Uti Possidetis and Self-Determination: Are They Contradictory?

Marcelo Kohen, Graduate Institute of International and Development Studies, Geneva (Switzerland)

Professor Marcelo Kohen addressed the question of the relationship between uti possidetis iuris and self-determination, providing a general overview of the question, and asking whether there is a contradiction between uti possidetis iuris and self-determination. He said he would focus on land aspects of the principle.

Professor Kohen said he regarded it as established that, for the purpose of discussion, uti possidetis iuris concerns territorial implications for boundaries of newly independent states rather than a principle of Roman law or a rule concerning belligerent occupation. The international principle of uti possidetis iuris has three main elements.

The first is respect for the limits and boundaries that existed at the time of independence. The second is the absence of terra nullius as a result of independence. This is an important element because when Spanish-American countries decided to create this rule, its purpose was not just to have administrative limits respected but also to prevent other colonial powers that came to Latin America from claiming territories. The idea was that former Spanish or Portuguese territories would continue under the sovereignty of the newly independent states. The third element is the pre-eminence of legal titles over effectivités. This is stressed with the use of the Latin genitive iuris.

A significant case that addressed the issue concerned the territorial dispute between Burkina Faso and Mali, decided by the ICJ in 1986, which stated that lines between colonial powers should be respected at the time of independence of new states.Footnote ⁶ The Court stated that the legal nature of uti possidetis iuris is recognised as an existing rule of international law, not limited to the regions of Latin America and Africa, but rather is a general rule that applies wherever independence occurs.Footnote ⁷

A more controversial issue is that of self-determination, which during the 1960s was not considered a legal principle by some states, but rather a political principle. However, nowadays there is wide recognition of self-determination as a fundamental principle of international law that has clearly existed since the adoption of the UN Charter in 1945.

The legal principle of self-determination should not be confused with other, more political principles, such as the principle of nationalities (which emerged after the French Revolution), according to which each (European) nation should be able to have its own state, under the principles of popular sovereignty or the consent of the governed. This was the main idea of President Wilson in the aftermath of the First World War. It is interesting to note that in the case of the right of a people to self-determination, for the first time in the history of international law the international legal system recognises that some communities have a right to create a sovereign state. In the past, the creation of states was a matter of fact, but today some communities have a right to create states, as the ICJ stated in its advisory opinion in the Kosovo case in 2010.Footnote ⁸

It is important to note that not all human communities constitute ‘peoples’ for the purpose of self-determination in international law. There are three categories of human community who have different rights: (i) peoples (in the legal sense, rather than the sociological sense); (ii) national and other minorities;Footnote ⁹ and (iii) indigenous peoples.Footnote ¹⁰ Each type of community has different rights, but only ‘peoples’ have a right to self-determination. It is not sufficient for a group of people simply to say ‘We are a people’. In this regard, the practice of decolonisation shows that the international recognition of a community as falling within the category of ‘people’ is important and even necessary for the existence in its favour of the right to self-determination.

By way of example, the ICJ's advisory opinion in the Wall case discussed the issue of self-determination, noting that, with regard to the right of self-determination, it assumed that the existence of a Palestinian people is no longer an issue.Footnote ¹¹ In the practice of decolonisation, the ICJ, in analysing self-determination, noted in its advisory opinion in Western Sahara that the UN General Assembly has accepted that in some circumstances the requirement to consult the inhabitants of a given territory was unnecessary because they did not constitute a ‘people’ entitled to self-determination.Footnote ¹² In order to determine who is the holder of the right to self-determination, international law follows a ‘territorial approach’. Are ‘peoples’, in the international legal sense of the term, the entire population of a sovereign state, and the populations of non-self-governing territories, mandates or trust territories recognised by the relevant international organ as such? It may be, then, than in the territories under those international regimes, there exists a single people or a plurality of peoples, or even that the current population is not recognised as a separate people in order to hold the right to self-determination.

Professor Kohen proceeded to raise the question of the relationship between self-determination and territory. Judge Dillard, in Western Sahara, said that it is for the people to determine the destiny of the territory and not for the territory to determine the destiny of the people.Footnote ¹³ However, as Judge Rosalyn Higgins commented, the territorial question must come first since, until it is determined where territorial sovereignty lies, it is impossible to see if the inhabitants have a right of self-determination.Footnote ¹⁴

The ICJ took the territorial approach in determining the order of self-determination. First, practice shows that when there is an existing sovereign state, everyone within it are its ‘people’, even if they are minorities. The exception to this is a state that itself recognises that there are different peoples within it, as in the case of the former Yugoslavia and in Ethiopia today, which recognised different peoples in the legal sense, making them eligible for self-determination and consequently separation. Second, there are territories with an international regime, such as non-self-governing territories, trust and former mandate territories. Third, there are also cases of ‘successful peoples’, as in Bangladesh, who have self-determination only because they succeeded in their secession from Pakistan, thus creating a ‘people’ in the legal sense because of its constitution as an independent state.

As for the relationship between self-determination and uti possidetis iuris, the ICJ in the Burkina Faso/Mali case referred to this, stressing the rationale of the latter principle, the aim of which was to avoid fratricide conflicts between newly created states.Footnote ¹⁵ The matter remained open and the Court did not settle it explicitly. In contrast, the Badinter Commission categorically asserted that the right to self-determination must not involve changes to existing frontiers at the time of independence (uti possidetis iuris), except where the states concerned have agreed otherwise.Footnote ¹⁶

Professor Kohen took the view that there is no contradiction between self-determination and uti possidetis. A legal system must be coherent; it cannot allow and prohibit something at the same time. It can be said that self-determination is a peremptory norm and that uti possidetis iuris is not. This could lead to the idea that the former principle should prevail. However, if one follows the territorial approach to self-determination, there is no contradiction. Self-determination addresses the right to create a state, while uti possidetis iuris applies once a state has been created and it designs the territorial extension of that state. If there are existing boundaries, these are the boundaries of the new state. Insofar as there are no established boundaries, because the new state is a completely new entity with no prior administrative entity, uti possidetis iuris has no role.

Professor Kohen concluded by noting the need to avoid confusion: uti possidetis iuris does not justify secession and is not always applicable for determining the boundaries of a new state. It does not apply when the new state does not emerge from the division of a previous state along existing administrative lines. This can also be applicable within states. In the Dayton Agreement two new entities were created within the state of Bosnia and Herzegovina (the so-called Croato-Muslim Federation and the Republika Srbska).Footnote ¹⁷ U ti possidetis iuris could not apply, simply because these new entities had no administrative precedent and therefore no boundaries.

Uti Possidetis Juris v Self-Determination

Eugene Kontorovich, Northwestern University School of Law

Professor Kontorovich began by agreeing with the analysis by Professor Kohen. He proposed offering a few general comments on the subject of uti possidetis iuris. On a theoretical level, he tried to distinguish whether there is a contradiction or a hierarchy between uti possidetis iuris and self-determination. Another way of looking at this is to distinguish between the question of uti possidetis iuris discussed by the ICJ in the Burkina Faso case and, for example, the question of the right of secession discussed by the Canadian Supreme Court,Footnote ¹⁸ and ask if they involve the same subject matter. The answer is no: the cases are distinguishable, but the lines are blurred. Examples that demonstrate the distinction between these two models include the Crimean secession or annexation by Russia, the Kurdish declaration of independence,Footnote ¹⁹ and the Catalan declaration.Footnote ²⁰ These all represent shades of potential distinction or overlap between the two questions.

The Catalan case, arguably, is an example of the principle of self-determination, but it demonstrates that self-determination is not guaranteed by international juridical recognition. The borders of Spain are not in dispute; therefore this is not a question of uti possidetis iuris but rather purely a matter of whether there is a right of secession based on self-determination.

A similar question presents itself regarding the proclamation of independence by the Kurdish government in Irbil, the similarities including a democratic referendum and an expression of the will of the voters. However, there are overtones to the uti possidetis iuris question, as the borders of Iraq were established under international supervision through a League of Nations Mandate administered by Britain. The Mosul question, as it was then known, of whether Iraq or Turkey would acquire Kurdistan was not a question of self-determination. Today this would be treated as a question of self-determination. Self-determination was seen as irrelevant by the League of Nations, which eventually gave the Kurds this ‘right’ by consulting them on whether they would like to be part of Turkey or of Iraq. As the Kurds were thought to be closer to the Arab world, they were included in the Iraqi state.Footnote ²¹ This can be seen as self-determination merged into uti possidetis iuris. The distinction is that uti possidetis iuris seems to apply between states while self-determination is an internal matter.

Crimea was an internal referendum, though the reliability of the electoral results can be questioned. This is different from the Catalan example as, for a brief 24-hour period, we can see the existence of the Republic of Crimea, yet we see this as a Russian annexation in which Russia was involved in the process of secession. Thus, the answer in this example is uti possidetis iuris, as Crimea was part of Ukraine and the international community did accept Crimean secession.

Professor Kontorovich agreed that self-determination must be exercised within defined territorial boundaries even if they were determined by arbitrary and undemocratic decisions, such as the Soviet changes to the boundaries of Ukraine in 1954,Footnote ²² which have legal validity. The Catalan example is more a question of self-determination than uti possidetis iuris.

Another example is Lebanon, where the French annexed the largely Sunni parts of the Bekka Valley and created a large Muslim minority in a Christian-majority state.Footnote ²³ The Sunnis pleaded self-determination before the League of Nations but were not heeded, while a Syrian claim over the same territory was also not recognised by the League.Footnote ²⁴ It was resurrected by Assad as a vestigial Syrian claim on Lebanon. So, arguments for partition of mandates along lines of self-determination have been common. Lebanon is an easy case; Syria is more complicated given that there had been many divisions and unifications of the territory under French rule before finally being put back together into a unitary Syrian state before independence.

Another interesting example is the Ewe, a large tribe who during the 1940s lived in the territories of British and French Togo and the Gold Coast (Ghana today). The reason why the borders of this part of Africa look like ‘fingers’ is that the colonial powers wanted access to the ocean and ports, and these borders split the Ewe across several states. Thus, even though the Ewe were a plurality in the region, they became a minority in each state. They were unsuccessful in their campaign for self-determination as the borders of the mandates were not changed before independence.Footnote ²⁵

A final example is South Cameroon. The French Mandate of Cameroun was flanked by North and South Cameroon, which were under British Mandate. A pre-independence referendum in South Cameroon, predominantly Christian, gave them the option of joining either Nigeria (as did Northern Cameroon) or French Cameroun. Independence was not an option. The question of South Cameroon remains live, as a petition before the African Commission on Human and Peoples’ Rights recently claimed that its inclusion into French Cameroun was illegal. The Commission held that uti possidetis iuris overrides self-determination, as the former is a tool used to determine the borders in which self-determination can be exercised, regardless of whether self-determination was a consideration when establishing the borders.Footnote ²⁶

As a final note, Professor Kontorovich stated that no one is of the view that self-determination trumps uti possidetis. Nor can self-determination be invoked successively. For example, Kosovo seceded from Yugoslavia, but the international community seems to think that the Serbs in northern Kosovo cannot secede from Kosovo.

Thinking beyond the Territorial Box: Are Borders a Necessary Prerequisite for Self-Determination?

David Newman, Ben-Gurion University of the Negev

Professor David Newman referred to the place of borders in the discussion over self-determination. He began with a story of a person who grew up in Eastern Europe at the beginning of the twentieth century. He was born and raised as a citizen of one state, was a student at a university in another, all his working life was spent in a third state, and finally he retired back in the first state. He managed all this in a pre-mobile world. He never moved, but every 10 to 15 years the borders around him were redrawn though war or a change of government.

The joke, according to Professor Newman, says much about the issue of borders and self-determination. Looking at the contemporary world, one can say that borders are not a necessary prerequisite for self-determination, although this would be a simplistic answer. However, if we take a deterministic approach to history, we would say that in a pre-technological era, there were very few people who moved beyond the region in which they were born, hence the notion of borders as very powerful constructs in forming regional and national identity, because that is how these identities are formed over long periods of time. Nevertheless, in today's world of mobility and technology, we need to ask a new set of questions about borders and self-determination.

Professor Newman introduced the ideas of classicist political geography scholar, Richard Hartshorne,Footnote ³⁴ who created typologies of borders rather than analyse them functionally. Hartshorne created a class of fluvial geomorphology, applying the hierarchy of river systems to the notion of borders. He argued that, similar to rivers, some borders were antecedent and others subsequent.Footnote ³⁵ When one arrived in ‘virgin territory’, one drew superimposed antecedent lines, and identities formed by reference to these lines, exactly like rivers. There were also subsequent lines, in the way that some rivers are tributaries, formed on the basis of pre-existing rivers (and identities). However, because of changes in social and political conditions, and the way in which borders create order in global administration, borders are created based on existing identity lines. In terms of a historical deterministic approach, one can claim that borders had a very important role in the emergence of regional identities in a pre-technology and pre-mobility era, creating localised identities which, in turn, determine the later demarcation of the borders.

Borders have changed over time, as has their significance. In the last 20 years or so there has been a renaissance in border studies, which encompass two major and complementary narratives. They are not mutually exclusive discourses. These narratives help us to visualise how borders play a role at the global level. The first is from a functional perspective, which is easier to understand, with regard to movements of people and goods, the administration of borders by governments according to political objectives, and so on. Also, from the perspective of self-determination, how do borders play a role within a desire to maintain order and allow self-determination to take place? What happens when self-determination cannot be manifested through state and political power, because one cannot easily draw borders around particular groups?

The first narrative is what Professor Newman refers to as the ‘borderless world’ discourse, which has been powerful since the 1980s through the last decade. The underlying idea is that the world is changing and is at peace with itself. It is proceeding to an era of globalisation, in which cyberspace and human movement pay little attention to borders between states. Economic and human capital flows largely freely – borders have been opening from the 1980s onwards. This discourse was about the impact of globalisation in a period of historical and political contingency, when the Iron Curtain was coming down and the European Union (EU) was expanding national identities, but without borders. The conclusion at the time was that we were moving into a borderless world. The renaissance in border studies comes from an inter-disciplinary understanding that although the functions of borders were changing, they were not disappearing altogether, but rather were persisting. This concerned not only national borders, but also many other kinds of border, such as those of a regional, local and communal nature. We need to think today about how national and ethnic groups negotiate borders. An example is Eastern Europe, where current borders were drawn and imposed on the population after the First World War. This created citizenships and identities, and people were often cut off as a minority population in neighbouring countries. When these borders were lifted and people had access to each other again, how did these changes affect notions of self-determination?

Professor Newman said it is a value-loaded position, not always acknowledged, that the opening of borders is a ‘good’ thing – it reflects openness, understanding diversity, and harmony. When people cross borders openly and freely they do not give up differences, but they understand the Other, and fear recedes. The Other is not as intimidating as before and, as living conditions improve, fear goes away. Opening borders can even reinforce differences. Yet, we still somehow think it is good for global geopolitics: new borders are even constructed as part of peace agreements.

However, over the last two decades a counter-discourse has emerged. Starting from 9/11 and the phenomenon of global violence and terror, there has been a great desire to re-impose borders upon the national-political landscape, and reconstruct them. The debate in Britain over Brexit over the last two years has, to a large extent, concerned migration and making borders more difficult to cross, which the British have never really removed completely.

This relates also to regional and national identities with regard to self-determination, whether in Scotland, Wales, Ireland or Catalonia. By opening borders, the EU has quite paradoxically given strength to self-determination rather than weaken it. The EU cannot have a coherent policy about this, as it cannot pass judgment on which territories are eligible vis-à-vis national integrity – Scotland is and Catalonia is not? The basic principle is that sometimes removing borders can strengthen national identities, but in a positive way in that it removes the sense of having something unknown and dangerous on the other side. Borders create a sense of threat. This can be seen in the younger generations in Israel and Palestine who, since the building of the separation wall, have not encountered or seen the Other. We increase local safety, but perhaps have created a sense of insecurity by not knowing the language, the people, or what happens on the other side. It is a double-sided coin, without a simple answer.

Professor Newman argued that the relevant question today is to what extent the opening or closing of borders impacts upon self-determination in the demands for succession. There are some ideas of statehood with the need for borders, but in a sense we have gone beyond the simplistic notion of classic borders. Even when we re-impose borders, we do not go back 60 years. We cannot really impose borders which shut down communication and the flow of information. Borders serve very limited functions. Globalisation strengthens diaspora nationalism regardless of physical borders. The real question then is more neutral: what is the role of borders in contemporary self-determination? Do they change its functionality and intensity? Do they bring about a greater or lesser sense of regionalism and a call for self-determination?

The Necessity for a Territorial Interpretation of Self-Determination

Timothy Waters, Indiana University

Professor Timothy Waters turned the focus onto the question of whether the current legal system deals effectively with territory and borders, and stated that his preliminary answer is ‘no’.

According to Professor Waters, we have a standard assumption that territorial integrity produces stability, and that we should not go beyond it without good cause. In other words, integrity is a stabilising factor, which reduces violence in the world. However, what if territorial integrity – in the form of rigid borders – is actually a source of violence and instability? Perhaps our structures and rules are in fact making things worse.

The classical model of the state – from the foundation of the United Nations onwards – is of an entity with defined borders, and the citizens of that state are its people. The doctrinal legal definition of a people is ‘the population of an existing territory or state’. This was considered a very radical idea initially. In the era of decolonisation it generated new situations and states but, by the end of this era, during the 1960s and 1970s, it became clear that this idea was quite limited, and it became a very conservative idea. The theoretically contradictory ideas of uti possidetis iuris and self-determination, which should be in tension with one another, actually work together in a lock-step, once the units are identified. We have locked-in units, which are very clearly marked, and they will remain intact until the end of time. We have a system that no longer has generative potential, in the event we would want it. The standard discourse assumes this to be advantageous for a number of reasons, which are not necessarily justified.

1. 1. Fracture We assume that if we had a different rule, which weakened territorial integrity, there would be endless fracture and infinite regression, fewer incentives to cooperate within states, more illiberal states and considerable violence. It is virtually impossible to test this rule; hence it is an epistemological problem. However, we can make some observations. Various territories such as small islands, for example, have voluntarily chosen not to become independent for economic reasons, and sovereign states have chosen to integrate, like member states of the EU. Therefore it is not actually clear that there would be infinite regression as there are also integrative incentives. There is also a normative claim embedded in this assumption, which is that more states is a bad thing, although it is unclear what the number of states ought to be. Clearly, before decolonisation we thought there should be more states than there were, but now we seem to have the right number, at about 194. It is not clear at all why this is true. On average, by way of a correlation and not causation, smaller states tend to be wealthier. Bigger is not necessarily better.

2. 2. Cooperation It is true, to some extent, that a right of exit discourages incentives for minorities to engage in political cooperation. However, this masks the fact that the current model of rigid integrity reduces the cooperation incentives for the majority to offer a deal. As game theory suggests, when parties bargain without the possibility of an exit, the party with more than half of the power is disinclined to make a generous offer to the other side.

3. 3. Illiberal states There is no evidence to support the claim that secessions produce illiberal states. Newly founded states are not necessarily any more or less liberal than their predecessors.

4. 4. Internal violence Some secessions are violent. In fact, in a world where there is almost no political and doctrinal scope to escape from an existing state, and thus almost no incentives for the state to be generous, it is remarkable that there are some secessions that are non-violent. The key driver seems to be the willingness of the majority not to resort to violence to oppose secession. Perhaps we need to focus on resistance to secession as the real relational nexus.

5. 5. Ameliorative tools The final assumption is that we have the tools to manage problems within the existing rigid framework, through resorting to internal considerations of self-determination, such as democratisation, federalism, autonomy and human rights. These tools are intended to ameliorate tensions in the locked-in units. Even if these tools are helpful in some situations, they have very limited power. For example, human rights constitute a reactive system, even assuming there was a robust mechanism for implementation. They are reactive to violation, but their remedies accept the existing state, seeking to reframe its politics but not question its existence. It is not clear that human rights regimes address the kinds of concern that make communities ask for their own states. Even liberal rights-respecting states can marginalise communities profoundly, in a manner that is quite consistent with human rights, such as by favouring one religion or language over another. These are not human rights violations, but they deeply shape a community's experience as positive or as marginalised.

   In the same vein, minority rights are negotiated in relation to the state in a global system without a right of exit. Negative, or less optimal bargains exist for the minority in a closed system. Minority rights, federalism and autonomy – the types of solution we can expect – can succeed in satisfying the interests of minorities, and when they do, that is fine. However, they too are predicated on ameliorating conditions within the framework of the existing state; they are a palliative rather than the full solution for the problems that the state, as such, may pose. For the same reasons, democracy and democratisation also have built-in limits to their usefulness. Locking communities into a state and then compelling them to cooperate with each other has the obvious flaw that it creates structural losers. Some communities will never win in a functioning democracy.

All these models are premised on the existing situation of territorial integrity, and presume that we need to fix the problems within that framework. There is only one model available that breaks out of the framework: remedial secession, although it is limited and very problematic. It is very reactive, and is based on a high threshold of harm, such as genocide or ethnic cleansing. It therefore creates perverse strategic incentives, because there needs to be ‘enough deaths’ to justify independence. Consider Kosovo, where the Kosovo Liberation Army consciously adopted a strategy of provocation in order to internationalise the conflict. From a moral and normative perspective, it is better to find another way. The real problem with remedial secession is that it is not responsive to political desire. It is motivated by the logic of suffering, but does not address the question of who makes up the community that is making the claim other than that it is a victim population. This is not a good criterion for entitlement to statehood. It discourages us from considering the claims of the communities who have not suffered, because we use borders as our analytical and decisional units.

To frame the theme more broadly in our thinking about self-determination and the state, Professor Waters continued, we are in a period of decadence, to adopt the words of Jacques Barzun.Footnote ³⁶ We have run the limits of a model but cannot get out of it. Decadence can be creative and fertile: there is much energy at work in such concepts as minority rights and the like; but it all circles the problem and avoids the tool we used to employ in order to resolve these problems: external self-determination, the creation of states. Our present reliance on the internal tools mentioned above – democratisation, human rights and so forth – are seen as a way to avoid the moment of secession, which is seen as an undesirable last resort, always thought of as a failure, as opposed to change. Even violent situations, we believe, are better if states remain intact. Take the politics of Iraq as an example, where the US and other states continue to support a ‘one Iraq’ policy without considering if that policy itself might be contributing to the state's instability. Bosnia is another example, where the decentralisation necessary to allow the coexistence of communities who are unenthusiastic about their shared statehood leads to the dysfunction that outside actors then decry, but never to the intuition that perhaps that particular state as a project and aspiration is itself part of the problem. We cannot consider change in a territory as a tool or a possibility.

International law is trapped in a territorial logic; yet it has abandoned the main tool that logic gave it – namely, creating new states. New sovereignties are not just diminutions of some notionally shared community; they are a shift in the level of governance. But our rules are frozen; we are convinced we must fix the units we have (with rights and so forth). We have abandoned one of the best tools we could use for managing conflict inside a state, when self-identified communities that were created through time and borders no longer believe in their own shared community. We admit no possibility of questioning the state itself.

Professor Waters stressed that we should not free ourselves from territorial logic altogether, but think about it differently. Territory is necessary, in a very basic sense. The space in which we live matters, and our politics are irreducibly physical. We are physical beings and our politics must take that into account. In fact, most people lead a very spatially centred life. Most people do not move very far from where they started: according to the UN, only 3 per cent of the world's population lives in a country in which they were not born.

Proximity to other humans matters. We might not share values, but we share the interests – and the conflicts – that come with proximity and we therefore need to de-conflict them. Even concepts such as tolerance are actually about de-conflicting the priorities of different people in the places where they live. Globalisation has not changed that. Actors other than states matter (and always have). States may have different functions, and borders may look different, but they have not disappeared, and might even become stronger in many respects.

The implications of this irreducible territoriality is that we identify common citizenships within a state unit, but that citizenship is very abstract. For example, an American living in New York City shares citizenship with someone living in Alaska, despite never having been there and having no personal relationship, only a political one. But the American could have meaningful relationships with other places which are outside the state, such as London. If we dig into the legal norms we have about citizenship, they imply that place does matter. Consider what happens to the population when a state divides. Its nationals, who earlier enjoyed freedom of movement throughout its territory, have to choose a citizenship or be assigned one. This has been the case in all of the state divisions since the Second World War. Nobody has globalised citizenship; it is always related to a place, such as where one's parents lived or where one is living. Our citizenship is connected to a place, which happens to be related to a political community. Although we think typically in terms of political citizenship, there is a normative priority of place for which we have to account.

The state can govern our decisions in general, but when the question is whether a state should continue to exist, the politics of physical place should trump the abstract politics of state belonging. We often think that secession and self-determination require justification, but we rarely ask for justification for the continuity of states that already exist.

Professor Waters concluded by suggesting a flexible right of secession, based on democratic grounds and the relationships of people with place. He called for allowing and identifying a right for people to alter the states they are in.

The Balfour Declaration: Between Protection and Self-Determination

Karin Loevy, NYU School of Law

Dr Karin Loevy discussed the territorial scope of the Balfour Declaration, claiming that it was rooted in the nineteenth century context of imperial protection and had little to do with sovereign territoriality. She noted that there has been an increase in the number of historical works and political commentary about the Balfour Declaration, as if understanding what exactly was promised in it, how and why, would allow one to unearth the causes of and responsibility for the conflict, and the scope for its resolution.

Her aim is to pull the Declaration away from the grips of the discourse of national conflict to expose its broader regional and international significance, by displacing the territorial vision of the Declaration from the territorial vision of the conflict. While the conflict's territoriality is embedded in twentieth century international legal politics of self-determination in and between independent nation states, the Balfour Declaration was embedded in nineteenth century international legal politics of protection in and between competing empires and imperial subjects. There is much to learn from contextualising the historical landscape of the Balfour Declaration within the alternative formats that territory played in this transitional period, and with respect to self-determination, which in this case was born from a relationship of protection choreographed in nineteenth century norms and institutions but then made to signify a completely new international order of equal sovereign states.

Dr Loevy claimed that contrary to the standard view – which treats the Balfour Declaration as recognising the right of self-determination of the Jewish people in Palestine, and therefore as the first step towards the 1948 establishment of an independent Jewish state, ‘the State of Israel’ – the wartime Anglo-Zionist declaration was in fact embedded in a very different set of territorial ideas and norms connected with nineteenth century imperial protection. The drafters of the Declaration – British officials and politicians, as well as Zionist activists and ideologues – did not envision, nor did they wish to establish an independent Jewish sovereign territorial state in Palestine. Instead, what they had in mind was an autonomous zone under British protection, for Jewish colonisation and immigration into Ottoman territory.

The vision that animated Zionist diplomacy, from the very first days of the Zionist movement, was that a territorial space within the framework of empire could be an effective solution to Europe's Jewish problem. Theodore Herzl famously moved from court to palace all over Europe and the Ottoman Empire, attempting to persuade imperial leaders to support this idea.Footnote ⁴¹ During the war, the idea finally became politically attractive as the British were trying to gain international support not only for the war efforts but also for their post-war plans for reordering Ottoman territories. The aim was mostly one of propaganda, but debates in cabinet and between Zionist and anti-Zionist Jews expressed quite clearly what the Declaration envisioned: British support for a ‘home’ for the homeless Jew seemed beneficial for the war effort – the question was where that home would be. Anti-Zionists claimed that the Jews’ home must be in their real home in Western Europe where they hold equal rights. Zionists claimed it should be in Palestine under the protection of European imperial control. Balfour clarified on 30 October 1917, in front of cabinet sceptics, that the idea of a national home should not be exaggerated. He understood it to mean ‘some form of British, American or other protectorate under which full facilities would be given to the Jews to work out their own salvation and to build up, by means of education, agriculture and industry, a real centre of national culture and focus of national life’. The colonised territory would transform into the European home that was needed in order to resolve Europe's Jewish problem of immigration and assimilation.

What made such a vision possible? Where did Herzl and his Zionist followers (and later Zionist drafters of the Declaration) get the idea – which they constantly expressed to imperial audiences in Vienna, Berlin, Paris, London, and indeed in Istanbul – that ‘public law’ is capable of maintaining a Jewish home in Ottoman territories? What were the legal norms, institutions and mechanisms that could sustain such an idea? What nourished the imagined landscape of the Balfour promise were nineteenth century colonial jurisdictional norms and practices of protection – a wide range of ideas, techniques, legal structures, doctrines and interactions, which served to sustain both legal rule and expansion in multinational empires. To highlight this context of protection Dr Loevy called to move beyond the pure legal doctrines and definitions of protection to the historical description that Lauren Benton and Lisa Ford recently provide for the category of protection in their study of early nineteenth century legal activism in and on the verge of the British empire.Footnote ⁴² According to their analysis, protection relations were often expressed in the form of treaties establishing security arrangements between an imperial power and a subordinate polity. Protection relations structured inter- and intra-polity legality, creating in the nineteenth century a framework of an imperial legal order that infused the promise of shelter from enemies with the rationale of protection against arbitrary power of despots and tyrants. They thereby created a legalised space for intervention. Towards the end of the nineteenth century, protection discourse became the platform of advocacy for colonial reform, imbued with humanitarian content reinforcing British imperial jurisdiction over territories that were often outside or on the verge of imperial borders.

Using this framework to understand the territorial vision behind the Balfour Declaration, we see how the Zionist idea – of a European jurisdictional asylum in colonial territory to alleviate the suffering of homeless Jews, while guaranteeing the rights of local subjects – was attractive for wartime British propaganda, because it could serve to quickly legitimise British attempts to reorder Ottoman territories during the war. The absence of a clear understanding of the legal relationship between protected and protecting groups (which was a basic feature of the category of protection in the nineteenth century) benefited both sides of the Anglo-Zionist relationship: Zionists could quickly shift loyalty between the different potential protectors seeking an Ottoman charter at the end of the nineteenth century and a British protected colony during the war. The British could wield the discourse of protection rhetorically to lure Russian and American support for the British war effort and, more generally, to legitimise their intervention in the reordering of Ottoman territories. They were indeed much less interested in acquiring new Jewish subjects or facilitating a ‘Jewish national home’.

With this analysis in mind, Dr Loevy moved to explore a number of nineteenth century contexts of protection that could inform the territorial vision of a Jewish zone of protection. The first is the context of Eastern European multinational empires in which Zionism developed at the same time and along similar lines as many other national movements in the region. These Eastern European national movements demanded not independence but cultural revival, representation in imperial political institutions and territorial autonomy, all within an imperial framework. In the same vein, Russian and Austro-Hungarian Zionists envisioned self-governance for every village and for every community, and not an independent, centralised, monopolised nation state. The second is the Ottoman context of European protected ‘autonomous zones’. Capitulatory regimes, protectorates, autonomous provinces within Ottoman territory but under European control – all of these were both for British foreign officials and politicians and for Zionist leaders a regular aspect of inter-imperial politics up to the First World War. The third historical context is the history of protection relations between Jews and the British Empire in the Middle East and the role that Jews played as ‘British protected persons’ in nineteenth century British interventions in Ottoman territory. All these contexts reveal how, by the beginning of the twentieth century, there was already a rich history and precedent for a protected Jewish space in Ottoman territories.

This story is important and relevant today. First, contextualising the Balfour Declaration is a way to resist the tendency to see all territorial conflicts – and particularly Middle Eastern conflicts – as tied to sovereignty in nation states, when clearly the challenges that people in the region face today cannot be understood or confronted only within a framework of the modern territorial state, nor within an international order of sovereign states. Considering the contingent landscape of the Balfour Declaration may help us to see how territory in the history of the conflict takes on more formats than the ‘national’, the ‘sovereign’ and the ‘state’. Second, the Balfour Declaration is an example of the way in which nineteenth century legal norms and techniques in the context of colonialism were reproduced in twentieth century post-colonial international law and, at the same time, were replaced by a new narrative of a completely new international order made up of equal sovereign states. Finally, expanding the ‘legacy’ of the Balfour Declaration beyond the national conflict may also extend the frameworks through which we imagine the conflict and its solution. During the last century the Israeli-Palestinian conflict has evolved according to the sovereign territorial framework. While Jewish self-determination in Palestine was recognised in the Balfour Declaration, Palestinian self-determination was not. The solution must be to finally recognise it and establish a Palestinian ‘nation state’ on broadly the same lines as that of the Jewish state. Hence the two-states solution which, after 30 years of failure, is still the dominant idea in the diplomacy of the conflict. However, there are attempts today to expand beyond this analytical framework. A more nuanced version of the territorial history of the conflict will help to problematise such attempts.

The Territorial Tribunal and Cross-Border Relations between the Bedouin in the Naqab and Transjordan

Mansour Nasasra, Ben-Gurion University of the Negev

Dr Mansour Nasasra introduced his book on British policies in the frontiers (The Naqab Bedouins: A Century of Politics and Resistance, Columbia University Press 2017). He reviewed the location of the borders in relation to the southern Palestine Bedouin, and the mechanism of territorial tribunals developed by the British in an effort to rule the Bedouin communities separately and disconnect them from Palestinian communities elsewhere.

Reviewing the location of the borders between Transjordan, the Sinai Peninsula and South Palestine, Dr Nasasra presented the British practice of policing the skies and borders. During the 1920s the British developed aerial surveillance conducted by the Royal Air Force in Iraq, in which aircraft were used to police the population and the frontiers of the empire. This practice became a significant component of British rule in the Mandate territories, especially in policing the deserts and the frontiers. The challenge of ruling and controlling the frontiers and borders of the empire was not simple and it was met, among other ways, by recruiting local tribal members to police the borders.

The British later developed the Desert Patrol, into which they recruited Bedouins all over the frontiers in order to secure the borders of the empire as well as the colonial interest in these territories. The patrol was responsible for securing the petroleum pipelines in Iraq, which extended to about 200 miles in length. In addition, a main mission of the Desert Patrol was the difficult task of preserving law and order in desert areas. This was achieved by cooperation between the Patrol and the British Royal Air Force. This idea was implemented in South Palestine and Transjordan, where policing was carried out entirely by Bedouin forces. The British subsequently tried to develop expertise among the Bedouin, which resulted in further separating them from the general Palestinian population. At that time Transjordan and Palestine were seen as a single unit in which the Bedouin police operated. Responding to a comment, Dr Nasasra confirmed that the immediate concern of the British was indeed to rule the Bedouin population in Sinai, Transjordan and Southern Palestine as one region and to develop expertise in order to work together with these communities. The borders were introduced later.

Another aspect of ruling the local communities was the establishment of tribal courts and strengthening cross-border relations between the tribal population under the rule of the empire. The British perceived the whole area (Transjordan, Sinai and Southern Palestine) as a single region, and the first tribal court was placed in Beer Sheba. As the court was also to have jurisdiction over Transjordan and Sinai, it was established by inviting representatives from the three regions of Transjordan, South Palestine and Sinai to Beer Sheba every six months. The various districts had their own representatives, who were usually British officials from the three regions and representatives from the Bedouin police and tribal judges. The court had to deal with cross-border issues relating, for example, to trade and disputes over territories and resources. The challenge was to determine where the borders between the communities lay, while the British perceived different territorial units.

What is the ‘Right’ in the Right to Self-Determination?

Raef Zreik, Tel Aviv University

Dr Zreik noted that it is common to analogise from private law theory to territory, comparing private property with self-determination as dominion of an individual over land to dominion of a people over its territory. In private law, the problem is usually to determine who is the owner of the right, while the concept of right itself is clear. He suggested that with respect to self-determination, perhaps we should question the concept of ‘right’ in the ‘right to self-determination’. We use four ‘moves’, inspired by legal realism, philosophical pragmatism, and linguistically by post-structuralism. The basic insight is driven from Hohfeld and his theory of rights, though it has been through further articulation and elaboration.Footnote ⁴⁷

1. 1. De-thingification Traditionally, we think about property as a relation between a subject and a thing, an object, and not a person–person contractual relationship. This is the image we have of property – namely, an unmediated relation between subject and object, of absolute control. However, Hohfeld's first move is the de-thingification of property: the relation is not my relation to property, but a relation between subjects through objects. To have something as mine means that I have a claim against other subjects to exclude them from using my property. Property rights are, by definition, relational and a social construct, and always mediated.

2. 2. De-physicalisation What are the resources over which we have property rights? Traditionally, it was land, horse or cart; but in the twentieth century most of the property entitlement is not physical, but intellectual. This was largely developed after Hohfeld.

3. 3. Disintegration of property Footnote ⁴⁸ We can imagine a situation in which I own an apartment, which is leased for 49 years to someone else, who in turn takes a mortgage loan from the bank to fund the lease, and lets someone else live in the apartment by permission on a sublease, along with the mortgage. Who can use the apartment? We cannot deduce that from the question of ownership. The right of the owner does not lead us to the correct conclusion. However, if we ask who will receive the money if we sell the apartment, the fact that we have an owner does not mean he will get the money. To complicate the picture, think about corporations. Who runs them? Shareholders? Directors? Workers? This is how property integrates. Our relation with resources is too complicated to be thought of and conceptualised in one term – we have a bundle of rights. Does it mean anything to talk about ownership when there are so many variations of legal power?

   The classical image, we said, is the relation between a subject and a thing, an object. Move (1) informs us that it is really a relation between subjects and an object. Adding move (2), we know that it is really subjects with many different objects, which are not tangible. Finally, move (3) adds subtle relations between many subjects and objects.

4. 4. Right and remedy This is not developed directly from Hohfeld, but from Oliver Wendell Holmes.Footnote ⁴⁹ Non-lawyers and conservative lawyers think an established right triggers a remedy, as if the decision whether someone holds a right has primordial priority, precedes the discussion of the remedy and is independent of it. If I have a contract to sell my car, I have a right to be paid. If I have a property right in land, I am entitled to exclude whoever I want from the land, and this right would be enforced. This enforcement is the outcome of the fact that I have a right. There are two levels of thinking – in principle, when we determine if there is a right, and in practice, when that right is enforced. Usually we think that there is no trade-off between the levels and they occupy two separate stages in our thinking: one level deciding the right, the second deciding on the remedy that ‘emanates’ from the right.

   Instead, let us consider the opposite, and think about rights as the shadow that falls on the ground when there is a remedy. First comes a remedy, and there follows a right. This is the common law approach, while the first conception is a more deontological civil law approach. According to the common law, a right is something that exists when there is a remedy; in this sense the remedy is not the outcome of the right any more than the right is the outcome of the remedy. With the common law understanding, we do not split the mode of thinking into two stages; rather, we treat the issue as a whole. To think of the right forces one to think at the same time of the remedy, and it is not possible to ask if there is a right without asking at the same time about the remedy. They appear together and are mutually constitutive.

   Let us look at an example from politics – the idea of the Jewish state. Under the two-level structure, the deontological approach, one first asks whether there is a justification for a Jewish state given the persecution of Jews in Europe; if the answer in the positive then the Palestinians are put under a duty to allow this right. However, a common law approach will not be able to answer the question of whether the Jews have a right to self-determination in Palestine without first incorporating the rights that Palestinians already have in the land.

What is common to all these moves is that they destabilise the way in which we think about rights and property. This might sound counter-intuitive and it is dangerous as it suggests that there are no principles but only remedies, when really most of us think of law and we have a different experience, of first having a right from which a remedy follows. For many this gives a feeling of stability and security.

Self-Determination, Decolonisation and Israel/Palestine in Comparative Perspective

Oren Yiftachel, Ben-Gurion University of the Negev

Professor Yiftachel noted that conceptually the neat overlap between self-determination for people and territory (which, of course, has never been perfect) is changing dramatically, in different – sometimes inconsistent – directions. The forces are economic and cultural globalisation on the one hand, and fragmentation and devolution on the other. We need to recognise these dynamics as significantly changing the concept of self-determination. One of the key forces of change is the growing minority assertion and challenge to the state. Three main types of minority – national, immigrant, and indigenous – are challenging the neat notions of peoples and territories, identity and law. This is highly relevant to the discourse of Israel and Palestine, which to some extent is shifting to a discourse of indigenous populations. We are facing different assemblages of identity and sovereignty all over the world.

Israel and Palestine exist in two legal-geographical epochs at the same time. First, we are in the process of colonisation of an indigenous people by another group, which is the discourse of the late nineteenth and early twentieth centuries. Simultaneously, there exists the language, which is far more common, of national and territorial struggles, at times even articulated as a border conflict between two entities.

Further forces destabilise the overlap of people, territory and self-determination. They include immigration and, more recently, urbanisation. Immigration is a force as the number of refugees is at its highest ever, even in comparison with the period following the Second World War, as well as other types of migrant, such as labourers. Immigration creates new regimes and forms of citizenship. The key issue in urban citizenship – a rising topic in geography and politics – is grey spacing, whereby whole populations and economies exist in a liminal space, between approval, recognition and full rights, and marginalisation, eviction and death. This creates a position of partial citizenship, which can be termed a state of `permanent temporariness', much of which is lawful. An important local example is of the Bedouin community in Israel, who are citizens of the state but are always subject to the threat of eviction and demolition. We can even actually extend this further to the whole of Palestine, which is in this grey space, in a perpetual state of waiting.

Interestingly, while these two epochs may be a legacy of the past – as Israel might be the last colonial country – immigration and urbanisation may actually characterise the future. Jerusalem could be the model for other cities, such as Qatar or Kolkata, with radically uneven types of citizenship status. This involves actually changing the regime and citizenship of people, and reintroducing colonial elements of ‘separate and unequal’ into the discussion of citizenship. This discussion can arise also because of the ‘Southern Turn’ in social sciences, where more and more scholars from the so-called South are focusing on colonial power relations.

Professor Yiftachel suggested considering Israel and Palestine in these terms. He identified six separate stages of colonisation of Palestine and the present stage, which can be called oppressive consolidation. It is the transformation from ‘horizontal’ (expansionist) ethnocracy to a ‘vertical ethnocracy’. The Israeli expansionist settler project has stopped and there is no horizontal expansion; it is actually shrinking if we look at it in a more strategic way. Israel has withdrawn from Lebanon and Gaza, but the colonial framework has not changed. Now it functions vertically, with more pressure on minorities and people who object to the occupation, and more emphasis on a Jewish state. Colonisation at the micro-level continues, but it has slowed down. Historically, expansion which slows down without democratisation and decolonisation leads to apartheid. What will be Palestinian self-determination in this context?

Professor Yiftachel proposed a reconfiguration of Israel and Palestine as a confederation, in which the indigenous discourse of the colonised people would merge in some way with the idea of a state for Israelis and Palestinians. This would compromise sovereignty to some extent, because in a joint entity – a union – people would be both part of the same space and also refer to a separate citizenship. They would have freedom of movement to go anywhere, and Jerusalem would be a joint capital; Palestinians in Israel would have autonomy as a national minority, the right of return would be acknowledged. Critically, this model separates citizenship and territory, perhaps in the same way as the European Union. There would also be Jewish freedom of movement, which answers some of the Jewish self-determination vision, without disrupting Palestinian sovereignty. The model tries to bring together the changes in the discourse of self-determination and the problems of colonisation in Israel and Palestine.

On the Equal Right to Self-Determination of Peoples and Ethno-national Conflicts: Territorial Self-Determination beyond the Territorial Separation Paradigm

Limor Yehuda, Hebrew University of Jerusalem

Advocate Yehuda argued for the equal right to self-determination. She started by addressing what is considered to be the positive law of self-determination and what is flawed about it, and then suggested a new reading, which incorporates a frequently overlooked component: equality between peoples.

The first example is Bosnia-Herzegovina, one of the republics of the former Yugoslavia. During the disintegration process of Yugoslavia, Bosnia-Herzegovina declared independence as the democratic state of BiH. Those who supported the declaration were Bosnian Muslims (45 per cent of the population) and Bosnian Croats (18 per cent). The Bosnian Serbs (35 per cent) objected to it, and started a war. The war lasted for three and a half years and was fought between the three ethno-national groups. The Bosnian Serbs demanded that Bosnia-Herzegovina remain part of Yugoslavia or of a separate Serb state; the Bosnian Croats supported Bosnia-Herzegovina as an independent state, but also demanded that parts of it be annexed to Croatia. Bosnian Muslims demanded that Bosnia-Herzegovina be an independent democratic state in accordance with its former borders.

The war was fought under a certain paradigm of what self-determination is: a state that is controlled and dominated by only one ethno-national group. This expectation led to horrific outcomes: deliberate ethnic cleansing and the murder of civilians. The current positive law of self-determination allegedly supports this narrow paradigm of self-determination. A new reading of the existing law can support a paradigm shift from self-determination as a claim of domination to self-determination as non-domination.

It is common to say that the positive right to self-determination has received a very narrow interpretation, rendering it almost irrelevant outside the context of post-colonisation. According to the ICJ in the Kosovo case in 2010, it is legally acknowledged as a right standing against a colonial/foreign rule.Footnote ⁵⁰ Whether the right stands for peoples in multinational states is unclear. In parallel, in 2006 the UN General Assembly adopted the United Nations Declaration on the Rights of Indigenous PeoplesFootnote ⁵¹ in which the right of indigenous peoples to self-determination was acknowledged as a new law outside the general law of self-determination. What is mentioned as the primary reason for the very narrow interpretation of the right to self-determination and the resistance to including other minorities is the fear of undermining internal and external stability and the threat to national unity.Footnote ⁵²

This interpretation of the law is flawed. First, it disregards significant elements of texts that speak of an equal right of peoples.Footnote ⁵³ Second, the current interpretation is wilfully blind. It must assume an unrealistic ideal of the state in order to justify itself as coherent. Civic nationalism assumes that the nation includes all the citizens of the state (and not of any sub-group within it), with equal individual rights, along with the neutrality of the state. Yet it became apparent that ethnic nationalism as understood by Weber (‘a community of sentiment which would adequately manifest itself in a state of its own’)Footnote ⁵⁴ reflects the prevailing and more seductive ideal. This notion of the nation identifies states with nations not only as a historical contingency but rather as a normative, conceptual unity. However, since most states are not homogeneous nation states, the law sets an unattainable goal.

Third, the new development of the law through the recognition of self-determination for indigenous peoples also raises several problems, being selective and non-binding. It is hard to justify the distinction between indigenous peoples and national minorities, especially homeland minorities. This selective recognition motivates national minorities to redefine themselves as indigenous peoples.

Advocate Yehuda suggested a new reading of the law of self-determination, inspired by Iris Marion Young's theory of self-determination as non-domination.Footnote ⁵⁵ What it means is that a people, distinguished from the state, are entitled to self-determination, not only as a demand against foreign rule but also, in multinational states, as a response to domination by another ethno-national group. The equal right means equal to that of other people(s) with whom there is a relationship or proximity – equality being understood as equality of status between the peoples concerned, and not as a demand of global justice. Instead of investing in new legal formulations (distinguishing between external and internal self-determination as an aspect of the right), Advocate Yehuda proposed viewing those alternatives as part of a set of legitimate options for self-determination to be respected and secured. These include separation into new nation states and a variety of power-sharing regimes, which include consociational democracy, federalism and other inclusive democratic models. The major criterion should be whether an equal right to self-determination can be secured for all the peoples involved.

This new reading of the law respects the original texts of the legal documents and does not undermine internal and external stability. It does this by dissociating self-determination from the sovereign state, and the state from the nation. This makes it possible to think realistically of multi-nation states as respecting the right to self-determination of more than one people or nation.

This distinction also opens the way to distinguish between the right to self-determination and the ways to respect and fulfil it. Recognising a right to self-determination does not automatically imply a right of succession, and the remedy can be decided according to the specific circumstances of each case, taking into account legitimate concerns such as undermining internal and external stability.

This new reading of the law seems to be supported by the ICJ advisory opinion on Kosovo and by the Canadian Supreme Court decision regarding Quebec, which signal a demand to open constitutional negotiations when a genuine demand is raised.Footnote ⁵⁶

Applying this to the Israeli-Palestinian conflict, Advocate Yehuda agreed that the relevant territory in which the claims to self-determination should be evaluated is the former Mandate territory between the Jordan River and the Mediterranean Sea. Within this territory exist two peoples: the Jewish-Israeli people and the Palestinian people. The right to self-determination accrues to both peoples equally, in the sense that neither of them is entitled to dominate the other, or to have a superior status over the other. This requirement for equal self-determination can be secured and respected through several political models, according to their joint decision – either:

• • a single dual-national state, in the form of a consociational democracy, federalism, or a mixture of these;

• • two nation states; or preferably

• • two nation states with common institutions in order to support the existing mixture of populations and national minorities. This would prevent forced evictions, which no model that includes territorial separation (two states) can resolve, as those territorial segments would include national minorities and persons who are not members of the two main national communities. Therefore, the institutional arrangements must also attend to the rights of such minorities, and ensure their equality of status within each of the political units.

Borders in the Arab World: The United Arab Emirates' Exceptional Model

Moran Zaga, University of Haifa

Ms Zaga addressed self-determination and territoriality in the United Arab Emirates (UAE), beginning with a remark on territoriality. The borders in the Middle East and North Africa (MENA) region are more territorial than ever. The more the cross-border phenomena have traumatised the region (such as ISIS and the Arab Spring), the more closed up – in concept and in practice – the borders have become. We cannot ignore the striking process of border fortification in the region, even in the most tribal and deserted areas of the Arabian Peninsula, a phenomenon not unique to this region. It is a struggle between the national, the sub-national and supranational arenas. So far, the state still seems to have the upper hand, leaving us to a large extent with the traditional concepts of territoriality.

The UAE represents a fascinating case study of the relationship between borders and communities in the Arab world. The UAE is considered to be a very stable country in global terms and, of course, in regional terms, not only as a result of its wealth but also of its geographical setting. The complex political map represents a perfect correlation between social and political divisions. It signifies tribal notions of sovereignty over communities, which transcend the Western practice of territorial contiguity. That is why we see many enclaves and divisions of states, reflecting the ultimate manifestation of self-determination in regional terms.

A common argument is that the colonial powers did not consider social factors in delineating borders in the Middle East. However, British records show very clearly that British officials were perfectly aware of the social composition of this area and elsewhere. In what is today the UAE the British had a different practice of creating borders compared with their practice in the Fertile Crescent and North Africa. They documented the tribal units (or, more accurately, tribal confederations) and followed their changing balance of power very closely. During the 1930s the British approached the most influential sheikhs and sought their views on territorial allocations. At that time the region was composed of socio-political entities known as sheikhdoms (domains of sheikhs). These sheikdoms represented a semi-state system with a ruling organisation, a court, full sovereignty over people, taxes, public services, and so on. However, the sheikhs were not territorial rulers; they ruled over people and the places in which the people lived, but if their tribes wandered elsewhere, their historical belonging to a territory was no longer important. This is a pragmatic way of life in the desert. It sounds so simple and yet is so far from modern thinking: one does not claim what one cannot control and has no reason to control.

Law and governance spread from the political centre to the peripheral villages, which in many cases were territorially scattered, without reference to any borders; there were no borders, frontiers or borderlands. The borders were the actual wells, roads and palm trees, rather than edges of a defined territory.

The border negotiations took place from the 1930s until the 1960s – a very long time in Middle Eastern terms. Local and Western concepts and practices were integrated into this interesting model (an example can be seen in Madha-Nahwa). The process of demarcation consisted of the British meeting with the sheiks to inspect the area together; the sheiks pointed out what belonged to them and what did not, thus describing their territory. As negotiations proceeded, the vague indications become clearer. Afterwards the British went to the villagers themselves and asked them to whom they held allegiance. The first oil exports began in the 1950s, so while oil did affect the negotiations, it was not the only factor.

The UAE did not struggle for self-determination; nor did it acquire independence from a foreign regime (the territory was a British protectorate and not a mandate territory). However, the long process of territorial allocations developed an inner discourse of self-determination with its own unique features. Territory became a political tool for these sheikhs when the main consideration for claiming a territory was tribal affiliation – only this time they presented a new idea of territorial contiguity. Borders later acted as a political tool for the necessary shift from a primitive sheikhdom to a modern state. These two factors combined – a claim for territory to consolidate tribal units and a claim for fixed borderlines – represented their version of self-determination. The same sheikhdoms eventually became the emirates that make up the modern UAE.

The question is whether these sheikhdoms fulfilled their self-determination as autonomous political entities under the settings of a joint federation. In other words, does the national identity called Emirati override the identity that was constructed in the self-determination process of each sheikhdom? Ms Zaga explained that even though the primordial identities were not named Emirati at all times, the idea of solid communities who wish to determine their own political sovereignty had existed among them since the beginning of border negotiations. In addition, the modern state allows overlapping territorial identities to exist together as a result of the hybrid model of the federation – that of the modern state (Emirati) and that of the traditional emirate (representing the tribal unit). The option given to the emirates to maintain their communal spheres with inner symbolic boundaries actually contributed to the creation of a stable state.

We can add another territorial identity to these two. Article 6 of the Constitution of the UAE asserts that ‘[t]he Union is a part of the Great Arab Nation, to which it is bound by the ties of religion, language, history and common destiny. The people of the Union shall be a single people, and shall be part of the Arab Nation’.Footnote ⁵⁷

The sub-national, the national and the supranational all combine and coexist. The UAE is not confused about its identity, as many tend to think. However, the border fortification process mentioned earlier might be a manifestation of a growing need for state integrity and nationalism as a result of the heavy forces that threaten it. What we witness today might be a sign for emphasising national identities.

Self-Determination and the Concept of ‘Territoriality’ at a Specific Canadian Level and at the General Level of ‘Legality’

Mark Walters, McGill University

Professor Walters opened by qualifying the applicability of the Canadian model of indigenous territories and self-determination to the local situation between Israel and the Palestinians.

Canada is a federation, the territorial division of which was drawn without explicit reference to national or cultural identities (though implicitly the province of Quebec was established to respect the distinctive French-Canadian community in Canada). Matters of private law are provincial and issues such as criminal law are federal. The debate over indigenous people began as a constitutional issue. Section 91(24) of the Constitution Act of 1867 gives the federal parliament authority over ‘Indians and lands reserved for Indians’.Footnote ⁵⁸ There exists a long history of treaty making, dating from before the existence of the present state of Canada. Treaties were made between Europeans and indigenous peoples, which resembled international treaties in many respects, yet were unique in that the indigenous parties were not ‘states’ in the European sense. Such treaties included ‘peace and friendship’ treaties dating from the early seventeenth century to the early nineteenth century, ‘land surrender’ treaties from the early nineteenth century to 1923, and ‘modern’ land-claims settlement treaties from 1975 to the present.Footnote ⁵⁹ Canadian law does not consider such treaties as international treaties. This is contested by some indigenous people who make international law claims, and some indigenous communities who do not recognise Canada as their state. However, most indigenous people accept the Canadian state and seek to advance their constitutional aspirations within the domestic Canadian constitutional context (though increasingly reliance is placed upon the UN Declaration on the Rights of Indigenous PeoplesFootnote ⁶⁰). In this respect, the most important constitutional provision is section 35(1) of the Constitution Act of 1982, which recognises and affirms the ‘existing aboriginal and treaty rights’ of the Aboriginals.Footnote ⁶¹

The first constitutional instrument in Canada to recognise indigenous rights, however, was the Royal Proclamation of 1763, which asserted that Indian land rights should be protected under British Crown sovereignty, and this historic instrument remained important even after Canada became a sovereign state. Land surrender treaties throughout the nineteenth to the early twentieth centuries embodied the surrender of title to territories by people to the crown with some reservations. These treaties typically recognise the rights of the indigenous people to pursue traditional activities within the surrendered territories until the ‘crown’ – meaning in practical terms today the federal or provincial governments – takes up the land for different reasons, such as mining, agriculture, logging, etc. The Canadian Supreme Court has interpreted these treaties as a surrender of land; yet it has also required the government to consult with the indigenous people and consider their positions before appropriating land. These older land-surrender treaties do not include an explicit recognition of self-governance. Large parts of Canada's territory were not acquired through land-surrender treaties. The treaty-making process stopped in 1923, but it recommenced in 1975 when major development projects began within non-ceded indigenous territories, and modern treaties that have since been concluded contained detailed provisions on indigenous self-government. The Supreme Court has recently ruled that governments in Canada are under a constitutional duty to resolve modern land claims in those parts of Canada where treaties have yet to be made. To this day, land claims in most of British Columbia and large parts of Quebec and the Maritime provinces have not yet been settled.

An interesting example of a modern land-claim settlement is the agreement reached in 1993 with the Inuit, an indigenous people who, because they form the majority in the territory of Nunavut, enjoy a de facto form of indigenous self-government. Another interesting example is found in Quebec. The province of Quebec is distinctive in that the majority of its population is French-speaking and its private law system is based upon the (French) civil law rather than the (English) common law system; only about 2 per cent of the population is indigenous. It was here that the first modern-day treaty, the James Bay and Northern Quebec Agreement, was signed in 1975 after the construction of hydroelectric dams threatened indigenous territories. The Inuit and Cree peoples received financial compensation in exchange for surrendering territory while retaining certain self-governance and resource and land-use rights in specified areas.Footnote ⁶² The Cree live in a large territory relative to their population size, where land rights are separated into different categories.

Under the Agreement, Category 1 lands are divided into 1A lands (in which they have exclusive possession and the federal government handles overall management, subject to broad rights of indigenous self-government), and 1B lands (in which the provincial government is responsible subject, again, to certain rights of indigenous self-governance). The rights of self-government within these categories resemble municipal self-governance, though over time these powers have been (or are being) increased, and there are also significant additional rights to exclusive resource use within the territory. There are also Category 2 and 3 lands, in which indigenous peoples have fewer rights. However, even in these territories, indigenous peoples have significant governance rights. For example, in Category 3 lands, which form the bulk of the territory governed by the Agreement, local government is based upon equal representation from indigenous and non-indigenous communities.

The power of indigenous self-determination is most extensive in Category 1A lands, and these powers are set out in a federal statute.Footnote ⁶³ However, the Cree perspective is that they are a sovereign people with a right of self-determination and an inherent authority to govern themselves. In the 1987 case of Eastmain Band v Gilpin the Quebec Provincial Court held that the Cree hold ‘some sort of residual sovereignty as regards their local governments’ and the federal legislation on their governmental powers had to be interpreted broadly as a result.Footnote ⁶⁴ Canadian courts have generally avoided any reference to indigenous ‘sovereignty’ (unlike the American courts, which have long recognised a doctrine of ‘tribal sovereignty’). However, in the recent case of Haida Nation v British Columbia (Minister of Forests) Footnote ⁶⁵ the Supreme Court of Canada stated that there is a duty on governments to conclude treaties where no treaties have been made, in order ‘to reconcile pre-existing Aboriginal sovereignty with assumed Crown sovereignty’.Footnote ⁶⁶

Despite this significant judicial acknowledgement of indigenous sovereignty, however, it is fair to say that there remain deep divisions between how indigenous peoples and Canadian federal and provincial governments understand the status of indigenous peoples in Canada. The language of ‘reconciliation’ is often invoked, but even its meaning is disputed. One recent compromise, illustrated by a provincial statute establishing a ‘reconciliation protocol’ of consultation between the province of British Columbia and the Haida people, is to acknowledge explicitly that both sides ‘hold differing views with regard to sovereignty, title, ownership and jurisdiction’ over the disputed territory, but that they agree to a process for resolving specific disputes until these larger questions are resolved.

In closing, Professor Walters noted that some scholars in Canada have described this acceptance of disagreement on fundamental points of constitutionalism as evidence of a form of ‘agonistic constitutionalism’. His own view, however, is that the language of ‘agonism’, with its sense of irresolvable and irreconcilable divisions between the peoples, may not be helpful. Even in the face of persistent disagreement, there are good reasons to strive for a just and principled reconciliation of distinctive national aspirations.