AUTONOMY AND ETHNICITY Negotiating Competing Claims in Multi-ethnic States This book deals with one of the most urgent problems of contemporary times: the political organisation of multi- ethnic states. Most major conflicts of our time are inter- nal to the state and revolve around the claims of access to or the redesign of the state. Responses to ethnic con- flicts have ranged from oppression and ethnic cleansing to accommodations of ethnic claims through affirmative policies, special forms of representation, power sharing, and the integration of minorities. One of the most sought after, and resisted, devices for conflict management is autonomy. Within an overarching framework that ex- plores different understandings of ethnic consciousness and the variety of territorial autonomies, the authors examine the experiences of spatial distribution of power in Canada, India, China, South Africa, Spain, the former Yugoslavia, Ethiopia and Eritrea, Sri Lanka, Cyprus, Papua New Guinea and Australia. YASH GHAI is the Sir Y. K. Pao Professor of Public Law at the University of Hong Kong, before which he was Professor of Law at the University of Warwick, Dean of Law at the University of East Africa, and visiting profes- sor at Yale University, Harvard University, University of Toronto, National University of Singapore and Univer- sity of Wisconsin. His previous books include Public Law and Political Change in Kenya (1970); Political Economy of Law (1987); Law, Administration and the Politics of Decen- tralisation in Papua New Guinea (1993); Law, Government and Politics in Pacific Island States (1988); Hong Kong's New Constitutional Order (1997, 2nd edn 1998); Hong Kong's Constitutional Debate (2000). He has published articles in the Journal of Modern African Studies, International Journal of the Sociology of Law, International and Comparative Law Quarterly, Pacifica Review, and Development and Change. He has also been a constitutional and legal adviser to sev- eral governments, political parties, international organ- isations and non-governmental organisations. CAMBRIDGE STUDIES IN LAW AND SOCIETY Series editors: Chris Arup, Martin Chanock, Pat O'Malley School of Law and Legal Studies, La Trobe University Sally Engle Merry, Susan Silbey Departments of Anthropology and Sociology, Wellesley College Editorial board: Richard Abel, Harry Arthurs, Sandra Burman, Peter Fitzpatrick, Marc Galanter, Yash Ghai, Nicola Lacey, Bonaventura da Sousa Santos, Sol Picciotto, Jonathan Simon, Frank Snyder The broad area of law and society has become a remarkably rich and dynamic field of study. At the same time, the social sciences have increasingly engaged with questions of law. In this process, the borders between legal scholarship and the social, political and cultural sciences have been transcended, and the result is a time of fundamental re-thinking both within and about law. In this vital period, Cambridge Studies in Law and Society provides a significant new book series with an international focus and a concern with the global transformation of the legal arena. The series aims to publish the best scholarly work on legal discourse and practice in social context, combining theoretical insights and empirical research. Already published: Anthony Woodiwiss Globalisation, Human Rights and Labour Law in Pacific Asia 0 521 62144 5 hardback 0 521 62883 0 paperback Mariana Valverde Diseases of the Will: Alcoholism and the Dilemmas of Freedom 0 521 62300 6 hardback 0 521 64469 0 paperback Alan Hunt Governing Morals: A Social History of Moral Regulation 0 521 64071 7 hardback 0 521 64689 8 paperback Ronen Shamir The Colonies of Law: Colonialism, Zionism and Law in Early Mandate Palestine 0 521 63183 1 hardback John Torpey The Invention of the Passport: Surveillance, Citizenship and the State 0 521 63249 8 hardback 0 521 63493 8 paperback William Walters Unemployment and Government: Genealogies of the Social 0 521 64333 3 hardback Christopher Arup The New World Trade Organization Agreements: Globalizing Law Through Services and Intellectual Property 0 521 77355 5 hardback Heinz Klug Constituting Democracy: Law, Globalism and South Africa's Political Reconstruction 0 521 78113 2 hardback 0 521 78643 6 paperback Eric Feldman The Ritual of Rights infapan: Law, Society, and Health Policy 0 521 77040 8 hardback 0 521 77964 2 paperback DEDICATION We dedicate this book to Neelan Tiruchelvam with pride and gratitude, and sadness. Neelan, then director of the International Centre for Ethnic Studies, was the inspiration behind the project which has resulted in this book; his ideas, enthusiasm and energy ensured its completion. He dedicated his life to the cause of ethnic harmony and inter-ethnicity equity, and grappled intellectually and practically with constitutional forms that would promote this cause. One of the forms that particularly interested him was federalism. We are sad that he did not live to see the results of the research and reflections of his collaborators on the experi- ence and potential of autonomy to accommodate competing ethnic claims. The life of this gentle and modest person, bursting with vitality and imagination, was brought to an untimely end by a suicide bomber on 29 July 1999. AUTONOMY AND ETHNICITY Negotiating Competing Claims in Multi-ethnic States EDITED BY Yash Ghai University of Hong Kong CAMBRIDGE UNIVERSITY PRESS PUBUSHED BY THE PRESS SYNDICATE OF THE UNIVERSITY OF CAMBRIDGE The Pitt Building, Trumpington Street, Cambridge, United Kingdom CAMBRIDGE UNIVERSITY PRESS The Edinburgh Building, Cambridge CB2 2RU, UK 40 West 20th Street, New York, NY 10011-4211, USA 10 Stamford Road, Oakleigh, VIC 3166, Australia Ruiz de Alarcon 13, 28014 Madrid, Spain Dock House, The Waterfront, Cape Town 8001, South Africa http://www.cambridge.org © Cambridge University Press 2000 This book is in copyright. Subject to statutory exception and to the provisions of relevant collective licensing agreements, no reproduction of any part may take place without the written permission of Cambridge University Press. First published 2000 Printed in Singapore by Green Giant Press Pte Ltd T^e/aceNewBaskerville (Adobe) 10/12 pt. System QuarkXPress® [PK] A catalogue record for this book is available from the British Library National Library of Australia Cataloguing in Publication data Autonomy and ethnicity: negotiating competing claims in multi-ethnic states. Includes index. ISBN 0 521 78112 4. ISBN 0 521 78642 8 (pbk). 1. Autonomy. 2. Ethnicity. I. Ghai, Yash P., 1938- . 305.8 ISBN 0 521 78112 4 hardback ISBN 0 521 78642 8 paperback CONTENTS Dedication IV Acknowledgements X List of Contributors xi 1 Ethnicity and Autonomy: A Framework for Analysis 1 YASHGHAI Ethnicity 4 Autonomy 8 The distinctiveness of ethnically based autonomies 11 Experiences of autonomy 14 Conclusion 24 Part I Operating Autonomies 2 Federalism and Diversity in Canada 29 RONALD L. WATTS The relevance of the Canadian example 29 Canada's constitutional and political evolution 30 Facets of Canadian diversity 31 The federal accommodation of diversity 39 Conclusion 50 Federalism and Diversity in India 53 VASUKI NESIAH From democracy and pluralism to conflict management 53 A contested terrain 54 Inherited arguments 59 Alternative mappings 69 4 Autonomy Regimes in China: Coping with Ethnic and Economic Diversity 77 YASH GHAI Minorities and basic policies 78 Autonomy: Scope and institutions 82 One country, two systems: 'A high degree of autonomy' 92 Conclusion 95 VI! CONTENTS 5 How the Centre Holds: Managing Claims for Regional and Ethnic Autonomy in a Democratic South Africa 99 HEINZ KLUG Federalism's South African history 99 Nation building, ethnicity and cultural diversity 102 Negotiations and the f-word 104 The challenge of regionalism 107 The role of the new Constitutional Court 108 Constitution making and the recognition of diversity 112 The final constitution's regionalism provisions 113 Cooperative government and 'weak' regionalism 116 Conclusion 117 6 Autonomous Communities and the Ethnic Settlement in Spain 122 DANIELE CONVERSI The historical background 122 The 1978 constitution 125 The post-constitutional devolution process 129 Asymmetric versus symmetric federalism 132 Ethnicity and culture: Complementary or contrasting factors? 134 Can the Spanish experience provide a universal model? 136 Conclusion 138 Part II Failed Autonomies 7 Ethnicity and Federalism in Communist Yugoslavia and Its Successor States 147 SlNISA MALESEVIC Accommodated ethnicity in communist Yugoslavia 150 The breakup of the federal state 158 Accommodated ethnicity in the successor states 161 Conclusion 167 Part III Seeking Autonomies 8 Ethnicity and the New Constitutional Orders of Ethiopia and Eritrea 173 JAMES C.N. PAUL Historical perspectives 175 The reconstitution of Ethiopia and Eritrea 187 Assessing the future 192 CONTENTS 9 The Politics of Federalism and Diversity in Sri Lanka 197 NEELAN TIRUCHELVAM The ideology of the centralised state and ethnic consciousness 198 Devolution through provincial councils 200 The judiciary, pluralism and the adjudication of disputes relating to devolution 205 The draft constitution: Does it represent a paradigm shift? 210 Consociationalism and minorities within a region 213 Power sharing and identity politics 215 10 Cyprus: From Corporate Autonomy to the Search for Territorial Federalism 219 REED COUGHLAN The relevance of Cyprus 219 The Zurich-London accords and the 1960 constitution 223 Negotiations 228 Political differences 231 The role of third parties in the dispute 234 Conclusion