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Referendum Trudeau

He campaigned in poetry but governed in prose

Rinkside Reading

What does hockey’s literature say about the sport?

Alarm Bells

Fort McMurray and fires hence

The Age of Independence

The right to be, and a theory of territory in the era of Kurdistan and Catalonia

George Anderson

A Political Theory of Territory

Margaret Moore

Oxford University Press

280 pages, hardcover

ISBN: 9780190222246

On September 25, 2017 voters in Iraq’s Kurdish region went to the polls in a referendum and gave more than 90 percent support to a proposal to make their region an independent country. The Kurds in northern Iraq suffered unspeakably under Saddam Hussein, but since 2005—and thanks to American arm-twisting during the rushed drafting of Iraq’s new constitution—they had emerged with a highly autonomous region in Iraq’s very incomplete federal structure. Their president, Masoud Barzani, had always dreamed of more, and so after the success of the Kurdish militia, the peshmerga, in pushing back the Islamic State in Iraq he decided, against wiser counsel, that the time was ripe to push for his longtime dream of full independence. However, this massive expression of democratic support for independence drew reactions from the international community ranging from dead silence to actual threats from Iran and Turkey about any attempt at a declaration of independence. Internally, the government in Baghdad used the occasion to retake the oil-rich province of Kirkuk, to close Kurdish airports to international flights, and to reduce fiscal transfers to the region. The whole episode became a fiasco that weakened the region and led to Barzani resigning within five weeks.

Six days after the Kurdish referendum, it was Catalonia’s turn for a referendum on independence. Spain’s constitutional court had ruled any such referendum unconstitutional, while the Spanish government intervened ham-fistedly, and largely unsuccessfully, to try to stop it. On a fraught and sometimes violent October 1, 43 percent of eligible voters turned out and voted 92 percent in favour of independence. Three weeks later, the Catalan parliament unilaterally declared independence. Once again, the international community was largely silent. Internally, the Spanish government imposed direct rule over Catalonia (with a view to new elections), and several separatist leaders were charged criminally. Carles Puigdemont, the president of the Catalan government, went into exile along with four colleagues, while another five found themselves guests of the Spanish prison service, pending trial. Both the separatists and the then Spanish government were politically bruised by their actions in this affair, while Catalan independence now appears more remote than ever.

What are we to make of cases such as these? Should the Kurdish region or Catalonia be accepted as independent countries? Should the Iraqi or Spanish governments recognize the “right” of these regions to independence? Are “rights” the right way to think about territorial politics in practice?

It was long a major blind spot of much democratic theory that it took a political unit or community—the demos for a democracy—more or less as a given without asking whether there is any reasonable and principled way to determine the territorial extent of a self-governing people. After the First World War, that political scientist-in-power, Woodrow Wilson, thought the answer was to link political boundaries to ethnicity and language, but that created its own problems. So the Second World War’s victors tried largely to freeze the political map (as redrawn by Mr. Stalin), except for promoting an end to colonialism. The scores of new countries that appeared in the next five decades were ­overwhelmingly former colonies. The internationally recognized breakup of established states, with the exception of Pakistan, was virtually unknown.

Michael George Haddad

This changed dramatically in the 1990s. The collapse of the Soviet Union and the end of the Cold War precipitated a proliferation of new states—fifteen in what was the U.S.S.R., six in what was Yugoslavia, and the Czech Republic and Slovakia from what was Czechoslovakia. Eritrea broke from Ethiopia in 1991, East Timor from Indonesia in 2002, and South Sudan from Sudan in 2011.

There have also been violent separatist movements in the Philippines, Indonesia, Sri Lanka, and northeastern India, as well as peaceful ones in Quebec and Scotland. The U.S.S.R.’s breakup led to several mini-wars in the early 1990s with small “proto-states” such as South Ossetia, Abkhazia, Artsakh, and Transnistria effectively breaking off from their states of origin, with the support of an external sponsor (Russia, Armenia). More recently, Russia effectively invaded Crimea and, after a rushed referendum with 96 percent in favour, proceeded to annex it. This, and Russia’s subsequent support for separatist rebels now controlling districts in Ukraine’s Donbas region, has led to severe international sanctions against Russia. None of the proto-states have achieved international recognition.

Such events and the broader rise of identity politics inspired an upsurge of academic interest in questions of territorial politics and rights. Canadians have played an outsized role in these debates, and one of the most thoughtful contributors to the more philosophical issues has been Margaret Moore, a political theorist at Queen’s University, who has brought out books on the ethics of nationalism and on national self-determination and secession. In her recent work, A Political Theory of Territory, she aims to present a “philosophical account of territorial rights” with a theory that is normative and explanatory, and persuasive regarding “the territorial right holder” and how to attach “particular groups to particular bits of land.” The essence of her approach is that groups with “legitimate occupancy of land” should have territorial rights. She limits “full territorial rights” to a “people,” meaning a territorially concentrated and self-identifying group in legitimate occupancy of a territory, who share a political project for comprehensive powers over their territory. She would also extend more limited territorial rights to “communities” and she shows an acute sensitivity to the rights of indigenous peoples. She recognizes that more than one group may hold territorial rights over the same area, which may require power-sharing or federalism.

Moore’s dense and rigorous critique of alternative theories of territorial rights will be of considerable value to scholars. She distinguishes her theory most clearly from “statist” accounts of territorial rights, which hold, as she puts it, “that a state that is able to impose order in any region thereby gains territorial rights.” She argues this has a strong status quo bias, one that confers rights on a state that is effective but unjust; she believes statist theorists cannot develop a coherent approach to the problem of unjust states. She is less hostile to cultural-nationalist accounts of territorial rights, but finds that even at their best, these risk anomalies, such as conferring full territorial rights on small immigrant groups in enclaves. Moore believes this could be addressed by emphasizing instead the value of collective self-determination, thus minimizing reliance on culture and roots in ascribing rights to control over territory. She thus avoids crashing on the ontological rocks that the more purely cultural approaches face in having to determine the reality of some cultural groups versus others. At the same time, her approach is very liberal in that it would assign full territorial rights to groups that need not be “nations” or culturally distinct and need not suffer major injustice.

The biggest issue Moore confronts is a population’s right to full territorial rights—to independent statehood. In this regard, she examines three “tough cases” of recent territorial conflicts: Northern Ireland, the Kurdish region of Iraq, and Kashmir. She agrees with the Good Friday Agreement’s power-sharing arrangements between Northern Ireland’s Loyalist and Republican populations on the grounds that the two communities must share a common territory where they are both legitimately present. She finds that Iraq’s Kurds meet her criteria for a moral right to independence. However, she believes there may be a “corrective justice” case for the inclusion of Kirkuk in the Kurdish state, given that it was historically Kurdish, though it now has a significant Arab population moved there by Saddam. Finally, she believes that the complexities of Kashmir, with its different sub-territorial majorities, requires a process across the line of control whereby the Kashmiri people can determine how they are to relate to one another and to India and Pakistan. This would require India’s military withdrawal from the region and possibly more than one referendum to resolve its fate. Her approach to these three cases is relatively clear (whether wise or practical is another matter), but in the latter two it is not determinate, and reliant on political processes to navigate the details.

She does not discuss Scotland or Catalonia, where her approach would seem not only uncertain but also unclear. The populations in both are severely divided over independence, with their citizens’ self-identities ranging from purely Scottish (or Catalan) to mixed to purely British (or Spanish). So these are not cases of two different “peoples” inhabiting different parts of a country (as Kurds and Arabs do in Iraq) but of complex identity patterns, including many individuals with nested dual identities. Twenty years ago Moore wrote that “if it is clear, in a fair democratic plebiscite or series of plebiscites, that the vast majority [my emphasis] of people in a particular national group aspire to be self-determining, then, this constitutes a compelling moral argument for rearranging the institutional structure of the state, or perhaps allowing the secession of a part of the state.” Such a high threshold might deal with the dual-identity issue in recognizing that a breakup might not just sever two peoples but also sever what had been a larger, “national” people (the Brits or the Spanish). It is hard to imagine such a high threshold being operationalized, and Moore does not repeat it in the current book. Moreover, she expresses strong reservations about referendums as “very crude” instruments, which leaves hanging the question of how to deal with the practical political issues in these cases.

Canada’s Supreme Court’s ruling on whether the Quebec National Assembly has the right in Canadian or international law to secede unilaterally provided one possible answer. Surprisingly, it chose not to supply a straight yes or no on the legal questions. Instead, it opted for a broader and very political approach, perhaps inspired by Stéphane Dion’s letters to Lucien Bouchard on the need for a clear question and majority. It found that Quebec could not, “despite a clear referendum result, purport to invoke a right of self-determination to dictate the terms of a proposed secession.” At the same time, it asserted that in such a case the other provinces and the federal government would have no basis to deny Quebec the right to pursue secession, so long as it respects the rights of others. There should be “principled negotiations” that respect our democratic values and there “would be no conclusions predetermined by law on any issue,” including boundaries. The court’s decision led to the Clarity Act, with its procedures requiring clarity of a referendum question and result as a pre-condition for negotiations on a possible, but not predetermined, secession. The court’s decision pointed to the risk of casting issues of territorial politics in strict terms of “rights.” A unilateral right to secede would unacceptably permit Quebec to sever long-established bonds and dictate the terms of secession. Instead, the province would need to pursue secession in a negotiated manner that respected broader ­principles.

Rights discourse is powerful and prevalent in our political debates, and has been especially since the Charter. But even in law, as the court reminded us, there are other operative principles than rights. The same is true in moral and political ­philosophy. Ronald Beiner of the University of Toronto wrote in an earlier volume edited by Moore that “affirming a general right to national self-determination…is not a helpful way to deal with the complex predicaments that these nationalist claims invariably generate.” Rights discourse is “one moral language among others” and “calling one’s moral claim…a right automatically renders one less inclined to compromise” and seek mutual accommodation.

Rights discourse regarding territorial self-determination is particularly problematic—more than discourse around such rights as freedom of association, of religion, and the right to non-discrimination, all of which also touch on group rights. International law generally requires that the recognition of new states must come first from the state of origin—even where a new regime is in full control of the territory.  This realpolitik approach is a robust version of the “statist” theories that Moore disparages, but, for all its weaknesses, it does have a moral dimension, which relates to international peace and security. In her discussion of Russia’s takeover of Crimea, Moore argues that Crimea’s future should be determined by its people. If Ukraine offered Crimea effective autonomy, protection of language rights, and substantial rights for links with Russia, then Russia would not be justified in using force to bring about an adequate degree of self-determination. But she finds the Ukrainian government was both corrupt and incompetent, while not offering the Russian population of Crimea substantial protections of their identity. She thus appears implicitly to validate Russia’s use of force to end an unacceptable status quo. Only much later in her text does she distinguish between violent rebellions, which may be legitimate, and external aggression, “which cannot be countenanced.” Her apparent limited concern for the maintenance of international order shows again in her silence regarding the possible consequences for peace and stability in the Middle East if Iraq’s Kurdish region did become independent—not to mention the consequences of any (presumed?) rights of the Kurds of Turkey, Iran, and Syria to statehood.

Moore would argue that such considerations provide cover for oppressive regimes and potentially massive injustice. True. So perhaps a highly restrictive approach to recognizing breakaway regimes is not always morally justified. It will depend on the circumstances and judgment. This may account for the slight liberalization of international practice in cases of severe oppression—as with Germany’s push for early recognition of Croatia and Slovenia, which many of its allies thought would worsen the extent of conflict. A majority of nations also now recognize Kosovo, after its unilateral declaration of independence, but many others, such as Spain, do not, for fear of what it would mean for their own unity. The Badinter Commission, which rendered a series of legal judgments relating to Yugoslavia, saw no right to secede by minorities within the various Yugoslav republics. Somaliland, effectively self-governing for a quarter century, is still not recognized as sovereign by any member of the United Nations. Moore does not discuss such cases or how she would recast international law along the lines of her theory, but surely that is a fair question.

Perhaps she does not see her moral principles as amenable to legal codification, at least not at the international level. We know from the amazing collapse of the U.S.S.R. that even the breakup of a superpower can proceed largely peacefully if based on internal consent. This fracturing of a state did not disrupt world peace or security. By contrast, the breakup of Yugoslavia, which was fiercely rejected by the government in Belgrade, led to a bloodbath and ethnic cleansing and drew in outside powers. Had the Yugoslav government taken a more accommodating approach, the outcome could have been more peaceful. So might it be possible to endorse the restrictive approach to international recognition of breakaway states, while suggesting that individual states be more accommodating to territorial rights, including a right to secession?  Paradoxically, only the U.S.S.R. and now Ethiopia, both countries inspired by Leninist “democratic centralism,” have dealt with the nationalities question by constitutionalizing a right to secede. Many democratic constitutions explicitly exclude it, while others are silent. Would Moore constitutionalize such a right?

In practice, the few established liberal democracies that have had secessionist movements have had a relatively easy run dealing with them during the post-war period. They have managed within the give and take of democratic politics and none has so far resulted in breakup. Belgium and Spain have federalized; the U.K. has devolved to its Celtic regions; Canada has further decentralized. In most of these cases, the politics was aided by not focusing on whether a territorial group has the “right” to secede. The recent ugly confrontation in Spain over whether Catalonia has such a right shows the political dangers of such a focus.

Of course, the most difficult cases regarding oppressed territorial groups tend to be in dictatorships and in illiberal or transitional democracies. Many are artificial postcolonial creations with deep territorial cleavages. “Nation building” has been a natural preoccupation for their leaders. Done wrong, as in Sri Lanka, it has been oppressive, with a majority trying to impose a narrow ethnic nationalism, which eventually brought on a bloody insurgency. Done with more sensitivity, as in Indonesia and Tanzania, even during their most authoritarian phases, it can develop a common language (in Indonesia, an invented language) and a sense of common citizenship. Some sense of shared national identity is almost a pre-condition for democratic politics. Of course, territorial accommodations may also be required, something many “nation-builders” have refused to acknowledge, and democratization can bring these pressures to the fore. So, with democratization, formerly centralized Indonesia adopted a devolved regime and negotiated special autonomy for rebel Aceh. India has gone from fourteen states in 1956 to twenty-nine today in response to pressures from linguistic and other ethnic groups.

Designers of democratic constitutions aim to come up with political institutions and structures that can manage the tensions in their society. This may involve empowering some territorial populations, but the manner of doing so is critical. When Nigeria won independence it had a federal structure of only three states, with the northern state having a majority of the population. This structure largely reflected the big tribal and religious cleavages in the country, but it was dysfunctional and led to collapse. The generals who ruled for most of the next thirty years imposed a structure with thirty-six states, which was designed to create a more fluid and less polarized politics. This could never have been achieved on the basis of every territorial group asserting its rights: it required top-down decisions with a measure of good judgment. Nigerian democracy is still, to put it kindly, a work in progress, but there is little doubt that this new federal structure is a positive contribution to its finding a political equilibrium since the return to civilian rule.

At times, Moore’s conception of moral or political philosophy seems almost designed to cut it off from the real world. At one point, she discredits a possible fix to a cultural theory of territory rights on the grounds that it would represent an “uncomfortable non-normative compromise with reality.” In discussing Northern Ireland, she notes she has slipped into “the realm of complex institutional design rather than moral principles,” which she seems to think goes beyond her brief. While on some issues, such as offshore territorial rights, she elaborates on ideas about possible institutional arrangements, she generally stops short of considering how to apply her principles in practice.

For example, a major practical issue in constitutional design for many countries is how to structure their territorial arrangements—­federalism, asymmetrical autonomy, or whatever. Moore’s principles, which are very bottom-up, would seem to favour tailoring different arrangements for different territorial populations, given their needs and wishes—in other words, potentially highly asymmetrical arrangements. But these can throw up their own practical and theoretical problems. The Spaniards thought the historic nationalities would have special autonomy, but they found that coffee for one became “coffee for all.” The U.K.’s highly asymmetric arrangements, where MPs from the devolved regions vote on many laws that don’t affect their constituents, presents a fundamental and unresolved issue in constitutional design.

Perhaps the closest Moore gets to exploring constitutional design is in her treatment of territorial rights in relation to natural resources and immigration within states. She sees control of natural resources as “central to collective self-determination”, though it can be shared “when significant interests of others living outside the self-determining community are at stake.” However, federations almost universally assign control of natural resources to either the federal or state governments, at least in terms of direct control of exploration and development. “Shared control” has been avoided, though the government without direct responsibility may have some levers, e.g. over environmental terms or taxation, to influence resource activity. Moore makes special reference to the rights of indigenous peoples to control resource activities that might affect their way of life and values, but she does not discuss what this would mean concretely. Would it go beyond what our modern treaties do in creating different classes of land with differential rights by class? Or beyond the Canadian Supreme Court’s finding of a duty to consult Indigenous people (and effectively to accommodate them within certain undefined bounds)? Nor is it clear what her principles would imply for “control” of petroleum activities by the federal versus Alberta governments.

Moore, who is politically liberal, believes that a “self-determining political entity needs to exercise control over immigration as an aspect of control over other dimensions of collective life.” She applies this not just to independent nations, but also to indigenous peoples and national minority communities that aspire to and often have various forms of sub-state autonomy. While one can understand the concern, free mobility, including the right to settle anywhere, is normally a defining characteristic of a democratic country. In Canada, while it is accepted that bands generally control who can live on reserves, there are serious debates about the right of some bands to exclude non-Indian spouses of band members from doing so. Quebec has a major role in selecting immigrants who settle there in the first instance, but it cannot restrict those already resident in Canada from moving there if they wish. It is unclear what position Moore would take on such issues.

Moore makes many telling arguments, especially regarding the problems of alternative approaches to territorial rights. Her own approach is creative, but, in my view, problematic. I have focused on the problems with applying Moore’s principles in practice. There is no doubt that the practice of government—and the imperatives of power politics—can too often be morally insensitive or compromised. Moore claims that her theory generates “intuitively plausible, defensible commitments” when applied to such pressing issues as contested areas, secession and boundaries, corrective justice to deal with wrongful taking of land, natural resources, immigration, and the legitimate use of force. (I find her lack of consideration of language policy, which can be linked to self-determination but need not be, a conspicuous absence from this list.) While space limitations preclude my being able to review her treatment of several of these issues here, my view is that her approach cannot deliver on this ambitious agenda—and for the issues I have considered, Moore does not push hard enough on what her approach would mean in practice to make her case.

Part of the problem is how far any philosophical approach that focuses on territorial “rights” can take us. While there is a great deal in Moore’s book that is insightful and stimulating, I kept regretting the narrowness (not the depth) of the argumentation. I doubt there ever will be a general political theory of territory, but addressing these questions, even philosophically, needs an approach that is multi-disciplinary and recognizes the concrete problems territorial politics present for international order and constitutional design.

George Anderson served as deputy minister for intergovernmental affairs, as well as for natural resources.

Related Letters and Responses

Margaret Moore Kingston, Ontario

George Anderson Ottawa, Ontario

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