[REPOST] Self-determination is overrated

Secession is a conditional right not an absolute one

An assumption that I’ve seen come up a number of times in the debate around Scottish Independence is that Scotland or any other potential nation has a right to cecede.  While I agree that as a practical matter, Scotland probably can decide to quit the UK and deserves to have that decision respected, that is not a specific example of a general right. I explained why in a post from 2014 written in response to Russia’s annexation of Crimea:

…[l]eaving aside the difficulty of conducting a free and fair election in a region under military occupation, even if a majority of the population in the Crimea legitimately did wish to join Russia this would not in and of itself be enough to legitimate the annexation. For good reasons international law balances the right of a people to self-determination with respect for the territorial integrity of nations.

History furnishes another of good examples of where self-determination was clearly a noxious doctrine. Perhaps most notably the South’s bid for independence during the American Civil War was justified in terms of self-determination. However, virtually everyone would now accept this demand was trumped by concerns for the territorial integrity of the US and the human rights of slaves.

One of the best expositions of the legal issues involved in questions of self determination comes from an opinion delivered in 1996 by the Canadian Supreme Court.* It was asked to deliver a judgement on whether Quebec could unilaterally secede from Canada by voting to do so in a referendum. They argued that international law gave them no such right:

“[A] right to secession only arises under the principle of self-determination of people at international law where “a people” is governed as part of a colonial empire; where “a people” is subject to alien subjugation, domination or exploitation; and possibly where “a people” is denied any meaningful exercise of its right to self-determination within the state of which it forms a part.  In other circumstances, peoples are expected to achieve self-determination within the framework of their existing state.  A state whose government represents the whole of the people or peoples resident within its territory, on a basis of equality and without discrimination, and respects the principles of self‑determination in its internal arrangements, is entitled to maintain its territorial integrity under international law and to have that territorial integrity recognized by other states.  Quebec does not meet the threshold of a colonial people or an oppressed people, nor can it be suggested that Quebecers have been denied meaningful access to government to pursue their political, economic, cultural and social development.  In the circumstances, the “National Assembly, the legislature or the government of Quebec” do not enjoy a right at international law to effect the secession of Quebec from Canada unilaterally.”

To see why this is almost certainly the right- as opposed to merely the legally correct – position consider the Supreme Court’s Judgement on what allowing unilateral secession would do to the principles underlying the Canadian constitution:

“Quebec could not, despite a clear referendum result, purport to invoke a right of self-determination to dictate the terms of a proposed secession to the other parties to the federation.  The democratic vote, by however strong a majority, would have no legal effect on its own and could not push aside the principles of federalism and the rule of law, the rights of individuals and minorities, or the operation of democracy in the other provinces or in Canada as a whole.  Democratic rights under the Constitution cannot be divorced from constitutional obligations.  Nor, however, can the reverse proposition be accepted: the continued existence and operation of the Canadian constitutional order could not be indifferent to a clear expression of a clear majority of Quebecers that they no longer wish to remain in Canada.  The other provinces and the federal government would have no basis to deny the right of the government of Quebec to pursue secession should a clear majority of the people of Quebec choose that goal, so long as in doing so, Quebec respects the rights of others.  The negotiations that followed such a vote would address the potential act of secession as well as its possible terms should in fact secession proceed.  There would be no conclusions predetermined by law on any issue.  Negotiations would need to address the interests of the other provinces, the federal government and Quebec and indeed the rights of all Canadians both within and outside Quebec, and specifically the rights of minorities.”

This could be applied to the Crimea in a number of ways. In particular, we should be concerned about what happens to minority populations like the ethnic Ukrainians and Tartars if the province is annexed to Russia.

However, these matters are relevant far beyond the Crimea. For example, they raise questions about the validity of claims for independence by wealthy regions (such as Northern Italy or Catalonia) who resent supporting their poorer compatriots. Therefore, I have sympathy for Madrid’s refusal to recognise the legitimacy of the proposed referendum in Catalonia.

And while I believe that a Yes vote in the Scottish referendum should be respected, the path to independence would still require negotiation. This means that statements from the SNP about what will happen after independence need to be treated with caution. They cannot dictate the terms on which it will happen and London will have its own objectives in any negotiations.

Self-determination is just one value and it is not (and should not) be some kind of trump card. It has value when it makes democracy possible. However, it is not a valid way for groups to avoid the impact of democratic decisions that have gone against them.

Hat tip: http://opiniojuris.org/2014/03/10/ukraine-insta-symposium-crimea-ukraine-russia-self-determination-intervention-international-law/

Besides the point I made above, I’m unsure how relevant this is to a second Scottish independence referendum. To borrow a phrase from Canada’s Supreme Court justices, I don’t think Britain’s “constitutional order could not be indifferent to a clear expression of a clear majority” of Scots that they wished to leave the UK. And there is no compelling rationale I can see for not respecting their wishes. Scotland is not Crimea, the Confederacy, or even Catalonia.

It does, I suppose, put Theresa May’s decision to delay any referendum until after Brexit  in a more favourable light. If the UK can theoretically block independence altogether, then it stands to reason that it can reasonably have a say in the timing of a referendum to affect it. However, I feel the case here is weak, not least because it seems to deny Scotland the remote possibility of maintaining continuous EU membership.

The folly of English Remainers backing Scottish Independence

Remainers and Scottish Nationalists may have a common enemy in Theresa May’s government. That shouldn’t make us friends.

A few years back, I was an intern at a solicitors firm.* At one point, I was sent to court to help the barrister representing one of our clients in a child protection case. It was a few days. The client was severally depressed and several of her children had already been taken into care on account of her neglect. But she kept having children, and social services was now preemptively applying for them to be taken away from her as soon as they were born. The tragedy was that she wasn’t a bad person and really did want to be a good mother. She just couldn’t manage her own life well enough to care for a child. At the conclusion of the hearing, the barrister clearly sensed that a small proportion of her heartbreak had worn off on me, and took me out for coffee. During the course of it, he made a valiant effort to convince me that family law was not always this bad, which wound up achieving the exact opposite. For example, one of his observations was that “contentious divorce cases are really nasty. They become like knife fights. By the end, both sides are usually bleeding badly”.

Unfortunately, British politics has brought the questions of divorce in the past few days. Scotland’s First Minister, Nicola Sturgeon, has announced that the SNP will be seeking another independence referendum in the near future.

I regarded the prospect with alarm the last time it was put to vote and was relieved to see my nation survive. It was, therefore, much to my surprise that I found my facebook and twitter feeds filling up with comments from English friends looking to be divorced. They typically said something like: ‘I would have voted no last time, but after Brexit, I feel the Scots should now take their chance to stay in the EU’. Others have gone further and toyed with the idea of a united Ireland, or even an independent London.

At a certain level, I sympathise with this position. Brexit will hurt Scotland, like it will the rest of the UK. And Theresa May, has casually disregarded the views of the almost majority that didn’t want Brexit. Like Cameron before her, when it comes to Europe she prioritises unity in the Conservative Party over unity in the country. I can, therefore, understand a lack of emotional investment in that country on the part of remainers, both in Scotland and beyond.

However, I cannot really empathise. Despite my horror at Brexit, I find the prospect of the dismemberment of my country even worse.

That is partly an expat’s sentimentality for a distant homeland. Leaving Britain for a time has revealed to me quite how British I am. I delight in the delight Koreans and Americans  take in: our accents, our books and TV shows, and in the proudly shown selfies taken in front of our Houses of Parliament. Strikingly, in East Asia the Union Jack has become an omnipresent fashion symbol. It is plastered on clothes, pencil cases and motor bikes. And  each time I see it I smile a little. Or rather, I did. Since Sturgeon’s announcement the sight of my flag has been a melancholy one, for I know the nation it represents will likely only exist for a year or two more.

I do, of course, understand that many feel the same way about other nations. And it is similar emotions about Scotland that turn many Scots into nationalists. However, it is the English remainers that I find inexplicable. How have they concluded that the disaster of a rupture in the European Union is ameliorated, rather than compounded, by also rupturing the Union between Scotland and the rest of the United Kingdom?

In the process of repudiating the Brexiteer’s delusions, this group of remainers seems set to replicate them. The process of taking the UK out of the EU is showing that a divorce is never a simple as one would hope: there will be assets to divide, arrangements to be made, and new partners to be located. Which is painful enough if both sides approach it in a practical, good faith manner. But it is the nature of divorces, as my barrister aquintance observed, to turn nasty. They can transform from a search for compromise into a battle for victory. And in the event that happens Scotland and the UK would have plenty of ways to make each other bleed.

If the attempt to extract the UK from a glorified free trade area it has belonged to for 40 years is complicated, imagine trying to break apart two countries that for ten times as long have been part of the same state. The level of integration within the UK massively exceeds that within the EU. You would have to deal with, for example, how to divide up one of the world’s most powerful armed forces, the control of physical territory, and with fiscal transfers an order of mangnitude greater than the UK’s contribution to the EU budget. The morass that Scottish independence could swiftly become far exceeds the potential challenges of Brexit.

Hence when I hear Scottish nationalists asserting that Scotland joining the EU will be a mere formality, or that there will be no border checks between Scotland and England, I also hear the echo of Brexiteer’s glibly saying that the EU will give the UK a deal because they need to sell us prosecco, or that there will be no hard border between the UK and Ireland.

Anger at one act of self-destructive nationalism should not make us into cheerleaders for another. Voting to leave the EU was a mistake, but the price the United Kingdom pays for it should not be death.

 

 

*For non-UK readers: both barristers and solicitors are types of lawyers

 

When politics happens all at once (Cable from Korea #10)

So, what on earth is happening in Korea at the moment?

Rather a lot! Indeed, developments in Korean politics seem to have conspired to happen all at once!

There are three major strands to recent events.

  • Kim Jong-Nam, the half-brother of North Korea’s Supreme Leader, was assassinated in Kuala Lumpur airport. The Malaysian authorities have indicated that he was killed with VX nerve gas and North Korean agents appear to have been responsible. Malaysian nationals in North Korea have been barrred from leaving until Pyongyang is sure that everyone accused by of the murder by the Malaysians is returned ‘safely’.
  • North Korea’s nuclear program continues to agitate its neighbours. Last week it test fired four ballistic missiles. Its capabilities are developing such that, within the near future it will likely be able to target the continental US. Predictably, Washington does not like this. Just a few hours after the latest test, it announced it was accelerating its deployment to South Korea of an anti-missile system known as THAAD. That in turn has upset China, which fears that THAAD’s radar will allow the US to peer into its territory. Beijing has responded by going after Chinese companies doing business in China, and squeezing the number of Chinese tourists going to South Korea.
  • South Korea’s Supreme Court removed the country’s President, Park Geun-hye, from office for “acts that violated the Constitution and laws”, namely encouraging Samsung to pay money into charities controlled by her friend, and purported shaman, in exchange for instructing a government pension fund to vote in favour of allowing two parts of the conglomerate to merge. The news of her final downfall was met by protests both in support and opposition, the latter of which turned violent and resulted in protestors dying.

What connects all this?

I’m hesitant to say anything does. They are distinct phenomenon.

It is tempting for outsiders, to see all South Korean politics through the lense of relations with the North. But domestic factors are at least as important, and Park’s downfall was basically a South Korean affair: her corruption was exposed by other South Koreans, and produced an outcry not only because it was intrinsically objectionable, but also because Koreans had grown frustrated with declining economic opportunities.

Even though it happened thousands of miles away, Kim’s assassination was also basically about domestic politics. It was an act of dynastic housekeeping, that removed a potential rival to Kim Jong-Un, who by the law of primogeniture should have been Supreme Leader.

That said, these developments will feed into each other.

Malaysia is one of the few countries with which the North enjoyed something approaching a normal relationship. Then it used a WMD to kill someone on its territory, and is now holding its citizens hostage to escape the blowback of that decision. Which is the kind of behaviour that leaves you so isolated that you become convinced that you need to build nuclear weapons to survive.

[See also: Setting of a large bomb at one of your ally’s most important monuments]

The South Korean response to that program will probably change along with its president. Park and her conservative party not only agreed to the deployment of THAAD but also tougher sanctions and the closure of a South Korean run industrial park in North Korea. It seems highly likely that her successor will come from a left-wing party and progressive Koreans have traditionally been more sceptical of the American alliance and more willing to gamble on outreach to the North. For example, the front runner in the presidential election, Democratic Party leader Moon Jae-in, has indicated that he would ask the American’s to remove THAAD from Korea.

What should I watch for now?

Principally, who becomes the next South Korean president. New elections need to happen within two months. As former UN Secretary General, Ban Ki-moon, has ruled himself out as a candidate, it seems doubtful that the conservatives have anyone who can stop Moon. Plus, it appears that the right will be divided between pro- and anti-Park parties. It is therefore quite likely that the main obstacle to Moon’s ascension will come in his own party’s primary. If Ahn Hee-jung, a centrist governor who is more equivocal on THAAD, bests him then expect relief in Washington and disappointment in Beijing.

Pyongyang would probably also favour a liberal government in Seoul. So, it will be interesting to see if they act to avoid undermining Moon’s chances. For example, there are indications that the North is preparing for another nuclear test. If it carries it out before the election, then that would indicate that the North either isn’t interested in the party politics of the South, sees its interests differently from how we do, or that the timings of tests are driven by technical rather than strategic considerations.

If Moon or another left-winger wins then relations with Washington are potentially tricky. Trump has previously indicated that he has doubts about the value of the US-ROK alliance. He’s since rode back from that position and its clear that people like his Defence Secretary, James Mattiss, do think that working with Seoul is to America’s benefit. However, I fear that a new left-wing South Korean president might appear ‘insolent’ to Trump, which might bring his petulance to the fore, and could trigger an anti-US backlash in South Korea.

A victory for Moon or another progressive candidate would go against what appears to be the global trend for left leaning parties to struggle. Indeed, combine a Moon victory with Hilary Clinton winning the popular vote in the US, Macron becoming French president, Geert Wilders struggling in the Dutch elections and the Democratic Party retaining power in Italy – all of which seem plausible – then the very existence of the trend would look dubious.

That said the anti-Park movement has been a very populist one, drawing on opposition to the political power of large corporations, so the observation that we are in an age of populism seems vindicated by these events.

Indeed, the often voiced populist demand for politicians and corporate execs to be locked up for their misdemeanours may well come to pass in Korea. Park no longer enjoys presidential immunity, so I would expect charges to be brought against her. Many of her associates have already been indicted. Perhaps more importantly will be the trial of Jay Y. Lee, the head of Samsung. The conglomerate is the third largest company in the world by revenue, which is a huge deal in a medium-sized economy like South Korea’s, but given the global reach of Samsung’s activities would matter well beyond the Korean peninsula.

 

The case against Chinese Democracy is bogus

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The Gate of Heavenly Peace in Beijing (Credit: そらみみ)

Why isn’t China a democracy? And why do many Chinese people not want it to become one?

In the West where (openly) questioning the merits of ‘government of the people, by the people, for the people’ is a taboo, we don’t often consider such questions.

When we do, we tend to focus on the purported superiority of technocracy. But my sense is that China’s communists find a different argument more compelling. This one focuses less on the strengths of their system, than the perils of adopting ours.

It is expressed well by the journalist Tim Marshall in his book ‘Prisoners of Geography‘. It examines how physical features like mountains, deserts, seas and the like drive foreign policy questions. In the chapter on China, he considers how its geography arguably necessitates China (or rather its government) to take apparently aggressive actions to protect its security. For example, its territorial waters do not give it a route to the open ocean that could not be cut off by the Americans and Japanese. So, it grabs islands outside this potential noose; the protestations of the Fillipinos and Vietnamese that the territory is their’s be damned.

More relevantly, for the discussion at hand, it concludes that it must retain control of its restive border regions. Tibetan independence might be nice for the Tibetans but it would be problematic for China. If Tibet is in Chinese hands then the Himalayas separate the Indian and Chinese militaries from each other. That makes a large-scale land war between the world’s two most populous countries virtually impossible. Which is just as well because they both claim parts of the other’s territory. Seen from Beijing, a free Tibet looks a lot like a potential route for a rival superpower into the Chinese heartland.

Marshall explains how these concerns foreign policy concerns affect assessment of China’s internal politics.

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Such arguments can have greater merit than western liberals like me wish to admit. There are nations whose populations are so disparate, that a strong state is all that holds them together. Consider, for example, what happened to Yugoslavia in 1990s. A communist autocrat, Marshall Tito, held together federation of Serbs, Croats, Muslims, Macedonians, Montenegrins, Albanians and Slovenes. However, when both Tito and European communism died within a few years of each other, the regime fell. Democratic elections were held that brought to power nationalist politicians, who broke Yugoslavia up into its constituent parts. Those nationalisms pulled the nation apart. This was not to clean separation but a violent dismembering. The newly independent republics grappled for territory, and often asserted control over it with brutal campaigns of ‘ethnic cleansing’. By the time the fighting subsided, one hundred and forty thousand people were dead, and four million were displaced.

This kind of argument does also get made for countries like: Afghanistan, Congo and Iraq.

However, its relevance to China is limited, which is not a fragile nation created in modern times by a colonial power or nationalist ideologues. Rather it is a genuine nation-state anchored in two millenia of history.  It has not always had the same borders as the modern-day PRC but something recognisable as China has existed for more than two millenia. It is, therefore, not plausiable that its existence depends on the Communist Party, which has existed for less than a century.

This deep heritage has gifted China, a unified national culture that woud be very hard to pull apart. For all that the Communist Party worries about restless minorities, the Chinese population is actually pretty homogenous. More than 90% of Chinese are from the majority Han. By contrast, the Tibetans and the Uighurs that so alarm the Party amount for barely 1% of the population. And the government is making a conscious effort to ensure that they become a minority even in Tibet and Xinjiang, and is encouraging the Han to move there. China also has a national lingua franca: Mandarin. A clear majority of Chinese speak it, and most of the other languages spoken in China are indistinguishable from Mandarin when written. Furthermore, China is one of the most secular countries in the world, so religion seems unlikely to become a focal point for sectarian divisions. In short, while there are real divisions in Chinese society, between rich and poor, and in particular between rich and poor regions, they seem unlikely to become the kind of intractable cleavages that destroyed Syria and Yugoslavia. Rather they are involve the kind of issues over which democracies can and do mediate their way to solutions.

Indeed, we might wonder if the Communist Party’s insistence on autocracy is promoting division rather than unity. Its interference in Hong Kong’s affairs – including kidnapping dissidents from within the city – has conjured a separatist movement into existence in the majority Han city. And the PRC’s autocracy does much to discredit the notion of reunification in Taiwanese eyes.

More broadly, it is hard to see an argument for why democracy could not work in China. As we’ve seen fears that a democratic China would be torn apart by internal divisions are disproportionate to the actual divisions within the country. The contention that political liberty would somehow turn toxic in the atmospher of Chinese culture, is flatly contradicted by Taiwan’s succesful transition to democracy. And the Chinese people are increasingly affluent and well-educated, both of which are factors associated with sustaining democratic government. Indeed, there are many example of open political systems operating succesfully in countries that are poorer and less united than China. Take, for example, India. It has maintained a democracy for sixty years, and in that time has gained rather than lost territory.

The upshot of this, is that if the Communist Party wishes to justify its continued rule, it has to make a positive case for autocracy. If it wishes to take away the Chinese people’s freedom, it has to give something back other than protection from phantom threats of national disintegration.