 Rio Declaration. This and other principles reveal that sovereignty does not only give rise to state rights but to state obligations and responsibilities as well.
Conclusions and final observations made since the mid-1970s demonstrate the factual erosion of the traditional concepts of state sovereignty. Thus, equated as it is with non-interference, domestic jurisdiction and discretion in the legal sphere has become increasingly real, as it is interdependent on many different levels; thus, effectively eroding – in practice and perhaps even legally – the sovereignty of states.
Dependence matches in many respects independence, its counterpart. Economic and energy crises, pollution, accidents with nuclear energy plants, desertification, deforestation, trans-boundary acid rain and damage to the ozone layer, all provide compelling evidence of the fact that states are no longer masters of their own destiny. As a result of the completion of the decolonization process, the revolutionary developments in Eastern Europe and the détente in East-west relations, the political climate has become more conducive to recognizing and responding to such facts. It also provides a room for creative thinking on the relevance of the principle of self-determination in a non-colonial context.
Interdependence requires new rules of international law, regulating inter-state relations in terms of efforts to co-operate towards the solution of global problems. This introduces the notion of ‘relative sovereignty’ discarding ‘absolute sovereignty’, while others refer to ‘fundamental’ or even ‘planetary sovereignty’ or ‘global soverignty’.
Is sovereignty losing relevance in practice and is centralized authority going to be vested in transnational institutions? Such a conclusion seems to be too farfetched. On the contrary, there is every reason, in a world in turmoil and with a poor level of international organization, to emphasize the continued value of the principle of sovereignty of states for the organization of national political and economic life and as the framework for accountability of states at the international level. The challenge is to ensure human rights, good governance and the duty to pursue sustainable development at national and international levels, and in this way to best serve the interests of the present and future generations of humankind.
This might well lead to re-interpretation of some of the traditional connotations of state sovereignty. It can no longer be equated with unfettered freedom of action and is bound to become interpreted in functional sense. Layers of international law, especially in the field of human rights and environmental protection, increasingly crisscross territorial boundaries.
Consequently, international law and organization are progressively developing into a direction where Article 2.7 of the UN charter (range of ‘matters which are essentially within the domestic jurisdiction of any state) is becoming increasingly qualified. At the same time, it is obvious that sovereignty will not wither away. Ever since the peace, sovereign states continue to be the principal actors in international relations, will be essentially different in the next century.) It is not the existence of sovereignty as principle of international law which is at stake, but rather what sovereignty represents in changing world.
Can we then say the polity exercised over the individual is an important factor in the determination of statehood? If you say yes even with a certain degree of reservation then your proposed world naturally newer to appraise the basic prickles bent on behind the law of nationality and citizenship.
The Concept of Nationality
Nationality of an individual is his quality of being a subject of a certain state. Hence, it is one of the attributes given to a physical person. It owes its origin in the notion of allegiance given by the subject to the king. Accepting the protection of a state actually required owing allegiance to it.
It is not for International Law but for the Domestic Law of each state to determine how one is given the status. While it is for each state (state – as understood in international law) to determine under its own law who are its nationals; such a law can only be recognized by other jurisdictions only in so far as it is consistent with international conventions, customs and to the principles of law generally recognized with regard to nationality. The following succinctly illustrates this dictum:-
“Although it is for the international law of each state to determine who is and who is not a national of the state it is nevertheless of legal and practical interest to a certain how nationality can be acquired under such laws. The five most common modes of acquiring nationality are birth, naturalization, reintegration, annexation and cession. No state is obliged to employ all five, but in practice they usually do so. Acquisition of nationality by birth Nationality is normally acquired by birth; the vast majority of people acquire nationality by birth, … Some states make parentage alone the decisive factor (ius sanguins), so that a child born of their nationals becomes ‘ipso facto’ by birth their national likewise, be the child born at home or abroad; under such a rule illegitimate children usually acquire the nationality of their mother. Other states make the territory on which birth occurs the decisive factor (ius soli). According to this rule, every child born on the territory of such a state, whether the parents are citizens or aliens becomes a national of such state, whereas a child born abroad is foreign although the parents may be nationals. Many states including the United Kingdom adopt a …”
This does not, however, imply that such a status will be recognized by all states; nor can it be challenged by international tribunals. What one can say in this respect is that the document issued by the state, evidencing nationality, exerts a very strong presumption, debatable though.
State domestic law may also make distinction between and among different kinds of nationals. Those who enjoy full personal and political rights may, on these accounts be designated as citizens – as is the case in the U.S.A. and India. Nationality is, thus, a legal quality that connects the individual to the state. It also links the individual to international law, as these cases fall under Private International Law (conflict of laws).
Questions that matter
To what do you attribute the Ethiopian Law of Person – making distinction between and among domiciliary, permanent and temporary residences and the like? Similarly, what does the law attribute to corporate bodies – i.e. Ethiopian State and Government, political parties, churches, mosques, civil associations including NGOs and properties with specific destination like endowments and trusts; and business and commercial organizations?
Just as international law applies to individuals by virtue of the bond created between nationals – he or she – and the state, corporate entities too have nationality. The basic principle as articulated by ICJ is that the right of corporate entity that is attached to the state under the law of which it is incorporated and in whose territory it has its registered office. Of recent the instance of substantial connection and such similar considerations have however been found diffusing determination of jurisdiction solely on the basis of the principles of incorporation and registration ay will be regarded as the traditional rule. It is perhaps no more than a prima facie pre-empts yard stick which affords a convenient starting point for inquiry in any particular case. Attributes of states can be and is, more often than not, supplied with further designating attributes such as national flag, national anthem, national enable, national currency and other symbols. The whole purpose is designation of a state in the international community and reaction of statehood in the hearts and minds of people; it is a mechanism of reaction enhancement and/or assertion of the feeling of nationals, the significance of which will be discussed in Chapter II. Nationality, as such is an attribute of personality. It is also a quality of the state as consisting of a community of people of which the lowest denomination is the individual, be that physical, juridical, etc…
Where a state is appreciated from historical point of view, we can spring from the postulate that it is a historical category a socio-economic construct. From this paradigm approach, a birds’ eye view of the growth of state is presented in Chapter II in the form of a proposition.
From the point of Political Science, the concept of state comprises three fundamental elements
- a community of people,
- with a definite territory, and
- a political power.
State, in Political Science, is a quality attached to a community of people(s) inhabiting a definite territory, under a political authority; i.e. a body politic. The term state is sometimes interchangeably used with nation. The term nation puts more emphasis on the quality of the community of people than on the politicality of the entity; i.e. the state.
The territory nexus, on the other hand, makes state much more concrete, because it presupposes authority exercised by an entity – government – over that limited territory. Government again is interchangeably used with state. Government, conceptually, is a sub-set of a state. Functionally, it is the motor, the machinery or the nucleus, wherein and by which political power is actualized. It is the use of legitimate force within the boundaries of a state that characterizes government, and the power is of a monopoly quality.
Power, as monopoly possessed by a state, is actually entrusted to and realized by and through the various agencies of government. Essentially these agencies or department of government, which can be categorized into three departments, namely: the Legislature (law making), the Executive and the Judiciary. In some systems, one may find organs of control placed aside from or infused with the executive, as a 4th governmental department.
It is the existence and the exercise of this legitimate monopoly power that places state in characteristically differentiated position from any association(s). Association(s) may make statutes (by-laws) and exercise limited power, while government power is of coercive nature (force). This is the very essence of political power exercised in the context of political culture.
Thus state is not a mere association of people, nor is it solely a territorial corporate sole, for U.N. is one, while the A.U. or the E.U is another.
Thus, the use of force through and by its instruments of coercion is the basis of and the bridge that connects both Political Science and Constitutional Law.
With regards to issues of the nature of state and power, some writers, by attributing government as qualifying characteristics of state, try to typify state in the following manner:
There are, therefore, four conditions which must be fulfilled for the existence of a state. There must first, be a people – an aggregate of individual who live together as a community, though they may belong to different ethnic, creed, cultures or be of different colors.
There must, second, be a territory on which the people are settled; although there is no strict rule that the frontiers of a state must be fully demarcated and defined; they may still be disputed. But it matters not whether the country is small or large, or may consist, as in the case of city-states, only the expanse of and by such cry.
Thirdly, there must be a government, which acts on behalf of the people and governs according to the law. A state calls for a community to be organized as a political unit – a distinguished polity from, say, a tribe. But, once a state is established as an entity, interruption of the effectiveness of its government temporarily, as in the cases such as a civil war or occupation, would not necessarily amount to the non-existence of the state.
Lastly, there must be a sovereign government. Sovereignty is supreme authority, which at the international plane means not legal authority over any other state, but rather legal authority which is not dependent on any other sovereignty; in the strict and narrowest sense of the term, it implies, therefore, independence all around, within and without the borders of the country.
The capacity to monopolies on the use of force (state power) over a given political community of within a given territory is known as sovereignty. Sovereign state is, therefore, defined by Blacks Law Dictionary, as a state whose citizens are in the habit of obedience to it and which is not itself subject to any other (or paramount) state in any aspect. These powers, seen from two perspectives – i.e. external and in internal – constitute sovereignty. Sovereignty should, therefore, be appreciated as a cluster of power consisting of external and internal aspects; each aspect having multiple qualities and facets.
In respect of the external aspect of sovereignty, the basic principle was elaborated by the Charter of the UN in the following terms.
All states enjoy sovereign equality. They have equal rights and duties and are equal members of the international community not withstanding differences of an economic, social, political or other nature. In particular, sovereign equality includes the following elements:-
a. States are judicially equal;
b. Each state enjoys the rights inherent sovereignty in full;
c. Each state has the duty to respect the personality of other states;
d. The territorial integrity and political independence of the state are inviolable;
e. Each state has the right to freely to choose and develop its political, social, economic and cultural systems;
f. Each state has the duty to comply fully and in good fully with its international obligation and to live in peace with other states.
State is an institution itself; and it is also a composite of institutions, which, in order to secure certain common purpose, unites under a single authority, the inhabitants of a clearly marked territorial area. The single authority pertains to sovereignty which can not be exercised until and unless it is related to the notion of jurisdiction, which may not, necessarily, be congruent with that of sovereignty. Although the relationship between them is close, state power to exercise jurisdiction rests in sovereignty; state jurisdiction, on the other hand, essentially concerns the extent of each state’s power to regulate conduct or the consequences of events. State territory is the space which is normally under the exclusive authority of the state. Territory is, therefore, that defined portion of the globe which is subject to sovereignty of a state. A state without territory is not conceivable. State territory is primarily an object of International Law. It is as well an object of Domestic Law, particularly that of constitutional, which can vividly be seen in Article 2 of the 1995 FDRE Constitution:
“[t]he territorial jurisdiction of Ethiopia shall comprise the territory of the members of the federation and its boundaries shall be as determined by international agreement.”
Are issues of border the primary concern of the member states of the federations of Ethiopia?
The principle laid by International Law is that wherever a person or a thing is on or enters into that territory, the person or the thing is, ipso facto, subject to the jurisdictional authority of the state. Conversely, other state(s) may not exercise its (their) power within the boundaries of the home territory. International treaties may, however, restrict the jurisdictional sovereignty of a state in the exercise of its sovereignty. There should exist on one and the same territory only one, full sovereign state; i.e. the rule of the exclusiveness of a single sovereignty over the same territory. The first and perhaps the true exception in this respect is the so-called state-condominium, where more than one state exercises sovereignty conjointly.
By consent, a territory may well be vested in and under the sovereign power of a state other than the home–state, as mandate trusteeship and the like do also fall in this bracket of exception.
Federalism may seem to present a conflicting picture. On the one hand, the federal state (U.S.A) is itself a state side-by-side with each and every member state, while, on the other hand, competence is shared between member states and the federal state – but this is strictly on domestic matters or affairs. On international level, member states of a federation are not particularly singularly subject of International Law. A few federal state constitutions had by their constitution, allowed member states to sign international treaties and participate in the works of international organizations. This was the case with a few Republics of the former U.S.S.R.; and on permission, the former F.R. of Germany. The cantons of Switzerland’s federation do have such powers, even now.
States may be linked together in various ways. This linkage may create one single international entity or, despite the linkage, the linked entities may still remain to be recognized as separate i.e. be considered as subjects of International Law. Typical points in this respect are unions/leagues and confederations. In all of them, the components maintain their international status of statehood. Thus, under International Law, confederations are separate entities.
In federation the incidence of linkage is intense (and pervasive) when compared to confederation. On the other hand, the organ of power created to manage a union or confederation has no authority on the individual citizen of constituent/member states. Among other things, this seems to be the most important distinguishing feature between Federation and Confederation; in the former, the federal state has, in some aspect, authority over the individual on top, along or besides the government of the member state and, as such, a federal state is endowed with a legal personality in the eyes of International Law; whereas the general typology presents a different picture in the case of confederation.
The fact that the laws made by member states can derogate the law made by the center is one other fact that generally characterizes confederation.