omar yousef shehabi is a legal officer with unrwa, the united nations relief and works agency for palestine refugees, and an incoming graduate student at yale law school

Views expressed are exclusively personal

International Law of Nationalism & Group Identity

International Law of Nationalism & Group Identity

The modern international law of nationalism has come full-circle from the Minority Treaties through the civilising mission, decolonisation and secession eras to a renewed epoch of minority rights. National movements have had to evolve or face existential crisis in their pursuit of self-determination.

 

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Writing in 2007, Catriona Drew called Western Sahara ‘a case of decolonisation in an otherwise secessionist era’. Given sparse international support for the secessionist movements behind the 2017 independence referenda in Iraqi Kurdistan and Catalonia, Western Sahara may now be a case of decolonisation in a post-secessionist world.

Nathaniel Berman has classified phases in the international law of nationalism by ‘their distinctive cast of protagonist-positions’. Shifts in the ‘international projection and valorisation’ of protagonist-positions incentivise reconceptualisation of group identity, such that

at various times, it may have been either culturally persuasive, legally dispositive, or tactically useful to perform group identity as a ‘religion,’ a ‘minority,’ a territorial ‘people,’ a transfrontier ‘nation,’ a ‘people not yet able to stand by themselves under the strenuous conditions of the modern world,’ a ‘provisional government’, and so forth.

In perhaps the most dramatic such shift, decolonisation forced out of the law of nationalism a cultural discourse concerning degrees of civilisation and suitability for self-rule embodied in the Mandate system. But in doing so, Berman argues, decolonisation “contributed to the persistence of this discourse, freed from critical legal scrutiny, in other institutions and disciplines”. As the law of nationalism has evolved and the normative force of anticolonialism has eroded, this cultural discourse has captured the question of self-determination in many of the contexts in which it remains unrealised.

Such is the case in Western Sahara. Franco-American support for the Moroccan position relies, on the bogeyman of a failed micro-state in the Sahara-Sahel region overrun by terrorism – essentially, of a people unable to stand by themselves. It also plays on distrust of the Polisario’s form of indigenous socialism, its links (more through historical circumstance than ideological commitment) to Third World revolutionary movements, and post-colonial connections to Latin America and Cuba in particular. The Polisario, and with it the prospect of an independent Western Sahara, are presented as hopelessly anachronistic at best and a threat to international security at worst. (This narrative parallels and complements fears that the pro-Western Moroccan monarchy would collapse if it lost Western Sahara and be replaced by a regime less cooperative in regional counter-terrorism efforts.) Of course, enquiries into the Polisario’s ideology and governance capabilities, which are relevant to the current era with its concepts of ‘conditional self-determination’ and ‘earned independence’, would have been anathema in the decolonisation era.

The Polisario’s commitment to a devalorised paradigm of decolonisation, for all its ideological virtue, has forestalled any such reconceptualisation of Sahrawi identity and may thus stand as a liability to its nationalist programme. As Berman notes, the international law of nationalism has come nearly full-circle from the Minority Treaties of 1919-1923, through the Trusteeship Council and decolonisation eras, to the various instruments on the protection of national minorities corresponding to or following Yugoslavia’s dissolution. The re-valorisation of minority rights has given Morocco, through its constitutional reforms and ‘advanced regionalisation’ initiative, the opening to define the Sahrawis as a linguistic-cultural minority. Including Sahrawis from southern Morocco and Western Sahara in this programme without distinction underscores that Sahrawi identity does not involve national aspirations in any territorial space.
 

CJEU Western Sahara Cases

CJEU Western Sahara Cases