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National Self-Determination: A Sub- and Inter-Statist Conception

Published online by Cambridge University Press:  09 June 2015

Chaim Gans
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Extract

The right of national groups to self-government should be universally conceived of in sub-statist forms. Instead of interpreting the right to national self-determination in terms of independent statehood, it should in all cases be conceived of as a package of privileges to which each national group is entitled in its main geographic location, normally within the state that coincides with its homeland. According to this sub-statist conception, self-determination is not a right of majority nations within states vis-a-vis national minorities, but rather a right of homeland groups vis-a-vis non-homeland groups. It is a right to which each national group in the world is entitled, and which must be realized in at least one place.

Type
Research Article
Information
Canadian Journal of Law & Jurisprudence , Volume 13 , Issue 2: SECESSION , July 2000 , pp. 185 - 205
Copyright
Copyright © Canadian Journal of Law and Jurisprudence 2000

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References

1. Israel's Basic Law on Human Dignity and Freedom states in article 1 A: “The purpose of this Basic Law is to protect human dignity and freedom, in order to lay down the ethical values of the State of Israel, as a Jewish and democratic state, in a Basic Law.” Article 2 of another Israeli Basic Law, the one concerning freedom of occupation, has a similar formulation. The constitution of Croatia states that the Republic of Croatia is “established as the national state of the Croatian nation and the state of the members of other nations and minorities that live within it.” See Hayden, Robert M., “Constitutional Nationalism in the Formerly Yugoslav Republics” (1992) 51 Slavic Rev. 654 at 657.Google Scholar The constitutions of several other republics of the former Yugoslavia contain similar articles. See Hayden, , ibid.Google Scholar

2. Certain authors incorporate the right to statehood in the very definition of a nation. For example, see Gilbert, Paul, The Philosophy of Nationalism (Boulder, CO and Oxford: Westview Press, 1998) at 16.Google Scholar Within international law “it is abundantly clear that full independence is considered to be the “normal” result of the exercise of self-determination.” See Hannum, Hurst, Autonomy, Sovereignty, and Self-Determination (Philadelphia: University of Pennsylvania Press, 1990) at 39;Google Scholar See also Tomuschat, Christian, “Self-Determination in a Post-Colonial World” in Tomuschat, C., ed.,ed., Modern Law of Self-Determination, (Dordrecht: Martinus Nijhoff Publishers, 1993) 1 at 2.Google Scholar Daniel Philpott and David Miller seem to hold the view that self-determination should as far as possible be protected in the form of independent statehood. See Miller, David, On Nationality (Oxford: Oxford University Press, 1995), ch. 4Google Scholar; Philpott, Daniel, “In Defense of Self-Determination” (1995) 105 Ethics 352.Google Scholar Raz, Joseph and Margalit, Avishai define the right to self-determination as the “right to determine whether a certain territory shall become, or remain a separate state (and possibly also whether it should enjoy autonomy within a larger state).” See their “National Self-Determination” in Raz, J., Ethics in The Public Domain (Oxford: Clarendon Press, 1994) 125 at 126.Google Scholar Although they believe that a state is not a necessary means for satisfying the interests in national self-determination, Raz and Margalit acknowledge the right of groups forming territorial majorities to establish such states.

3. See Raz, , ibid. chs. chapters 6 and 8,Google Scholar and Kymlicka, Will, Multicultural Citizenship. A Liberal Theory of Minority Rights (Oxford: Oxford University Press, 1995).Google Scholar

4. Dinstein, Yoram, “Collective Human Rights of Peoples and Minorities” (1976) 25 Int'1 and Comp, L. Q. 102 at 102.Google Scholar It should be stressed that he refers to self-determination in the context of independence from foreign rule. However, the right to self-determination in international law is not limited to colonial peoples. (For this see Tomuschat, , supra note 2).Google Scholar Raz and Margalit defend a principle of self-determination similar to the one quoted here. See Raz, , “National Self-Determination,” supra note 2.Google Scholar

5. Miller, D., supra 2 at 111;Google Scholar Gellner, Ernest, “Do Nations Have Navals?” (1996) 2/3 Nations and Nationalism 366 at 369;Google Scholar Beiner, Ronald S., “National Self-Determination and Rights: Some Cautionary Remarks Concerning the Rhetoric of Rights” in Moore, Margaret., ed., National Self-Determination and Secession (Oxford: Oxford University Press, 1998) 158 at 159-60;Google Scholar Tamir, Yael is a clear exception. She says: “Since not all nations can attain [statehood], and since restricting the implementation of this right only to nations able to establish one would lead to grave inequalities, other solutions must be sought.” See her Liberal Nationalism (Princeton, NJ: Princeton University Press, 1993) at 74.Google Scholar

6. This also seems to apply to Tamir. As the quote in the previous note demonstrates, she is sensitive to the problems of injustice that are created by the fact that only some nations can attain states. However, her conclusion seems to be merely that this should not result in denying of any form of self-determination to other nations. It is not at all clear that her position implies a total rejection of statist self-determination, though she clearly sympathizes with non-statist solutions. See Tamir, , ibid. at 150-51.Google Scholar

7. Mazzini, Engels, Marx and many other nineteenth century Polish, Hungarian and German nationalists (prominent among them Friedrich List) used the present or similar device. On this see Alter, Peter, Nationalism, 2nd ed. (London: Edward Arnold, 1994) at 20;Google ScholarPubMed Canovan, Margaret, Nationhood and Political Theory (Cheltenham: Edward Elgar, 1996) at 8;Google Scholar Szporluk, Roman, Communism and Nationalism (Oxford: Oxford University Press, 1988) at 128, 155-56;Google Scholar Nimni, Ephraim, Marxism and Nationalism (London: Pluto Press, 1991) at 23-37.Google Scholar

8. See Barry, Brian, “Self-Government Revisited” in Miller, David & Seidentop, Larry, eds., The Nature of Political Theory, (Oxford: Clarendon Press, 1983) 121 at 133-41;Google Scholar Miller, , supra note 2 at 19-21.Google Scholar

9. This formulation roughly follows Walker Connor, who roughly follows Max Weber. See Connor, Walker, Ethnonationalism, The Quest for Understanding (Princeton, NJ: Princeton University Press, 1994) at 102-03.Google Scholar

10. Liberal nationalists who support a statist interpretation of self-determination, do so not because they believe that states are necessary for protecting the interests justifying self-determination, but because they believe that they are optimal for such protection. See for example Miller, , supra note 2 at 88;Google Scholar Kofman, Daniel, “Rights of Secession” (1998) (July-August) 35(3) Society 30 at 32-36.Google Scholar

11. See Philpott, Daniel, “In Defense of Self-Determination” (1995) 105 Ethics 352 at 359.Google Scholar

12. But see, for example, Castles, Stephen & Miller, Mark J., The Age of Migration (Basingstoke and London: Macmillan, 1993);Google Scholar Weiner, Myron, The Global Migration Crisis (New York: Harper Collins Publishers, 1995).Google Scholar

13. On freedom of movement and emigration see Free Movement, eds. Barry, B. & Goodin, R.E. (London: Harvester Wheatsheaf, 1992 and Philadelphia: Pennsylvania State University Press, 1992) 23-84;Google Scholar Justice in Immigration, Schwartz, Warren F., ed., (Cambridge: Cambridge University Press, 1995);CrossRefGoogle Scholar Bader, Veit, “Citizenship and Exclusion” (1995) 23 Pol. Theory 211.Google Scholar

14. Miller, , supra note 2 at 127, 128.Google Scholar

15. See ibid. at 113.

16. See ibid. at 129.

17. See Coleman, Jules L. & Harding, Sarah K., “Citizenship, the demands of justice, and the moral relevance of political borders” in Schwartz, Warren F., ed., Justice in Immigration (Cambridge: Cambridge University Press, 1995) at 21-22.Google Scholar

18. Nationality-based privileges regarding immigration seem to be a major means for achieving these goals. For an elaboration of the sub-statist conception of self-determination proposed in this paper with regard to immigration, see Gans, Chaim, “Nationalism and Immigration” (1998) 1 Ethical Theory & Moral Practice 159.Google Scholar

19. See section 4 above.

20. With regard to rights concerning the symbols of the state, should the 700 Samaritans living in the town of Nablus be represented in the flag of a state in which 99.9% of its population is Palestinian? Unlike cases in which national groups comprise 20% or more of the population of the state in which they are entitled to self-determination, it is not clear whether the answer to this question should be affirmative. Nor is it clear, however, that it should be negative. On the theoretical level, there seem to be no clear definitive answers to questions of this kind. Political negotiations and compromise must therefore determine the answer. The same holds for more important questions concerning participation in government. Should this be implemented by techniques of consociation, or, to use Horowitz's, Donald phrase, by “making multi-ethnic participation at the center of power rewarding to all the participants who espouse it”? (See his “Self-Determination: Politics, Philosophy and Law” in Moore, supra note 5 at 196.)Google Scholar Again, there is no general definitive answer to this question.

21. As noted above in section 4, the statist interpretation of self-determination may also provide for the interests in nationality that non-homeland members of a national group may have. If it does so, it then becomes not only statist, but inter-statist as well. However, if in addition to being statist, it also becomes inter-statist, its problems of domestic and global justice will be intensified.

22. Problems of the sort discussed here, which result in the creation of two classes of citizens, are implicit in similar suggestions made by writers dealing with the problems of diaspora groups of Gastarbeiter in Western and Northern Europe. See Hammar, Tomas, Democracy and the Nation-State (Aldershot UK:, Avebury, 1990).Google Scholar For the possibility of differentiated citizenship see also Soysal, Yasemin Nuhoglu, Limits of Citizenship, Migrants and Postnational Membership in Europe (Chicago: The University of Chicago Press, 1994).Google Scholar Also, Tushnet, Mark, “United States Citizenship Policy and Liberal Universalism” (1998) 12 Georgetown Immigration L. J. 311.Google Scholar Also Bader, , “Citizenship and Exclusion”, supra note 9.Google Scholar

23. See also Gidon, Gottlieb, Nation against State (New York: Council on Foreign Relations Press, 1993).Google Scholar

24. For a valuable and illuminating discussion of the “ties that bind” multicultural states see Kymlicka, , supra note 3 ch. 9.Google Scholar