Écritique No. 2
© 1997 Canonymous Press
by Daniel Smith
I. The Concept of Self-Determination in International Law
The concept of self-determination--like the concept of law itself [1]--is not amenable to precise definition. Instead, self-determination as a right is identified with certain central elements which in various permutations go toward making up a legally cognizable claim. Because self-determination is a legal right that bears heavily on the political relationships of states, it would be worthwhile to first examine the evolution of the very idea of statehood. Noting that "[s]overeignty existed in fact long before it could be described in theory," [2] Joseph Stryer in his book, On the Medieval Origins of the Modern State, observes that:
We should perhaps begin with a definition of the state, but most attempts to make such a definition have not been very satisfactory. A state exists chiefly in the hearts and minds of its people; if they do not believe it is there, no logical exercise will bring it to life. States have flourished which meet none of the criteria of the political scientist, for example the Netherlands in the seventeenth century. Rather than definition, let us look for some of the signs which show us that a state is coming into existence. These signs will be especially useful for our inquiry, since we are concerned with origins and not with the final form of states. [3]
For Stryer, the first sign is "purely external":
A human community must persist in space and time if it is to become a state. Only by living and working together in a given area for many generations can a group of people develop the patterns of organization which are essential for state-building. Temporary coalitions of groups which have some common interests are not apt to be the nuclei of states unless the emergency which causes the coalition lasts so long or recurs so frequently that the coalition gradually becomes permanent . . . . [4]
Once continuity in space and time for a community has been established, "the next sign of the possible emergence of a state appears: the formation of impersonal, relatively permanent political institutions." [5]
There must be institutions which can survive changes in leadership and fluctuations in the degree of cooperation among sub-groups, institutions which allow a certain degree of specialization in political affairs and thus increase the efficiency of the political process, institutions which strengthen the sense of political identity of the group. [6]
The final sign or test of a state coming into being is "a shift in loyalty from family, local community, or religious organization to the state and the acquisition by the state of a moral authority to back up its institutional structure and its theoretical legal supremacy." [7]
At the end of the process, subjects accept the idea that the interests of the state must prevail, that the preservation of the state is the highest social good. But the change is usually so gradual that the process is hard to document; it is impossible to say that at a certain point on the time scale loyalty to state becomes the dominant loyalty. The problem is complicated by the fact that loyalty to the state is not the same thing as nationalism; in fact, in some areas nationalism worked against loyalty to existing states. [8]
Stryer's schema on the historical formation of the modern state has been cited at length for several reasons. Not only does it point out the several main features of statehood as it has developed, but it also reveals conceptual and methodological difficulties inherent in the task of deciding what constitutes a state, both historically and contemporaneously. Brittle definitions must give way to conceptual formulations that yield greater descriptive force. In other words, Stryer acknowledges fully the dynamic nature of the state, while recognizing its need of permanence in time and place, as well as in its institutions, all backed by an overriding authority to which its subjects acquiesce.
One other aspect of Stryer's conception of the state must not go unremarked, however, and that is that modern states are derived from a European model. States of different types, of course, existed in other times and other places, but none achieved the currency of the Western European model:
. . . the ability of the European type of state to gain economic and political superiority proved so great that in the end it made the Chinese (or other non-European) experience seem irrelevant. The European model of the state became the fashionable model. No European state imitated a non-European model, but the non-European states either imitated the European model in order to survive or else went through a colonial experience which introduced large elements of the European system. The modern state, wherever we find it today, is based on the pattern which emerged in Europe in the period 1100 to 1600. [9]
The consequences of this genealogy can hardly be overstated in the sphere of self-determination. It is in fact what informs the ideology of the modern state system, which asserts that the territorial sovereignty of a state is very nearly inviolate in international practice. [10] Contrary assertions to this state practice, however, have been and continue to be made. One of the earliest and most famous instances (the deed once again preceding the theory) was of course that of the American Revolution. While clearly revolutionary in its consequences, negatively for the indigenous peoples and positively for the fledgling Americans, it is more aptly characterized as a secessionist movement since the British government was not overthrown, but rather colonial territory was involuntarily ceded as the spoils of a war for independence.
During the course of the nineteenth century numerous peoples began clamoring for national self-determination, the desire often being realized through plebiscites imperfectly administered. [11] But with Prussia's disregard for the Treaty of Prague, which stipulated a plebiscite for the disposition of Schleswig, the doctrine of self-determination entered a period of relative decline, not to be rekindled until the events surrounding World War I. [12 ] An Allied victory in the "war to end all wars" brought about a revitalization of self-determination in the form of minority treaties and a mandate system, fueled in large measure by President Wilson's influence on the process of redrawing the political map in the Versaille settlement. In a statement to Congress in 1918 he laid out his conception of self-determination based on consent:
Peoples are not to be handed about from one sovereignty to another by an international conference or an undertaking between rivals and antagonists. National aspirations must be respected; peoples may now be dominated and governed only by their own consent. "Self-determination" is not a mere phrase. It is an imperative principle of action which statesmen will henceforth ignore at their peril. [13]
While Wilson proclaimed self-determination an imperative, it was not universally applied in the aftermath of the war because--as Wilson himself conceded--other considerations, namely, "strategic, economic, and logistic" concerns, "'could clash with the requirements of self-determination.'" [14] The Allies therefore "refused to apply it when it seemed that their own interests might be adversely affected;" [15] moreover, "the allied powers never claimed that the subject communities had a right of self determination under international law, except as it accrued from the international obligations created by international agreements." [16] Self-determination was thus viewed as an "'imperative principle of political action.'" [17]
Others of this period, including those of radically different ideologies, also considered the political aspect of self-determination. In "Marxism and the National Question [1913]," Joseph Stalin observes that the right to self-determination means that "a nation can structure itself according to its own desire. It can structure its life on the principle of autonomy. It has the right to engage in federal relations with other nations. It has the right to secede completely. A nation is sovereign and all nations are equal." [18] In defining a nation, Stalin asserts there is "no single distinguishing characteristic;" instead, "a nation represents the combination of all its characteristics taken together." [19] As he elaborates it, "[a] nation is a historically constituted, organized community of people, arising on the basis of a community of language, territory, economic life and psychological make-up, [all] manifested in a community of culture." [20] Stalin, of course, in no way practiced what he preached, the forced annexation of the Baltic Republics notable among his violations of the right to self-determination. Nevertheless, his early theorizing does recognize the political nature of self-determination and also accentuates the contextual problems of defining what should constitute a nation. Like Stryer's framework of the emerging state, Stalin's conceptualization of the nation involves a community of people with developed institutions that is rooted historically in time and place.
Self-determination entered another stage in its development at the conclusion of World War II (this time "a war to make the world safe for democracy"). The creation of the United Nations saw the incorporation of self-determination into its charter as a fundamental principle and purpose of the organization. Self-determination has also been enshrined in other major legal instruments, including the International Covenant on Civil and Political Rights, the International Covenant on Economic, Social, and Cultural Rights, as well as U.N. General Assembly Resolutions 1514, 1541, and 2625. [21] The right of self-determination has thus been elevated from the status of a mere imperative or theoretical right to a positively affirmed norm of international law. And, what is more, the principle of self-determination has played a decisive role in furthering decolonization in the post-war era and today continues to be applied, particularly as regards minority and indigenous peoples. The right of self-determination remains, however, a comparatively fluid concept. Its application to peoples internationally demands a determination of self in a legally relevant way--a highly contextual enterprise. Possible remedies run the gamut from cultural, political, or economic autonomy for a people within a dominant state to secession from that state. [22] Part II will supply the requisite contextual basis for Tibet's claim to self-determination and Part III will formulate a remedy.
II. The Contextual Basis of Tibet's Claim to Self-Determination
III. Tibet's Right to Self-Determination and the Politics of Remedies
Appendix: U.N. Resolutions on Tibet
Écritique is published by Canonymous Press
ISSN 1061-1479
© 1997 Canonymous Press