Michael Freeman, "National Self-Determination, Peace and Human Right, Peace Review, Vol. 10, no. 2 (1 June 1998)


The appeal of the principle of national self-determination is simple, for it is surely better that nations should determine their own destinies than that someone else should do it for them. The concept of national self-determination appears to express the idea of democracy, according to which the people are presumed to be best qualified to govern themselves. International law also appears to recognize the right to national self-determination unreservedly. The common Article 1 of the covenants on civil and political rights and on economic, social and cultural rights proclaims that all peoples have the right to self-determination.

The appeal of national self-determination is, however, not restricted to democrats and has deeper roots in human nature. All human beings live in groups, and all persistent groups share a common culture. Commitment to a common culture entails an inclination to resist the imposition of alien cultures, although groups respond in various ways to contact with and subjection to other cultures: collaboration, assimilation and resistance are options commonly available. Nevertheless, the desire for cultural autonomy is one of the oldest forms of political motivation known to history, and the right to national self-determination is the principal modern form of its recognition.

The global political order is, however, primarily an association of states. International law seeks to regulate the relations among states by recognizing their equal sovereignty. The principal value of this order is peace. The United Nations Organization is concerned primarily with the stability of the existing states system. However, because it was established in response to the imperialistic aggression and atrocities of fascism, it included the protection of human rights and national self-determination among its aims. There are, however, both theoretical and practical tensions between the values of peace, human rights and national self-determination.

The concept of human rights accords fundamental value to individual selfdetermination. This value rests on the belief that individuals cannot live in safety and dignity if their lives are controlled by others. They should, therefore, be guaranteed a set of rights that protect their freedom to choose their way of life and their capacity to live it. Such rights, according to the human-rights doctrine, are best protected by governments that are accountable to their people and subject to the rule of law. The idea of human rights, therefore, appears to entail the endorsement of democratic political institutions. However, the logic of human rights and the logic of democracy are different. The concept of human rights is designed to protect certain fundamental interests of individuals against the actions of governments. The concept of democracy legitimates a particular form of governmental power. Democratic government does not necessarily respect human rights. Where democratic government is informed by strong nationalist sentiments, it is more likely to violate the human rights both of its own dissident citizens and of foreigners.

If democratic governments do not necessarily respect human rights, governments motivated primarily by nationalist sentiments are not necessarily democratic and do not necessarily respect human rights. The particularities of the history of the U.S. are such that national self-determination, democracy and individual rights seem to be mutually supportive and even mutually necessary principles. This was the background to President Wilson's famous proclamation of the principle of national self-determination as the basis of the new world order after the First World War. It is now common for historians to criticize Wilson for ignoring the complex mixture of nations in Europe and consequently proposing a principle that was both impracticable and a recipe for subversion and violent conflict. The principle was not in fact implemented and was abused by the Nazis as an excuse for German expansionism.

Although fascism discredited nationalism among Western liberal intellectuals, the anti-fascist political leaders perceived fascism to have constituted a massive violation of both individual human rights and of the rights of nations to self-determination. The U.N. Charter, therefore, included both the traditional principle of international law that states were the primary agents of international politics and the principle that world peace must be based on the self-determination of nations. The chief defect in the U.N. was that several of its leading states were imperialist powers. The global struggle against colonialism gave new meaning to and strengthened the right to national self-determination.

The postcolonial world order, however, also contained a serious flaw. This was the doctrine of uti possidetis juris, which stated that the territorial boundaries of postcolonial states should be the same as those of the colonial territories that they replaced. The rationale of this doctrine was that it would minimize territorial disputes among the postcolonial states and thereby maximize the prospects for peace among them. The state elites of post-colonial, "underdeveloped" countries became strongly attached to the doctrine because it appeared to underpin the stability they believed to be necessary for their projects of development. If postcolonial societies were not yet in reality nations, nation building became part of the project of development.

The U.N. was, therefore, able to absorb the anticolonial revolution, and remain an exclusive club of states. It established a consensus that the right to self-determination of peoples belonged to those who struggled against European colonialism, but not to peoples who believed themselves to be unjustly treated in postcolonial states. It was, however, the very power of the principle of national self-determination that rendered this postcolonial order unstable. Most states were multinational or polyethnic, and many subordinate ethno-nationalist groups perceived the doctrine of uti possidetis juris to be an ideology that justified the domination of weak peoples by groups that had managed to seize state power. Consequently, secessionist wars and anti-secessionist repression became pervasive features of the postcolonial world order. The U.N. states system could not live in peace with the nationalism that it had itself encouraged. It would recognize only states, while it denied to many peoples the right to their own states. U.N. exclusionism was a source of the ethno-nationalist violence that it struggled without much success to contain.

The Cold War largely concealed this contest between U.N. statism and its own principle of national self-determination. Global politics appeared to be dominated by the confrontation between the democratic-capitalist West and the communist East. National struggles were interpreted in Cold War terms. The superpowers intervened in these struggles as they maneuvered for position. However, in a political arena overshadowed by the balance of nuclear terror, they shared an interest in not allowing these conflicts to get out of control. The Cold War was, therefore, a special case of the traditional contest of states. But not even superpowers are omnipotent, and violent nationalist conflicts persisted, as in Vietnam, although their nationalist character was often underestimated, even by their protagonists.

The consensus of state elites on the meaning of the right to self-determination was fairly stable from 1966, the year of the two human-rights covenants, until 1991, when the USSR disintegrated. The collapse of Eastern European communism precipitated a crisis in this consensus. The first reaction of the West was to reaffirm the principle of the territorial integrity of states. When the reality on the ground rendered this policy untenable, there was a hasty retreat to the reluctant recognition of the right to self-determination, accompanied by new applications of uti possidetis juris and human rights.

In the former Yugoslavia, for example, the independence of Slovenia, Croatia, Bosnia-Herzegovina and Macedonia was recognized, but the principle of uti possidetis juris was applied for the first time not to postcolonial territories, but to the internal republics of Titoist Yugoslavia. This left a significant Serb minority in Croatia, and a mixture of ethnic groups in Bosnia. The West attempted to stabilize and justify this new reality by attaching respect for human and minority rights as conditions for the recognition of the new states. This was an innovation in the practice of the recognition of states, and was not applied consistently: Croatia, for example, was recognized despite its failure to meet the human-rights conditions that had been laid down, while Macedonia was initially not recognized, even though it had met those conditions, because of Greek political objections. The new policy failed and horrific wars broke out in Croatia and Bosnia. In the former Soviet Union, too, a number of very violent ethnonationalist wars ensued.

The collapse of communism was at first supposed by many to entail the triumph of liberal capitalism. Global capitalism has no time for national self-determination because its project is a global market of sellers and buyers. But nation states still dominate world politics, and there are still nations that seek self-determination in the face of oppressive states. The crisis of self-determination is, therefore, not over, and no new consensus on the meaning of the principle has emerged. The so-called "international community" lacks a clear, principled and practicable policy towards self-determination claims. There is, accordingly, an urgent need to think clearly, systematically, and practically about what relations ought to obtain among the principles of state sovereignty, national selfdetermination and human rights.

The core of the contemporary problem of national self-determination is that the political world is still organized by the principle that its primary agents are states and its primary purpose is peace. This principle is problematic precisely because most of the world's states are multinational, and some nations demand new states of their own. This demand threatens the integrity, status, power and wealth of existing members of the states club. This contradiction produces either the very violence that the system is designed to minimize or the severe repression of potential violence. The status quo is not viable because it clearly cannot achieve its own declared purposes: it cannot guarantee the territorial integrity of states; it is extremely reluctant to recognize the self-determination of peoples; and, consequently, it presides over massive violations of human rights.

Political theorists and international-relations scholars have been addressing these problems recently. There is an overlapping consensus in the solutions they have proposed in that all seek to reconcile the right to national selfdetermination with respect for human rights and the maintenance of peace. They differ along the dimension that runs from a realist respect for the existing states system, commonly justified by the value of peace as well as for pragmatic reasons, to proposals for radical restructuring of the world order. They differ also along the dimension that runs from liberal theorists, who accord priority to individual rights, to communitarian or nationalist theorists, who look with more favor on collective rights.

The most conservative approach to the reform of international policy on national self-determination is realist in two senses: it attempts to make only proposals that existing state elites might consider seriously; and it accords highest priority to the stability of the existing states order for the sake of peace. Nevertheless, it recommends reforms precisely on the ground that the status quo is not successful in protecting the existing states order or in maintaining peace. It calls for relatively detailed international norms governing the right to selfdetermination and the establishment of an international tribunal to settle self-determination disputes. Since this is a proposal for the incremental reform of international law, it assumes that respect for human rights would be incorporated into the criteria for making judgments on self-determination claims. This approach has the merit of combining respect for human rights with practicality. It may, however, ask more of states than they are willing to concede, and offer to those claiming national self-determination less than they are entitled to.

A similar conclusion can be derived from liberal premises. The so-called remedial theory of secession argues that the duty of government is to protect the fundamental rights of its citizens. So long as it does this, it is entitled to their obedience. Only if government systematically and persistently violates the human rights of its citizens may they consider disobedience or separation from the state. Self-determination in the form of secession is thus a remedy for gross humanrights violations when no other remedy is available. This theory does not generate a right of national self-determination as such, although nations may acquire a right of self-determination by the theory if they are persecuted as nations.

Allen Buchanan has proposed a theory of secession which combines liberalism with realism, but is somewhat more permissive than the remedial theory. He argues that the right to self-determination is not a fundamental right but should be derived from a complex set of moral considerations. These include both a realist concern not to undermine the states system as such and a liberal concern for individual rights. What is distinctive in Buchanan's analysis is the relatively strong moral force that he accords to persistent economic discrimination as a ground for the right to secession and the relatively weak force that he gives to the protection of cultures. Buchanan's theory of self-determination is liberal rather than nationalist insofar as he treats culture as an object of individual choice rather than of a collective right, but nations could benefit from his theory if, for example, they were victims of economic discrimination.

The most radical, liberal theory of secession has been proposed by Harry Beran. He assumes that the fundamental liberal value is individual autonomy. He derives from this premise the proposition that states are voluntary associations and the conclusion that anyone may leave a state if he or she wishes to. The right to secession belongs to the majority in any territory that wishes to secede. It is not necessary that this majority suffer from human-rights violations. Beran's theory differs significantly, therefore, from the remedial theory. It is also not necessary that the seceders be a nation. Beran has difficulty in moving logically from the individual right to autonomy to the collective right to secession, and does so only with an unclear theory of how territorial majorities have property and sovereignty rights over the territory in which they live.

ost recent Western theories of self-determination have been liberal rather than nationalist, because of the hegemony of liberal thought among Western intellectuals and their distrust of nationalism. Theoretical support for the right of national self-determination has, however, been provided by the communitarian group of political theorists. The clearest communitarian case for a strong right to national self-determination has been proposed by Avishai Margalit and Joseph Raz. They hold that any plausible conception of human well-being that goes beyond the satisfaction of biological needs must recognize the importance of culture, which is collectively created and enjoyed.

Culture, however, requires political protection. There is, therefore, a strong, prima facie case for recognizing the right of culture groups to govern themselves. This argument would support a prima facie right to national self-determination. Margalit and Raz recognize that collectivities may act unjustly towards their individual members and/or other collectivities, and they argue that the less just the collectivity, the weaker its right to self-determination. The theory of Margalit and Raz, on the one hand, and that of Buchanan, on the other, exemplify clearly the characteristic difference between communitarian and liberal approaches to national self-determination, for Margalit and Raz presume national cultures to be beneficent until proved pernicious, whereas Buchanan presumes culture to derive its value from the choices of individuals.

One problem raised by communitarian political theory is that individuals can live in different types of community, and communitarianism as such cannot identify which communities should have priority if communal demands conflict, as they may. In particular, it is not clear why national communities should have priority over subnational, supra-national or transnational communities. David Miller has, however, proposed arguments for giving moral priority to nation states. If we endorse any conception of social justice that entails a significant redistribution of wealth from the rich to the poor, as Miller believes we should, then we should recognize the supreme moral value of the nation state, for only national solidarity, Miller argues, can motivate the necessary redistribution, and only the state can organize it. The right to national self-determination is, therefore, necessary to social justice.

Critics have, however, doubted whether the sentiment of national solidarity is necessary to motivate distributive justice, and have also argued that recognizing the moral priority of nation states might subvert the motivation for international justice. Miller's defense of nationalism entails the recognition of a universal right to national self-determination, but leaves all other rights at the mercy of nation states which, empirically, do not have a good track record for respecting human rights. Miller offers, therefore, a strong defense of national self-determination on democratic socialist grounds at the expense of a relatively weak defense of universal human rights.

The right to national self-determination is attractive, therefore, because it appears both to recognize the right of people to live according to their own culture and to be consistent with, required by or synonymous with the principle of democracy. It is problematic, however, for two main reasons. First, in a world in which there are far more nations than states, claims to national self-determination threaten the existing states order and thereby international peace. Second, nationalism mobilizes sentiments of collective solidarity and thereby tends both to threaten individual rights and to generate xenophobia.

Rights theorists have pointed out that all rights entail duties to others and therefore all rights have costs. We often fail to notice this because we value certain rights very highly and often the costs are low. For example, my right to free speech merely requires you to let me speak: normally the value of the right clearly outweighs the cost involved. The right to national self-determination may, however, entail heavy costs to others, and we have seen that the value of the right itself is problematic. For these reasons, I believe that Buchanan is right to say there is no simple right to national self-determination, and that recognition of the right to self-determination in particular cases should depend on analyzing and weighing various moral considerations.

One consideration that is often overlooked, especially by realist thinkers, is the problem of the international heckler's veto. This problem arises when a nation has a prima facie right to national self-determination, but another party threatens that, if the nation exercises its right, the other party will resort to violence to oppose it. Realists commonly oppose recognition of the right to national self-determination in such situations for the sake of peace. Beran has argued, correctly I suggest that, although it may be morally correct to give peace priority over justice in some situations in which they conflict, we have an obligation to recognize that injustice has been done and to do everything that we can to rectify it.

It is clear that there are no simple solutions to problems of national selfdetermination, either in theory or in practice. We can, however, clarify the range of options in our search for satisfactory solutions by underlying the point that national self-determination is not equivalent to secession, and that nations can sometimes determine their destiny without becoming independent states. The distinction between national self-determination and secession not only expresses a conceptual truth but also a practical necessity, for it is obviously not possible for every nation to form a state and, if it were possible, it is unlikely that the cause of either justice or peace would be served thereby. There may yet be cases where secession is the most just solution-as the remedy for persistent, gross human-rights violations, for example-but secession is highly vulnerable to the international heckler's veto, and should be treated with caution. Short of secession, solutions to self-determination problems can involve moves down, up and across from the nation state.

Downward moves involve recognizing autonomy for aggrieved nations within the state, for example by some form of federalism. Upward solutions employ supra-state institutions, such as the European Union, as the level at which new structures can be created to meet the legitimate aspirations of conflicting parties. Solutions across state borders involve recognizing the rights of trans-state nations (for example, the Kurds) without establishing new nation states. None of these moves guarantees success in the face of intransigent opposition from existing members of the states club, which unfortunately is all too likely. However, the penetration of state borders by the processes of globalization provides the opportunity for imaginative new solutions to formerly intractable selfdetermination problems.

Nationalism has a strong appeal because it has become closely associated with personal identity, self-esteem, fundamental moral principles, valued social practices (for example, sports) and both popular and high art. Nationalism also appeals because the suppression of national aspirations is often accompanied by gross human-rights violations. Nationalism is, however, also dangerous because it can be both oppressive and exclusionary. Under contemporary conditions national cultures and identities are complex and commonly subject to contestation. Individuals also typically have multiple identities relating to family, friends, local communities, religious affiliations, occupation, nation, state and political commitments, among others. Nations are not things with definite boundaries and inherent value. Nor are they persons with human rights. They are historically contingent social constructions with enormous potential for both good and evil. Recognition of the right to national self-determination is sometimes morally appropriate, but it requires, more than most political decisions, a clear head and a steady moral nerve.

RECOMMENDED READINGS

Buchanan, Allen. 1991. Secession. Boulder, CO: Westview Press. Miller, David. On Nationaliy. Oxford: Clarendon Press. Beran, Harry. 1984. "A Liberal Theory of Secession." Political Studies 78: 21-31. Freeman, Michael. 1996. "Democracy and Dynamite: The Peoples' Right to Self-Determination."

Political Studies: 746-761.

Margalit, Avishai, & Joseph Raz. 1990. "National Self-Determination." Joumal of Philosophy 31: 439461.

Michael Freeman teaches political theory in the Department of Government at the University of Essex and has published widely on problems of human rights, ethnic conflict and nationalism. Correspondence: Department of Government and Human Rights Centre, University of Essex, Wivenhoe Park, Colchester, CO4 3SQO U.K. E-mail: freema@essex.ac.uk


Copyright Carfax Publishing Company Jun 1998

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