There is an enormous body of legal literature and law on peoples' (i.e., nations') right to self-determination under international law. (Hurst Hannum's book comes to mind.) Indeed, Vattel -- who was often cited by the Framers -- recognized the right to self-determination under the law of nations.
It is important to note, however, that this right to self-determination under international law was and is a collective right of peoples -- not individuals -- to form states. Individuals do not have a right to form their own states under international law. Finally, the nineteenth-century states rights advocates got their international law wrong when they claimed that the states could withdraw from the Union on the basis that the Constitution was a treaty. They failed to recognize that under international law, some treaties do not allow withdrawal even if another state-party violates the treaty. The Constitution was one such treaty because it was a federal treaty consolidating the respective peoples of the several states into one nation while retaining the sovereignty (albeit limited) of the states. Only the American people as a whole could dissolve the Constitution -- not the individual states or their respective peoples. Francisco Forrest Martin President Rights International, The Center for International Human Rights Law, Inc. <[EMAIL PROTECTED]> > [Original Message] > From: James Maule <[EMAIL PROTECTED]> > To: <[EMAIL PROTECTED]> > Date: 6/7/2003 12:51:56 PM > Subject: Re: self-rule > > Isn't there an underlying premise, namely, that if one has a country > (however that comes to be), one does not, alone or with others, have the > right to separate and self-determine apart from the others in that > country? In the mid nineteenth century, states in the South were > prevented from self-determining an independent or confederated > existence. The current Administration opposes self-determination by > assorted ethnic groups in Iraq. In contrast, groups in the former > Yugoslavia, with or without approval or acceptance by others did > self-determine and created or resuscitated separate countries. > > What if each person on the face of the earth decided, in > self-determination, to be his or her own country (the "me generation" > taken to its logical extreme) and then entered into alliances that were > self-determined as valuable, necessary or useful? Granted, the logistics > are mind-boggling when one applies that math formula to 6 billion > separate self-determined "mes" but in theory, at least, it raises the > question of who gets to say that the land from the Pacific to Atlantic > coast south of roughly the 44th parallel and north of the Rio Grande, > etc. is a place such that those who reside there are limited in > self-determination. > > True, someone can "leave" an area but so long as there are soverign > nations with "self-determined" rules, the wandering person without a > country does not have the full slate of choices that genuine > self-determination offers. The person has choices within the boundaries > set by majorities of groups occupying historically based "countries." > > Whatever justification is advanced for doing self-determination within > the confines of historically, politically, and militarily established > areas is probably going to make defense of self-determination within > those areas more difficult. There are some serious dilemmas at the core > depth of the notion of self-determination. > > Note: I'm not advocating the dissolution of nations. At least not in > this post. And I'm not rejecting the self-determination arguments being > advanced. I'm simply asking where does the analytical process begin, and > if it doesn't begin with the individual qua individual, why not? > > > > Jim Maule > Professor of Law, Villanova University School of Law > Villanova PA 19085 > [EMAIL PROTECTED] > http://vls.law.vill.edu/prof/maule > President, TaxJEM Inc (computer assisted tax law instruction) > (www.taxjem.com) > Publisher, JEMBook Publishing Co. (www.jembook.com) > Owner/Developer, TaxCruncherPro (www.taxcruncherpro.com) > Maule Family Archivist & Genealogist (www.maulefamily.com) > > > > > >>> [EMAIL PROTECTED] 06/07/03 11:28AM >>> > What is "self-rule" and why should we value it? > > "Self-rule" is not in itself the first value of government. It is a > technique > for realizing the first value of government, which is justice. I think > that > the term "self-determination" is more useful than "self-rule", because > it has > been better defined. > > Most lawyers now accept that all peoples have the right to > self-determination > and that by virtue of this right they should be able freely to > determine their > political status and freely to pursue their economic, social and > cultural > development. (see the human rights covenants). > > It may be more controversial, but probably acceptable to everyone on > this list > to add that everyone has the right to take part in the government of > her or > his country, directly or through freely chosen representatives, and > that the > will of the people should be expressed in periodic and genuine > elections which > shall be by universal and equal suffrage and shall be held by secret > vote or > by equivalent free voting procedures. (see the Universal Declaration of > Human > Rights). > > The difficulty arises in making sure that this exercise of popular > sovereignty > does not violate the equal and inalienable rights of all members of the > human > family, without distinction as to race, color, sex, language, > religion, > political or other opinion, national or social origin, property, birth > or > other status. > > Constitutional restrictions that limit and qualify direct democracy > usually > exist for the purpose of guiding the exercise of self-determination > towards > respect for individual rights. > > Tim Sellers > > >===== Original Message From Discussion list for con law professors > <[EMAIL PROTECTED]> ===== > > Four inexcusably brief remarks: > > > > 1. It was never my view that we should be contemptuous of the > Founding > >population. > > > > 2. Saying that the Founders never intended American government > to be > >free of undemocratic elements merely states the problem rather than > resolves > >it. The problem persists, namely, how are undemocratic elements in a > system > of > >government compatible with the idea of self-rule. If such > compatibility > exists, > >it must be explained and defended. (Incidentally, my hunch is that > such an > >explanation is possible. My point is that it is necessary.) > > > > 3. Embracing democracy in no way entails a commitment to > "populist > >democracy." Democratic theory contains democratic alternatives to > 'populism," > in > >the ordinary sense of that term. > > > > 4. From both a pragmatist and democratic perspective, I think > it > >dangerous in the extreme to canonize any group of people because > their > education > >and experience were impressive, or even because their principles were > good. > >Whether we can learn from the Founding generation (of course, we can) > is, in > my > >view, largely irrelevant to the question of whether Founding-Centered > (and > >famous Founder-Centered) constitutionalism is appropriate. More > important, > >Founding-Centered constitutionalism tends to dedicate or fix > constitutionalism in ways > >that are, I would think, incompatible for self-rule. > > > >Bobby Lipkin > >Widener University School of Law > >Delaware
