SELF-DETERMINATION
AND
THE RIGHT TO ESTABLISH A GOVERNMENT

John Kilcullen
Macquarie University, Sydney

(Abstract: The right of “national self-determination” sometimes claimed for ethnic/religious/linguistic groups is not to be confused with the right to rebel against tyranny or with a right to secede, and it is limited by respect for the territorial integrity of functioning states. In some cases self-determination may take the form of some sort of autonomy within a mixed state. Ockham’s use of the canon ius civile suggests another human right, not much thought of these days, namely a right to live under government—under good government careful of the rights and liberties of its subjects. This is a right that belongs to any set of people not already under government, whether or not they constitute a “people” or a “nation”. It has relevance to the conflict between the Palestinians and Israel.)

Contents:

• The right of self-determination
• The right to live under government
• People able to have communion
• Good government
• Importance of the right to be governed
• References

In this paper I compare the modern conception of a human right to self-determination with the medieval conception of a natural right to establish law and government and argue that the medieval conception should be revived. I suggest also that an approach in terms of “good government” may be a better way to resolve conflicts over claims to “self-determination” than the more common approach in terms of human rights.

There are several rights mentioned in modern human rights doctrines that need to be distinguished. There is said to be a right of “national self-determination”, some say there is a  right to secede, most say there is a right to rebel against a tyranny. Imagine a situation in which a majority group rules some ethnic minority tyrannically: the minority may have the right to rebel, rebellion may lead to secession, and this may be represented as an exercise of the right of national self-determination. The right to rebel against tyranny has been recognised in European thought for a long time. Some theologians urged respect for the powers that be even when tyrannical,[1] but most theologians as well as secular thinkers have held that there is a right of self-defence that sometimes justifies rebellion.[2] The right to secede[3] has always been contentious. The American Civil War was fought by the North to deny the right of secession claimed by the slave-holding states. Against the claimed right of secession, one argument is that secession will adversely affects the interests of the people left behind, and they therefore have a right to oppose it. Another argument is that no state will function properly unless its citizens are committed to one another; the cohesion of the state is undermined if some claim a right to secede even if secession never takes place. For these and other reasons, many do not recognise a right to secede except as an implication of the right to rebel—that is, if the existing state is tyrannical, its victims may have a right to form a state of their own. But others uphold an unconditional right of secession, arguing that just government requires the consent of the governed and that consent cannot be freely given unless citizens are free to secede.

The right of self-determination

Setting aside rebellion and secession, I wish to focus on self-determination. There is a widespread opinion that if the population of a state contains a sub-set that constitutes a “people” or a “nation”, then they have a right of self-determination in relation to that state. Even if this does not mean a right to secede, it is commonly held that such a “people” have some right to a special status of autonomy within the state. The right of self-determination is well embedded in the philosophy of the United Nations. Although it is not mentioned in the Universal Declaration of Human Rights, the term self-determination was used in the UN Charter[4] and has been defined in various declarations and covenants . The first (common) article of The United Nations International Covenant on Civil and Political Rights and the International Covenant on Economic, Social and Cultural Rights (1966) reads: “All peoples have the right of self-determination. By virtue of that right they freely determine their political status and freely pursue their economic, social and cultural development.”[5] Note that this is a universal right: it belongs to “all peoples”.

However, in UN thinking and in international law, the idea of self-determination is balanced by the principle of integrity of existing states: According to the Vienna Declaration, UN World Conference on Human Rights, 1993, the right of self-determination

·        “shall not be construed as authorizing or encouraging any action which would dismember or impair, totally or in part, the territorial integrity or political unity of sovereign and independent States  conducting themselves in compliance with the principle of equal rights and self-determination of peoples  and thus possessed of a Government representing the whole people belonging to the territory without distinction of any kind”.[6]

Notice that there is a reference to self-determination in the clause that defines what it means for a government to conduct itself properly: the right of self-determination does not justify dismemberment, if a state is conducting itself in accordance with the right of self-determination. This suggests two kinds of self-determination, one that involves dismemberment of states that do not conduct themselves properly, and a second kind that is respected by states that do conduct themselves properly. The second kind is what is sometimes called internal self-determination.[7] What counts as internal self-determination is not altogether clear. In Canada, Quebec is a French province, and in other parts of Canada French-speaking Canadians have various rights (e.g. to education in French and to communicate with the government in French), and some other sections of the Canadian population (e.g. the native peoples) also have special group rights. Canada has gone much further in this direction than the United States. However, the US would probably also satisfy the Vienna declaration, since (on an optimistic view, anyway), it meets the last requirement, “a government representing the whole people… without distinction of any kind”. Perhaps internal self-determination does not require all that Canada has done, perhaps it means simply absence of discrimination in political and legal institutions.

There are obscurities in all these matters, but the right of self-determination of peoples has been well-entrenched since World War II by the process of de-colonisation. The colonising state and its colonies did not constitute an integrated political unit. There was generally no great difficulty in recognising that the residents of the colony were a different people from the colonisers. The colonisers were white, the colonials black or brown; the colonisers had come from Europe a fairly short time before, whereas the ancestors of the colonials had lived there from long ago; the colonisers had their own home state of which they were citizens with political rights, the colonials were not citizens of the colonizing state and their political rights were limited or non-existent. The decolonization process was represented as an exercise of the right of peoples or nations to self-determination. However, the borders of colonies often had little relationship with ethnography. One colony would include members of several different ethnic groups, on the other hand the one ethnic group would be divided between adjacent colonies ruled by different colonial powers; but after decolonisation the boundaries remained what they had been before (in accordance with the rule uti possidetis). Other lines of thought could have provided good reasons for decolonisation. If the colonial government was exploitative and oppressive, the traditional political theory would have approved rebellion as a remedy for injustice. Even if the colonial power treated its colonial subjects justly, the independence of the colony could have been justified on grounds of good government: the metropolitan government was too far away, the cultural differences were too great, the consent of the local population was unenthusiastic. Such reasons may well have been more influential in practice than the theory of a human right to national self-determination.

But although through decolonisation the right of self-determination has become well-entrenched in international law and UN practice, it remains philosophically questionable.[8] The first question is, what constitutes a people or nation? Second, why should nations and states correspond, ideally? Third, when they do not, why should each nation included in the state have internal self-determination, and what does that mean? There are various possible answers to these questions. I will not pursue them, but I will say something about the most basic of these questions, what constitutes a people, before going on to the second of my topics, the right to be governed.

Self-determination was of course not invented by the United Nations, or even by the League of Nations. During World War I the rhetoric of self-determination was used not only by Woodrow Wilson but also by Lloyd George and Leon Trotsky and Lenin,[9] and it was already commonplace. The idea goes back to the French Revolution. The Declaration of the Rights of Man and of the Citizen (1789), article 3, says: “The principle of all sovereignty resides essentially in the nation”.[10] In English this sounds simply like a re-statement of the familiar principle that governments derive their just powers from the consent of the governed.[11] But in the Declaration of the Rights of Man the word “nation” had overtones derived from its Latin root. It derives from Latin “nasci”, to be born, or, metaphorically, to arise: a nation are people who have a common origin, people who are related by birth.[12] The French were not in fact racially homogeneous; what the revolutionaries took as an index of nationality was language. The “principle of nationality” during the nineteenth century meant the idea that all sovereignty resides essentially in the nation, in the sense of a race of people who speak the same language.

A philosophical basis for the idea that the principle of sovereignty derives from race as such would be difficult to find. The idea that people who speak the same language should form a state is more promising. This idea was provided with a philosophical justification especially by German writers of the early nineteenth century, when Germans, living in their various states, were threatened by the military energy of the French nation. Johann Gottfried Herder and others emphasized the importance of language in the constitution of an individual’s personality, in the development of culture and in the integration of individuals into a society.[13] Add this to the idea that human kind progresses through struggle and conflict, and the idea that it is good intrinsically that there should be a variety of distinct and well-developed cultures (an application of the “principle of plenitude”),[14] and you have a philosophical foundation for the “principle of nationality”.

In the course of the nineteenth century the criterion of shared language was supplemented, or even replaced, by other criteria of nationhood. Nationality became a “cluster concept”, i.e. a concept for which there is a list of defining characteristics, none of which is necessary, none by itself sufficient; the concept is applicable if a “fair number” of these characteristics are present. Here, for example, is John Stuart Mill, Considerations on Representative Government (1861), chapter 16:

A portion of mankind may be said to constitute a Nationality if they are united among themselves by common sympathies which do not exist between them and any others—which make them co-operate with each other more willingly than with other people, desire to be under the same government, and desire that it should be government by themselves or a portion of themselves exclusively. This feeling of nationality may have been generated by various causes. Sometimes it is the effect of identity of race and descent. Community of language, and community of religion, greatly contribute to it. Geographical limits are one of its causes. But the strongest of all is identity of political antecedents; the possession of a national history, and consequent community of recollections; collective pride and humiliation, pleasure and regret, connected with the same incidents in the past. None of these circumstances, however, are either indispensable, or necessarily sufficient by themselves.[15]

A UNESCO meeting in 1989 defined nationality in a very similar way:

A people for the rights of peoples in international law, including the right to self-determination, has the following characteristics: 1. A group of individual human beings who enjoy some or all of the following common features: (a) A common historical tradition; (b) Racial or ethnic identity; (c) Cultural homogeneity; (d) Linguistic unity; (e) Religious or ideological affinity; (f) Territorial connection; (g) Common economic life. 2. The group must be of a certain [i.e. uncertain] number who need not be large (e.g. the people of micro States) but must be more than a mere association of individuals within a State; 3. The group as a whole must have the will to be identified as a people or the consciousness of being a people--allowing that groups or some members of such groups, though sharing the foregoing characteristics, may not have the will or consciousness; and 4. Possibly the group must have institutions or other means of expressing its common characteristics and will for identity.[16]

If “nation” is construed in this way as a cluster concept, it may seem more reasonable to talk of national self-determination, since it no longer implies a promise of a separate state for each language group. But why not simply say instead that in adjusting state boundaries, and in framing internal institutions, all these things should be considered—history, geography, language, religion, sentiment, etc., etc.? When nationality was defined by shared language, national self-determination meant something distinctive, but impracticable. Now national self-determination seems more practicable, but it is no longer based on a distinctive principle. Why is it nations, in what is now a vague sense, that have the right of self-determination?

If you cannot invoke a right, you may nevertheless have a good case: rights are not the only possible basis of political reasoning. An alternative is what I would call a “good government” approach, in which reasoning is based on what is good or better, in terms of values such as friendliness, fraternity, usefulness, efficiency, fairness, etc.—whatever is relevant to the good life of a political community. Such considerations do not have as high a priority as rights (rights are “trumps”), but reasoning on such a basis can be cogent all the same—certainly more cogent than rights reasoning where the right itself, or the identity of the right-holder (which is the “self” with a right to self-determination?), is contentious. Often there will be good reason to adjust boundaries or institutions in view of language, religion, culture, etc., even if we do not acknowledge any right to national self-determination.[17]

The right to live under government

Let me turn now to a medieval idea that I want to compare and contrast with the modern idea of self-determination. In Gratian’s Decretum, dist. 1, c. 8, Ius civile, there is a text from Isidore of Seville, as follows: “Civil law is the law proper to itself that each people or city establishes, for divine and human reason.”[18] Isidore presumably did not intend this as an assertion of a right; he was simply explaining what the term “civil law” means. But Ockham takes this passage as asserting a power, i.e. a right. (See Medieval and Modern Conceptions of Rights.) For example, in Opus Nonaginta Dierum 88.308-310[19] he paraphrases the canon as follows: “Each people and city can [has power to] establish a law proper to itself”, “peoples and cities and other communities can” do this. Note that “peoples” is only one of several terms indicating the bearer of the right.

In Ockham’s Breviloquium[20] we find something similar: “For from God and nature all mortals born free and not subject to anyone else by human law have the power [habent… quod] voluntarily to set a ruler over themselves, just as ‘each people and each city’ can [potest] ‘establish a law for itself’ (dist. 1, Ius civile)”.[21] In this passage the right-bearer is said to be “all mortals” (not individually but in whatever grouping). Two rights are mentioned: the power to establish a government (“to set a ruler over themselves”), and the right to establish their own law. The phrase “from God and nature” indicates that Ockham regards these powers as natural rights. Note the qualification “born free and not subject to anyone else by human law”. People who are already under a government, already subject to some civil law, do not have the rights in question—Ockham is not suggesting a right to secede.

In Ockham’s Dialogue, 3.1 Dial. 2.28,[22] we find further argument based on the canon Ius civile, construed as asserting a right to establish government and law. The Master (one of the personae of the dialogue) suggests that different parts of the church could elect their own head in certain circumstances, for example if the pope and cardinals became heretics and the Romans supported them or would not elect a Catholic pope, or if the papacy was left vacant for a long time, or if Catholics in some part of the world were unable to have recourse to the pope:

For as we read in dist. 1, c. Ius civile, each city and people can, for a divine and human reason, establish its own law. The gloss there on the word ‘city’ says, ‘Thus any church enacts law for itself, ….’ And on the word ‘human’ it says, ‘That is, in contemplation of God and men’ (that is, because of reverence for God and the advantage of men). From these [words] we gather that each church and each Christian people can by its own authority enact its own law for its advantage; therefore, by analogy, or a fortiori, it can appoint itself a head and prelate because of reverence for God and the advantage of men, because the existence of law in a city is of little importance unless there are some who can delimit and secure rights.

The right-bearer is any church or “Christian people”. Again two rights are asserted, a right to establish law and a right to establish a ruler to enforce the law.[23]

In 3.2 Dial. 3.6[24] the Master explains that there are three modes of natural law, the third of which is natural law “on supposition”. “In a third way that is called natural law which is gathered by evident reasoning from the law of nations or another [law] or from some act, divine or human, unless the contrary is enacted with the consent of those concerned.”[25] He goes on to say that according to some (and this is Ockham’s own opinion), the Romans have by natural law on supposition the right to elect the pope:

For supposing that someone is to be set over certain persons as prelate, ruler, or rector, it is inferred by evident reason that, unless the contrary is decided on by the person or persons concerned, those whom he is to be set over have the right to elect the one to be set over them, so that no one should be given to them against their will. It seems that this can be proved by numberless arguments and examples, but I will bring forward a few….

Again, to those whom it concerns to make themselves laws it belongs to elect a head, if they wish; but any people and city can make themselves their own law, which is called ‘civil’ law, dist. 1, Ius civile; therefore also a people and city can elect themselves a head. And thus it always belongs to those whom someone is to be set over to elect the one to be set over them, unless the contrary is decided on by the person or persons concerned. (This is said because they can, at least in many cases, resign their right and transfer their right to another or to others. … Similarly, if those whom someone is to be set over are in such matters subject to some superior, that superior can determine that they do not have the right to elect, although they had the right to elect by the law of nature spoken of in that way — namely, unless the contrary had been decided on either by themselves or by the superior.)….

Therefore, by natural law spoken of in that way — that is, by natural law on supposition, namely, on the supposition that they should have a bishop — [the Romans] have the right to elect him, unless the contrary is enacted or decided on by the Romans themselves or by some other, superior to the Romans, who has power in this matter. … but that superior was Christ and not the pope… But Christ did not deprive the Romans of the right to elect their bishop….[26]

So in Ockham’s view there is a natural right, derived from natural law in the third sense, possessed by every people, city or church, to establish its own law and elect its own ruler, if it is not already subject to a law and ruler.

People able to have communion

One of the terms Ockham uses (alongside “city”, “church”, and “all mortals”) is “a people”. He nowhere explains what he means by “a people”, but clearly he is not talking about ethnic or linguistic groups or kinships. He is talking about people who find themselves in what later writers would call a state of nature, living without any ruler. We can perhaps get a better idea of what he has in mind from a passage in Eight Questions, in which he discusses the question whether there should be an emperor of the world.

In Eight Questions 3.1[27] he says: “A community of persons able to have communion with one another in which all or many are prone to discord, dissensions, and disputes is not best ordered unless it is subject to one supreme rector, judge, and head upon whom the jurisdiction of all others depends.”[28] This is part of an argument that derives from Marsilius, and Ockham goes on to criticise it in various ways; in particular, he contends that a community needs some plurality of centres of power, because a single unchallengeable ruler could become a tyrant. Still, despite this disagreement with Marsilius, it is clear that Ockham himself accepts that “a community of persons able to have communion with one another in which all or many are prone to discord, dissensions, and disputes” needs a government of some kind. This proposition occurs often in Ockham’s political writings, usually in the context of criticism of Marsilius, but the proposition itself Ockham never disputes. When he says “able to have communion with one another” he does not mean simply able to communicate with one another. Neither does he mean an ethnic, religious or similarly like-minded group, or a collection of people who have a will to live together: although in modern English “community” suggests harmony, here Ockham is envisaging discord. Let us think of the etymology: a community is a set of people who have things in common, things they share, not necessarily in an harmonious way; a community is constituted by shared interests, which may include an interest in peace, in reducing conflict among themselves. The community that needs a government is a set of people who can have dealings with one another, who are able to have shared interests, for example in the reduction of conflict. Potentially this community extends to all human beings throughout the world, and the proposition we are looking at could support an argument for world government.[29] Ockham himself does put forward such an argument. The world government Ockham envisages would not be monolithic—it could have within it a multiplicity of local governments with considerable autonomy, it could accept exemptions from its jurisdiction, it would not insist that every authority be derived from the general government—its authority would have to be challengeable, to avoid a world tyranny; and Ockham argues that it will sometimes be inexpedient and wrong to try to insist on maintaining a world government if significant sections of the human race are unwilling to submit to it.[30] Ockham’s picture of the world political system is that each city, each people, each set of people able to have dealings with one another, should have a government, and as communication extends across the boundaries of these local governments higher levels of government should be formed, without obliterating the local governments. The underlying principle is that whenever there is a set or sub-set of human beings able to have shared interests or shared concerns, they need law and government to ensure that discord is kept under control.

Imagine an isolated island, originally uninhabited, to which people gradually arrive perhaps from wrecked trading vessels—Chinese, Arabs, Portuguese, Dutch, etc. After a while, Ockham would say, these people will need to form a government, as they have dealings with one another, and especially as conflicts arise. Perhaps some group in some corner of the island will form a government first, but eventually, as they have more extensive dealings with one another, they will need a government over the whole island. The people on this island would not have a common language, or a common religion, or a common ancestry; they would not constitute a people or a nation in the sense of the principle of national self-determination, but they would be a people in the sense of the canon Ius civile. They would form their government by the right Ockham attributes to any community of people not already subject to a superior.

Isidore of Seville’s statement that civil law is the law each people establishes for itself was simply an explanation of the meaning of the term “civil law”. Ockham interprets it as a natural right, an assertion that any set of people not already subject to government has a power to establish its own law and government. I do not know whether there were any writers before Ockham who interpreted Isidore’s text this way, but I suppose there were, since Ockham uses his interpretation of the canon in rather contentious applications—for example, in arguing that there could under some circumstances be a plurality of heads in the Church. If his interpretation had been disputed or novel, he would probably have explained it more at length and justified it against objections. He seems to expect his readers to accept that this is what the canon means, which suggests to me that he was adopting an interpretation already current among canonists.

Good government

In Ockham the canon Ius civile has become an assertion of a human right, a right to live under a law enforced by a government. If a community is already under some superior government, it cannot establish its own law and government, but if they are not already under law and government they have the right to establish law and government for themselves. It seems, then, that people have a natural right to be governed, either by a superior or by themselves. The power to establish law and government is a right on a par with the power to establish property (to appropriate things to persons). He writes:

This twofold power, to appropriate temporal things and to establish rulers with jurisdiction, God gave without intermediary not only to believers but also to unbelievers, in such a way that it falls under precept and is reckoned among purely moral matters. It therefore obliges everyone, believer and unbeliever alike. And therefore, just as unbelievers are bound by God’s precept and by natural law to honor father and mother and to do other things necessary to their neighbors, so, on occasion, they are bound to make such appropriation and to set up secular powers over themselves.

The right is also an obligation. To this effect Ockham also quotes Solomon:

God gave, without human ministry or cooperation, power to establish rulers with temporal jurisdiction, because temporal jurisdiction is one of the things necessary and useful for living well and living politically: as Solomon attests, ‘Where there is no ruler, the people will be ruined’ (Proverbs 11:14).[31]

The right to establish government is a right that “falls under precept”, i.e. it exists for the sake of a duty, the duty to do what is necessary and useful to enable a community, i.e. any set of people who have dealings with one another, to live well. For living well it matters what sort of government is established. The criterion of good government is, what enables the community to live well.[32] Ockham has interesting things to say about “good government”. In Eight Questions, Question 3, Ockham discusses what sort of government best enables a community to live well.[33] He does not advocate democracy, in fact he advocates kingship, but kingship tempered by what might be called polyarchy: good government will contain a plurality of centres of power, so that one or another of these will be able to correct or depose any ruler or official who behaves unjustly.[34] The right to be governed is a right to be governed by rulers who keep one another within the bounds of justice. Justice means respecting the rights and liberties of subjects given them by God and nature, and also by positive laws and agreements. “Fullness of power” unrestricted by such rights and liberties is rejected not only for the pope but also for secular rulers.[35] Some ideas of the nationalist theory might find a place in Ockham’s framework. He is clear that even the best form of government should not be imposed on people unwilling to submit to it, even if their unwillingness is wicked or unreasonable.[36] It would be consistent with this to say that forms of government and state boundaries must sometimes be adjusted in view of the strong preferences, even the prejudices, of linguistic, cultural or ethnic groups.

The right to live under government is a human right we do not hear much about these days. Generally we seem to think of human rights as rights against government, rights designed to protect individuals against abuse of government power. But I imagine advocates of human rights would accept the point if it were put to them, that the right to live under law and under government is one of the most fundamental of human rights. Early modern political theory certainly recognised it. In Locke, for example, it is clear: people who find themselves without government have a natural right to establish a government. According to Locke, a tyrannical government is no government, and the people it oppresses are in a state of nature, with a right to form a new government. The US Declaration of Independence asserts:

that...all men... are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness.--That to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed, --That whenever any Form of Government becomes destructive of these ends, it is the Right of the People to alter or to abolish it, and to institute new Government, laying its foundation on such principles and organizing its powers in such form, as to them shall seem most likely to effect their Safety and Happiness.

Importance of the right to be governed

As far as I know, no medieval or early modern writer suggested that a people or nation, in the sense of an ethnic group, has a right of self-determination. The difference between these two approaches—that is, between the alleged right of self-determination and the right to be well governed—is especially relevant to one contemporary conflict that is especially bitter, especially damaging to international harmony, especially dangerous to the peace of the world, namely the conflict between Israel and the Palestinians. You may have heard the remark attributed to the Israeli Prime Minister, Golda Meir, “There are no Palestinians”. I understand that she did not say exactly that. She said: “There is no Palestinian people. There are Palestinian refugees”.[37] “There is no Palestinian people”, i.e. there is no Palestinian people or nation in the sense of the article of the International Covenant, “All peoples have the right of self-determination.” That the Palestinians are not a people is an argument sometimes used by Jews to reject the claim that the Palestinians are being denied their right to self-determination. Sometimes the reply is given that the shared experience of dispossession has made the Palestinians a people (which would be an application of Mill’s criterion, “collective pride and humiliation, pleasure and regret, connected with the same incidents in the past”). Jews on the other hand claim that there has been a Jewish people since Abraham. But some on the other side of this conflict question that. For example, in the recent book by Ghadi Karmi, Married to Another Man, there is a review of objections to the view that the Jews are a nation.[38] Some claim that modern Jews are largely descended from people who were converted to Judaism, who were not born Jews; this is meant to undermine their claim to be a nation. To rebut such objections genetic studies have been undertaken to determine whether Jews have a common descent.[39]

From the point of view of the right to live under government, as expressed by Ockham, controversy of that kind is utterly pointless. It simply does not matter whether the Palestinians, or the Jews, are a people or nation as defined by descent, religion, language or culture, or even common experience. If the people on our imaginary desert island—Chinese, Arabs, Portuguese, Dutch, etc.—would have a right to establish a law and a government, then the set of people who live in Palestine have a right to be governed, i.e. by a government that furthers their common good, a government responsive to their needs and concerns.

It seems to me that the idea of national self-determination, though by now well-established in international law, remains unclear and its foundation remains uncertain. There is no way of determining which group counts as a nation, states have always included diverse ethnic groups and this will be increasingly true in the future, there is no good philosophical reason why each ethnic group should have a separate state. For modern states, the norm ought to be multiculturalism, i.e. the acknowledgement that every state will normally contain a plurality of cultures and that no one of these groups should claim a privileged place.[40] From time to time there will be conflicts that can or should be resolved by re-drawing state boundaries closer to cultural boundaries, but the intellectual resources of the medieval and early modern tradition of political thought (the “good government” approach) are quite adequate to the analysis of such conflicts, without appeal to a right of national self-determination. The idea that each state should represent the self-determination of some nation overlooks ethnically mixed populations, it leaves out not only my imaginary island but also Palestine and no doubt other territories that need a government to control discord. The medieval idea expressed by Ockham, and by early modern writers such as Locke, that every population finding  itself without a government that serves  its well-being  has a natural right to establish such a government, i.e. that there is a "human right" to be well governed, should be revived.

References

Beiner, R.S., “National Self-Determination: Some Cautionary Remarks Concerning the Rhetoric of Rights”, in National Self-Determination and Secession, ed. Margaret Moore (Oxford: Oxford University Press, 1998).

Crawford, James, The Creation of States in International Law (Oxford: Clarendon Press, 2^nd edition, 2006).

—— “The Right of Self-Determination in International Law: Its Development and Future”, in Philip Alston (ed.) People’s Rights (Oxford : Oxford University Press, 2001), pp. 7-67.

—— “Israel (1948-1949) and Palestine (1998-1999): Two Studies in the Creation of States”, in Guy S. Goodwin-Gill and Stefan Talmon (eds.), The reality of international law : essays in honour of Ian Brownlie, (Oxford: Clarendon Press, 1999).

Fromkin, David, A peace to end all peace : creating the modern Middle East, 1914-1922 (New York : H. Holt, 1989).

Gratian, Decretum, in Corpus iuris canonici, ed. E. Friedberg (Graz : Akademische Druck- u. Verlagsanstalt, 1959), vol. 1.

Heater, Derek, National Self-Determination: Woodrow Wilson and his Legacy (New York : St. Martin’s Press, 1994).

Kedourie, Elie, Nationalism (London: Hutchinson, 1960).

Lovejoy, A.O, The Great Chain of Being: A Study of the History of an Idea (Cambridge, Mass.: Harvard University Press, 1936).

Mill, J.S., “Coleridge”, in Collected Works, vol. 10, ed. J.M. Robson (Toronto: University of Toronto Press, 1969).

—— Representative Government, in Collected Works, vol. 19, ed. J.M. Robson (Toronto: University of Toronto Press, 1977).

Skinner, Quentin, The foundations of modern political thought (Cambridge: Cambridge University Press, 1978).

Tierney, Brian, The Idea of Natural Rights. Studies on Natural Rights, Natural Law and Church Law (Atlanta, 1997).

William of Ockham, Short Discourse on Tyrannical Government (Breviloquium), ed. A.S. McGrade, translated John Kilcullen (Cambridge: Cambridge University Press, 1992).

—— A Letter to the Friars Minor and Other Writings, ed. A.S. McGrade and John Kilcullen (Cambridge: Cambridge University Press, 1995)

—— Work of Ninety Days (Opus nonaginta dierum), trans. John Kilcullen and John Scott (Lewiston: Edwin Mellen Press, 2001)