Self-Determination without Nationalism: A Theory of Postnational Sovereignty

2. Self-Determination and Minority Rights

2 Self-Determination and Minority Rights Do Nations Have Rights? C ontemporary political theory has been strongly affected by the concept of rights, which nationalists have not been reluctant to use for their own purposes. This chapter examines the idea that ethnonational groups can claim a right of self-determination in order to establish independent nation-states. By comparing this idea with the related but quite distinct notion that minorities (often but not always national minorities) may claim a right of self-determination if they are oppressed, it can be shown that national rights exist in only a very limited sense. An examination of two historical instances—the competing claims to self-determination invoked to establish a South Slavic state (i.e., Yugoslavia) in the 1920s and a Jewish state in Palestine (i.e., Israel) in the 1940s—shows that only a “special right” of oppressed minorities has legitimacy. Otherwise, conflicts among national groups must be resolved by recourse not to rights-claims but to institutional and territorial schemes that defuse conflict through political integration rather than separation. The argument proceeds in three stages. First, the idea of a “general” right of national groups is considered, with attention paid to the conception of group identity and the political claims that supposedly follow from it. Second , the idea of minority rights—in both its general and special versions—is considered as an alternative to the notion of a fundamental right of national groups. Third, the historical cases of Yugoslavia and Israel are considered Self-Determination and Minority Rights 43 in order to illuminate the historical and political consequences of these two views of national rights. While self-determination, as understood by nationalists, and rights, as used by liberals, have similar philosophical origins in Enlightenment thought,1 they are conceptually distinct. The concept of rights is based on the idea that the individual is a natural kind possessed of certain entitlements, whether from divine sanction or from the absence of external constraints. Locke’s views are paradigmatic here, though there are other philosophers from the period that can be cited.2 The notion of self-determination—whether applied to peoples or nations—relies on the idea that some entity has a collective identity sufficient to assert itself politically and make rights-claims. This idea of collective selfhood originates in Rousseau’s notion of collective (or “general”) will, but it gains further specification from Kant’s notion of autonomy.3 Today these ideas of collective will and individual rights have been brought together in the idea of collective rights. Advocates of national selfdetermination seek to give their claim the status of a right because that confers on it greater legitimacy and priority. But I argue here that such a notion of national rights—paradigmatically to self-determination—is incoherent. If groups are accorded rights of any sort, it is only because of certain conditions having to do with their forcible oppression in an existing state. Such rights are applicable only to minority groups and only under definite circumstances. In classifying different arguments that can be made for group rights, especially to self-determination, there is a general fault line to be noted. This is the difference between general rights accorded to groups of various kinds and special rights accorded only under certain conditions. Furthermore, there is a difference to be noted between the claimants of such rights. They may be defined very broadly so that they can include all social groups or just all national groups. They may also be defined more narrowly as social and/or national groups that have minority status within a state. Finally, such groups may be given a very restrictive definition as those that suffer various conditions—typically social oppression or political exclusion. The differentiation of these categories of claimants hinges on the issue of whether the claim-right should be considered a permanent one, which may be invoked by the claimants at any time and for perpetuity, or a temporary one, which may be invoked only under a particular condition and only as long as that condition persists. Temporary rights are therefore essentially remedial , designed to remedy an undesirable condition. Permanent rights, on the contrary, are nonremedial—not dependent on the existence or continuation of such a condition. 44 Chapter 2 These distinctions yield three theoretical positions on national rights. First, there is the view that there can be a general self-determination right for...