Imagining the homeland from afar: community and peoplehood in the age of the diaspora.

• Author: Addis, Adeno
• Position: V. Constituting the People in the Age of the Diaspora through VII. Conclusion, with footnotes, p.992-1041

5. CONSTITUTING THE PEOPLE IN THE AGE OF THE DIASPORA

   1. The Silence of International Law

      As noted earlier, in some significant sense, the diaspora has been understood to be the Other of the nation-state. And to the extent that international law has been concerned with interstate relations, the notion of the diaspora has, by and large, been outside its concern. One is either a national (or under the jurisdiction) of this or that state. One is either an alien or a citizen. International law, which was given life to and sustained over a long period of time by the idea of the nation-state, has largely been a process of sharp lines, as has been the subject of its primary concern--the nation-state. For international law, as for the state system, there is no ambiguous diasporic space.

      It is true that international law is increasingly broadening the domain of its concern and the kind of actors that it recognizes as subjects of its signals. Thus, nongovernmental organizations (NGOs) and even individuals are now recognized as subjects of international law. (87) The state is now accountable under international law for what it does to its citizens. (88) The veil of we the people as the community personified is pierced to get to the individual, to the extent that international human rights law is to apply to the action of the state vis-a-vis its citizens. However, although international law has expanded its subjects and the domain of its concern, it essentially continues to adhere to a statist version of we the peoples that graces the UN Charter. International law may have pierced the statist veil to reach the individual under certain circumstances, but only in the context of affirming the traditional narrative of how the people (personified by the state) are constituted. That is, international law imposes certain obligations on the state to treat members of its own people in a particular way, but it does not open to question how the people are constituted. International law seems to leave the question of membership to political communities themselves. (89) The people of a political community determine how they wish to distribute membership goods, even though international law increasingly demands accountability in terms of how members are treated (clearly the purpose of the corpus of international human rights law).

      The ambivalence that international law has shown to the issue of secession is a good example of how it has been rather unconcerned about the process of the constitution of peoplehood. (90) To be sure, there have been commentaries in recent years as to whether democratic governance has become an entitlement under international law. (91) Whether such entitlement exists (and if so, what would constitute democracy to satisfy the entitlement), the question goes only to the nature of the institutions to which we the people may be entitled once constituted, not to how the people will constitute themselves as an initial matter.

   2. The Constitution of Peoplehood in an Age of Transition: The League of Nations and the Dependency Model

      There was a time when the relationship between homelands and diasporas was a concern of the international community and even of international law--the interwar period (between the two World Wars). During this period, and under the auspices of the League of Nations, the international community sought to ensure stability in Europe by providing for the protection of religious, linguistic, and ethnic minorities through a series of treaties and unilateral declarations. (92) A number of new states were required to guarantee the rights of ethnic and religious minorities before those states were admitted to the League. The states guaranteed those rights through a series of treaties, mostly bilateral or unilateral declarations. (93) Those treaties and declarations were not required or dictated by any provision of the Covenant of the League of Nations. (94) Indeed, the Covenant contained no provision for international cooperation for the protection of minorities, although President Woodrow Wilson attempted to include a provision requiring the protection of minorities as a precondition for recognition of the particular territorial community as a state. (95) The special minorities' treaties that formed the basis for the protection of minorities under the auspices of the League originated with the Paris Peace Conference, (96) where many minority treaties were signed as part of the various peace treaties. The Conference also contained a special chapter that dealt with the issue of minorities in peace treaties. That too formed the basis for subsequent minority treaties.

      Not only were the treaties intended to ensure that religious, linguistic, and ethnic minorities in these new states were accorded equal treatment, they were also designed to ensure that those minorities were able to preserve their "traditions and their national characteristics." (97) Put simply, ethnic minorities, such as the Greek minorities in Albania, were viewed by the international community, to use Walzer's description in another context, as "communities of character." (98) The major reason for requiring these systems of protection as a condition of admission to the League was not the humanitarian impulse of the League, but rather the desire of members of the League to minimize armed conflict among nation-states, which members felt would follow if ethnic minorities were not allowed to retain their "national characteristics." The members of the League viewed minorities as part of a "nation," part of a "people," outside the territorial unit in which they found themselves. (99) Their mistreatment by the government of the territorial state might have led to intervention by the government of a kin state that viewed itself as a guarantor of the welfare and security of those minorities. (100) Indeed, in many cases, the kin states pleaded the case of the diasporic minorities before international tribunals and conferences. Thus, for example, the Greek government raised the issue of Greek minorities in Albania before the League. (101)

      The minority protection systems of the interwar years were partly premised on the ambiguous nature of the space occupied by "the near-abroad" diasporas. The minorities were citizens of the "hoststate" (102) and yet the homeland (the kin state) had an interest in their welfare that it might have been prepared to protect, even militarily. (103) These were not just minorities but "national minorities." They were not just to be treated equally, but to be allowed to retain and cultivate their "national characteristics." The minority protection systems were attempts to reconcile the principle of territorial sovereignty and the reality of interborder allegiances and loyalties. To some extent, those arrangements express the ambiguous identity of we the people.

      One could refer to the minority-treaties model as the Dependency Model. The Dependency Model sees the relationship between the diaspora and the homeland as one where the government of the homeland is viewed as the benevolent protector of the kin living in other, mainly neighboring, countries. The relationship between diaspora and homeland in this instance is a more or less one-ay affair: the homeland as a potential protector of the diaspora's welfare. (104) The treaties stood as surrogates for the homeland in protecting minorities in the host land, but there was no attempt or even desire to articulate and protect the stake the diaspora might have had in the political and cultural life of the homeland. Indeed, most members of the diaspora never claimed that they had such a stake. The interwar treaty system, or the Dependency Model, simply viewed diasporas as dependent on the homeland for providing the condition to participate fully in the economic and political life of the "host land," as well as to retain their "traditions and their national characteristics." (105) This is not surprising, because those treaties were meant to be part of an attempt to ensure international peace and security, rather than an attempt at defining comprehensively the diaspora-homeland relationship. They were not even a sustained attempt at defining the nature of minority rights in the context of an international system that put a premium on the state system and the notion of territorial integrity. Interestingly, however, the minority protection guarantees that states had undertaken were viewed as so essential to the stability of the territorial arrangements that those states were required to treat them as fundamental law that could not be derogated by ordinary legislation. Amendments to those commitments were to be made only with the approval of the Council of the League of Nations.

      As is well known, the minority-protection regime did not endure, not only because of the collapse of the League system, but also because of the conceptual tension inherent in the arrangement itself. The collapse of the regime of minority treaties occurred under the weight of political as well as conceptual pressures. (106) There was tension between the international community's desire to ensure the consolidation and stability of the established nation-states (we the people of the territorial state), on the one hand, and, on the other hand, the protection of distinct and diasporic communities (which in the view of those nation-states tended to fragment we the people). The ambiguous nature of we the people--we the people of the territorial state and we the people of the kin state--was evident in the minority-treaties system, but it was finally resolved in favor of the nation-state model of we the people.

      Even though there are currently no international institutions or processes similar to the interwar treaty regime that are designed to minimize the risk of a kin state intervening on behalf of minorities in another (often neighboring) state, the notion of a kin state viewing itself as a patron and...