Functions of freedom: privacy, autonomy, dignity, and the transnational legal process.

• Author: Sourgens, Frederic G.
• Position: III. Whose Freedom: States, Peoples, or People? B. Peoples - Self-Determination through V. Conclusion: Freedom as the End of Balance, with footnotes, p. 505-542

2. Peoples--Self-Determination

   Understandably, post-colonial international law combines sovereign equality with a right to self-determination to avoid this consequence of Hobbesian freedom. (243) This right to self-determination attaches freedom not to the state but to the people inhabiting its territory or a portion of its territory. (244) Freedom of states thus is accompanied by a restriction that states may not subjugate peoples with impunity, after all. (245) To a point, this form of freedom has been incorporated in orthodox international law and thus the horizontal axiom of the transnational legal process. (246)

   The right to self-determination followed from the break-up of the Ottoman Empire shortly before World War I and the break-up of the Austro-Hungarian Empire following World War I. (247) The right to self- determination historically attaches to a coherent ethnic group that has settled in a clearly defined territory and is capable of self-governance. (248) For geopolitical reasons, the colonial powers victorious in World War I did not apply the principle of self-determination to their own colonies. (249) Nor did they permit the colonies of the vanquished powers of World War I to declare independence. (250) Instead, the new global architecture introduced a "mandate structure"--or colonies by another name until the sheer cost of World War II made the coercive maintenance of empire by European powers physically impossible. (251)

   The age of Decolonialization aggressively sought to provide former colonies another freedom-based argument. (252) It provided these territories an argument to throw off former masters and "self-govern." (253) Frequently, the holding of a vote was required to give legitimacy to the declaration of independence. (254) But a simple majoritarian vote would do to create a new sovereign. (255) From that point forward, the new state would be free in the traditional sense--and free to self-govern. The Decolonialization age ultimately pushed sovereign equality a step further. It affirmatively required that one state's freedom ended at least at the tip of the nose of a former colony. (256) For self-determination to be meaningful, former colonial masters would have to be prohibited from interfering in a material manner in the newly established self-governance regime. (257)

   This view of freedom more closely resembles a Lockean view of freedom. (258) Freedom means that peoples must have a right to set up their own civil societies. (259) Setting up of such civil societies functions by majoritarian constitutional consensus. (260) The right to set up such civil societies has to be restricted to a meaningful group to prevent certain income groups to declare independence. (261) The most logical criterion is a people--a social group sharing in deep historical, cultural, and linguistic ties. (262) Consistent with Lockean freedom, outside interference in this constitutional process is an assault on freedom. (263) A person is not free in giving his belongings to an armed robber. (264) Similarly, a people or nation is not free in giving up anything to undo outside conquest, coercion, or duress. (265) The prohibition against recognition of acts of conquest or coercion is a constitutive principle for social contracting--it protects a free bargain being struck and maintained. (266)

   Premising freedom in a more Lockean understanding moves freedom outside of the realm of Realpolitik. (267) Freedom is not defined purely by acquiescence to a certain state of affairs (no matter by what means it has been brought about). (268) The move away from freedom as consent gives freedom some substance. It is no longer a question of procedure (did a state give its consent) but sets parameters to determine whether the procedure itself was legitimate (does the consent interfere with the constitutional order set up in a social contract by the people in question). (269)

   Doggedly, orthodox international law does not give anywhere near full effect to freedom as self-determination. Instead, the rhetoric of "territorial integrity" prevents several distinct ethnic groups from forming their own states at this point in time. (270) Kurds are one highly publicized group that should have a right to self-determination if the logic of self-determination were vigorously applied. (271) But sovereign equality--the freedom of states to rule in their territory--still matters. (272) It has not been replaced by self-determination. Freedom of states thus can still trump freedom of peoples even though the freedom of peoples conceptually was intended to replace (colonial) Realpolitik.

   The Ukrainian crisis shows that the transnational legal process can accommodate competing claims of territorial integrity and self-determination. Russia supports the annexation of Crimea on the basis of self-determination of the ethnic Russian population in the area. (273) This ethnic Russian population has historical (if contentious) roots in the area. (274) It thus bears some family resemblance to other self-determination cases. The United States argues on the competing basis of territorial integrity of Ukraine. (275) Ukraine has a right to rule the ethnic Russian population in its borders because this population lives in its borders. (276) The transnational legal process does not exclude either possibility but simply seeks to establish family resemblances to past international law problem solutions. (277)

   This flexibility seems to come at a price. Thus far, the transnational legal process threateningly seems to treat freedom as a historico-political shell rather than an independent value. (278) Or differently put, it so far does not appear able to answer why freedom of states and freedom of peoples are relevant without pointing to political choices as to which it appears entirely agnostic.

3. People--Individual Freedoms

   Since the end of World War II, international law has increasingly pushed its own sphere of application beyond simply the relationship between states. (279) The atrocities committed against civilians during World War II spawned an enthusiasm within the state-to-state context for recognition of individual human rights in international law. (280) And the appetite of some former Great Powers to wield military muscle to protect geopolitical interests in the name of protecting the property interest of its nationals created the necessary space to contemplate depoliticizing property disputes and providing international economic actors direct international legal rights. (281)

   In pushing the boundaries of international law, human rights in particular have shifted the subject of freedom from the state, or even a people, to individuals. (282) Individuals are subject neither to the absolute rule by a state nor to the majoritarian constraint of the civil society to which they belong. (283) Human rights instruments instead establish that individuals are immediately free as a matter of international law. (284)

   The most celebrated freedoms in human rights instruments give individuals an international legal right to be free from the arbitrary imposition of power. (285) The individual thus is guaranteed minimum protections against the use of coercive force by governments. (286) The individual further is guaranteed rights to participate in the formation of his or her government and to petition that government. (287) The individual has a right to resist any majoritarian consensus that would force the individual to give up his or her religion, language, or cultural heritage. (288) The ideal behind this conception of freedom steps beyond the Lockean social contract. (289) It requires that states and peoples treat individuals as ends in themselves rather than means to an end. (290)

   The most coherent theoretical justification for treating individuals as ends in themselves rather than means to other people's ends is Kantian deontology, or obligation-based morals. (291) Modern social theorists relying on the Kantian tradition submit that all forms of social organization must be rational. (292) To be rational, they submit that a person would have to assent to the form of social organization even if he or she did not know which place he or she would inhabit in it. (293) As the person may end up in the worst position in the social organization, a rational actor would choose to impose material protections for these weakest participants. (294) These material protections are rational minimal conditions of freedom for all in international civil society. (295)

   Kantian and neo-Kantian theory posits these requirements of rational civic organization do not stop at the threshold of international borders. (296) Rather, Kantian and neo-Kantian theory aspires to a cosmopolitan government guaranteeing these basic minimum conditions of freedom to all of humanity. (297) To Kantian and neo-Kantian theorists, birth into a nation-state or ethnic group is mere accident. (298) The person in the hypothetical original position determining how to organize society would in fact not even know which ethnic group or nation-state he or she would ultimately end up living in. (299) A rational actor therefore would require not only that a specific state or civil society enact the rational minimum conditions of freedom (300) but also that these minimum conditions be put in place as a universal norm binding all states and peoples. (301)

   Arguments premised in individual freedoms recognized by international law are strongly on display in the Ukrainian crisis. United States arguments point to significant human rights abuses of dissidents at the hands of the ousted Ukrainian government. (302) The United States argument is not just--or even principally--that the Ukrainian government had counteracted the will of the majority of Ukrainians but that it undermined basic protections for Ukrainian citizens to be free from political persecution. (303) Russian arguments similarly rely upon human rights...