Wight, M.- Systems of States

SYSTEMS OF STATES

SYSTEMS OF STATES

Martin Wight Edited with an introduction hy Hedley Bull

LEICESTER UNIVERSITY PRESS IN ASSOCIATION WITH THE LONDON SCHOOL OF ECONOMICS AND POLITICAL SCIENCE

1977

First published in 1977 by Leicester University Press Distributed in North America by Humanities Press Inc., New Jersey Copyright

© Gabriele Ingaborg Wight and Leonard Keith Purkiss 1977

All rights reserved. No part of this publication may be reproduced, stored in a retrieval system, or transmitted, in any form or by any means, electronic, mechanical, photocopying, recording or otherwise, without the prior permission of the Leicester University Press. Designed by Douglas Martin Set in Linotype Granjon Printed in Great Britain by Western Printing Services Ltd, Bristol Bound by Remploy Ltd, Swansea ISBN 0

7185 1153

0

6 International legitimacy • For, when the people speaks loudly, it is from being sttongly possessed either by the Godhead or the Demon ; and he, who cannot discover the true spirit from the false, hath no ear for profitable communion '. Wordsworth, Contl�ntion of Cintra

In this paper I want to formulate some puzzles concerned with the notion of international legitimacy. In none of the literature on diplomatic theory or international law is it easy to find a broad discussion of the theory of legitimacy. A proper study would try to go back to first principles. It would disentangle the notion of legiti­ macy from that of international law on the one side, and that of ideology or international doctrine on the other. In doing so, it would give precision to the central usage of the word legitimacy, which is employed loosely and in several senses.1 By international legitimacy I mean the collective j udgment of international society about rightful membership of the family of nations ; how sovereignty may be transferred ; and how state succes­ sion is to be regulated, when large states break up into smaller, or several states combine into one. Until the French Revolution, the principle of international legitimacy was

dynastic,

being concerned

with the status and claims of rulers. Since then, dynasticism has been superseded by a

popular

principle, concerned with the claims and

consent of the governed. The sovereignty of the individual prince passed into the sovereignty of the nation he ruled. It will be noted that these principles of legitimacy mark the region of approximation between international and domestic politics. They are ·principles that prevail (or are at least proclaimed)

within

a majority of the

states that form international society, as well as in the relations

between

them.

The dynastic principle, in the form of hereditary monarchy, was the chief legacy that modern international society inherited from

1 54

Systems of States

medieval feudal society. Dynasticism was itself an international sys­ tem. The dynasties were collectively the European ruling class, and intermarried regularly to maintain their social primacy. But the dynastic principle coexisted with and indeed presupposed the prin­ ciple of election. As Burke said, ' At some time or other, all the beginners of dynasties were chosen by those who called them to govern '. The two supreme potentates of Christendom were elective. For the Church, this was the expression of a higher right, a means of revealing God's will. For the imperial lawyers and notaries who revived the Roman tradition (helped by the interests of German feudatories and of the papacy itself) it was not proper that the Em­ pire should follow the same rules of succession as a private estate. The dynastic principle gave rise to a dynastic idiom of interna­ tional politics. Alliances were consolidated by dynastic marriages. Reversals of alliance were marked by matrimonial disengagements. Territorial aggrandisement was justified by dynastic claims. Foreign revolutions were fomented by cultivating dynastic pretenders. Such was the mode of politics down to the 1 77os, when Joseph II launched his project to partition Bavaria under a bogus dynastic claim, and Pugachev impersonated the murdered Peter III, perhaps each the last example of its kind. (Despite Catherine the Great's misgivings, Pugachev's revolt was not instigated (rom abroad, and therefore was not an international event, but it was in part a colon­ ial rebellion by the non-Russian peoples of the Volga and the Urals). Dynastic marriages to cement a political alliance, however, survived into the age of nationalism, at least until the match between Prince Jerome Napoleon and the unfortunate Clotilde of Savoy in 1 859· There were two limits to the operation of dynastic legitimacy. The first took the form of traditional exceptions within Christen� dom. The second was provided by relations between Christendom and what lay beyond it. 1 . Medieval Christendom contained 'a number of powers, apart from the papacy and the Empire, which had an elective, not a here­ ditary constitution, and which, when they had disentangled them­ selves from the cobwebs of feudal suzerainty, assumed the status of sovereign republics. Pre-eminent were Venice, the Swiss Confedera­ tion, and the United Provinces of the Low Countries. These were sometimes classed in eighteenth-century diplomatic works as the ' Great Republics ', and received royal honours .

International legitimacy

ISS

The Dutch Revolt posed with embarrassing sharpness the issue of legitimacy and the right of admission to international society. By the Act of Abjuration of I S 8 I the States-General renounced only their allegiance to Philip, not the monarchic principle. ' A prince is constituted by God to be ruler of a people, to defend them from oppression and violence, as the shepherd his sheep '. If he oppresses them, ' then he is no longer a prince but a tyrant, and they may not only disallow his authority, but legally proceed to the choice of another prince for their defence '. The Dutch offered their allegiance

in turn to Anj ou and to Elizabeth ; and only the incompetence of Leicester as governor-general in I S 8 6-7 and the duplicity of Eng­ lish policy brought them to accept a formal republicanism which placed sovereignty in the States themselves. Both Elizabeth and Henry IV had

to

overcome considerable

scruples before entering into alliance with, and so tacidy conferring diplomatic recognition upon, a community whose

legal

standing

was the same as that of Ian Smith's regime in Rhodesia today. But when in I 6o i Clement VIII complained to the French ambassador that Henry IV, in spite of having made peace with Spain, con­ tinued to grant diplomatic recognition to the Dutch rebels, the ambassador replied : ' When princes are dealing with a considerable Power, they have not been accustomed to examine whether the potentate who sends them an ambassador is legitimate or not. Without further enquiry into title, they concern themselves only with the power and the possession' •2 He gave the familiar precedent of the Swiss, and could not refrain from remarking that the Hoi y See happened at that moment to be treating with an envoy from the Sublime Porte. Ossat's despatch recounting this conversation became a Douai's

locus classicus ; it duly found its way into Merlin of capacious Repertoire universel et raisonne de jurisprudence

at the time of the Revolution ; and it contains the core of the doc­ trine of recognition in modern international law. Another anomaly in the dynastic states-system was the Rzecz­ pospolita Polska. Here the elective principle ousted the hereditary in the sixteenth and seventeenth centuries, making Poland an elective monarchy sui generis. 2.

Dynastic legitimacy was limited to Christendom, in so far as

marriage between a Christian and- a non-Christian dynasty required that the infidel party should be converted to Christianity as a pre-

Systems of States condition of the marriage. Circumstances were likely to make this possible only among the pagan (and therefore culturally weaker) peoples in Eastern Europe, not among the Islamic states along Christendom's Mediterranean frontier, still less among the remoter Muslim and Hindu potentates to whom access was opened by Vasco da Gama. Probably the most important example of dynastic mar­ riage combined with conversion is the marriage between Jagiello of Lithuania and Jadviga of Poland in I 3 8 6, which was preceded by Jagiello's baptism as a Catholic in Cracow. There was already a controversy within Christendom about whether legitimacy could be predicated at all of non-Christian rulers. It went back to the debate about the right of war against infidels, represented in the thirteenth century by the two canonists Sinibaldo Fieschi (later Innocent I V) and Hostiensis. The first taught that infidels held rightful dominion over their territories, and that war to convert or to despoil them was unjust. The second responded that the coming of Christ had ' spoiled principalities and powers, making a show of them openly, triumphing over them ' (Col.ii. I 5), and that acceptance of Christ's claims had thenceforward been the condition of sovereignty. Aquinas lent his weight to the natural law school ; but, as N ys dolefully observes : ' L 'historien doit mal­ heureusement constater que !'opinion la moins liberale est celle qui reunit le plus de suffrages ,. s The controversy descended to Poland and the Teutonic Knights. The union of Poland and Lithuania marked the beginning of the downfall of the Teutonic Order. Smarting from their defeat at Tannenberg

in I 4 I o,

they instructed their ddegation to the Council

of Constance to impugn the legitimacy of the Polish alliance with a pagan people against a sovereign Christian Order. Their complaints were debated inconclusively by the Council over

three

years. Paulus

Vladimiri, rector of the University of Cracow, published the Polish case in a large treatise asserting the rightful sovereignty of non­ Christian princes, and incidentally denying the validity of papal and imperial privileges granted to the Teutonic Order for conquest of pagan lands in the Balticum. The Order engaged a Pomeranian Dominican, Johann is Falkinberg, to reply. He argued that the Poles themsdves had earned the hatred of all Christians and deserved to be exterminated like pagans. The Council could agree to condemn this extreme view; on the larger issue between two major orthodox

International legitimacy

157

powers it maintained a statesmanlike evasiveness. It had already, however, condemned a number of Wycliffe's heresies, including the doctrine that legitimate dominion depends upon the sovereign being in a state of grace. This decision helped the Catholic principle of legitimacy to flow in the natural law channel, on the side of Sini­

baldo Fieschi, Aquinas and Paulus Vladimiri. It was confirmed in the next century by the Neo-Scholastics, in the great debate about the Indies, and became part of the inheritance of Grotius. I t might

be cautiously described as a doctrine that legitimacy rests upon prescription, tempered by consent.

2 The Wars of Religion, however, brought a final flare-up of the extreme or exclusive Catholic principle of legitimacy. Pius V in 1 5 70 deposed Elizabet!t as a heretic; Sixtus V in

I 58 5

declared

Henry of Navarre incapable on the same grounds of succeeding to the crown of France, and absolved his vassals from their allegiance. Mariana defended the assassination of Henry III on the grounds that no rightful prince can tolerate heresy, a heretic king is ipso facto a tyrant, and a tyrant may be assassinated even without formal de(X>sition. In order to restore the broken unity of Christen­ dom, the ancient arbiter of Christendom was turning revolutionary and substituting doctrine for prescription. The attempt broke against the growing national particularism of states. England remained Protestant; the Politiques rallied to Henry of Navarre before his conversion to Catholicism . Vervins in 1 5 98 was the last peace congress at which the Holy See played its old role of arbiter. The dispute with Venice in 1 60 7 was the last occa­ sion on which the Holy See used all its spiritual weapons against a state, laying it under interdict ; for the weapons were found ineffec­ tive. The Hoi y See sent a delegation to the Congress of Westphalia, but refusing to agree to concessions to Protestants within the Em­ pire, or to sanction peace with Sweden and the Dutch, it earned the impatience of the Catholic great powers, who made peace over its protests. Neither at the Pyrenees in 1 6 59 nor at any subsequent peace congress has the papacy been represented. The ligaments of international society were to be supplied, not by

Systems of States doctrinal orthodoxy, but by international law. The interwoven au­ thorities of the Middle Ages were dissolving and

recombining

into

sovereign states, which exercised exclusive jurisdiction over a terri­ tory and its inhabitants. The twin conceptions of the state and sovereignty were becoming clarified. In the Empire the coincidence of Church and state lasted longest, but by 1 648 the old ' liberties ' of the princes had finally been transformed into effective sovereignty, for which Leibniz was to provide the theoretical recognition. All this was accompanied by a tendency towards diplomatic egalitarianism. The idea of the legal equality of states became established by the

early eighteenth century. As early as 1 670 Leibniz noted in his

Securitas Publica,

written when he was in the service of the elector

of Mainz, how the princes of the Empire were insisting on up­ grading their resident envoys at foreign courts in the name of equal dignity - a process which may be thought to have reached its natural fulfilment in our own day. International law is a system of rules and principles that has been distilled chiefly from the practice of states, with a yiew to regulating their rdations and moderating their conflicts. Originating in the dynastic age, it incorporated at first the assumptions of dynasticism ;4 but the tendency of international lawyers was to be general and inclusive, finding rules that would be true for or acceptable to independent states of whatever complexion, Protestant as well as Catholic, republics as wdl as kingdoms. The branch of international law that is concerned with legitimacy in the sense in which the word is used in this paper, is the law concerning the recognition of states. This seeks to lay down principles to guide existing states in the matter of recognizing a new community as fulfilling the con­ ditions of statehood and qualifying for membership of the Society of Nations. And the tendency of international law has been to make recognition of new states depend upon ascertainable fact, namely whether the community has a government exerting effective author­ ity throughout the whole of its territory, and for it to be granted on considerations of expediency, not of principle. I have said that international law incorporated at first the assumptions of dynasticism. It incorporated also something more important : the principle of prescription. Nothing is more remark­ able about international history up to the French Revolution than the regard for prescriptive right. The extinctions of sovereignty

lnt�rnational legitimacy

159

were tnainly the result of disputed successions (e.g. Mantua, Orange), or the annexation of a state, effected by territorial ex­ change (e.g. Lorraine). The occasional dispossession of a rightful ruler, as when Ferdinand II in 1 628 arbitrarily transferred the two duchies of Mecklenburg to Wallenstein, caused general alarm, as a threat to the security of all princes. It was something of a key case when the son of the Elector Palatine, whose folly had occasioned the Thirty Years War and who had been deprived of his dectorate by a reluctant Diet in 1623, was restored in the Palatinate (or at least the Rhenish half of it) at the Peace of Westphalia. Until the final partition of Poland, it is difficult to think of any European sovereignty being arbitrarily extinguished by superior force or right of conquest. Prescriptive rights were sacrosanct, and power politics were con­ ducted in a litigious and not a doctrinal or ideological idiom. Grotius has a chapter on usucaption, the right by which a thing long used becomes · the property of the possessor against a known former owner. ' The reason for the introduction of this right', says Pufendorf, ' was partly that a man who neglected for a long time to reclaim a thing was considered to have abandoned it, . . . and partly because the interests of peace and quiet required that possessions should final! y be put beyond controversy ,. Vattel again devotes a chapter to it. '11 est impossible de determiner en Droit Nature!, le nombre d'annees requis pour fonder Ia Prescription. Cela depend de la nature de la chose, dont Ia propriete est disputee, et des circonstances. ' But immemorial prescription, founded on a posses­ sion ' dont l 'origine est inconnue, ou tellement chargee d'obscurite, que I' on ne �auroit prouver si le Possesseur tient veritablement son Droit du Proprietaire, ou s'il a re�u Ia possession d'un autre ', affords an inexpugnable title. 8 ·

3 A new doctrine of legitimacy, contractual instead of prescriptive, was introduced by the Glorious Revolution. The Nine Years War was a war of the British Succession, and the recognition of William III as rightful king of England was of central importance in the negotiations that brought the war to an end. Louis at length agreed,

1 60

Systems of Stat�s

in the Treaty of Ryswyck, to a preamble that referred to William as king by the grace of God (which would acknowledge divine

sanction for the parliamentary title), and the treaty implicidy ac­

cepted the provision made for the Protestant succession in England by the Bill of Rights of

I68g.

The Treaty of Utrecht once again

gave international recognition to the Protestant succession in Eng­ land, as regulated now more fully by the Act of Settlement of

I 70 I .

The English had imposed upon Europe a principle of national sovereignty against Louis XIV 's doctrine of dynastic legitimacy.

Here international relations pointed the way for civil politics. ' Les

philosophes fran�ais allerent se mettre a son �cole [Lockes] et repand.irent ses doctrines a travers l'Europe, qui, en

1 7 13

deja, les

admettait dans son droit international. Le traite d'Utrecht fut le

point de depan de cette evolution des idees politiques et du droit

public, qui aboutit a la fin du d.ix�huitieme siecle a la ruine de la monarchie fran�aise, . 8 The floodgates were opened when in

gress declared :

1.

1 77 6

the Continental Con­

that all men are created equal and endowed with

certain inalienable rights ;

2.

that governments are instituted to

secure these rights, and derive their just powers from the consent

of the governed ;

3.

that when a fonn of government becomes des­

tructive of these ends, it is the right of the people to alter or abolish it;

4.

that therefore it may in the course of human events become

necessary for one people to dissolve the political bands which have connected them with another, ' and to assume among the Powers of the earth, the separate, and equal station to which the Laws of Nature and of Nature's God entitle them '. Henceforward dynastic

politics were to give way to popular politics. The imperialism of the

French Revolutionaries and Napoleon drove popular politics into the channds of nationality ; the rights of men gave way to the rights

of nations. Perhaps the earliest recognition of the new principle of legitimacy, a recognition partly inadvertent, may be found in the Convention of

7

May

France, and Russia,

nation,

I 8 3 2, whereby ' The Courts of Great Britain, duly authorised for this purpose by the Greek

offer the hereditary Sovereignty of Greece to the Prince

Frederick Otho of Bavaria ,. The new principle was formally sub­

stituted for the old in the peace settlement of

of ' national self�detennination ,.

I 9 I 9,

under the name

The history of this phrase would itself be worth elucidating. The

International legitimacy earliest exampie of

•

self-determination ' in the

0 .E .D.

is 1 9 I I .

Lloyd George used and explored it in his statement of war-aims to the Trade Unions of 5 January 1 9 I 8 . ' All principles of self­ determination, or, as our earlier phrase goes, government by consent

of the governed . . . . we feel that government with the consent of the

governed must he the basis of any territorial settlement in this war '. But the full phrase appeared only when he came to speak of the disposition of the German colonies. ' The governing consideration, therefore, in all these cases must be that the inhabitants should be placed under the control of an administration acceptable to themselves, one of whose main purposes will be to prevent their exploitation for the benefit of European capitalists or Governments. The natives live in their various tribal organizations under chiefs and councils who are competent to consult and speak for their tribes and mem­ bers, and thus to represent their wishes and interests in regard to their disposal .

The general principle of national self-determination

is

therefore as applicable in their cases as in those of occupied Euro­ pean territories ' .7 It is ironical that this came from the lips of the prime minister of the power which was, in the short run, to add the bulk of the former German colonies to her own colonial empire, but it is equally far-sighted. Wilson's Fourteen Points speech was delivered three days later. Wilson kept on the whole to Jefferson's vocabulary, and spoke more of ' peoples ' than of ' nations '. I think that the phrase ' national self-determination ' does not occur in the great speeches of I 9 1 8 . The nearest he comes to it is in the Four Principles speech of I I February : ' National aspirations must be respected : peoples may now be dominated and governed only by their own consent. " Self­ determination " is not a mere phrase. It is an imperative principle of action which statesmen will henceforth ignore at their �ril '.8 He expressed concisely what he wanted to be his theory of legitimacy when, in the Big Four, the French put forward a case for annexing the Saar on grounds of strategy, history, economics and reparations : ' I recognise no principle but the consent of the governed ' .9 The difficulties in the principle of national self-determination are familiar. As lvor Jennings once said : ' On the surface it seemed reasonable : let the people decide. It was in fact ridiculous because the people cannot decide until somebody decides who are the people. '10 It is impossible to define a nation as the unit of self-

Systems of States

determination. In Europe, the consciousness of national identity preceded the political process of struggle for statehood. Outside Europe, statehood has generally been won first against foreign domination, and nationalism is created by governments or elites in order to unite the people and make them dependent upon the state. On a deeper level, self-determination is a purely formal principle, and as Berdyaev argued in the early 192os, if it ' comes to define the end towards which the people,s will should move, if it finds an object worthy of it and is provided with a positive substance, at that moment it is forced to put that end, that object, that substance above the formal principle of the expression of the people's will, and accept them as the basis of society ' .11 Thus the substance or object of self-determination has usually been not only independence but an ideological regime. In the most perfect and elaborately organized international plebiscite in history, the Saarlanders voted themselves heartily into the Third Reich. I do not want to go over this familiar ground, but shall remark on some contrasts between the new principle of international legiti­ macy and the old. 4

The dynastic principle of legitimacy was rooted in custom. At times it showed a tendency to develop into an ideology, an international dynasticism, which Paine pilloried as 'the common interest of courts against the common interest of man ,. This was the prototype of all such radical bogeys : the internationals of bankers, armaments­ manufacturers, Jewry, Eurocrats, and so on. In fact, the dynastic international had little vitality, and dynasticism was generally sub­ ordinated to state (or even national) interest. The popular principle of legitimacy, by contrast, is the direct product of ideology. It may be that this makes it both more power­ ful and more unstable. Its instability I shall return to later. Its power is illustrated by .its part in shaping two international constitu­ tions, the Covenant and the Charter. The League was open to any fully self-governing State, Dominion or Colony ' which could 'give effective guarantees of its sincere intention to observe its international obligations '. Wilson wished ' fully self-governing' to be stricdy •

International legitimacy construed, as a limiting qualification. The United Nations was open •

to all peace-loving States which accept the obligations contained in

the present Charter ', but declares its second purpose to be ' To develop friend! y relations among nations based on respect for the principle of equal rights and self--determination of peoples '. This double (and potentially contradictory) principle is repeated in Art.

55, which introduces the pledges of international economic and

social cooperation. The object of the trusteeship system is declared

in

Art. 76 to be ' to promote the . . . advancement of the inhabitants

of the trust territories, and their progressive development towards self-government or independence as may be appropriate '. Ian Brownlie, in the latest British book on the principles of public international law, observes that ' Until recently the majority of Western jurists assumed or asserted that the principle had no legal content, being an ill-defined concept of policy and morality '. But now, he argues, self-determination has been established as a prin­ ciple of the law of the United Nations, and is indeed part of the ' a peremptory norm of general international law from which no derogation is permitted ' .12 If this view prevails, the popu­

ius cogens,

lar principle of international legitimacy will have taken a firmer hold in international law than its predecessor did. The instability inherent in the new principle may be seen in its effect upon prescriptive rights. Popular legitimacy tends to under­ mine and at length abolish prescription. It asserts a more dogmatic negative than did dynasticism : all that is not popularly based is illegitimate. Brownlie discusses the principle of prescription and concludes that there is no role for it any longer in international law.11 The principle of prescription seemed to carry within itself the principle ex injun·a jus oritur. An act of violence and injustice, by lapse of time and some degree of acceptance, could give rise to rights. Whether the acts of violence which shaped early Western history - the Norman conquests of England and Sicily, the French conquest of the Angevin dominions, the papal extirpation of the Hohenstaufen, the Turkish conquest of the Eastern Empire - had their lasting effects because they were successful assertions of right (as Stubbs's generalization about the legalism of medieval warfare might lead one to enquire in the case of the first three examples), or show rather the acquiescence of a politically unawakened society

Systems of States in circwnstances which it cannot change, we need not discuss. But the law of war, as it developed in the sixteenth and seventeenth centuries, emphasized the obligation of accepting the results of war. Gentili argues that the doctrine of the just war fits few empirical wars because there is usual! y justice on both sides, and that therefore the rights of war are due to both parties, even in the rare cases when one is evidendy in the wrong. And he adds, ' But if the unjust man gain the victory, neither in a contention in arms nor in the strife carried on in the garb of peace is there any help for it. Yet it is not the law which is at fault, but the execution of the law ' .u Pufendor£ insisted that if you appeal to the dice of Mars ' you must loyally abide by the ·result. Truces were distinguished from peaces : 'as a rule, every peace is perpetual, that is, it pennanend y extin­ guishes the controversies on account of which the war was begun '. u The extinction of Polish sovereignty in I795 was a moral turning­ point, not only in the crimin ality of the actors, but also in the response of the victim. Here was the first international injun·a which gained no acquiescence, from which no jus could arise. And it seems that in the nineteenth century the theoretical critique of the doctrine of prescription began among international lawyers. Hun­ dert Jahre Unrecht ist noch kein Tag Recht', said the learned Heffter.1 8 The second such unforgivable injuria was the German annexation of Alsace-Lorraine in I 8 7 1 . N'en parlez jamais, y pen­ sez toujours, was a new principle of international relations. The German attitude to the Versailkrdik,tat developed the theme fur­ ther. It has culminated in the unprecedented refusal of the Arab states, after three wars and 2 3 years, to make peace with Israel.17 Thus the current cliche of the politically illiterate and historically ignorant, that ' war settles nothing', has acquired a limited and temporary measure of truth. War cannot settle issues when it is conceived, not as litigation, but as an episode in a vendetta. The Indian seizure of Goa in I 96 1 was a key case in the erosion of prescriptive right. Was Portuguese rule in Goa legitimate ? Albuquer­ que conquered Goa from the Sultan of Bijapur in 1 5 10, who after­ wards recognized the conquest in various treaties. In I955, when Indian volunteers occupied the Portuguese enclaves of Dadra and Nagar-Aveli, which Portugal could not recapture without crossing Indian territory, Portugal appealed to the International Court of Justice. The Court examined at great length the treaties on which •

•

International legitimacy

165

the Portuguese right of passage between Goa and the enclaves was alleged to rest, particularly the Treaty of Poona of 1 779 between Portugal and the Marathas, and concluded

inter alia

that the treaty

did not confer upon Portugal full sovereignty over the enclaves ; but it cast no doubt on the legality of Portuguese sovereignty over Goa.1 8

But India had already sought to strip Portugal of her legitimacy through a declaration of the Colombo Powers in 1 954 that con­

tinued Portuguese rule in Goa ' was a violation of fundamental hwnan rights and a threat to the peace of the world '. India sub­ sequendy argued that since the General Assembly had condemned colonialism, and had classified Goa as a non-self-governing territory

under Art. 73, Portugal was in breach of her United Nations obliga­

tions. Crowning all, the doctrine was propounded, apparendy first by Krishna Menon, that the possession of colonies, under any name, amounts to permanent aggression.

5 There is however a paradox about the principle of national self­ determination : that the more passionatdy it has been asserted, the less has it led to impartial popular consultation. The instrument of the old principle had been dynastic marriage. The corresponding instrument of the new principle was the plebis­ cite. Invented by the French Revolution, perfected as a means of territorial acquisition by Napoleon III and Cavour, the plebiscite came as near as may be to an impartial method of self-determination in the peace settlement of 1 9 1 9-20. Earlier plebiscites had been

used to determine the wishes of historic states or provinces, like

Tuscany and Savoy, whose identity and frontiers were not substan­ tially in question. The post-war plebiscites tested the allegiance of ill..defined districts of heterogeneous population which were the debris of the collapsed Central Empires. They were arranged by Allied commissioners, who determined from the best available evi­ dence both the unit within which the vote was to be taken and the method of voting, and they were policed by Allied troops. These

plebiscites were at the limit of what is technically feasible in con­ sulting popular wishes. They reached their apogee, I 5 years later, in the Saar plebiscite, the first to be policed by neutral troops. It

I 66

Systems of States

marked the end of the international reign of law under the League of Nations. The settlement after the Second World War saw the abandon­ ment of this constitutional mode of establishing legitimacy. The partial Paris Peace Conference of I 946 to a great extent ratified the work of its predecessor by restoring the national boundaries of Europe as they had been established in I 9 I 9 . The boundaries of Germany were the exception, for Germany was not represented at the Conference. Stalin had already pushed the Polish frontier west­ wards, engulfing the frontier so carefully and painfully delimited in I 9 I 9-20 by the plebiscites on the boundaries of East Prussia and Upper Silesia, and the Western powers had accepted this

de facto.

Instead of plebiscites, there were two activities, which marked the difference between the age of Stalin and the age of Woodrow Wilson. One was the expulsion of minorities. The East European countries which had suffered conquest by the Germans now visited retribution on their own German minorities, and drove them out, so that ten million refugees crowded into prostrate Germany. The second was denazification. I n October I 9 I 8 President Wilson had proclaimed as a condition of making peace the destruction of arbi­ trary rule in Germany, by which he meant the imperial and Prussian constitutions. Now, to be legitimized, Germany needed more than this degree of self-determination. She needed to be purged of those Germans who had violated the principles of civilized society. She was occupied by the Allies with the purposes, among others, of destroying the Nazi Party, eradicating Nazi institutions, and re-educating the German people in the principles of democracy. Under the United Nations, the institution of the plebiscite lost ground, when it might have been expected to gain. The criteria of legitimacy became more arbitrary, more revolutionary, more ideo­ logical. The worst precedents of the Versailles Settlement became dominant. When in 1 9 1 9 the Germans complained that the resur­ rected Poland was being given, in the former Prussian provinces of Posen and West Prussia, large German populations as well, they got the reply : ' There is imposed upon the Allies a special obligation to use the victory which they have won in order to re-establish the Polish nation in the independence of which it was unjustly deprived more than one hundred years ago. . . . To undo this wrong is the first duty of the Allies. '18 This line of argument was afterwards

In ternational legitimacy developed by Israel, to justify her own aggrandisement as rectifying the wrongs of the past, rather than seeking to establish justice today. When in I 9 I 9 the Germans asked for a plebiscite in Alsace­ Lorraine, the French replied in occult and irrelevant terms : ' The question of Alsace-Lorraine is a question of right, and therefore not a

French question but a world question ' .20 It was with the same

argument of indefeasible right, not to be tested by any popular consultation, that Indonesia in I 966 tried to evade her obligation to hold a plebiscite in West Irian. There were some popular consultations. France held referenda in her Indian establishments before ceding them to India - Chanderna­ gore in 1 949, Pondicherry, Karikal, Mahe and Yanam in 1 9 54. In unimportant instances the U.N. supervised plebiscites to decide the future of former colonies, as in British Togoland, the British Cameroons, and Western Samoa, or elections, as in French Togo­ land and Ruanda-Urundi. In a more important issue, at the begin­ ning of the international conflict between Indonesia and Malaysia in 1 96 3, the U.N. investigated and confirmed the elections by which North Borneo and Sarawak had chosen to join the Malaysian Feder­ ation. These consultations were designed to make it ' as clear as possible to the electorate, covetous neighbours, and to the world at large that the principle of self-determination had been fully com­ plied with ' . 21 But Ethiopia managed to swallow Eritrea in 1 9 60 without the wishes of the inhabitants having been ascertained. India from I 94 7 onwards steadfastly refused to allow the plebiscite in Kashmir called for by Pakistan and the U.N. Over Goa, Nehru said in the Indian Parliament in I 9 55 that his government was not prepared to tolerate the presence of the Portuguese in Goa, even if the Goans wanted them .22 Indonesia treated with contempt the U.N. observers who tried to attend ' the act of free choice ' which in I 969 she reluctantly allowed to be staged in West lrian.28 When Gibraltar expressed its own self-determination through the referendum of

Io

September I 9 67, conducted under a team of Commonwealth ob­ servers, there was a 97 per cent poll, I 2, I 38 votes in favour of retaining links with the United Kingdom against 44 for passing under Spanish sovereignty. (It was suggested that it might be wise to tamper with the voting returns, to contrive a better pro-Franco poll and make the business look less like an East European plebiscite).

1 68

Systems of States

But the U.N. Special Committee on Colonialism had already declared that a referendum would violate the Charter, on the grounds that the present residents of Gibraltar were not indigenous to the territory ; and the General Assembly ignored the result of the referendum, requesting Britain to ' terminate the colonial situa­ tion in Gibraltar ' by 1 October 1 969.

6 It seems that international society is excogitating a new principle of legitimacy, or rather, a version of the popular principle which makes it both simpler in theory and easier to apply in practice. Much the most valuable writer known to me on this development is Professor Ali A. Mazrui, who combines the scholarship of a pu il of John Plamenatz and Margery Perham with a sensitive and percipient understanding of Mrican thought and aspiration.u The new principle appeals essentially neither to history, language or culture. Mazrui speaks of a right of ' racial sovereignty '. 215 But this needs to be broadened. The new principle of legitimacy has two elements. It asserts firstly the right of the majority within the fron­ tiers prevailing at the given moment, and secondly the right of territorial vicinUty. In most cases ' the frontiers prevailing at the given moment ' are the result of the historical and geographical circumstances of the decolonizing process after 1 9 4 5 · India's refusal to concede auton­ omy to the Nagas, the insistence of the U.N. upon maintaining the unity of the Congo during the crisis of 1 960, the suppression of Biafran independence, the claim of Indonesia as successor state to the Netherlands East Indies to annex West Irian, 28 exemplify the principle . So does the Chinese suppression of Tibetan autonomy in 1 9 50, though this was also the reassertion of a historic suzerainty. In two cases, the formula ' the frontiers prevailing at the given moment' has been modified into ' the frontiers prevailing at an obvious moment in the past '. The first is the Soviet annexation of Estonia, Latvia, and Lithuania in 1 940. The successful extinction of these independent states is a unique event in twentieth-century European history, and perhaps deserves more analysis and explana­ tion than it has received. Though the United States and the United

p

International legitimacy Kingdom have apparently refused to grant de jure recognition,27 the international community at large seems to have acquiesced in it. Its international legitimization rests on nothing more than the secret additional protocol to the German-Soviet Treaty of Non-Aggression of 13 August 1 939, as modified by the secret supplementary proto­ col to the German-Soviet Boundary and Friendship Treaty of 2 8 September 1 939. 28 It is usually explained and justified, for instance by Sumner in his Survey of Russian History, as a reversal of an unjust settlement after the First World War, a resumption of Peter the Great's heritage, and a defensive preparation which may have saved Leningrad from falling to the Germans during the next two years. Ex injuria jus oritur? As Stalin implicitly claimed for the Soviet Union the frontiers of the former Russian Empire, so Nehru claimed for the Republic of India the frontiers of ' India ' as it had been before Vasco da Gama. He had had to acquiesce in the creation of Pakistan, and perhaps this exacerbated his impatience both with the princdy statrs and with the European colonies in India. It did not matter that India before Vasco da Gama had had no political status, but been only a culture half-conquered by Islam. The Portuguese conquest of Goa was seen as an act of aggression against this culture, which the Republic now represented and could avenge. The majoritarian right to extinguish a territorially contiguous geographical absurdity was expressed by the Manchester Guardian, when it wrote in 1 954 ; ' It is impossible that a Portuguese pocket territory should exist indefin­ itely in the midst of India bred in the spirit of nationalism. Even if a fair plebescite showed that a majority of the Goans wished to remain under Portugal it would not be practical politics for them to deter­ mine their fate in this way ' . 2 9 Perhaps it was not practical politics that the Baltic states should survive as independent states either. Pakistan was founded in defiance of the Hindu majority within the prevailing frontiers of the British Raj . The massacres and move­ ments of population that accompanied the partition of India may have contributed to establish the new majoritarian principle, though India has sought to remain faithful to the ideal of a secular, that is a religiously heterogeneous, state. Indo-Pakistani relations have pro­ duced the classic case of conflicting claims between two majorities in Kashmir, where the majority of the disputed province contradicts the majority of the secular Indian Republic.

Systems of States

1 70

There are cases where the new principle still demands fulfilment. The claim of the Arabs to the Arab lands is still affronted by the existence of Israel. It is an irony that the Arabs' claim to speak as a political whole - their claim to be a ' nation ', whose only embodi­ ment so far has been the Arab League and the transient existence of the United Arab Republic8 0 was crucial to the origin of the Jewish National Home. In so vast and underpopulated a region as the Arab lands, it was argued, there was surely a corner where the Jews might gather about their historic memories ? And if thereby they began to displace some of the indigenous Arabs, surely the vast

Arab lands - Transjord anian Palestine, to begin with - could settle them elsewhere ? 81 Meanwhile, the Arab minority inside that part of partitioned Palestine that became Israel would remain subject to the same principle of subordination to the interests of the majority. In Southern Africa, still more conspicuously, the majoritarian principle is frustrated, and is given greater emotional force by the appeal

to

fundamental considerations of humanity. South Africa

provided the first case in which the United Nations established the limits of Art.

2,

para.

7

of the Charter, which precludes the U.N.

from intervening ' in matters which are essentially within the dome­ stic jurisdiction of any state '. If South Africa infringed human rights, might not the General Assembly infringe South African domestic jurisdiction ? In

1 95 2

the General Assembly began dis­

cussing South Africa's policies of racial discrimination, and estab­ lished the U.N. Commission on the Racial Situation in the Union of South Africa, which being refused admission to South Africa itself, held public hearings in Geneva for three years, and became an open tribunal for propaganda against South Africa. This came near to denying the legitimacy of the South African regime, and in

I

95 5

the South African delegation withdrew temporarily from the General Assembly. South Africa has become a pariah state, like the Ottoman Empire in the later nineteenth century, although rich and tolerably secure externally instead of decrepit and vulnerable. The majoritarian

case

against both South Africa and Rhodesia is

clear. It is less obvious in Portuguese Africa, as it was also in Goa, but here the majoritarian principle is reinforced by its partner, that of territorial vicinity. This found its classic expression in Burke : ' There is a Law of Neighbourhood which does not leave a man perfect master on his own ground. When a neighbour sees a new

International legitimacy erection,

in the nature of a nuisance, set up at his door, he has a

right to represent it to the judge; who, on his part, has a right to order the work to be staid ; or if established, to be removed. On this head, the parent law [i.e. the Roman law of equity] is express and clear; and has made many wise provisions, which, without destroy­ ing, regulate and restrain the right of

vicinage '. 52

ownership,

by the right of

But Burke adduced the right of vicinage as a defence

against innovation, a bulwark of prescription.

semper hahetur.

Vetustas pro lege

It has now been turned upside down, and becomes

an engine of innovation, to undermine prescription.

In the later 1 94os, when the British were beginning to learn the

weight of the anti-colonial campaign, and had not yet acquiesced in the rapidity with which colonial independence was expected, Sir Hilton Poynton argued in the Trusteeship Committee against what he called ' the blue water fallacy ', whereby colonies across the sea were examples of wicked colonialism, while colonies held in territor­ ial contiguity (like Russia's) escaped censure. The blue water fallacy has become orthodoxy, in the form of the right of territorial vicinity, and this is growing into a principle of continental solidarity. By this, Angola and Mozambique belong first of all to their African majori­ ties ; and if the African majorities prove uncertain, they ' belong ' secondly to their African neighbours, as Goa ' belonged ' to her Indian neighbour. The legal fiction that Angola and Mozambique are integral parts of the national territory, like the legal fiction that Algeria was a part of metropolitan France, no longer has any co­ gency. The same principle of continental solidarity is among those used to condemn United States intervention in Vietnam - ' inter­ vention in Asia ' from across the ocean. In the sphere of legitimacy, if not yet in the sphere of strategy, land power has triumphed over sea

power.

It follows from the majoritarian principle that minorities have no rights, or only such rights as the majorities may care to concede. In the Third World generally, and in Africa particularly, minorities can be designated pej oratively as ' tribes ', and tribalism is con­ demned as subversive of nationalism. European nationalism en­ gendered an elaborate system to protect minority rights in the peace treaties of 1 9 19-20, which like the use of plebiscites reflected the

constitutionalism of the age. Although minorities treaties were repudiated with indignity by the great powers, especially Italy, and

Systems of States

were difficult to enforce, they were a notable attempt to refine the new principle of legitimacy and to control its operation. Such provisions did not survive into the peace settlement of 1946. Their formal place has been taken by the Universal Declaration of Human Rights, which the General Assembly adopted in 1 948. But this tends to assert the rights of individuals, as the irreducible units of humanity, rather than of national groups or minorities, and there is not even the rudimentary machinery for international super­ vision that the League developed for the minorities treaties. The result is that the individual is left confronting the state. The consequence for the principle of self-determination is illus­ trated by a statement of the Kenya delegate at the Addis Ababa Conference of 1 963. He was speaking about the claims of the Somali minority : ' the principle of self-determination . . .has no relevance where the issue is territorial disintegration. . . . If they do not want to live with us in Kenya, they are perfectly free to leave us and our territory . . . . This is the only way they can legally exercise their right of self-determination. • aa Thus the principle which broke up the Central Empires of Europe in 1 9 1 8, is invoked for a con­ trary effect outside Europe. The principle cuius regio eius religio is restored in a secular form. The elite who hold state power decide the political allegiance of all within their frontiers ; the recusant indivi­ dual may (if he is fortunate) be permitted to emigrate.

7

It remains to consider the alternative contemporary principle of legitimacy, that of the Communist world. The effect of living in a system of states has not been the ' number of terrible clashes ' with the bourgeois states that Lenin expected for the U.S.S.R. but the gradual acceptance of the notions of legitimacy and international right, although these formed no part of the original vocabulary of Marxism-Leninism. The Soviet principle of legitimacy has two general aspects. On the one hand, it is a common version of the popular principle in its majoritarian form, flowing from the doctrine in the Communist Manifesto that ' the proletarian movement is the self-conscious, independent movement of the immense majority ' .

International legitimacy

1 73

Vyshinsky used to warn the U.N., in the days of its unchallengable American ascendancy, that a majority in the U.N. represented only a minority in the world, but that a minority in the U.N. represented a majority in the ·world. On the other hand, though all bourgeois governments are due to be superseded, a tactical approval, amounting to a precarious certificate of legitimacy, is conceded to those bour­ geois states, above all under colonial nationalist regimes, which are cooperating with the movement of history by opposing imperialism. The special test of legitimacy, for the Soviet principle, is rule by a Communist Party. The double hierarchy in Communist states, party as well as governmental, has often been compared to the double hierarchy of Church and state in Counter-Reformation Europe. But it produces an international relationship that has resemblances also to dynasticism. This is perhaps a truer paralld : for the Party resembles a dynast, and differs from a Church, in that its only function is to rule. The Communist states are linked together not only by diplomatic representation of the usual kind, but also by the network of Communist parties. It is an international, not of her­ editary monarchs, but of self-perpetuating oligarchies, who have their own common interest, distinct from but parallel to the interests of the states they rule. The ' Communist monolith , of the earlier Cold War looked from the outside as threatening as did the Habs­ burg family system in the days of Charles V. But in each case particularist interests were undermining the unity, and the Com­ munist parties, like the dynasties before them, have shown a ten­ dency to become the vehicles of national interests.