Liberal constitutionalism follows a variety of routes to assuage the feeling of minority deprivation in the name of ethnicity, religion and language. Asymmetrical federalism, the constitutional guarantee of minority rights, various models of power-sharing and minority veto are some of the practices that have been tried out successfully on a number of occasions in widely differentially composed nations. Self-government and a great deal of local autonomy are at times a preferred choice. In some extreme cases, the “right” of self-determination has also been exercised though whether it is a right in a universal sense or that it remains merely an instrument at resolving long perpetuating fault-lines remain unanswered. It is because the result of such exercises has been a mixed one and also the fact that crystal-clear homogenous unity envisaged in such an argument is practically impossible to arrive a definitive conclusion.
Autonomy to practice customs, languages, laws and religion is generally permitted to minority groups within a nation provided it does not challenge or threaten the national state itself. A large degree of collective freedom and self-determination enriches the plurality within a nation as this implies co-existence of a large number of groups, each respecting one another. But this autonomy is not independent of the national state and usually this autonomy is prescribed by the federal authority. Its extension and shrinkage are determined by the federal government itself in which a minority veto does not operate. This has been enshrined clearly in the US federal constitution that ushered liberal constitutionalism in the modern world. The 1787 Constitution that followed after the failure of a loose confederation placed all the residual powers in the thirteen states with the federal government scrupulously maintaining the internal cohesion among the states.
Thomas Jefferson used all his power and authority to overthrow the Protestant constitutional and religious order in Massachusetts and Connecticut as he perceived it as a serious threat to the cultural inheritance of the nation. The other example is startling as it negated the very right of self-determination on which the nation was founded. Abraham Lincoln declared a war against the southern successionist states to maintain the union by not allowing a slave-owning new nation to emerge on the border itself. The Mormon polygamous order in Utah was destroyed to uphold a common civil code. The 1960s saw the federal government’s determined action in dealing with segregation laws and subsequently on many other occasions like the provision on Bible education in public schools, abortions and homosexuality. Hazony points out that in the entire history of US federalism, the federal government assertively got “the states to conform their constitutional and religious traditions to the range of behaviour it has considered acceptable”. This is significant in two ways: (1) negating any particularistic desire of a state or states or a group or groups to exercise the right of selfdetermination; and (2) clearly identifying the ambit of federal government in the areas that were originally given to the states by the 1787 Constitution and the 1789 Bill of Rights. The primacy of the federal government in ensuring uniformity is paramount and localised aspirations, that were contrary to the national project, were crushed. There were no arguments that minority violations are less harmful than majority ones in any of the US federal government’s actions. A pertinent question relates to the question of selfdetermination that Woodrow Wilson popularized as a criterion to settle the issue of emergence of new states after the First World War. This is a serious contention and its universal validity or otherwise as a right, calls for reflection. Such serious deliberation can only be possible in particularistic concerns and not on the basis of an idealized universal claim.
The evolution of the modern state system has followed a widely differentiated pattern. It is a world of complexities with more than 3000 languages, several tribes, ethnic and religious groups spread over a number of nations and continents. Given these facts, redrawing of the maps of the nations is practically impossible unless the world is itself divided into thousands of smaller entities without any consideration of viability and threat at large scale and perhaps unimaginable consequences of strife and conflict.
However, the fact also remains that new states do emerge and the world map itself has been continuously redrawn. As part of the post First World War resettlement of the Versailles Treaty, the Austro Hungary Empire was dismantled and a number of weak states came into existence, which subsequently allowed the easy eastward march of Hitler in September 1939. The map of South Asia was redrawn twice in the twentieth century once in 1947 and again in 1971. In the post-colonial situation, a number of nations emerged in the name of self-determination and freedom, only to relapse into long periods of dictatorial and atrocious rule by the likes of Mobutus and Idi Amins.
Both universality and selfdetermination are broad generalizations which need a number of qualifications in order to be actualized. Some key factors that Hazony underlines are: (1) the degree and level of internal cohesion; (2) the adequacy of military and economic resources; (3) the capacity to be beneficial and conducive to other nations; and (4) perception of threat to other people or nations. The sustenance of old entrenched nations and the new entrants depends on their capacity to defend the territory and people against others. A porous border can at best be a temporary phenomenon as sooner rather than later; adequate fortifications have to be built to ensure both security and respectability amongst the comity of nations. This assertion of national sovereignty and total control are the basic pre-requisites of a nation. Insurrection or separation are negations of this principle in the name of the doctrine of self-determination. Redrawing the map of a region of people, howsoever divided ethnically, religiously or linguistically cannot be permitted under most circumstances. Some mutual agreements to facilitate travel and reuniting split families are only possible with an agreement between two sovereign nations. This also follows a doctrine of non-interference between sovereign nations in which the export of terror by non-state actors which have to be fought till the finish. The argument that those considered terrorists could be termed as freedom fighters of liberation in another country are examples of extremely fragile nations which are verging on anarchy and civil war. The phrase of “Finlandisation” during the Cold War exposed the extreme vulnerability of small nations co-existing with powerful nations which led to the promulgation of the first strike option by NATO.
The Weberian dictum of monopoly of coercive power of the state within and the power and authority to defend a nation’s borders are the basic functions of a modern state which also implies that the right of self-determination as a doctrine is more of an exception rather than a rule. It is because of such compulsions that Wilson’s Plans for post First World War reconstruction clearly demonstrates that his own preference would be autonomy and not independence. Hence the Covenant of the League of Nations did not incorporate Wilson’s proposal for a right to selfdetermination. By the time of the 1941 Atlantic Charter, the meaning of self-determination got restricted to people who were under colonial subjugation.
Decolonization was linked to self-determination and this was accepted by the United Nations in 1960. This departure from the traditional notion of self-determination is based on cogent reasoning. Secession, instead of solving the problem of ethnic conflict and violence, usually worsens the situation. Secession does not create the homogeneity that it proclaims. Nor does it lead to a marked reduction of conflict, violence and distrust amongst different groups or minority oppression. Since in most cases of secession, some minorities will always remain, their persecution and even expulsion increases as the guarantees of minority rights are always flouted. Moreover, according to Horowitz, “the very existence of a right to secede…is likely to dampen efforts at coexistence in the undivided state, including the adoption of federalism or regional autonomy, which might alleviate some of the grievances of putatively secessionist minorities”.
A better proposition than secession is the alleviation of grievances of the minorities. problems. For instance, Efik and Ijaw, among others in Biafra, Hindus in Kashmir, Muslims in Tamil areas of Sri Lanka, Javanese in Aceh and Irian Java, Serbs and Roma in Kosovo, to mention a few cases, prove that the theory of self-determination is impossible to be reasonably applied unless one is prepared to have more than 1000 nations. However, even then, some major problems for the minorities will remain. The recent steps of the Indian federal government to integrate Kashmir by abrogating Article 370 of the Constitution is justified and well within the ambit accepted by liberal constitutionalism.