SOVEREIGNTY, STATEHOOD AND SELF-DETERMINATION







by






M. R. Franks*












This review appeared in the Fall 1994 issue of Northwestern Journal of International Law & Business, published by the Northwestern University School of Law in Chicago. It may be cited as M. R. Franks, Sovereignty, Statehood and Self-Determination, 15 J. Int'l L. & Bus. 231 (Fall 1994).


Copyright © 1994, M. R. Franks, Baton Rouge, Louisiana











*Assistant professor of law at Southern University, Baton Rouge, Louisiana; formerly associate professor of law at the Université de Cergy-Pontoise, Paris, France. The author holds his Bachelor of Science and Juris Doctor degrees from Memphis State University.





To tour the world while examining the various claims to sovereignty over virtually every inch, one may read Nii Lante Wallace-Bruce's book, Claims to Statehood in International Law.

His book is a fascinating excursion through the "four worlds." Although the origin of the terminology is obscure,1 the term "First World" clearly refers to capitalist countries historically belonging to NATO and the Organization for Economic Cooperation and Development (OECD). The term "Second World" refers to the former Soviet Bloc. The term "Third World" refers to everything else, and has come to mean economically developing countries.2 More recently, the term "Fourth World" was coined to refer to indigenous populations whose lands and cultures are engulfed by countries of the First, Second and Third Worlds.3

Dr. Wallace-Bruce's short book differs from the leading book on the subject of statehood4 in that his book consists primarily of case studies with particular emphasis on recent difficult cases.

The author begins by looking at how claims of sovereignty historically were asserted by European colonial powers against indigenous populations -- Native Americans, Canadian Indians, Africans, Australian Aborigines, New Zealand Maori and d others. With the exception of Australia, whose acquisition was rationalized by classifying the continent as terra nullius despite the presence of Aborigines, and with the further exception of Latin America, which was conquered by conquistadores, almost all other acquisitions of colonial territory by European powers were rationalized as the supposed de jure cession of territory to the conquering country by treaty with the natives. This was the operative model in the United States, Canada, New Zealand, and most of Africa and Asia.Early in his book, author Wallace-Bruce explores the history of the concept of statehood as well as modern criteria for statehood (defined territory, permanent population, effective government, capacity to enter into foreign relations, and independence). From his book we learn that statehood in the modern international sense is a relatively new concept developed between the fifteenth and seventeenth centuries.

Of greater interest, however, are the book's later chapters devoted to modern cases of questionable claims to statehood: Manchukuo during the Second World War, and more recently the four independent bantustans of formerly apartheid South Africa (Bophuthatswana, Ciskei, Transkei and Venda).

At present, claims of statehood are being asserted by the Turkish Republic of Northern Cyprus, by Tamil Eelam in Sri Lanka, and by Khalistan in the Punjab region of India. Each of these claims is analyzed in detail, as is the claim of sovereignty for Euskadi which is the Basque territory.

The book's most important contribution is its examination of alternatives to statehood for indigenous peoples desiring self-government, including home rule or regional autonomy within the boundaries of an existing country.

Denmark's Greenland, Kalaallit Nunaat is one of the author's cases in point, and represents a far less paternalistic approach to native self-government than the historic approach of the United States vis-à-vis Native American tribes. Dr. Wallace-Bruce examined meticulously the terms of Denmark's grant to Greenland. We learn that Greenland has its own parliament and also elects representatives to Denmark's parliament. Greenland enjoys almost total internal autonomy, but lacks local jurisdiction over matters of constitutional law, external relations, monetary policy, defense, administration of justice and police, and the law of persons.

Denmark also embraces another autonomous territory, the Faroe Islands. Like Greenland, the Faroe Islands are remote from the Danish mainland, but the Faroe Islands are inhabited by ethnic Danes who simply have differing interests by reason of their geographic separation. The terms of autonomy granted to the Faroe Islands differ slightly from those applicable to Greenland.

Also considered in the book are the terms of regional autonomy presently in place in Spain for that country's Basque region. Laudable as it may be, Spain's grant of internal home rule to the Basques obviously cannot affect those Basques living on the French side of the international boundary. Some Basques view theirs as a single region, historically sovereign from the Middle Ages until 1876, now arbitrarily bisected by an international boundary.

The author places too much emphasis on home rule or limited internal sovereignty for indigenous populations as a viable solution for much of the Fourth World. Home rule of limited internal sovereignty is indeed the approach presently being taken in Hong Kong, in Basque Spain, in Inuit Canada, in Palestinian Israel, and, at least in theory, in Kurdish Iraq.

But Wallace-Bruce's book needs to explore more fully the very real limitations on the workability of limited internal sovereignty for indigenous minorities. There are serious limitations on the utility of this model when the indigenous population in question straddles an international boundary, as is the case not only with the Basques but also with many tribes in Africa. There are even more serious problems with the utility of home rule when an indigenous population is a persecuted minority within a hostile country.

Regional autonomy for a dependent ethnic nation within the boundaries of a sovereign country necessarily requires some level of trust between the dependent nation and that of the dominant sovereign country in question. It seems to the present reviewer that limited internal sovereignty is a less viable solution, for example, in Tamil Sri Lanka or Kurdish Iraq than in Basque Spain or Inuit Canada.

The willingness of an indigenous population to forego having its own army, as well as its readiness to entrust representation of its interests at the international level to others, surely must depend on whether the superior sovereign power is viewed as friendly or hostile. Can the Kurds, for example, trust the Iraqis to represent their interests in negotiations with other countries? Or even to refrain from invasion of their "autonomous" territory at the first excuse?

The author erroneously states: "[It does not] make sense to talk of indigenous rights in the context of Zimbabwe or Kenya where the indigenous Africans are not only in the majority but more important, are in charge of determining the future of the country."6 Viewed in the context of colonialism, of black v. white as it were, this statement perhaps is technically correct. Yet as recent events in Sudan and Rwanda demonstrate, black members of one tribe or religion can be an indigenous and persecuted minority within the territory of a state ruled by black members of another tribe or religion.

The principle of uti possedetis works much better in South America than in Africa, primarily because most African colonial boundaries were drawn by imperial powers with little or no regard for historic tribal boundaries. Hostile tribes were often joined together within the same colony. After independence, these conflicting tribes often find themselves challenged to co-exist within one country.

Further proliferation of independent countries and the balkanization of the planet indeed seem undesirable. The United Nations now has 184 members, up from 51 in 1945. Still, most conflicts in the mid-1990s are not conventional wars between sovereign countries; they are disputes among ethnic groups within a single country. Conflicts today seem primarily to be "civil wars" between a sovereign country and an indigenous nation within the same country. Witness Yugoslavia, Cyprus, Northern Ireland, Rwanda, Somalia, Sri Lanka and Sudan, to name just a few.

The tendered solution of "home rule" for the indigenous minority, a solution we infer in favored by the author, seems viable only where the dominant majority acts in good faith towards the minority. While this good faith seems present in the case of Canada's dealings with the Inuits and Spain's dealings with the Basques, in many other cases today the requisite good faith seems singularly lacking. "Home rule" in such conflicted situations may be more of a cosmetic solution than a real one, enabling the international community to save face while abdicating its moral duty to protect persecuted minorities. Old-fashioned complete independence, however inconvenient and unwieldy, may in fact be the more workable solution in such cases.

The book's author is a lecturer in law (the Australian equivalent of an American assistant professor) at the University of Western Australia. He is also a member of the bars of three Australian states as well as of the Republic of Ghana.

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NOTES

1William Safire claims Charles de Gaulle coined the term "Third World." William Safire, Political Perotmania vs. Perotphobia, Houston Chronicle, July 12, 1992, Outlook, at 6. Other sources state that Lee Kuan Yew, former prime minister of Singapore, coined the term in 1969. See Brewer's Dictionary of Phrase and Fable 1203 (1981). An article in Singapore's Straits Times says the term was coined by French demographer Alfred Sauvy in 1952. Habibul Hague Khondker, Cold War Gone, But Third World Still Matters, Straits Times, Sept. 25, 1992, at 34. According to Kurt C. Campbell and Thomas G. Weiss, "The weight of opinion seems to be on the side of the French demographer Alfred Sauvy (1898-1990) in Le Nouvel Obersaveteur #118 of August 14, 1952. His ‘tiers monde' referred to India and China as leading the struggle for decolonization. His inspiration was a reference to the ‘third estate,' a term originally used by Emmanuel Sieyès in January 1789 to describe the struggling third force in the French Revolution that was combating the clergy and aristocracy." Kurt C. Campbell & Thomas G. Weiss, The Third World in the Wake of Eastern Europe, Washington Quarterly, Spring 1991, at 107 n.1.

2Campbell & Weiss, supra note 1, at 91-92.

3Nii Lante Wallace Bruce, Claims to Statehood in International Law 238 n.540 (1994).

4James Crawford, The Creation of States in International Law (1979).

5The term "country" is used here synonymously with the term "state." In contrast, the term "nation" means a "distinct race or people having common descent, language, history or political institutions." Concise Oxford Dictionary (4th ed. 1960).

6Wallace-Bruce, supra note 3, at 239.





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