Borders are spheres of enforced stasis. When the imperial process of the “expansion of one world and the eventual elimination of the other” is complete, we are left with a space where nothing grows (see here). Life here, unlike in the colonial frontier zones, is definitely violent, but no longer in a flux. This is what Achille Mbembe calls the “carceral landscape”; and if indeed borderlands reinstate “vulnerability” for the marginalised — what do we make of their aspirations for such sites of their own? Does their “flight from the disappointment of an existing state towards the promises held out by a new one” (here) render the laws of self-determination, and arguably, even national liberation movements, as pathological replicas of the nation-state model under the garb of emancipation? Are these movements doomed to the constraints of what Homi Bhabha posits as “camouflage, mimicry, black skins/white masks”?
Or is there a more scandalous, more hopeful, tomorrow?
In this essay, we argue for such a tomorrow by problematising the seemingly unsurmountable affinity between self-determination movements and the eventual creation of a nation-state.
The Language of Self-Determination
To offer a definitive answer to this question, we must first acknowledge that self-determination cannot be rushed to an ideal conclusion. Concerning projects of self-determination that often carry the moral baggage of gross human rights violations, Edward Said argues that “hardly anyone can be expected to drop the quest for national identity and go straight to a history-transcending universal rationalism.” The significance of this process is impressed upon us by the realisation that the marginalised are not “fighting for ideas”, as Amilcar Cabral remarks, but “to win material benefits, to live better and in peace, to see their lives go forward, to guarantee the future of their children.” It is for this reason, grounded in real suffering rather than ideals up for debate, that self-determination remains, in the words of Keren Weitzberg, “a powerful and important language for peoples the world over.”
It is a prescient observation by Mbembe, therefore, on the “business” of borders; they are meant “to be crossed”. The language of self-determination is inevitable. It is indispensable to all those, from the river to the sea, who struggle everyday against the horrors and hangovers of incomplete decolonisation.
If decolonisation, as Mbembe argues, is the “elimination of [the] gap [between image and essence] and the restitution of the self to its image,” then a necessary premise for this restitution resides in the removal of the obstacles which help preserve the gap. However, the process of restitution, often based on national consciousness, does not restrict our ability to imagine new realities. Rather, as Frantz Fanon posits, “national consciousness, which is not nationalism, is alone capable of giving us an international dimension.” This consciousness is “born out of the concerted actions of the people, which embodies the actual aspirations of the people and transforms the state, [and] depends on exceptionally inventive cultural manifestations for its very existence.” Fanon’s argument here predicates any radical turn “from a national consciousness to a social and political consciousness” upon the necessity of the former in marking a break from colonial frames.
International Law’s Tug-of-War
At this juncture, Samuel Moyn’s question brings us to the contradiction at the heart of the laws of self-determination: “Why did the nation-state model win out, when the alternatives were supposedly so compelling?” It is only in answering this question can we hope to recognise those phrases and ideas, deeply embedded in the language of the laws of self-determination, that prevent the radical turns Fanon writes of. While there are several possible explanations and ways of complicating this question, this essay argues that a critical factor is international law’s tug of war between “concealing its own colonial foundations” on the one hand, and “delivering on a promise of liberation” on the other (see here). Specifically, we will argue that while there are ruptures and discontinuities which suggest otherwise, at various moments international law forecloses the radical break which is promised by self-determination, by constantly treating such projects as existing in a complex with the nation-state, rather than as affinities which can part from each other.
Western Sahara is one such moment of a radical turn betrayed. As Vasuki Nesiah observes, the ICJ’s discussion of self-determination in Western Sahara is “expressive of the Court’s desire to lay out its own normative commitments by pulling Western Sahara into the normative and jurisprudential framework of international law, a statist or administrative framework of territory.” By obfuscating sub-national terrains and mapping them on a scale of administrative paradigm, Nesiah highlights how in the name of “humanist values of democracy and equality”, the court assimilates desires of movements into “international law’s own vocabulary of nation, state, and society.” The language of self-determination here is being edited to suit the Court’s desire. Where, then, does this desire emanate from?
The answer can be found in the emerging doctrine of “earned sovereignty”, wherein independence is premised on it being “phased, conditional, and perhaps even constrained.” (see here) For instance, Paul Williams believes that in order to bridge the gap between self-determination movements and the primacy attributed to territorial integrity in international law, arrangements of conditional sovereignty can be imposed on the movements wherein independence “may be conditioned upon the fulfilment of certain benchmarks” such as “protecting human and minority rights, halting terrorism, developing democratic institutions, instituting the rule of law, and promoting regional stability.” However, this new standard of civilisation can easily mirror the old Mandate/Trusteeship arrangement in which territories were ‘prepared’ for independence under the tutelage of colonial masters (see here). In a postcolonial world, this tutelage evolves into what Kwame Nkrumah calls “clientele sovereignty,” an insidious way of controlling a state “by means other than political ones”.
It is only apt, then, that Nkrumah himself called such a situation the “last stage of imperialism.” Irrespective of whether the outcomes demanded of a liberation movement are responsible, international law risks foreclosing their different imaginations. It is only willing to understand the ‘Other’ if it conforms to its own standards. If these standards are rejected, a tantrum to refuse existence follows. This is what Said captures in his reading of Sigmund Freud and what is a definitive aspect of the colonial project; a treatment of “the Other, but always an Other recognizable…”
The Possibilities within International Law
Such a foreclosure, however, does not necessarily translate into a call for abandoning the project of international law altogether. Rather, the call remains to re-visit closely the possibilities and breaks that international law allows. In other words, when a legal system written in a language formulated to dispossess any who attempt a radical breakaway is challenged by those who will not bow down to its “recognisable” standardisation, we arrive at instruments such as UN General Assembly Resolutions 1514 and 2625.
Resolution 1514 posits self-determination as an “inviolable right to complete freedom,” emerging at a time when the African states in the UN were beginning to challenge the manner in which, as Adom Getachew highlights, “the anti-colonial right to self determination was [being] articulated.” The debate in the General Assembly centred around the “rightless[ness]” of colonial subjects, and the declaration of “subjection to foreign rule” as a form of “colonial bondage” that “denied its subjects human rights and dignity.” The resolution declared in no uncertain terms, under its third principle, that any “inadequacy” of a peoples’ social and political institutions should “never serve as a pretext for delaying independence.” This focus on decolonisation meant that the resolution embodied a specific critique of “empire as enslavement,” wherein it sought to challenge the Westphalian Sovereign Order by advocating a demand against imperialism and raising a claim for equal international membership. By moving away from the paternalistic gradualism which was sought at the end of the second World War, the third principle of 1514 highlighted the immediate demands of self-determination to allow for a more internationally equal society.
Resolution 2625 goes even further than 1514 by allowing for “the free association or integration with an independent state or the emergence into any other political status freely determined by a people.” The language here marks a shift from the imagination of 1514, since the anti-colonial arguments of 1514 were still rooted within the conception of a nation-state. 2625, in contrast, allows us the possibility to follow through on the promise of a society not bound by the nation-state paradigm. Not only does it recognise that imagining a society outside said paradigm can only follow from the foundational value of self-determination, it also showcases the travelling capabilities of self-determination, where the framework can be re-invented in order to advance a serious challenge to the dogmatic underpinnings of the nation-state.
Challenges to Radical Readings
Subsequently, the removal of burdens which envelop the colonial melancholia remains integral to any sincere support that we accord to the movements of the oppressed. In the case of Western Sahara, as Nesiah notes, the court cites Resolution 2625 to merely emphasise the fact that status is to be “freely chosen”, thereby missing the opportunity to understand “any political status” as a radical, but possible, outcome. Even Justice Ammoun’s opinion which is often read as challenging the majority, remains “trapped in the double bind of aspiring to a clean break with colonialism through forms of reading the nation that have unfolded through our ongoing negotiation of the colonial experience”, as “statist representations of territory continue to be visited and revisited, repeated and transformed”(see here).
Concerning Resolution 1514, Getachew shows how “the subjugation of peoples to alien subjugation, domination, and exploitation” was read within the UN as simply a denial of “fundamental human rights.” Therefore, while rightlessness was indeed a key focus of 1514, it spoke of rightlessness in a colonial context, not a universal one.
In fact, by robbing 1514 of its connection to the “empire-as-enslavement” paradigm, the “economic critique” was lost. It was a betrayal of a resolution that had aimed to indict how the denial of human rights and exploitation of Africa was a direct result of the economic design of colonialism.
Moreover, the fact that doctrines such as earned sovereignty emerge in international law even now is testament to the conservative treatment of radical breaks in the field. And while we believe that narrow and biased readings do not render the initial promises of such resolutions futile, one thing is clear – the question is not whether self-determination movements can be imagined radically, but rather, will international law let them?
Before concluding, we must remark that statism should not be understood as being necessarily detrimental to the pursuit of self-determination. As the concept of Ghana’s Right to Abode demonstrates, there can be attempts at destabilising the rigid notions of territorial integrity within archaic confines. Rather, the plea remains that as we embark on a “planetary enterprise, a radical openness of and to the world, a deep breathing for the world as opposed to insulation” (see more here), we must first adhere to the desires of the oppressed, rather than dispossessing them of their aspirations and trapping their future inside borders of a colonial construction. We must, as Getachew puts it, register that various anti-colonial nationalists weren’t merely “nation-builders” but rather, were constantly attempting to map out a dialect between the domestic and the international. This dialect is perhaps best captured in the words of Mohammad al-Fituri, which echo the sentiments of all oppressed peoples the world over:
“I am no longer a slave to my chains. I am no longer a slave to a decrepit past… We have revolted against ourselves, and erased the disgrace of servitude.”
Jibraan Mansoor is a second year LL.B student at Jindal Global Law School, and a graduate in Political Science from Ashoka University.
Aritro Bose is an Economics graduate from Ashoka University.
Author’s Note: We are thankful to Aman for closely reading the first draft of this piece and suggesting edits/other readings, without which the paper could not have taken its final shape.
Image: James Gillray, The Plumb-Pudding in Danger;–or–State Epicures Taking un Petit Souper (Feb. 26, 1805).