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Falklands : LECTURE BY MICHAEL KEATING to Regional CPA Conference in the Falklands
Submitted by Falkland Islands News Network (Juanita Brock) 08.03.2013 (Article Archived on 05.04.2013)

Though I am not from here I feel at home because the landscape and the hospitality of the people but the landscape here reminds me so much of the western isles of Scotland and the west of Ireland particularly today with the wind coming off the Atlantic. So it’s a great pleasure to be here and to talk about this very difficult and very complex issue of self-determination.





Though I am not from here I feel at home because the landscape and the hospitality of the people but the landscape here reminds me so much of the western isles of Scotland and the west of Ireland particularly today with the wind coming off the Atlantic.  So it’s a great pleasure to be here and to talk about this very difficult and very complex issue of self-determination.


First of all, when I come to places like this I talk about the topics I try not to get myself involved in local issues because there are people here that are much better informed about the precise case of the Falkland Islands than I am so I will try to stick to generalities.  I will try not to talk too much about Scotland because I make my living nowadays talking about Scotland and we’ve got another 18 months of doing it before we have our referendum.  But if anybody wants to talk about the Scottish case, which of course is a very interesting one setting all kinds of precedents then we could certainly do this in the discussion session.


Now, self-determination – this is in one sense a very easy concept but in another sense it is very difficult concept.  It means that people are free to determine their own constitutional future.  And in the past this normally referred to becoming an independent state – making yourself independent.  But as we heard this morning, in fact, it can mean many other things.  It can mean not becoming independent.  It can mean voting to remain how you are; it can mean voting to change your status within the state that you’re in; it can mean changing your relationship with international organisations.  We are due to have a second referendum in the UK in 3 or 4 years’ time about the European Union.  So the notion of self-determination is the people will decide.  What they decide could be just about anything.  And in a world that is becoming more and more complex, and the range of options as to what the people can decide is itself becoming more and more complicated.


Now the British Constitutionalist, Sir Ivor Jennings, who very famously made a pronouncement about the doctrine of self-determination back in the 1950s – I think it was 1955, he said:


“Self- Determination is a very clear doctrine that people have a right to determine their own future but unfortunately, it’s completely meaningless because before the people can self-determine, somebody has to decide, who are the people?”


So who is it that has a right to self-determination?  And in some cases this is fairly straight forward in many existing states but in other cases it’s by no means clear who has the right to self-determination.  And in very complicated cases, who are the people?  Where are the boundaries of the people or on what basis or what grounds they can have to be self-determining?


Now I am going to go through fairly briefly some of the classic arguments about where the right to self-determination comes from.  It might sound a little pessimistic over the next five or ten minutes because none of these arguments are terribly convincing on their own because there is no one doctrine that trumps all the others but put together they make for a set of theories and political and legal assumptions that allow us to navigate our way through this complicated business and decide in particular cases what kind of self-determination may be appropriate. 


So I think we can do a little better than Jennings who just rings his hands and says this doesn’t mean anything because there are these self-determination claims out there and they’ve got to be resolved somehow through political, legal and institutional mechanisms, respecting principles of democracy and, freedom and basic liberal democratic ideas that underpin politics in the modern democratic world.


Well, one theory of self-determination – this became popular just a few years ago amongst some academics – is that anybody can be self-determining.  Somebody asked this morning about Yorkshire – well why not?  Any group of people can be self-determining.  This is called the permissive doctrine.  We won’t have any limitations whatever.  I mean, in some respects that’s quite attractive because why confine it to some people and some categories?  Why not just say that any group of people can get together and make themselves self-determining?  Well, the problem, of course, is in the application.  If you said there is a right of self-determination for anybody at all you can get all sorts of frivolous claims to be self-determining.


I was working in the United States in the 1980s on local government in the State of Pennsylvania (the Commonwealth of Pennsylvania to give it its proper name) any group of people can form a self-government – a local government unit.  The smallest unit of local government I came across was the Slovene National Benefit Society which was the fastest growing municipality in the United States because in a week it increased its population by 50% from 12 to 18 people and they had become self-governing because they wanted to give themselves a liquor license. 


There is, in a disused military installation in the North Sea – just off the English Channel a man who, until recently, I think he’s been removed now – camped out there for the last 20 years calling himself the Republic of Sea-land.  And he had his own flag and his own currency and his own stamps.  So you can see the absurdity of this notion that anyone can be self-determining.


And more seriously, if anybody can be self-determining, what’s to stop a group of people who happen to be sitting on a lot of natural resources that they are pulling out of the West Country?  They can go to wherever they want to because they are keeping the resources.


So, on its own that principle is far too extensive.  It doesn’t really help us dealing with particular situations and gives encouragement to all kinds of claims that we might think are problematic in various ways but nevertheless there is something attractive about it but you don’t have to prove you are something – you can just do the exercise of your own will – be self-determining.


Well, I am going to come back to that in the end and deal with it in a more sophisticated way.


At the other extreme there is a doctrine and the law books and the political science books are full of this, saying you can only become self-determining if you’ve got a grievance.  It is known as the remedial theory.  If you have somehow been badly treated or persecuted and your rights have been violated then of course you have a right to change your constitutional position and yes – OK – we can accept that in many cases abuse has taken place; people’s rights have been violated and therefore they can exercise their option to opt out of polity to which they belong. 


The problem with that and it’s very strange that none of these lawyers and political scientists who make this argument seem to realise is that it would mean that most of the existing states would be illegitimate.  How come France is allowed to become self-determining?  They have never been persecuted by anybody, really.  They have been in wars with their neighbours but they have never been really persecuted.  That’s not why they are self-determining.  Why is the United Kingdom allowed to be an independent state? 


Very often we forget that existing states also need to be legitimated – not just the new ones.  We assume that the old states – well, that’s OK – but only people who want to change their relationship who need to justify themselves but if you are going to have a consistent moral order then we’ve got to apply the same principles to the big, powerful states and small peoples as well and not apply different doctrines just because you already happen to be a state with an army, navy and an air force. 


This doesn’t really help us, besides which if you say you can only become self-determining if you got a grievance, it’s an invitation to create grievances.   And we know around the world there are people who say provocations and grievances to provoke a reaction and then they state they are now being persecuted and therefore have a right to self-determination. 


So I always find that one far too narrow.  The first doctrine is too broad, the second doctrine is too narrow. 


Another notion that’s been attached to self-determination since the 19th century is nationality.  Nations can become independent; nations have a right to self-determination.  And this was the basis for the foundation of many of the states in Europe.  Most of the states in Europe were founded in the 19th century or in the 20th century.  Very few of them are old.  France is old- Germany is not – Italy is not – the United Kingdom is not.  Most states in Europe were founded in the 19th and 205h centuries on the basis of this doctrine that there is national self-determination.


The problem is there are different conceptions of what a nation is.  Now all the way from the Germanic conception, which is all about blood and belonging and descent –there is the German nation that is based on some sort of ethnic principle which has given the Germans no end of problems over the centuries – I am not just talking about the second world war.  More recently, after reunification there were people in Siberia who couldn’t speak a word of German turn up at the airport in Frankfurt and immediately claim German Citizenship because of the blood decent line.  So the Germans have changed that. 


That’s one notion but very few people would adhere to that exclusive notion that is all to do with ethnicity and decent anymore because it seems to violate our understandings about citizenship.  Or you can have the more voluntary conception of the French philosopher Reineau in a famous speech in the 1880s he said that a nation is a daily plebiscite; a nation is a reaffirmation of a people’s will to belong to the community.  Now, Reineau had a particular reason for doing this because he wanted to prove that the French nation was legitimate and the German nation wasn’t and that Alsace should be part of France.  So almost all of these arguments are aimed at a particular place – Alsace was German speaking but Reineau said, “Ah but it’s really French because language and decent are not what really matter, it’s the values of the French republic.”


So we have very different conceptions on what we call ‘the people,’ whether you call it a nation or not.  And even if we accept the notion of nations – and nations are a sociological reality – its true, you can’t deny that – there are nations around the world – but it is very often very difficult to draw the boundaries. 


Now, the Italian patriot Mazzini in the 19th century tried to do this once.  He produced a map of Europe saying, “it’s quite simple, here are all the nations.”  Unfortunately he had Romania as part of Germany, Ireland as part of England and so on.  These are some of his more egregious mistakes but wherever you draw the line, it’s difficult.  And whenever I am talking to students I have a map on a power-point that says “These are the Nations of Europe.”    And immediately somebody puts their hand up and says you’ve got that bit wrong.  And I say that is the whole point of putting this map up because by definition it’s controversial.  You will never agree – in some cases you will agree.


Moving toward Eastern Europe – moving towards the Balkans, you are never going to get agreement on where the lines are and so nationality is something that is very often rather illusive and testing – and anyway, nations are always being invented and re-invented.  And who are we to say that some are artificial and some are real.  The Northern league has a place in Italy a place it calls Pedania.   They have invented Pedania, they have invented the history of Pedania, they have invented the language of Pedania and so you have got a Pedania.  We say it is terribly artificial – well, who are we to say that?  There are claims that people are making.


So saying that nationality is a straight forward criterion is very, very difficult because these are always just claims to being a nation.


Then there is the criterion of history and this is a very common one and some people say you have a right to be self-determining if you were self-determining in the past.  So if you lost your own self-governance, whether you gave it up voluntarily or whether you were conquered, whatever, look to the past, then you have a right to resume self-governance.  And in some cases we say this is reasonable; or you can say there were treaties in the past.  Again, we are talking about law, we are talking about things that are in documents or you can say that we have historic rights that were somehow recognised.  This is a big thing in Spain.  In the nationalities of Spain you say it is understood that we have historical rights.  The Basques talk about these direct histories all the time.  If there are historical rights, that, then means we have the right then to self-determination because these rights were not given to us by the constitution of Spain – they pre-date that.


The problem is that history is a battlefield and historians know that history is not only a factual account of the past – it’s somebody’s interpretation of the past.  In some cases it’s clear – in some cases it’s highly contested and just as you can hire a lawyer to give you the opinion you want, you can hire a historian and you can hire economists.  They will give you their version of what you want them to say.  Now I am not saying professional historians are guilty of this – not as purest professional historians – there are some out there who will give you a historical interpretation that suits your purpose.


So history is continually being re-invented and revised.  So by pointing to history you are just taking the present day dispute and projecting it 300 or 400 years back.  And you have the same kinds of arguments.


Now this is particularly problematic in the Balkans where there are these historical arguments proliferating all over the place.  There are maps of Serbia in the Mid Ages that outsiders trying to make sense of this possibly cannot judge.  And it’s even worse in the Balkans because professors of history become politicians.  This is a really terrible tendency.  It’s bad enough having any kind of professor running your country but a historian is definitely the worst kind to have - inventing these arguments about the past.  So yes, history matters but it is not straight forward.


More fruitful is to say that the past is not a book that is easily read but we have understandings about the past.  The past isn’t a particular moment when somebody said something because we don’t know what was in the minds of people when they were signing these treaties.  We can’t double guess them or the founding fathers of Canadian Confederation or whatever.  But how has this been understood over time?  Then you can make sense of historical arguments.  There were historical understandings, these understandings have been violated, as much conventions as they are written documents and then we can appeal to history and say that my interpretation of history is that we do have certain rights to certain constitutional statuses and these rights are not being resurrected But by the other side.  Then one can make sense of this as constitutional practice rather than with arguments about history.


Then there is the famous Salt Water Doctrine.”   This is the doctrine that colonies are in a special category.  This is the predominant United Nations doctrine.  It’s got them into quite a lot of trouble because it is sometimes difficult to know what is a colony, what counts as a colony, what’s not a colony, what’s a bit of an empire and how they should be treated and some cases, again, it’s clear the African and Asian colonies of the European powers nobody disputes their right to self-determination but in other cases it becomes much more difficult.  The French got into problems with Algeria because they said it was not a colony but a part of France.  It strikes us now as a bit absurd but in the 1960s this was an argument that was widely supported in France.  So arguments about colonialism, colonies again, have to be interpreted and put in a context but in themselves they don’t particularly give you a clear answer. 


Similarly there is an argument about indigenous people and again, we can accept that indigenous people are in a specific category that where there has been an indigenous population that has been outnumbered by people coming in then the indigenous people don’t thereby lose their rights.  There are many arguments in North America about the rights of native peoples and how their right to self-determination can be recognised given that they may not be a majority in a particular place but they are a definite historic community with their own culture.  So most people would make an exception for indigenous culture recognising their specific circumstances but how do you define indignity?  Again, we know who the indigenous people of North America are in the context of European settlement. 


tBut I was in Nepal a couple of years ago and everybody there was claiming to be indigenous on the grounds that they got there before somebody else.  And you are back to the historical argument – who arrived there first?  So that was taking the argument about indignity which belongs in one context and applying it in a totally inappropriate context.  And one which is simply not going to yield any definitive answer because you are just making claims and these claims just proliferate. 


Another criterion that has become more important in recent years is about liberal democracy and saying we will recognise the right of self-determination as long as the people in question are practicing liberal democracy, which sounds fine until we ask, who are we to decide?  Who decides what liberal democracy is?  Does it mean being just like us?  What version of liberal democracy are we talking about?  This is, however, very, very rife in the literature.  This notion that somehow there is somebody on the planet – on a cloud saying you qualify and you don’t qualify.


Now we’ve got the United Nations and know it is a highly politicised forum and this is known as an impartial place where they make decisions based simply on objective criterion.  So how does one actually apply that criterion?   There is something again there but it is difficult.


Then there is respect for minorities.  This is important if a country is going to secede, let us say,  within it there are probably people who don’t want to secede, who want to stay, who want to negotiate a better position.  When the Quebec independence referendum came up, a lot of the indigenous people in Quebec said that they wanted to decide for themselves.  We want to make that decision and we don’t want to be transferred from Canada to an independent Quebec without our own consent.  So is there consent within the self-determining territory or whatever?  Again, some cases are very complicated and in some cases there are no minorities.  We have to look at the context.


What this means is that no one of these criterion can trump the others.  You can’t produce a trump card and say, “That’s it!”  You can’t reduce it to one thing.  And these all point in different directions.  So we’ve got to look at a particular context and ask how these things balance together?  And increasingly the grounds to which this debate had moved away from Nationality, History, from interpreting past treaties and so on towards the notion of democracy and saying that we need to ascertain that there is a genuine desire within these people to see themselves as a people and then to be self-determining. 


And the most sophisticated analysis of this was given by the Supreme Court of Canada in the famous Quebec Reference case following the referendum in 1995, the Federal Government referred to the Supreme Court the question of whether Quebec had a right to become independent from Canada and the Supreme Court gave the obvious answer in that they read the constitution and there was no right to secede.   Well, you don’t need the Supreme Court to do that.  It takes you about 15 minutes to read the Constitution of Canada and you know it doesn’t say there is a right to secede, nor does the British (do we have one) Constitution or the Spanish Constitution. 


But then the Supreme Court said that was not enough just to look at the constitution because there are broader questions of democracy underlying the constitution is the idea of democracy.  The constitution is subordinate to the principles of democracy and peaceful accommodation.  Otherwise, the constitution is meaningless.  It has to be interpreted in the spirit and our interpretation is that if Quebec, or indeed any other province they said – so taken away from nationality – but it’s only Quebec that would be targeted by this.  If the Quebec people decide following a democratic process decide that they wish to secede from Canada on a clear question with a clear majority then the Canadian Government would be obliged to negotiate – not just accept – negotiate.  There must be negotiations in good faith.  And that is the most sophisticated expression of the rights of determination probably that had been issued by courts anywhere at any time. 


It wasn’t the answer the Government was looking for, it wasn’t the answer the Quebec nationalists were looking for, it was an answer the court came up to as a result of serious intellectual reflection.  So we put all these things together and look at the context.


I was in the Balkans a few years ago.  I was asked to do some work in Bosnia and has a government there that is called the Republica Serbska where the people have the right to self-determination and I said that I found it very difficult to see what the moral argument was.  They do not have a legal right to secede, they do not have any historic right to secede because they were created in the 1990s, there is no constitutional understanding they have a right to secede and the people there were constituted by ethnic cleansing.  It’s not just that the people decided but people who disagreed were driven out of their land and so this was a case that didn’t satisfy any of these criterion for self-determination.


You look at other cases and say there is a much, much stronger argument.  Also in former Yugoslavia there is a smaller Slovenia, not an internal minority not wanting to stay in Yugoslavia where the process was democratic.  It was largely but not entirely peaceful – the violence was provoked by the other side and so on.  And so you can look in the same part of the world where there are two cases.  You can see that this case very well and clearly seems to meet the criterion in various ways.  That other case is simply a case of ethnic nationalism, exclusion, ethnic cleansing and violations of basic human rights.


The problem is that most cases are not as clear-cut.  Most cases tend to be somewhere in between and we have to look at the context and we have to look at the balance or the argument, bearing in mind these democratic assumptions that the Canadian Supreme Court brought to bear on the Quebec case.


So it’s not just permissive.  It’s not just people waking up tomorrow and deciding they want to be self-determining.  It is because over time they have constituted themselves as a people and then democratically expressed their wish and this is not an easy thing to do.  This is not going to produce frivolity secession because it takes a lot of work, a lot of commitment, a lot of effort to get yourself into that position whether you call yourself a nation or not is neither here nor there – a label but this is the consecution of a people that then makes a claim to self-determination.


In the remaining minutes that I have got, I want to look at the other side of this ask if it is self-determining for what?  What is the content of self-determination?  And again, we can easily create an impossible situation here and say that there are no circumstances in which this could possibly be exercised.  All we can say is we can steer away from this.  Jennings was not right when he said it was meaningless.  It is meaningful but we need a complicated argument to see how this might be exercised and how it is being exercised in the contemporary world.


Now the classic doctrine of self-determination is that we want to be sovereign and that means having your own state.  Even when I came into this business in the 1970s I couldn’t persuade people that self-determination didn’t necessarily mean possession and creating your own sovereign state.  Maybe it is my own background in Scotland and Ireland but People there don’t think of it that way and never have thought of it that way.


 It’s much more complex.  If we simply say self-determination is about sovereign statehood in a world that consists of sovereign states, then first of all we come up with a problem that there aren’t enough states to go around.  If you look at all the self-determining claims that are out there will never be enough states to go around and there never have been.  This is the system of Balkanisation, just breaking up into smaller and smaller bits.  And even if you do break up into smaller and smaller bits, there are all kinds of overlaps - sovereignty claims that over-lap each other.


Now that’s always been really problematic because the international order as we know it at least since the 19th century and some people would argue it was before that – has been based upon the notion of sovereign states.  The United Nations is an association of sovereign states.  We know things are legal because sovereign states say they are legal.  International organisations are organisations of sovereign states.  The whole building block of the international order and indeed the domestic political order is the sovereign state.  So it’s not surprising that lawyers and political scientists and historians have used this apparatus and said that the sovereign state is it.  And even within Europe now we have these arguments about whether Europe is overcoming this sovereignty problem.


So doctrines of sovereignty are pervasive.  They are everywhere.  All states claim sovereignty but in one sense this doctrine is also meaningless; it simply a claim that is being made to absolute authority which may or may not be exercisable.  Not I’ve got a Catalan friend, Paulo Puget who wrote a wonderful book a few years ago called “Pensala El Camino Za La Soberania,”  It’s in Catalan but I want to get him to translate it into English sometime – “Sinking the Roots to Sovereignty.  And it’s extensively all about Finland but really he is talking about Catalonia.  He denies this but it is extensively an allegory for Catalonia.  What do you if you are a small, self-governing nation with two powerful and aggressive enemies?  He was talking about Germany and Russia but he was thinking about France and Spain.


You don’t go for absolute sovereignty obviously because you can’t defend it.  They will roll all over you.  So you’ll go for some kind of international order.  You go for some broader system where sovereignty is defused because sovereignty is much more useful to big powers than it is to small peoples.  To small peoples it is not of much use if you cannot defend it. 


So we have these older traditions around in many parts of the world and certainly in many parts of Europe – the part of the world I am most familiar with about conditional authority, mixed sovereignty that go back very often to early modern times or to the mid ages in some cases.  We find these in Spain, we find them in the United Kingdom where Scotland has a doctrine of Mixed Sovereignty – people don’t accept that the Westminster Parliament is sovereign over absolutely everything.  Scotland has maintained elements of sovereignty. We have the Basque country with the revision of the historic rights and so on.


So around there, there are these doctrines that sovereignty is limited, sovereign powers have to be restrained and sovereign peoples particularly need big powers to be restrained.  Those traditions are being reinvented.  They are coming back in a big way in the context of transnational integration.  This is the doctrine someone called post-sovereignty.  Baroness Scotland referred to it this morning.  Post sovereignty doesn’t mean sovereignty disappears, it means that it is being transformed.


Now my late colleague from the University of Edinburgh, Professor Neil McCormick, who wrote the most sophisticated work about this from a legal prospective arguing that the European Union had elements of sovereignty, that the United Kingdom is no longer completely sovereign.  It’s not lost all its sovereignty, it shared its sovereignty.  Within the European Union none of the states are really sovereign.  Obviously in a practical way they are not because they have lost control of economic policy and monetary policy for most of them but even legally sovereignty has been transformed.  So this notion of post sovereignty refers to sovereignty which is shared overlapping rounds of authority interdependent, so the classic sovereign state that simply does what it wants is disappearing.  It’s a fiction.  Some states claim that they have complete sovereignty but increasingly we know that this is fiction.


In Europe we have the European Union, we have the Council of Europe, the European Convention of Human rights – these have taken all sorts of things out of the context of the sovereign state to do with economic regulation, to deal with Human Rights to deal with many policy fields and have vested these with a higher level creating a complex and multi-levelled system in which sovereignty is diffused in multiple arenas. 


This is the context in which new sovereignty claims are being handled.  I believe it is true that many self-determination movements in Europe now have attenuated their demands to accept this. So that an acceptance in Catalonia and the Basque Country, Flanders, some of the Central and Eastern European minorities – yes there will be a sovereign government but this will be within a broader European order.  In fact, we embrace this European order more than the states do because we are use to the idea of levels of multiple authority and that doesn’t upset us too much.


Now that’s a huge transformation from classic claims to sovereignty to claims to controlling those of your own affairs you want to control within a complex interdependent system. 


Now this recurs.  This notion comes back again and again so that even when movements for self-determination are frustrated – they will say – this has happened in Wales – it has happened in Catalonia and the Basque country – we have had enough of negotiations – now we are going for the real thing – for independence.  This is what the present governing party in Catalonia has said in the last few months and now we are going for independence.  You ask them what they mean by independence and ask them if they will have their own currency and will they have their own frontier posts and the answer is no.  They are going for post sovereignty.  They are still going for a very attenuated form of independence.  I am not criticising them.  This is a realistic understanding of what the world is like.  There is no complete independence as there was in the past.


So options then focus on variations of federalism, devolution as we call it in the United Kingdom, Home Rule, which is an older phrase.  I like it as it is a less technocratic word than the word devolution - maybe we will get that back - Federalism, self-governance – these words are all ways of trying to realise this right to self-determination in a complex and interdependent world.


There is a move towards accepting a symmetry, that if you have a federation it is not necessary for every bit to have the same relationship to the centre.   The UK has accepted this.  Spain finds it very difficult to accept this although it would seem an obvious solution because there are quite different demands in Catalonia and the Basque country from the rest of Spain.  In fact, in much of the rest of Spain because of the economic crisis there is a move towards re-centralisation.  In the Basque country and Catalonia it is the opposite. 


Well, you can argue that it would be appropriate to have an asymmetrical Federal Arrangement and I know this creates anomalies of all sorts like the West Lothian question but it seems to me to be the best way for giving people what they want so if people in one part want more authority and people in another don’t, fine.  Let them all have what they want.  Listen to what people are saying and as long as they are not violating ethical principles or real democratic principles, try and accommodate them in constitutional arrangements that may look original, that may look untidy, may not fit into the classical law books but are addressing the demands that people are articulating.



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