Two things continue to puzzle me: 1. How is it that an individual is considered a member of one "people" but not of another? Does not an individual, or group of individuals, have the right to identify themselves as belonging to one or another people? After all, what does it mean to be "French"? Is a person of Basque descent or a Breton compelled to "be French"? Why are the remnants of imperial or Napoleonic military might the dictates of a person's peopleness?
2. Why is it that individuals living in Yugoslavia were "permitted" (encouraged?) to split into precedent "peoples" that form nations whereas those living in Iraq are being told they cannot do so and must remain one "people" on account of boundaries drawn by colonial powers? There's deep inconsistency here. 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 05:59PM >>> 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
