CHAPTER ONE
PEOPLES’ RIGHTS AND THE FOUNDATIONS OF INTERNATIONAL LAW
Outline
This chapter is the first of three exploring the concept of self-determination in international law. This part introduces the doctrines of nationalism and liberalism and their role in the foundations of international law. It will be followed by the second chapter exploring the concept of self-determina- tion and a third on the relationship between national ties and legal prin- ciples in identifying peoples.
1. Nationalism
The first and arguably most dominant doctrine that informs the right of self-determination is nationalism. Nationalism is used in a variety of contexts, often quite negative ones and some clarification is needed. Nationalism here is not used to refer to xenophobia, jingoism or national prejudice. A nationalist may, of course, display some or all these inclinations, but others may not and they are in no way integral to the doctrine.1 Indeed, in some circumstances that they could even work against it.2 Nationalism is also not necessarily opposed to cosmopolitanism.3
1 H. Kohn, The Idea of Nationalism: A Study in its Origins and Background (MacMillan, New York, 1951) at pp. 5–6; A.D. Smith, “Nationalism” 21:3 Current Sociology (1973) pp. 5–185 at p. 111–112. 2 For example, in countries where nationalism has been a foreign import a general adversion to foreign ideas would impede the spread of the doctrine. See J. Plamenatz, “Two Types of Nationalism” in E. Kamenka (ed.), Nationalism: The Nature and Evolution of an Idea (Edward Arnold, London, 1973) pp. 23–36 at p. 33. 3 Sun Yat-sen (first president of the Republic of China): “We, the wronged races, must first recover our position of national freedom and equality before we are fit to discuss cos- mopolitanism… We must understand that cosmopolitanism grows out of nationalism; if we want to extend cosmopolitanism we must first establish strongly our own nationalism. If nationalism cannot become strong, cosmopolitanism certainly cannot prosper.” Sun Y-s, “The Principle of Nationalism” in E. Kedourie (ed.), Nationalism in Asia and Africa (Frank Cass, London, 1970) pp. 304–317 at p. 311; Thomas Masaryk (first president of Czechoslovakia): “History further shows that the strengthening of national feeling does not prevent the
It merely demands that a cosmopolitan order should have a national basis. If that sounds like a contradiction in terms, consider the United Nations, the leading example of a world organisation that presents itself as the product of the genius of the world’s peoples, reflects national differences in its organisation and proclaims as one of its purposes the self-determination of peoples. A final clarification can be made between nationalism and patriotism, the latter being a sense of affection or loyalty to a person’s state or coun- try.4 The two are often used synonymously, or nationalism is presented as the dark side of patriotism: a patriot loves a country, a nationalist hates others.5 The main difference is that, while a patriot may be loyal to either a nation or a state, a nationalist distinguishes the roles of the former and the latter. Patriots may act, to use a British expression, “for Queen and country”, but a nationalist draws a distinction between the Queen (presi- dent, government, state etc.) and the country. The former is only legiti- mate to the extent that it represents the latter. Nonetheless, nationalism and patriotism do often support and merge into each other and histori- cally patriotism has in many cases laid the foundations for the subsequent development of nationalism.6 Nationalism is a political doctrine and a fairly recent one, which emerged in Europe in the late eighteenth century.7 It is also an extremely growth of internationalism and internationalization… True nationalism is not opposed to internationalism, but we abhor those nationalist jingoes who in the name of nationalism oppress other nations, and we reject that form of internationalism and cosmopolitanism, which in fact recognizes only one – its own nation – and oppresses the others. True inter- nationalism is not oppression, but neither is it a-nationalism nor anti-nationalism.” T.G. Masaryk, The Problem of Small Nations in the European Crisis (Lecture given on 19 October 1915), (The Althone Press, London, 1966) at p. 27. 4 W. Connor, “Beyond Reason: The Nature of the Ethnonational Bond” 16 Ethnic and Racial Studies (1993) pp. 373–89 at p. 374; A.D. Smith, “The Problem of National Identity: Ancient, Medieval or Modern?” 17 Ethnic and Racial Studies (1994) pp. 375–399 at p. 380; Plamenatz op. cit. no. 2 at p. 24. 5 E.g. former German President Johannes Rau: “I never want to be a nationalist but rather a patriot. A patriot is someone who loves his fatherland. A nationalist is someone who condemns the fatherland of others.” T. Helm, “President in Row over German Patriotism” Daily Telegraph (Tuesday, 20 March, 2001). See also Michael Billig: “‘our’ patrio- tism’ is made to appear ‘natural’, and thereby invisible, while ‘nationalism’ is seen as the property of ‘others’.” M. Billig, Banal Nationalism (Sage, London, 1995) at p. 17. 6 M. Hroch, Social Preconditions of National Revival in Europe: A Comparative Analysis of the Social Composition of Patriotic Groups Among Smaller European Nations (B. Fowkes trans.), (Cambridge University Press, Cambridge, 1985) at pp. 132, 178. 7 Kohn op. cit. no. 1 at pp. 3, 6, 10–11; C.J.H. Hayes, The Historic Evolution of Modern Nationalism (MacMillan, New York, 1931) at p. 6; E. Kamenka, “Political Nationalism – The Evolution of an Idea” in E. Kamenka (ed.), Nationalism: The Nature and Evolution of an Idea (Edward Arnold, London, 1973) pp. 3–20 at pp. 3–4, 7–10, 17; J.A. Armstrong, Nations Before